Sunday, November 4, 2018

Good read--America's Other Family-Separation Crisis

Sarah Stillman’s article in the November 5, 2018 issue of the New Yorker is a must read for anyone representing a parent—especially a mother living in poverty. Stillman’s expose focuses on Tulsa, Oklahoma (and the commendable efforts of She Still Rises—a holistic defense effort led by the founders of the Bronx Defenders), but its painful revelations on the interlacing in the criminal justice system of poverty, parenthood, and generations of racial discrimination reverberate to every corner of our nation.

The permanent and devastating collateral ramifications that a criminal conviction and corresponding sentence will have on our clients' children are well documented. So, too, are the reasons why a low-income parent may have a slew of prior convictions, as Stillman's article highlights.

Importantly, the Tenth Circuit has repeatedly acknowledged that sentencing courts are mandated under § 3553(a) to consider family circumstances as part of a defendant's "history and characteristics" when fashioning the appropriate sentence. See, e.g., United States v. Vargas-Ortega, 736 Fed. Appx. 761 (10th Cir. 2018) (unpublished) (reversing and remanding for resentencing where the district court erred in stating it could not vary downward based on family circumstances). It is therefore our duty when it comes to sentencing to fully investigate and to persuasively present our clients' stories to the court. And for our clients who are parents, part of that presentation must necessarily include discussion on the unquantifiable, lasting effects that a criminal sentence will have on our clients' children and the family structure.
For another good discussion on the "invisible victims of mass incarceration," as well as the use of family impact statements at sentencing, see Amy B. Cyphert Prisoners of Fate: The Challenges of Creating Change for Children of Incarcerated Parents, 77 Md. L. Rev. 385, 426 (2018). 

 Shallow Focus Photography of Human Eyes

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