Who is Responsible for Remedying the Harm Caused to Children of Prisoners?

ABSTRACT

It has been argued that the social circumstances of many children of prisoners goes against established principles of social justice. In this paper the proper allocation of responsibility for remedying this social injustice is discussed. Through a discussion of four principles for allocating remedial responsibility, it is argued that the responsibility for children of incarcerated parents is shared among several actors, including the incarcerated parent, remaining caregivers, prison officials, social work professionals, and, to some extent, members of the wider community. While incarcerated parents are partially responsible for remedying the harm caused to their children, prison officials have the responsibility to uphold the types of prison conditions under which incarcerated parents are able to fulfill their responsibilities to their children and socially contribute to their well-being. Similarly, whereas the main responsibility to care for the children of incarcerated parents falls on the caregivers (such as the remaining parent or other family relatives), states are at the same time responsible for implementing social welfare policies of the sort that can help caregivers fulfill their responsibilities for the well-being of these children. As for individual members of the wider community, they have an obligation not to contribute to the stigmatization and marginalization of the families of incarcerated individuals.

KEYWORDS:

• Agents of justice
• children of prisoners
• social justice
• remedial responsibility
• incarcerated parents

Acknowledgments

I wish to thank Patrik Baard, Stefan Eriksson, Zachary Hoskins, Anna Höglund, Niklas Juth, Ulrik Kihlbom, Lars Lindblom, Håkan Salwén, Isaac Taylor and Sofia Wikman for helpful comments on earlier drafts of this paper. I also wish to thank the participants at the Branches of Applied Ethics in Sweden workshop organized by the Centre for Applied Ethics at Linköping University where I had the chance to discuss the ideas presented in this paper. Finally, I wish to thank two anonymous reviewers for insightful and constructive comments. My work with this paper has been funded by the Swedish Research Council for Health, Working Life and Welfare (FORTE), grant nr 2018-01116.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 ‘Vulnerability’ is an ambiguous term used in a range of different ways in the philosophical literature. One helpful distinction here is between ‘inherent’ and ‘situational’ vulnerability (see, e.g.Bagattini 2019; Schweiger 2019). Children are often portrayed as inherently vulnerable in the sense that they have particular developmental needs and because of how they, qua children, lack certain cognitive, emotional, or physical abilities. This is different from situational vulnerability, which has to do with social practices, norms and other contextual factors, such as poverty, discrimination, and various forms of marginalization. As the discussion in this paper illustrates, I believe that parental incarceration can be understood as a specific form of situational vulnerability.

2 Scharff Smith (2014, 45–47) estimates that in more than half of all cases of parental incarceration, the children had significant contact and close connection with their parent before their incarceration. In a large portion of cases the parent and child were also living together. This, Scharff Smith argues, suggests that the number of children that suffer due to a parent’s incarceration is not negligible.

3 There is an ongoing philosophical debate as to whether the standard candidates for the metric of justice, including the capability approach and the Rawlsian notion of primary goods, are sufficient for addressing the issue of justice for children. One criticism is that these metrics focus too much on what is valuable for adult human beings (Lindblom 2016; MacLeod 2010). I will not dwell on this issue here though. Instead, I assume that the capability approach as well as the Rawls’s notion of primary goods provide plausible starting points for thinking about justice for children. For a more detailed discussion of the capability approach in this context, see Schweiger and Graf (2015).

4 This list of principles draws from Butt (2007). For a similar, yet somewhat different list of principles, see Hickey et al. (2021). For a careful discussion of (1) and (2), see Miller (2001). Miller (2001) also mentions a communitarian principle according to which people might gain special obligations toward those whom they have special ties, such as those arising from shared activities and commitments or a shared history or identity (see also Hickey et al. 2021). However, since my interest in this paper concern the proper allocation of responsibility within a particular political community, it seems to me that this principle becomes somewhat irrelevant in this context, even though it might perhaps be relevant in the context of global injustice in which Miller introduced it. In later work, Miller also endorses the beneficiary pays principle (see Miller 2007).

5 What constitutes an imprisonable offense is of course a matter of philosophical debate. For a discussion of this issue in terms of both crime-preventive and retributivist theories of punishment, see Lippke (2007, 63–79).

6 For an illuminating discussion of the criminal responsibility of people who commit crimes under the influence of mental health disorders, see Hartvigsson (forthcoming)

7 It should be observed that the large majority of caregivers in this case are women, regardless of whether it is the child’s mother or father that is incarcerated (Minson 2020). Thus, this also raises a number of issues related to gender equality.

8 To be sure, Tadros (2011) too recognizes this point and suggests that states should perhaps ameliorate the harm caused to the children of incarcerated parents by improving opportunities for prison visits and provide financial compensation. See also Lippke (2017) for a careful discussion of whether it is appropriate to hold families liable to the harms they suffer due to the incarceration of a family member.

9 A fairly recent report from the Swedish National Board of Health and Welfare suggests that this type of competence is often lacking among those professionals who meet children with incarcerated parents (Socialstyrelsen 2018). Even if this report only focuses on the situation of children of incarcerated parents in Sweden, I suspect that the situation is similar in many other European countries.

10 For a comprehensive discussion of how the rights and interests of children are affected during the different stages of the criminal justice system, see Scharff Smith (2014).

11 That said, a few states, such as Sweden and Norway, have made the UNCRC legally binding.

12 For example, the beneficiary pays principle is commonly defended in the context of global justice, where it has been argued that present beneficiaries of injustices committed in the past have a duty to compensate the descendants of victims of such past injustices (see, e.g. Butt 2007; Collste 2015). It is also frequently discussed in the philosophical literature on climate justice and how the burdens of mitigating and adapting to climate change should be allocated. In domestic affairs it has been evoked in defense of preferential hiring (Duus-Otterström 2017).

Additional information

Funding

This work was supported by FORTE [grant number 2018-01116].

Notes on contributors

William Bülow

William Bülow is a senior researcher at the Centre for Research Ethics & Bioethics at the department of Public Health and Caring Sciences at Uppsala University. His research interests are in legal philosophy and applied ethics.