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Monday, October 07, 2013

A Grenade in the Prison Nursery

James Dwyer at William and Mary Law has an explosively interesting and sharp draft (forthcoming in Utah LR) up on SSRN called Jailing Black Babies. If you have a passing interest in the intersection of family life and criminal justice, race and law, or just how to do a law review article with panache and insight, then you should read it (h/t to Berman at SLP). I can't endorse the underlying merits because I don't know the studies that Dwyer skewers along the way, but the piece is, if true, a wonderful parade of argument in law and policy, and, in its own way, quite courageous. Kudos.

One minor quibble. At times, Dwyer takes to task the advocates for incarcerated moms for "wishful thinking" re: the putative benefits of prison nurseries. I don't have reason to doubt that there's little empirical support for developing prison nurseries now that some studies (as described and critiqued by Dwyer) show little grounds for them. But at least at some earlier point, it seems worrisome if critics insist that policy entrepreneurs provide empirical support for the benefits of a relatively new policy idea. How do we prevent policy ossification if we insist on studies for everything in advance? To be sure, Dwyer has probably convinced me that it was a form of constitutional folly to put kids into prisons with their moms. But if the legal arguments weren't there, and we were considering a strictly policy question, it wouldn't be batshit crazy to think that there might be some benefits to children of incarcerated parents being together with them; it *might* be the kind of thing we might want to see at least some types of (low-security) prisons experiment with. Dwyer's right, however, that there seems be little academic constituency for a child-centered view of these policies and their alternatives. One cannot read Dwyer's draft without feeling deeply concerned with this new policy bandwagon while also saddened by the conflict he spotlights between parental and children's interests.

Posted by Dan Markel on October 7, 2013 at 03:22 PM in Article Spotlight, Constitutional thoughts | Permalink

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Comments

Thanks, Dan, for writing about this interesting article. I look forward to reading it carefully. An initial reaction to your post -- there are a lot of similar tensions produced by our current heavy reliance on criminal punishment and incarceration. The only real, lasting solution is to incarcerate fewer people.

Posted by: Giovanna Shay | Oct 8, 2013 9:32:35 AM

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