Dialogue – Issue 46: Sino-US Comparison: Children of Incarcerated Mothers

Children of incarcerated parents aren’t well looked after in China or the US. Neither of the countries has comprehensive means for serving them, and there is a lack of public information on incarcerated parents in general and incarcerated mothers in particular.

Recently adopted as international rules for the standard minimum treatment of women in prison, the Bangkok Rulesexplicitly call for research and policy regarding children of incarcerated mothers, but they have yet to gain much traction. These rules build upon the Convention of the Rights of the Child, which includes the right to maintain personal relations and direct contact with incarcerated parents. China ratified this UN treaty in 1992, but the US, while signing it in 1995, has yet to ratify.

The US: A Bigger Problem?

A comparison of the most recent available data indicates that in the US, there are more than two and a half times as many minor children of incarcerated parents as there are in China. This comparison is misleading, however, since it compares the population of US state and federal prisons to that of Chinese prisons, thus excluding hundreds of thousands of people believed to be held in other Chinese correctional institutions—such as custody and education camps, where many sex workers are held; reeducation-through-labor camps; “legal education” centers; psychiatric detention units; “old people’s homes” run by the religious affairs bureau; and black jails.

Data from the US Bureau of Justice Statistics (BJS) show that in mid-2007 slightly more than 1.7 million children under the age of 18 had at least one parent in state or federal prison. China’s first and only relevant national survey, conducted by the Ministry of Justice in 2006, estimates that there were 600,000 minor children of incarcerated parents in 2005. In the US, mothers of minor children accounted for 65,600, or about 8 percent, of imprisoned parents and 4 percent of the national prison population in mid-2007. In China, parents of minor children accounted for about 30 percent of the national prison population, compared with 50 percent in the US. (The Chinese data is not disaggregated by sex.)

Public Institutions, Public Awareness

Despite the fact that parents account for about one third or one half of Chinese and US prisoners, respectively, public awareness about children of incarcerated parents remains low in both countries. This is correlated with not only a lack of legislation and reporting but distinct institutional shortcomings. In the US, for example, the Second Chance Act authorizes the Department of Justice (DOJ) to make grants to states to provide prison-based family treatment programs for incarcerated parents of minor children. Annual funding for Second Chance Act programs was cut to $63 million in fiscal 2012 from $100 million in fiscal 2010. Moreover, the DOJ “has not taken initiative … to collect and disseminate information on best practices for collaboration between child welfare and corrections agencies to support children of incarcerated parents … and to support parent-child relationships,” according to a Government Accountability Office report on foster care children with incarcerated parents released in 2011. The Bureau of Prisons “has also not developed any protocols to the federal prisons under its own jurisdiction for working with child welfare agencies,” the report said.

In China, there are no laws principally related to juveniles that address children of incarcerated parents. The country also has its share of systemic problems: the Ministry of Justice does not deal with children of incarcerated parents, and services offered by the Ministry of Civil Affairs are limited to orphans and abandoned infants. In both countries, mainstream support for retributive justice and the negative stigma of incarceration are likely catalysts of institutional shortcomings, serving to keep children of incarcerated parents out of political agendas and the news.

Custody

While there is little evidence that Chinese law strips prisoners of child custody, US law may put mothers at increased risk. Guidelines set by the Adoption and Safe Families Act allow for parents’ custody to be terminated if their children have been living in foster care for 15 of the previous 22 months. According to BJS data from 2004, foster homes were reported to be the caregiver of 11 percent of incarcerated mothers versus 2 percent of incarcerated fathers.

Nursing Rights

In China and the majority of US states, prisoners are not allowed to bring their children to live inside prisons. However, in seven states—Illinois, Indiana, Nebraska, New York, Ohio, South Dakota, and Washington—infants can live in their mothers’ prison for varying periods of 30 days to three years. In China, mothers serving fixed-term sentences are permitted to nurse their children outside of prison and proposed amendments to China’s Criminal Procedure Law, which are expected to pass in March, extend this right to women sentenced to life imprisonment.

