FAMILY SEPARATION CONDITIONS - Columbia Law Review

America’s mass incarceration crisis does not end at the prison gates. While an estimated two million people are presently incarcerated, nearly twice that number of people are subject to probation, parole, and other forms of community supervision. This Article documents one particularly troubling aspect of this system of “nonincarceration mass incarceration”: the widespread use of supervision conditions that separate people on parole, probation, and supervised release from their families. Courts regularly approve supervision conditions that categorically bar supervisees from contacting or interacting with their family members. Although these conditions are sometimes justified, they are used indiscriminately without individualized analysis of whether supervisees should be separated from their families. The result is a shadow system of family separation that imposes grievous infringements of familial integrity rights, perpetrates serious harms to supervisees and their family members, and undermines successful reentry for incarcerated people returning home.

After empirically documenting the prevalence of family separation conditions, this Article explains the legal doctrines that courts use to justify these conditions and advocates for reform. Courts reason that supervisees have no legal right to be with their family members because there is no such right when a person is incarcerated. But this justification ignores the reality of how the carceral state functions and distorts the legal framework that ordinarily governs deprivations of fundamental constitutional rights. Although heightened constitutional scrutiny should be applied in cases challenging family separation conditions, broader reforms are needed. Family separation conditions, this Article argues, should be subject to rigorous review at the time they are imposed, with decisionmaking taken out of the hands of probation and parole officers and directed to courts, which are better suited to address these complex and sensitive family matters.

The full text of this Article can be found by clicking the PDF link to the left.

* Associate Professor of Law, Rutgers Law School. For helpful comments and conversations, I thank Suzanne Kim, Stephen Lee, Lisa Martin, David Noll, Jason Parkin, and Keramet Reiter. I am also grateful for the useful feedback of participants in the NYU Clinical Writers’ Workshop (2019), Lutie Lytle Writing Workshop (2019), AALS New Voices in Civil Rights Program (2020), and faculty colloquia at the University of California, Irvine School of Law, University of South Carolina School of Law, and Rutgers Law School. Julia Burzynski and Crystal Mor Henwood provided valuable research assistance. All errors are my own.

Introduction

In recent years, the term “family separation” has become associated with the federal government’s practice of separating children and their parents when they attempt to enter the United States at its southern border. But family separation is also a common consequence of criminal conviction. As of 2016, more than 5.1 million children had a parent who was incarcerated at some point during the child’s life. 1 See The Annie E. Casey Found., A Shared Sentence: The Devastating Toll of Parental Incarceration on Kids, Families and Communities 5 tbl.1 (2016), https://assets.
aecf.org/m/resourcedoc/aecf-asharedsentence-2016.pdf [https://perma.cc/8UAM-GE4F]. While family separation is an expected result of incarceration, it often continues beyond the prison gates. Probation, parole, and supervised release conditions regulate—and often ban—contact between supervisees and their loved ones.

This Article is the first work of legal scholarship to systematically analyze family separation conditions in the American carceral state. This Article documents the widespread use of such conditions, explains the legal doctrines that courts and supervision authorities use to justify them, and argues for reform.

