In 1966, the American “war on crime” began with Lyndon B. Johnson’s Special Message to the Congress on Crime and Law Enforcement. In this speech, he emphasized community wellbeing as justification for a massive federal investment in the criminal legal system. In the final words of this address, he stated that “the ways we deal with crime should not foster further injustice” and ended with an appeal for increasingly harsh policies that will be carried forth by “our children and our children’s children.” The legal and cultural framework that the Johnson administration created was infused with carceral logic—the belief that increasingly robust systems of punishment will result in safer and healthier communities.
As the war on crime evolved into the mass incarceration crisis in the 1990s, these policies furthered the injustices Johnson named: bail requirements and sentencing practices led to deeper poverty; court procedures codified differential treatment by race; and imprisonment made employment after release extremely difficult. The children he referred to are shouldering the disintegration of their communities as hundreds of families are now dismantled every day in the United States. The war on crime had devastating consequences for families and has perpetuated the unequal access to basic rights, autonomy, and family unity, disproportionately harming Black mothers and their children. Carceral logic has become embedded into American life as the public accepts separating families as normal and routine. Indeed, infrastructure created in the 1960s makes it possible for today’s criminal legal system, conjoined with the child welfare system, to disassemble families in a seemingly benign process.
Women in the Carceral System
Women’s experiences provide an important and underemphasized perspective on how the war on crime has disrupted US family life. Mass incarceration is a uniquely American problem, with nearly one out of every 100 people in prisons and jails in the United States. Although the US crime rate is the same as economically comparable nations, the incarceration rate is five times higher. Disaggregating the incarcerated population by gender and race illuminates other unequal dimensions to this crisis. While women represent a substantially smaller percentage of the incarcerated population compared to men, the number of women in the US criminal legal system is growing rapidly. Between 1980 and 2016, there was a fivefold increase in the number of incarcerated women, far greater than the increase in incarceration rates of men during this period.
Of these women, over half are mothers. Women are often the primary caregivers for young children, whose ages make them especially vulnerable to the damage of family separation. The carceral system is ill-equipped to meet the basic needs of incarcerated women, especially mothers. For example, carceral institutions lack accessible visitation to support parenting and minimize the impact of family separation. There are also stark disparities at the intersection of gender and race. Black women are twice as likely to be incarcerated compared to white women and are particularly impacted by the structures that disrupt family life, dating back to enslavement. Separation of enslaved families was routine; a study in the 1930s found that 40 percent of individuals born into slavery had lost a parent by age twenty through death or separation. The dispossession of the right to family is still engrained in modern institutions, with especially severe consequences for Black children and their caregivers.
How Custody Rights Vanish
As the era of mass incarceration unfolded, the criminal legal and child welfare systems became increasingly connected through federal law, state-level policies, and policing after release. According to analysis from the Marshall Project, one in eight incarcerated parents whose children are placed in foster care will lose their custody rights. For children placed in foster care as a result of a caregiver’s incarceration, many will never reunite with their families. Not only is separation profoundly harmful for a child’s wellbeing, exposure to the child welfare system is also associated with high rates of incarceration. In this way, families become caught in a cycle of separation facilitated by two interlocking systems. Understanding how family separation is facilitated is critical to interrupting this trajectory.
Mothers are frequently convicted of low level offenses and caught in the bureaucracy of the criminal legal system while awaiting trial. Most women are convicted under infractions or misdemeanor offenses, which are increasingly tied to the loss of custody rights. Over 65 percent of federally incarcerated women have no prior criminal history, yet almost one in three women were convicted of an offense carrying a mandatory minimum penalty. Practices like this have increased the average sentence length for women to thirty months. In addition, a staggering 60 percent of women in jails have not been convicted of a crime; rather, they are held in jail because they are unable to pay bail.
