A better option is for the court to examine parenting and reentry as two sides of the same coin. Parents and parental rights as a legal matter should be viewed in light of the reentry plan for the parent. Parenting classes, treatment regimens for the parent, and educational and vocational training should all be a part of the equation when courts are determining the status of parental rights. This is, of course, assuming that the crime for which the parent is in custody is not a crime committed against the child. In that circumstance, one might use a different equation.
Adoption is another concern for incarcerated mothers. This scenario typically arises when the father has custody of the child and marries or remarries. It is common for the new spouse to adopt the child. In addition, a foster parent may wish to adopt the child currently within her custody. All states have statutes outlining the procedures and circumstances of the type of adoption that can take place without the consent of one parent. Furthermore, the 1981 Federal Adoption Assistance and Child Welfare Act allows a child to be adopted by a foster parent if the child does not live with his or her mother for a year. As is the case with termination of parental rights proceedings, adoption will completely sever the relationship between the incarcerated mother and her child. Many critics of this adoption policy argue that because the law so heavily emphasizes adoption, adequate resources are not directed to support services for biological families who want to maintain their parental rights. Therefore, “these families are not given a sufficient opportunity to be reunified.”37
If the mother manages to retain parental rights during her incarceration, her first priority upon release is likely to be the fight for custody of her children. Given the obstacles, the fight can be overwhelming. In making the custody determination, family courts will consider whether the mother is able to provide financial support and housing for children upon release. Because vocational and educational training in women’s prisons tends to be severely limited, women ex-offenders often lack the marketable skills that might enable them to obtain the sort of employment that a court would be likely to approve. Then, federal welfare laws reduce their access to benefits that might provide transitional support as they seek employment. Complicating all of this is the fact that adoption laws have begun to reduce the amount of time that parents have to reunite with their children before permanently losing custody.38 One year after Congress passed the welfare reform law, it enacted the Adoption and Safe Families Act of 1997 (ASFA).39 This act allows states to begin termination of parental rights if a child has been in foster care fifteen of the last twenty-two months. So women ex-offenders find themselves in a race against time to overcome significant obstacles as they attempt to regain custody of their children.
To the extent that government and the courts are serious about easing the burden of women exiting jail and prison, dispensation must be made for custodial parents reentering communities, looking for work, and attempting to provide for their children. The added burden of simultaneously trying to reestablish themselves after incarceration and having to fight for custody significantly hampers reentry and imposes incredible stresses on the parent.
D. Welfare
In addition to restrictions on housing, some formerly incarcerated individuals are barred from receiving federal and state welfare benefits. These are especially devastating collateral consequences for some populations, such as offenders who are parents. The denial of welfare benefits, including Temporary Assistance for Needy Families (TANF),40 presents particular problems for formerly incarcerated parents. For many women, their inability to gain access to food stamps and public housing either makes it impossible to reunite with their children or prevents them from creating a suitable living environment. These benefits—often in the form of food stamps, Social Security Insurance, or Medicaid benefits—are barred in certain circumstances under the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996. Section 115 of PRWORA denies both TANF and federally funded food stamps to any individual convicted of a felony involving “the possession, use or distribution of a controlled substance.” The federal welfare statute not only requires states to deny TANF benefits and food stamps to anyone who has been convicted of a drug felony, but it also requires state welfare systems to review state and federal penal records systems.
Congress passed the lifetime ban on benefits for individuals with felony drug convictions after a total of two minutes of debate in the Senate, and no debate at all in the House of Representatives. States may opt out of the ban, but to do so the state legislature must vote affirmatively, in state legislation passed after the effective date of the federal bill, to provide benefits to those individuals. Although thirty-six states41 have eliminated or modified the ban in order to reduce recidivism, ensure that drug and alcohol treatment services remain available, encourage family reunification, and support individuals in recovery, the ban remains in full effect in fifteen states. The deprivation of social and welfare rights has further marginalized some ex-offenders.
E. A Gendered Approach to Reentry
Much of what recently released individuals encounter upon returning to their communities can be anticipated and addressed. The standard approach has been to make ex-offenders fend for themselves with little or no support or guidance. Critical to unraveling the tangle of issues facing those being released is open acknowledgment that there are common difficulties. A logical second step involves mapping a reentry path for ex-offenders to follow, given those difficulties. Issues of gender and geography also bear consideration in developing strategies to address the morass of reentry problems. Planning reintegration for women, especially in communities of color, should involve consideration of some of the profound cultural barriers placed in the path of these women. Given the large number of incarcerated women of color, particularly African American women, one of the central issues of reentry is how these women are accepted back into their communities. Because African American men have, for generations, been overincarcerated, there is a basic acceptance that Black men will have some interaction with law enforcement. But prior to the current cycle of increased female incarceration, Black women simply were not imprisoned as often as men. Those who were incarcerated were viewed as outside the norm or the mainstream. As these incarceration rates changed, that information did not make its way into Black communities. The result has been that women are less readily accepted back into their communities. Regina Austin describes the aggressive or antisocial behavior of Black male lawbreakers as functioning within accepted mainstream gender roles.42 Women, on the other hand, do not enjoy this cultural acceptance. Indeed, women who return home from prison are often viewed as acting outside of accepted gender and racial roles.
F. Programming for Women and Reentry
Although women’s needs are different in very central ways, the majority of corrections and pre-release programming still reflects an absence of the information and the policy direction that a truly gendered approach might take. Some long-time, well-informed commentators, such as Myrna Raeder, Judith Resnick, and Judge Patricia Wald have all suggested that corrections officials can and should rethink the approach to providing programming for women. Obviously this programming should acknowledge that women bring a different set of needs and programming challenges in preparing for reentry and should research those needs and challenges. Programming should reflect those instances of success that have been supported by evidence. Evidence-based programming provides the most certainty and optimism for the future of reentry planning.
Programming for women has traditionally provided fewer opportunities for women than for men. In the 1970s, first men and then women in prison responded by launching a wave of litigation targeted at state correctional systems. In a series of class action suits, women prisoners claimed that their rights had been violated under the Fifth, Eighth, and especially the Fourteenth Amendments to the U.S. Constitution. A number of these suits focused on incarcerated women’s access to basic education, vocational training, work, medical care, and legal assistance. A series of favorable court rulings led to an initial expansion in the range of programming available to women in prison; subsequent cutbacks in spending on prison programs and services, however, have reversed