Community supervision programs are a critical yet understudied part of the criminal legal system. With over two million people in jails and prisons, the United States incarcerates more people than any other country in the world. 2 See Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2020, Prison Pol’y Initiative (Mar. 24, 2020), https://www.prisonpolicy.org/reports/pie2020.html [https://perma.cc/A7XE-2LAT] (noting that the U.S. incarceration rate, at 698 per 100,000 residents, is the highest in the world). Even more—approximately 4.5 million people—are supervised by probation, parole, and supervised release programs. 3 Danielle Kaeble, DOJ, Probation and Parole in the United States, 2016, at 1 fig.1 (2016), https://bjs.ojp.gov/content/pub/pdf/ppus16.pdf [https://perma.cc/PBT7-BDL8]. In recent years, in part because of calls to end mass incarceration, states have begun to rely heavily on community supervision programs, which allow people to live in their communities rather than behind bars. 4 Colum. Univ. Just. Lab, Too Big to Succeed: The Impact of the Growth of Commu-
nity Corrections and What Should Be Done About It 2 fig.1 (2018), https://justicelab.
columbia.edu/sites/default/files/content/Too_Big_to_Succeed_Report_FINAL.pdf [https://perma.cc/P3WU-8UHS]; Peggy McGarry, Alison Shames, Allon Yaroni, Karen Tamis, Ram Subramanian, Lauren-Brooke Eisen, Leon Digard, Ruth Delaney & Sara Sullivan, Vera Inst. of Just., The Potential of Community Corrections to Improve Safety and Reduce Incarceration 9 (2013), https://www.vera.org/downloads/Publications/the-poten
tial-of-community-corrections-to-improve-safety-and-reduce-incarceration-configure/legacy_downloads/potential-of-community-corrections.pdf [https://perma.cc/9R8L-26L3]. Indeed, the number of probationers and parolees more than tripled between 1982 and 2007. 5 The Pew Ctr. on the States, One in 31: The Long Reach of American Corrections 4 (2009), https://www.pewtrusts.org/-/media/assets/2009/03/02/pspp_1in31_report_
final_web_32609.pdf [https://perma.cc/2K5W-KFSK]. Given the extraordinary deprivations associated with prison life—lack of freedom of movement, often appalling living conditions, the threat or experience of solitary confinement, frequent outbreaks of violence, and the risk of abuse at the hands of correctional officers 6 See generally Allegra M. McLeod, Prison Abolition and Grounded Justice, 62 UCLA L. Rev. 1156, 1173–85 (2015) (describing violence and dehumanization associated with incarceration); David M. Shapiro & Charles Hogle, The Horror Chamber: Unqualified Impunity in Prison, 93 Notre Dame L. Rev. 2021, 2024–36 (2018) (describing the pervasive nature of abuse of incarcerated people in American jails and prisons and providing examples). —one might assume that life outside of prison is, by definition, better than life inside. This view does not, however, account for the stringent conditions often placed on supervisees. In fact, those conditions can be so stringent that supervisees sometimes prefer incarceration to community supervision. 7 See Cecilia Klingele, Rethinking the Use of Community Supervision, 103 J. Crim. L. & Criminology 1015, 1059 & n.188 (2013) (collecting studies “show[ing] that a significant number of individuals with experience in the criminal justice system prefer short custodial sentences to longer periods of community supervision”). Family separation conditions provide the paradigmatic example of stringent community supervision conditions.

This Article begins by documenting the prevalence of family separation conditions, drawing on original research to report on two common family separation conditions in the states that make heavy use of parole. As used in this Article, the term “family separation conditions” refers to those conditions that ban or severely limit contact between supervisees and their loved ones, with whom they hold constitutionally protected relationships, such as parent–child and spousal relationships. 8 Part II extensively discusses the scope of constitutional protection for familial relationships. It is unquestionably narrow and, as numerous scholars have explained, excludes many deeply meaningful relationships. See, e.g., Katherine M. Franke, Longing for Loving, 76 Fordham L. Rev. 2685, 2703 (2008) (suggesting that the benchmark for due process protection for relationships should be close friendships); Nancy D. Polikoff, Ending Marriage as We Know It, 32 Hofstra L. Rev. 201, 202 (2003) (arguing for legal recognition of “the diversity of adult relationships characterized by emotional intimacy and economic interdependence” beyond marriage).

