Parental Imprisonment and Children's Right Not to be Separated from Their Parents

Abstract

It is widely known that criminal punishment, especially imprisonment, has negative effects for innocent persons, most notably the families of prisoners. This is an issue attracting increasing attention from penal theorists and philosophers. Adding to this literature, this article examines the extent to which incarceration of a parent is consistent with fundamental rights that are often ascribed to children. In particular, we focus on children's rights against being separated from their parents. To this end, we begin with a discussion of the philosophical basis for children's rights against being separated from their parents against their will. Drawing from recent work by Kimberley Brownlee and Matthew Liao, we argue that children have such a right and that it is grounded in children's welfare interest and the importance of parent–child relationships for children to develop adequately into autonomous agents. We then examine three arguments why imprisoning a parent is justified despite the fact that children have a right against being separated from their parents. For each of these arguments, we argue that while they may show the imprisonment of a particular parent to be sometimes compatible with respecting the right against parent–child separation, an extensive use of imprisonment as punishment of the sort that persists in many states is not.