Publication Date

Winter 2020


The male standard of incarceration in the U.S. correctional system creates additional punishments for mothers, who most often serve as primary caregiver to their children prior to imprisonment. This inadequate attention to their gender-specific characteristics and needs is not only punitive and discriminatory, but it also breaks fundamental bonds by separating children from their mothers, which neuroscience research shows can substantially alter a child's brain development, leading to devastating long-term outcomes. Such actions violate international human rights laws and standards that recognize the rights of the mother and the rights of the child, including provisions in the International Covenant on Civil and Political Rights, which the United States ratified in 1992 and is thus legally obligated to follow, and the Convention on the Rights of the Child, which the United States signed in 1995, obligating it to refrain from acts that would defeat the object and purpose of this internationally recognized treaty aimed at protecting children. The article considers recent U.S. legislation and initiatives and the impacts, if any, on the rights of incarcerated mothers and their children; it then puts forward a set of rules developed by the United Nations that recognize the ways in which the world’s prison systems design incarceration specifically for men, with harmful outcomes both for incarcerated women, including mothers, and children. It is vital that the United States better align itself with international human rights law: since 1980, the number of women in prison, most of whom are mothers, has increased by more than 750%.


The author would like to thank the editors of this note, Sonya Levitova and Marie Calvert-Kilbane, for their thoughtful and exacting work. She would also like to thank: the entire City University of New York Law Review, including Theodora Fleurant and Francesca Buarne; Professor Cynthia Soohoo of CUNY School of Law, Professor Raymond Atuguba of the University of Ghana School of Law and Harvard Law School, Professor Alan Cafruny of Hamilton College, and Executive Director Camille Massey of the Sorensen Center for International Peace and Justice for their guidance; and Dr. Bessel van der Kolk for his groundbreaking research. Lastly, the author would like to acknowledge those in her family who came before her for their tireless work, which has made her work possible, and thank those closest to her for their love and indispensable support, most especially her own mother, Susan, the brightest of lights.

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