The first family separation conditions scrutinized here are those that prohibit contact with persons who have felony records or are otherwise subject to carceral control. Since carceral control in the United States is both racially and geographically concentrated, these conditions have an outsized impact on Black families and other members of marginalized communities who bear the brunt of mass incarceration. 9 See Todd R. Clear, Imprisoning Communities: How Mass Incarceration Makes Disadvantaged Neighborhoods Worse 64 (2007) (“Because housing in the United States is economically and racially segregated, incarceration that concentrates by socioeconomic status and race also concentrates by location. Some neighborhoods have dominant numbers of residents either on their way to prison, in prison, or recently released.”); Deborah N. Archer, The New Housing Segregation: The Jim Crow Effects of Crime-Free Housing Ordinances, 118 Mich. L. Rev. 173, 214 (2019) (“Racially segregated housing patterns interact with socioeconomic status to produce extreme spatial concentrations of incarce-
ration in communities of color, with Black communities feeling the brunt of this.”); Sarah K.S. Shannon, Christopher Uggen, Jason Schnittker, Melissa Thompson, Sara Wakefield & Michael Massoglia, The Growth, Scope, and Spatial Distribution of People With Felony Records in the United States, 1948–2010, 54 Demography 1795, 1814 (2017) (finding that eight percent of all adults and thirty-three percent of the African American adult male population had been convicted of felonies as of 2010). A ban on contact with people who have felony records can effectively cut a supervisee off from large swaths of their community. 10 The zealous enforcement of such conditions sometimes leads to shocking results, such as the incarceration of a supervisee following a chance encounter. The aftermath of the shooting death of Nipsey Hussle, a well-known activist and rapper who spoke openly about his past gang affiliation, provides a good example. Hussle stopped to chat briefly in a parking lot with an acquaintance, Kerry Lathan, when they were both shot. Lathan languished in jail for approximately three weeks following the shooting because of his alle-
ged violation of a parole condition barring contact with persons known to have gang affiliations. See Amy Russo, Man Shot Alongside Nipsey Hussle Jailed for Alleged Parole Violation, Huffington Post (Apr. 16, 2019), https://www.huffpost.com/entry/nipsey-hussle-kevin-lathan-arrest_n_5cb4c01ce4b0ffefe3b4c0a3 [https://perma.cc/VH2G-WQLJ] (last updated Apr. 17, 2019); Richard Winton, Parolee Wounded in Nipsey Hussle Shooting Is Released From Jail, L.A. Times (Apr. 18, 2019), https://www.latimes.com/local/lanow/la-me-nipsey-kerry-lathan-freed-jail-20190418-story.html (on file with the Columbia Law Review) (explaining that the police ultimately dropped the charges against Lathan and released him).

The second is a condition banning all contact with children under the age of eighteen for supervisees who have been convicted of sex offenses—without an exception for contact with one’s own children. A New York case is emblematic. There, AB 11 “AB” is a pseudonym for a former client of the author. was prosecuted at age twenty-two for kissing and fondling a fourteen-year-old girl. He was convicted of sexual abuse of a minor in the third degree—a misdemeanor. 12 Declaration of AB ¶ 1 (Apr. 16, 2019) (on file with author) [hereinafter AB Declaration]. New York law requires sex offenders to register for at least twenty years. 13 N.Y. Correct. Law § 168-h (McKinney 2021). Eleven years after the conviction, he became homeless and did not update his address on New York’s sex-offender registry—a felony. 14 Id. § 168-t; Letter from AB to author (Oct. 19, 2018) (on file with author) [herein-
after AB Letter]. He was convicted of this crime and incarcerated for over two years. 15 AB Letter, supra note 14. During that time, his two sons regularly visited him in prison, and he communicated with them by phone and letter. 16 AB Declaration, supra note 12, ¶¶ 12–14. Once released, his parole conditions prohibited any contact with his sons. 17 Id. ¶ 16. This ban on contact applied even though a family court had previously adjudicated a custody dispute involving one of the children and permitted AB to have regular contact with that child. 18 Id. ¶ 4. In AB’s case, the parole condition barring contact with his son served no sincere purpose (other than cruelty). AB is one of many who have endured incarceration only to be followed by the trauma of family separation at the whim of parole authorities.

As Part II details, numerous states bar sex offenders from contact with minors, regardless of whether the underlying crime involved a minor or whether there is any reason to believe the supervisee is a threat to children. 19 See infra notes 80–101 and accompanying text. When such a restriction is unjustified, it can have unfair and devastating impacts. Critically, it also violates the rights of parents to maintain contact with and direct the upbringing of their children.

