78 Pages Posted: 12 Mar 2013 Last revised: 18 Oct 2014
Date Written: October 13, 2014
In many situations of family dysfunction stemming from poverty, the interests of parents are in conflict with the interests of their offspring. This presents a dilemma for liberals. We want to mitigate the harsh consequences and suffering that conditions we deem unjust have caused some adults, especially adults of minority race. But we are also concerned about the welfare of children born into impoverished and troubled communities. The predominant liberal response to this dilemma has been to sidestep it by ignoring or denying the conflict and to then take positions aimed at protecting parents’ interests, without giving serious attention to the impact on children. The result is a set of liberal polies that effectively imprison black children in dysfunctional families and communities and so ensure that they fall into the inter-generational cycle of poverty, addiction, and criminality.
Epitomizing this phenomenon is the fast-growing phenomenon of states’ placing newborn children, predominantly of minority race, into prison to live for months or years with their incarcerated mothers. Advocates for incarcerated women, not advocates for children, have promoted prison nurseries, and they have done so with no research support for any hope of positive child welfare outcomes. Conservative legislators and prison officials agree to experiment with such programs when convinced they will reduce recidivism among female convicts, a supposition that also lacks empirical support. Remarkably, states have placed babies in prisons without anyone undertaking an analysis of the constitutionality of doing so.
This Article presents a compelling child welfare case against prison nurseries, based on rigorous examination of the available empirical evidence, and it presents the first published analysis of how constitutional and statutory rules governing incarceration and civil commitment apply to housing of children in prisons. It shows that prison nursery programs harm the great majority of children who begin life in them, and it argues that placing infants in prison violates their Fourteenth Amendment substantive and procedural due process rights as well as federal and state legislation prohibiting placement of minors in adult prisons.
This Article further challenges liberal family policy more generally. Its final Part describes other policy contexts in which liberal advocacy and scholarship relating to persons who are poor or of minority race consistently favors the interests of adults in this population over the interests of children. It offers a diagnosis of why this occurs, and it explains why this is both morally untenable and ultimately self-defeating for liberals committed to racial equality and social justice. The Article’s broader thesis is that liberals bear a large share of the responsibility for perpetuation of blacks’ subordination.
Keywords: incarceration, child welfare, race, adoption, liberal policy
Suggested Citation: Suggested Citation
Dwyer, James G., Jailing Black Babies (October 13, 2014). Utah Law Review, 2014, issue No. 3 ; William & Mary Law School Research Paper No. 09-239. Available at SSRN: https://ssrn.com/abstract=2231562