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82 U. Colo. L. Rev. 793 (2011)
Rethinking Parental Incarceration

handle is hein.journals/ucollr82 and id is 799 raw text is: RETHINKING PARENTAL INCARCERATION SARAH ABRAMOWICZ* Recent changes in sentencing law, in the wake of cases inter- preting Blakely v. Washington and United States v. Booker, have raised the possibility that courts sentencing parents may take children's interests into account more extensively than had previously been permissible. Now is thus an op- portune time to reevaluate the merits of considering child- ren's interests when sentencing parents. This Article uses the perspective of family law to offer a new rationale for, and a new approach to, taking children's inter- ests into account when sentencing their parents. It does so by bringing out the connection between the debate over par- ental incarceration and another ongoing debate within crim- inal law: the discussion about when we can attribute crimi- nal responsibility to adults. Criminal law holds adults responsible for their actions by treating them as if they are autonomous, even when they are not. Family law's insights about child development, meanwhile, demonstrate that in- carcerating parents may diminish a child's likelihood of be- coming an autonomous adult. This Article argues that if the criminal law is to treat children as if they are autonomous when they reach adulthood, then it has an obligation to take seriously those actions that may reduce a child's future au- tonomy, such as incarcerating a child's parent. Parents should not be immunized from incarceration. But a court incarcerating a parent should do so only after assess- ing the interests of the offender's child, and determining whether it can meet the goals of criminal punishment through means that minimize harm to that child. Articulat- * Assistant Professor of Law, Wayne State University Law School. I am thankful, for their helpful suggestions and insights, to Kerry Abrams, Erica Beecher-Monas, Kris Collins, Clare Huntington, and Chris Lund. I am also thankful to Jennifer Gross for her valuable research assistance. An earlier version of the Article bene- fited greatly from presentation at the annual meeting of the Association for the Study of Law, Culture and the Humanities.

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