After documenting the prevalence of family separation conditions, this Article offers a critical analysis of the legal doctrines that courts use when evaluating them. Given that family separation conditions are usually applied without an individualized analysis, they frequently violate familial integrity rights protected by due process. 20 See infra section II.B. In the rare cases when family separation conditions are challenged, courts often review the conditions for mere “reasonableness,” offering undue deference to the supervision authorities who imposed them. 21 Infra section II.B. This approach does not accord with the constitutional demand for heightened scrutiny and is not justified by simple reference to a probationer’s or parolee’s supervision status. Aside from constitutional questions, family separation conditions are a legal curiosity for another reason: their complete disconnection from the family law systems designed to adjudicate disputes of this kind. As for parental access to children, family courts across the United States regularly use the “best interests of the child” standard to decide whether a parent’s contact with their children would be detrimental or otherwise pose an unacceptable risk of harm. 22 See Douglas NeJaime, R. Richard Banks, Joanna L. Grossman & Suzanne A. Kim, Family Law in a Changing America 644 (2020) (describing use of “best interests of the child” in proceedings regarding termination of parental rights); Arnold H. Rutkin, 3 Family Law & Practice § 32.06 (2021) (explaining that all American jurisdictions utilize the “best interests of the child” standard in adjudicating custody and visitation disputes, with some state statutes requiring consideration of specific factors). Similarly, most states offer orders of protection when a spouse (or other person in an intimate relationship) endangers ano-
ther. See Sally F. Goldfarb, Reconceiving Civil Protection Orders for Domestic Violence: Can Law Help End the Abuse Without Ending the Relationship?, 29 Cardozo L. Rev. 1487, 1506–09 (2008); Laurie S. Kohn, The False Promise of Custody in Domestic Violence Protection Orders, 65 DePaul L. Rev. 1001, 1002–03 & nn.1–3 (2016). But despite the fact that an entire judicial apparatus exists for the very purpose of deciding these extremely challenging questions, there is no connection between most community supervision programs and these specialized courts. Instead, it is common for individual probation or parole officers to make these sensitive and complex determinations.

While doctrinal changes are needed, broader institutional reforms are also necessary. Decisions regarding contact between supervisees and their children should rest in family courts, particularly with regard to supervisees’ parental rights. There, judges and other key actors have expertise in the weighty questions that attend decisions regarding the appropriate level of contact between parents and children as well as spouses. In addition, supervision authorities should assure that administrative review is available when conditions bar contact between supervisees and other close relatives.

