FAMILY SEPARATION CONDITIONS

Alexis Karteron

Research output: Contribution to journalArticlepeer-review

1 Scopus citations

Abstract

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 pa-role, probation, and supervised release from their families. Courts regu-larly 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 jus-tify these conditions and advocates for reform. Courts reason that super-visees 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 frame-work that ordinarily governs deprivations of fundamental constitutional rights. Although heightened constitutional scrutiny should be applied in cases challenging family separation conditions, broader reforms are nee-ded. 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.

Original languageEnglish (US)
Pages (from-to)649-712
Number of pages64
JournalColumbia law review
Volume122
Issue number3
StatePublished - 2022

All Science Journal Classification (ASJC) codes

  • Law

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