Decentralized Assistance

Studies conducted in both the US and China indicate that children of incarcerated parents are more exposed to family and economic stability—risk factors associated with delinquency. In its 2005 survey, the Ministry of Justice said that 95 percent of children of incarcerated parents had not received any form of social assistance. Due largely to financial difficulties, 82.4 percent of the children left school after a parent was incarcerated and 2.5 percent became homeless. Since 2009, several regional studies carried out by women’s federations or universities in Shaanxi, Shandong, and Zhejiang provinces have indicated that these problems persist.

In recent years, China’s provincial prison bureaus have responded to ineffective national initiatives by setting up relief funds to subsidize the education of children of incarcerated parents. However, the impact has been limited. Relevant media reports do not indicate how often children receive aid and suggest that those benefiting may number as few as 10 to less than 200 children per province.

Entrance of a Sun Village compound. Photo credit: Sun Village

Despite registration restrictions and limited funding, several Chinese non-governmental organizations (NGOs) have also started to provide basic foster care and education for children of incarcerated parents. The NGO that has received the most local media attention is Sun Village (太阳村). According to the organization’s website, children living in Sun Village usually visit their parents once or twice a year and talk to them by phone each month. Sun Village houses more than 400 children in six locations, providing them with funds to attend neighborhood schools and opportunities to participate in vocational training. It also organizes conferences to discuss mental health issues relevant to the children they serve.

NGOs also address systemic problems in the US and sometimes work jointly with for-profit and governmental institutions. Organizations like Girl Scouts Beyond Bars and the Comprehensive Community Action Project organize programs facilitating parent-child visitation. Some coalitions of nonprofit, for-profit, and government representatives, such as the San Francisco Children of Incarcerated Parents Partnership and The Service Network for Children of Inmates, focus on improving parent-child relationships and increasing local awareness.

Visitation

Since women’s prisons are fewer in number than men’s prisons, distance can present a problem for visitation in both China and the US. Most of China’s women’s prisons are located near provincial capitals, where transportation access is better than in more remote or rural areas, but there is no available data indicating the distance that children live from their mothers’ prisons. In the US, mothers are incarcerated an average of 160 miles farther away from their children than are incarcerated fathers.

While both China and the US allow visitation rights to most prisoners, China seems to have a better record of considering the needs of incarcerated mothers when formulating prison rules. At a work symposium on the reform of incarcerated women in October 2003, China’s Bureau of Prison Administration clearly stated that incarcerated women should be treated differently than incarcerated men. Among the measures described as specific to women prisoners were longer and more frequent “family visits” and allowing minor children to spend holidays with their mothers.

The same year, the US Supreme Court ruled, in Overton v. Bazzetta (539 U.S. 126 (2003)), to uphold restrictive visitation rules in Michigan state. The rules prohibit visits from any family members for at least two years if prisoners commit two substance-abuse violations and prohibit children from visiting their parents if parental rights are terminated.

Early Conditional Release

Officials in Hubei Province at a work meeting on sentence reduction and parole emphasize “combining lenience with severity.” Photo credit: Hubei High People’s Court

While the childcare duties of incarcerated mothers are included in criteria used to determine parole in several provincial pilots in China, similar rules do not seem to exist in the US. In Hubei and Shandong, mothers of children who are in need of care and are under the age of 16 are the focus of pilot regulations launched in 2008 and 2005, respectively. In Hubei, these regulations include women sentenced to life imprisonment after they serve at least 10 years of their sentence and women sentenced to death with two-year reprieve after they serve at least 12 years. In Shandong, regulations are limited to women sentenced to no more than 10 years’ fixed-term imprisonment.

Regional pilots offer hope of national rollouts, but the present dearth of nationwide measures in both China and the US provides cause for concern. It has been more than a year since the UN General Assembly adopted the Bangkok Rules and most countries have made little effort to raise or implement them.