In the United States, where government policies have resulted in extremely high incarceration rates, parental incarceration is a prevalent, distinct, and severe form of childhood disadvantage. Children who lose their parents to incarceration suffer unique harms, which are not addressed by current social insurance programs. In particular, an inmate's child suffers direct financial harm from losing financial and in-kind support, from diversion of household resources to the incarcerated inmate parent, and from deficits in future contributions due to the parent's ex-felon status. Children of incarcerated parents tend to already be poor, and these additional deprivations create severely negative consequences for their welfare. This Article proposes that the state should provide children with incarceration insurance: an upfront subsidy to the child whose parent goes to prison, to be repaid to the state by the incarcerated parent on a deferred basis in lieu of child support. The state should supply this social insurance program because of its interest and obligation in promoting child welfare and enforcing parental responsibility. The United States in particular has a strong obligation to the children who bear hidden costs of the government's choice to pursue an aggressive criminal punishment regime that disproportionately harms poor and minority children. This proposal is an innovative departure from the status quo, which does little to support children while allowing child support arrears to accrue against inmate parents. The proposal allows for a menu of implementation options that states can choose from to fit their own circumstances and needs. A baseline version of the proposal engages with the question of how to assign family responsibility, legal and philosophical inquiries about desert, and how to mitigate the impact of localized disadvantage on broader society. The resulting policy regime thus must support the basic motivations behind the proposal: to plug a resource gap and thus promote child welfare, especially for disadvantaged children, to maintain the bonds of parental obligation while incarceration forces physical removal, and to propel the state to neutralize the effects of its own role in driving up parental incarceration for disadvantaged children. Doing so will allow both the parent and the state to internalize some collateral costs of mass incarceration currently borne by innocent third parties.
"Insuring Children Against Parental Incarceration Risk,"
Yale Journal of Law & Feminism: Vol. 26
, Article 4.
Available at: https://digitalcommons.law.yale.edu/yjlf/vol26/iss1/4