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Both of Carizma Hughes’ fathers have spent time behind bars. Her biological father has been in and out of prison most of her life, and her stepfather has been incarcerated for 26 years. She never knows when her biological father will disappear again and turn up in jail. “Right now he’s not incarcerated, but I don’t know how long that will last. It’s an ongoing thing for him. That’s his story.”

His story is a big part of hers too. “I was just so angry and so tired,” said Hughes. “I was sick of visiting them on the weekends, putting money on my phone to call them.”

“Incarcerated people are still human,” Carizma said. “A lot of people don’t think of them that way. In a courtroom, I wish they would treat people as if it were them, or parent or their child or their neighbor.”

There are nearly 6 million children in the U.S. who, like Hughes, have experienced the pain of an incarcerated parent; about half of those parents are the primary source of support for their children. And the cycle doesn’t stop with parents: Children of incarcerated parents are six times more likely than their peers to end up incarcerated themselves. 

“Data demonstrates that children of incarcerated parents, like many other underserved populations like foster youth or homeless youth, have abysmal outcomes in terms of housing, employment, substance abuse, all these things that revolve around survival once they reach adulthood,” said Kyle Castillo, deputy director of Community Works West.

San Francisco’s progressive new district attorney, Chesa Boudin, has introduced a program, with guidance from a recently passed California state law, to change those numbers.

Boudin aims to keep parents of children under 18 years old with their families through a pretrial diversion program that uses rehabilitative methods to stop the cycle of crime and punishment and generations of incarceration. For parents and primary caregivers whose crimes are not considered “serious” or “violent” under state law, and whose crimes are not considered a risk to public safety or to their child, the program offers an alternative to jail time: parenting classes, job training or substance abuse treatment—and a sealed record. It has the potential to keep hundreds of parents out of San Francisco’s jails and home with their kids. Boudin hopes that the program will be the first of many that he uses to fundamentally reshape the city’s criminal justice system, and hopefully model change for the rest of the state and beyond.

Boudin’s keen interest in keeping families together has deep personal roots. When the DA was just 14 months old, his parents, members of the radical leftist group Weather Underground, were arrested in a botched robbery that left three dead. (Boudin’s parents didn’t participate in the robbery itself, but did drive the getaway car.) He was raised by the founder of the group, Bill Ayers, and his wife, Bernadine Dohrn; his only contact with his parents was from behind bars. Boudin’s mother was paroled in 2003, but his father remains in prison.

“This is something I relate to personally. I appreciate the stakes for families. This is not about—at least not just about—the person accused of the crime. It’s about the family as a whole,” said Boudin. “We have a system—a legal fallacy—that tells us that criminal cases are just between the state and the defendant on the other….but we know that there are other third parties, like the children of the accused, that need to be part of that conversation. This law allows that.”

San Francisco’s new policy was made possible by a California state law that passed in October, S.B. 394, which allowed counties to develop pretrial diversion programs for parents that meet certain requirements. The law includes both constraints on the type of offense (nonviolent, nonserious, and not against a child), and the type of defendant (a primary caregiver, parent or guardian who lives in the same household as the child and provides financial support or care to the child). In order to qualify for the program, the parent or guardian has to prove that their absence in their child’s life would cause “detrimental’ damage.

Although any California jurisdiction can now put in place pretrial diversion programs along the lines of the law, San Francisco is the first to do so. The novel coronavirus has made it difficult, if not impossible, for other jurisdictions to put in place new policies, but Boudin is optimistic that other cities will follow in San Francisco’s footsteps once the crisis begins to wind down. “I am hopeful that we will be able to reopen dialogue with other jurisdictions and publicize the success stories coming from our own program, that will lead others to follow suit,” he said.

Castillo says that pretrial diversion is a powerful tool to minimize trauma. “If you’re diverting people outside of the traditional system and making it so that they spend less time in facilities or spend no time at all, we avoid having to patch up and repair damage that’s done,” he said.

Incarcerating parents can lead to separation long past the end of the caregiver’s time in a facility. “One of the most terrible long-term impacts of incarcerating parents is the likelihood of that child, or children if it is a sibling situation, then being placed in foster care,” said Castillo. Pretrial diversion could prevent children from being unnecessarily placed in state care.

But as powerful as San Francisco’s new policy is, advocates firmly believe it hasn’t gone far enough. They’d like to see diversion become the standard in criminal justice, not an alternative used only for certain defendants who meet stringent criteria.

“Diversion programming should become the default. And not just for parents, but for people in our society,” said Castillo.

Even so-called “violent offenders” sometimes end up labeled as such because of small mistakes that lead to long term incarceration, like pushing someone or carrying a weapon that isn’t brandished. Pretrial diversion programs like Boudin’s exclude those offenders.

“You can be charged with a violent offense, even when it’s not at all what people picture. People hear violent offense, and they picture a sociopath,” said Castillo. Data shows that public opinion is with Castillo for structural change. The ACLU has found that 91% of Americans support some form of criminal justice reform, and over 70% support reducing the prison population. Incarceration doesn’t actually reduce crime statistically, and there is some evidence that it can actually increase it.

“Punishment and public safety are not correlative…punishment does not lead to better public safety, no matter how you define it,” said Castillo.

The pretrial diversion program isn’t enough, but it’s a solid first step. Boudin’s program didn’t come in time for Carizma, who now works as a coordinator for Project WHAT!, a program for children of incarcerated parents, balancing it with her first year of college classes. While her work in the program has helped Carizma learn there are other teens like her, whose lives have been shaped by incarceration, it doesn’t change the sense of injustice she feels. But she’s hopeful that Boudin’s pretrial diversion program might help other children from backgrounds like hers—whose parents were systematically disenfranchised—to break the cycle.

“I just want people to recognize that it’s not always an offender’s fault. Certain people have to do things, both right and wrong, to feed their families. And then when they do them, we punish them,” she said.

Casey O'Brien

Casey O'Brien