SJ Quinney College of Law, University of Utah
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Article Title

Jailing Black Babies

Authors

James G. Dwyer

Abstract

Children-in-prison programs reflect a commendable sympathy for the lifelong disadvantage and deprivation that most prison inmates have suffered and a wish to transform their lives. But acting primarily on the basis of that sympathy and wish, rather than focusing realistically on what is truly best for children, is a moral and policy mistake. Available evidence suggests that the extreme form of connecting incarcerated birth parents with their offspring, prison nurseries, harms the great majority of those children, especially when the impact is compared to the life the children might have had if adopted immediately after birth. Advocacy for this practice depends on a pretense that there is no conflict of interests between incarcerated women and their newborn offspring and on misuse of empirical studies. It is ultimately grounded in a normative commitment to giving lexical priority to the welfare or happiness of those women. State actors need to recognize that advocates for incarcerated women are not reliable sources of information about the child welfare impacts of any policy, and they need to seek that information elsewhere and make children’s welfare the determinative criterion of their decisions. But this is likely to occur only when true advocates for children begin to take an interest in this quietly proliferating practice of putting children in prison.

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