Criminal courts produce millions of orphans every year.


Are children entitled to legal standing when parents are sentenced in criminal cases?

The current answer is “no.” The answer should be “yes.”


Today, the well-being of a defendant’s children is close to irrelevant in criminal courtrooms. Institutional indifference to children is official policy. This is the most profound legal error in the last 35 years, the mistake that made mass imprisonment possible.

Criminal courts produce millions of orphans every year using procedures that weigh only the interests of adults in the courtroom. This is a profoundly ignorant way for a bureaucracy to act. Removing a mother or father from a child’s life is a not mere “side effect”of the day’s procedure; it is an “effect,” often the most important thing that will happen that day.

Children deserve rights — legal rights, established in law — to end their mistreatment in criminal courts.

In domestic courts, the “best interest of the children” is the trump card standard that overrides almost all other adult needs in divorce and custody cases. In criminal courts, defendant’s children are treated as trash in the back row.

This difference is legally shameful and morally indefensible.

A child is not a “get out of jail free” card. But neither is a parent’s offense a license for the state to impose any amount of harm on an innocent victim. The child did not commit the crime. The child did not forfeit any legal rights.

The criminal justice system mechanistically, one case at a time, orphans millions of children every year. Today, 2.7 million children under 18 have a parent behind bars, reports the Pew Charitable Trusts. One in 9 African American children has an imprisoned parent, up from one in 38 in 1980. The cumulative toll of all those who’ve lost a parent, temporarily or permanently, to imprisonment runs in the tens of millions, disproportionately poor and disproportionately people of color.

Yet the legal system doesn’t consider itself responsible for the devastating consequences of its actions. It doesn’t even appear institutionally aware of its role in destroying families as a matter of policy.


Children have a legal and moral right to “standing” when a parent is removed from their lives — at any time, including a criminal sentencing. Denying children their right to advocate for their interests is wrong as a matter of  legal principle. Children meet traditional grounds for legal standing: the right to be heard in court and seek redress from harm. Children often meet the criteria of standing more clearly than prosecutors do.

The test for standing varies in federal and state courts but basically boils down to this three-part test. To gain standing, a person needs to show:

  • Injury-in-fact. A person must suffer concrete, articulable harm, not just a vague and theoretical claim  of harm.
  • Causation. A causal connection must exist between the party seeking standing the action causing harm and the party inflicting harm.
  • Redressability. The court must possess the power to correct the harm.

Do children meet this three-part test in the sentencing of a parent? Absolutely.

The well-being of children may not be the most important consideration in a criminal case, as it is in a divorce case. But it’s more than nothing. Children deserve more than a factual mention in a pre-sentencing report. The lives of young people are not the factual equivalent of a defendant’s height and weight.

children-in-courtChildren need legal authority to advocate for their interests — not their parent’s interests, but their’s. Criminal courts need to be ready to appointguardians ad litem to represent children’s’ interests when appropriate and in all cases involving long sentences. The court needs to hear what is in the “best interest of the child” so it can weigh competing claims for a just result.

Judges balance competing interests everyday as a matter of law and life. Judges consider the seriousness of a crime, the needs of the victim, a defendant’s record and so on. The child is entitled to be a factor in the judge’s calculation.

It is child neglect to pretend that no injury, no causation and no redressability exists when a parent is sentenced in a criminal court. Institutional child neglect, in a system that cares about justice, is particularly ugly.

Criminal courts occasionally make minor sentence adjustments to mitigate harm to children, such as staggering the sentences of two parents so one parent is always home. But these concessions are small, rare and from the adult’s perspective.

Cold-heartedness is today’s legal standard. In federal courts, “extraordinary family circumstances” might be grounds for a small sentence reduction, but it’s accepted as fact that “normal children” will be harmed by a sentence and, thus, the harm is irrelevant to sentence length. The longer the sentence, the more irrelevant the harm to children becomes, under current legal thinking, because the damage is permanent and irreversible.

“Normal children react adversely to learning that their parents will be absent for years on end,” said one chilling federal appeals court decision orphaning a seven-year-old child for two decades. “…(T)aking a few years off a long sentence is worthless to children and costly to the program of proportionate punishment under the guidelines.”

This is perverse. It’s an example of powerful adults overvaluing their interests “proportional punishment,” a comical concept in federal courts circa 2000) and undervaluing the interests of powerless victims. This is a natural extension of legal thinking that doesn’t grant standing to children. Legal minds, especially smug, rich, white appeals court judges, have no capacity to understand the world without rules to guide their thinking.

Today’s legal mentality has reality exactly backwards. The interests of children gain force as sentences lengthens, especially in cases when a victim is absent, such as a drug case. The state’s interest in punishment lessens as sentences lengthen.

The tenth-year of a drug sentence is not as important to as the first as a matter of punishment. But For children, the scale tips the other way. Losing a parent for a day or a year is less weighty than losing one for ten years or the entirety of a childhood.

Criminal courts have created a broad swath of damage to the family structure of our nation. They cannot correct the error until they accept that those harmed have a right to be heard and considered at the time of the damage. Adults need to stop thinking they are all that matters in criminal courts.

The kids are not alright. They are suffering. The children need a place to stand.

– Dennis Cauchon, Editor

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