The devastating consequences of parental incarceration are well established and widely recognized on international, national, and local levels. The increasing awareness of how mass parental incarceration harms children, their families, and society as a whole has led to recommendations for and the adoption of sentencing reforms. One holistic approach is to provide courts with both the authority to assess the impact of parental incarceration on children and families, and the ability to consider that information in determining an appropriate and proportionate sentence.
International governing bodies have stated that children have the right to have their best interests considered by courts when their parents or primary caregivers are sentenced in a criminal proceeding. Since 2009, following the United States Supreme Court’s decision in United States v. Booker, United States federal courts have been able to more freely consider impact on the family as a sentencing factor. In state courts, Washington, Oregon, Arkansas, and New York have adopted legal mechanisms for courts to consider the interests of children when a parent is facing incarceration. At the municipal level, San Francisco and New York City have incorporated the use of family impact statements into the presentencing investigation process.
Under existing laws and guidelines, Minnesota courts can consider the impact parental incarceration would have on children or other family members in determining whether family support makes the defendant particularly amenable to probation and, thus, eligible for a sentence of probation in lieu of prison. The studies cited in this article confirm the intergenerational and societal harm that parental incarceration sows and demonstrate why judges, including those in Minnesota, should—when sentencing parents and other caregivers—utilize their authority to issue non-custodial sentences whenever such a sentence is consistent with public safety interests. This article explores the current impact of parental incarceration on children and communities, discusses the international, federal, and state laws and recommendations pertaining to sentencing caregivers, and encourages Minnesota to adopt policies that allow for the consideration of a child’s interests at sentencing.