By documenting the prevalence of family separation conditions and explaining the pathways for reform, this Article contributes to several literatures. While criminologists, social scientists, and other researchers have analyzed the effectiveness and real-world impacts of parole and probation on recidivism and successful reentry, 23 See, e.g., John R. Hepburn & Marie L. Griffin, The Effect of Social Bonds on Successful Adjustment to Probation: An Event History Analysis, 29 Crim. Just. Rev. 46, 46 (2004) (examining the effect of social bonds on offenders’ successful adjustment to probation, such as the quality of the social relationships with family and friends); Jeffrey Lin, Ryken Grattet & Joan Petersilia, “Back-End Sentencing” and Reimprisonment: Indivi-
dual, Organizational, and Community Predictors of Parole Sanctioning Decisions, 48 Criminology 759, 761 (2010) (examining how individual characteristics, organizational constraints, and the conditions of parolees’ communities contribute to the likelihood that parolees will return to prison); Jeremy Travis, Back-End Sentencing: A Practice in Search of a Rationale, 74 Soc. Rsch. 631, 631 (2007) (underscoring the importance of rethinking the efficacy and purposes of parole supervision); Amy L. Solomon, Does Parole Supervision Work?: Research Findings and Policy Opportunities, Persps., Spring 2006, at 26, https://
www.urban.org/sites/default/files/publication/50221/1000908-Does-Parole-Supervision-Work-.PDF [https://perma.cc/G76G-5JHN]. legal scholars often focus on incarceration 24 See, e.g., Sarah Abramowicz, Rethinking Parental Incarceration, 82 U. Colo. L. Rev. 793, 796–97 (2011) (proposing a model whereby children’s interests can be considered in judicial decisions to incarcerate their parents); Sharon Dolovich, Cruelty, Prison Condi-
tions, and the Eighth Amendment, 84 N.Y.U. L. Rev. 881, 885 (2009) (suggesting that the Eighth Amendment should apply to the administration of prison sentences); Jules Lobel, Prolonged Solitary Confinement and the Constitution, 11 U. Pa. J. Const. L. 115, 116–17 (2008) (examining “whether [the] increasing practice of prolonged or permanent solitary confinement constitutes cruel and unusual punishment in violation of the Constitution, and whether it violates the due process rights of the prisoners so confined”); Margo Schlanger, The Constitutional Law of Incarceration, Reconfigured, 103 Cornell L. Rev. 357, 361–62 (2018) (examining “several jail use-of-force scenarios, using them as test cases facilitating normative evaluation of various liability rules”). and the collateral consequences of convictions 25 For helpful discussions of the collateral consequences surrounding convictions for sex offenses, see Allegra M. McLeod, Regulating Sexual Harm: Strangers, Intimates, and Social Institutional Reform, 102 Calif. L. Rev. 1553, 1566 (2014) (contemplating “how it might be possible to regulate sexual abuse and other forms of interpersonal harm in large measure outside the criminal law administrative domain”); Bela August Walker, Locating the Criminal: Civil Sanctions, Sexual Abuse, and the American Family, 44 Sw. L. Rev. 562, 571–81 (2015) (“Based on incorrect stereotypes, current legislation regarding sex offenders is both ineffective and counter-effective. Such statutes have not demonstrated a benefit to public safety. To the contrary, by increasing alienation of sex offenders, they can also raise recidivism rates. Sex offender regulations primarily involve registration, notification and residency restrictions.” (footnote omitted)). rather than community supervision. Notable exceptions include scholarly explorations of whether community supervision systems accord with rehabilitation goals 26 See, e.g., Fiona Doherty, Obey All Laws and Be Good: Probation and the Meaning of Recidivism, 104 Geo. L.J. 291, 316 (2016) [hereinafter Doherty, Obey All Laws and Be Good] (studying common probation conditions and arguing that standard probation conditions often lead to overcriminalization of probationers and do not support rehabi-
litation); Klingele, supra note 7, at 1020 (arguing that community supervision is imposed in too many cases and leads too often to incarceration following revocation due to overly stringent conditions); Christine S. Scott-Hayward, The Failure of Parole: Rethinking the Role of the State in Reentry, 41 N.M. L. Rev. 421 (2011) (arguing that the primary aim of parole should be reentry and typical parole conditions do not accord with that goal); see also Andrea L. Dennis, Criminal Law as Family Law, 33 Ga. St. U. L. Rev. 285 (2017) (explai
-ning that community supervision officers “closely regulate family association, cohabitation, and living spaces; restrict familial relationships; and impose obligations on families that interfere with family caretaking functions”); Tonja Jacobi, Song Richardson & Gregory Barr, The Attrition of Rights Under Parole, 87 S. Cal. L. Rev. 887, 893 (2014) (finding that the New York City Police Department conducted stops at higher rates in areas with high concentrations of parolees, undermining reentry). and works that analyze whether parole release processes accord with due process standards. 27 See, e.g., Victoria J. Palacios, Go and Sin No More: Rationality and Release Decisions by Parole Boards, 45 S.C. L. Rev. 567, 568 (1994) (arguing that parole boards overseeing discretionary parole release should abide by clear guidelines); Kimberly Thomas & Paul Reingold, From Grace to Grids: Rethinking Due Process Protection for Parole, 107 J. Crim. L. & Criminology 213, 215–16 (2017) (arguing that discretionary parole release decisions should be subject to heightened scrutiny).

By exploring the connection between community supervision and family separation, this Article makes a novel contribution to the conversation about the constitutional rights of people living under carceral control. It rejects the notions, commonly proclaimed by courts, that supervision authorities’ views of family separation are entitled to deference and that the constitutional rights of parolees and probationers are circumscribed to the same extent as those of incarcerated people. It further asserts that the legal system must recognize the profound infringements of constitutional rights created by family separation conditions and ensure that adequate protections are afforded to the relationships of supervisees and their loved ones.

This Article proceeds in four parts. Part I describes the different types of community supervision programs and the procedures state and federal authorities use to impose the conditions. It also documents the widespread use of the two supervision conditions described above that often result in family separation: those that limit contact with people due to conviction records or other involvement in the criminal legal system, and those that bar people convicted of sex offenses from any contact with children. Part II explores the constitutional rights and family law concepts at issue, as well as cases in which supervisees have challenged family separation conditions. Part III critiques the predominant judicial treatment of conditions that lead to family separation, arguing that constitutional rights concerning familial integrity cannot be abrogated merely because of criminal supervision status and that heightened scrutiny is required. Part IV calls for criminal justice policymakers to devise mechanisms by which family separation conditions are subject to review at the appropriate level of scrutiny.