As a result of the 1997 Adoption and Safe Families Act, parental rights are terminated by state child welfare programs if the child’s case has been open for fifteen of the last twenty-two months. It is easy to see how readily parental rights are terminated at least in part due to involvement with the criminal legal system. For example, if a parent is incarcerated – whether convicted or awaiting trial – the child’s case may remain open beyond fifteen months, leading to the termination of custody rights as parents are unable to provide daily care to their children.
The termination of parental rights based on incarceration alone has been successfully overturned in some places, such as in a 2010 Supreme Court of Pennsylvania ruling. However, incarceration is written into the Grounds for Involuntary Termination of Parental Rights of several state statutes. In Iowa, custody rights can be removed for conviction and imprisonment related to child abuse, whereas in Kansas, imprisonment alone is grounds for termination. While parents in child welfare cases can improve outcomes by an ostensive demonstration of responsibility—employment, stable housing, regular contact—this is virtually impossible. The average distance of relocation from their community for people in jails and prisons is 100 miles, making child visitation logistically difficult. With other expenses like phone calls (which can be as pricey as $1.50 per minute in jail), mothering is even more difficult for women with fewer economic resources.
The accounts of how children are taken from their mothers are heartbreaking and often show the harmful effects of carceral logic in coordinated systems. A 2015 New York Times Magazine article tells the story of twenty-four-year-old Adriana and her two-year-old daughter. The family was living in a shelter for victims of domestic violence when Adriana needed diapers. She asked another woman to briefly watch her child so she could go to the store. On her return she was arrested for child endangerment and her daughter was placed in foster care. Although Adriana had no criminal record, the judge set bail at $1,500, which she was unable to pay. Adriana was taken to Rikers Island correctional facility, and it took several weeks for her public defender to move her case to a court that specialized in sex-trafficking cases. Eventually her bail was lifted and she was ordered to attend weekly life-skills courses. Her daughter was outside of her care during this time, and negotiating between the criminal legal and child welfare systems was difficult. At the time of publication, five months had passed since the arrest and Adriana was in family court fighting for her daughter’s custody.
Adriana’s story demonstrates how easily mothers can get caught up in systems that perpetuate family separation. After initial contact with the criminal legal and child welfare systems, the cascade of long-term obligations begins, such as unannounced parole checks. Ostensibly established to provide accountability and support, these systems function as surveillance into the most intimate aspects of family life. These practices also dramatically increase reincarceration rates and the probability of child removal with no evidence of effectiveness. In this way, involvement in carceral systems haunts families with a presumption of guilt and parental incompetence. These foundational rights are truncated, with profound consequences not only for individuals but also for their families and extended communities. The linking of the criminal legal and child welfare systems underscores the reality that returning citizens have greatly diminished rights. For individuals who completed a carceral sentence, access to healthcare, housing, job opportunities, and voting rights are often limited. For families who have been permanently separated through the child welfare system, the right to parenthood is also severed.
Dismantling Carceral Institutions and Logic
Parents who have been convicted of crimes, even if unrelated to the welfare of their family, are still highly likely to have their custody rights terminated. As more women are incarcerated with minor offenses and longer sentences, family separation has become commonplace. Recent documentaries like Oh, Mother of Mine (2021) and Apart (2022) have represented the stories of the thousands of women who have seen their families dissolve. Though an accepted practice in US society, stripping women of parenthood is a violation of fundamental human rights. Sociologist Dorothy Roberts has demonstrated that family separation disproportionately impacts Black communities and has called for a movement for justice. Her work asks us to consider how carceral institutions are reflective of who deem worthy of the full rights of humanity. Which communities are disinvested, labeled dangerous, and policed? For whom is guilt readily assigned? Who is worthy of family and which families deserve to stay together? The answers to these questions are not just about dismantling institutions of separation, emboldened by policies from the war on crime. We must also contend with a longstanding and explicitly racialized tradition of carceral logic. As Roberts suggests, a foundation in humanity will build systems that meet children’s needs by supporting their families.