The children of Afghanistan haunt the modern democratic nation-State

October 11, 2010 by 1 Comment

Children of asylum seekers and children who are asylum seekers in prison. What is their crime? Seeking asylum. These are children fleeing violence, in their households, in their communities, in their countries of birth. And how do `we’ respond? Prison.

Australia is bracing for a serious uptick in children in detention mutilating themselves: “Self-mutilation in Australia’s detention centres is increasing with the number of recorded cases quadrupling in the past year and mental health experts bracing for worse to come as children begin cutting themselves.” Why are the children cutting themselves? The prisons are becoming more overcrowded, the time spent in prison is increasing, and government officials are `promising’ increased rates of deportation. Who are these scoundrel children? Afghans. Sri Lankans.

According to Harry Minas, director of the Centre for International Mental Health at the University of Melbourne, the conditions for imprisoned asylum seekers and immigrants is returning to the dark days of 2001 – 2003, “when children drank shampoo and detainees sewed their lips together.” All of this has happened before, and it is happening again. We are told the first time it was tragedy.

Why are children cutting themselves? There is no school, there are no sustaining structures, there is no home life, there is no community, there is no future, and, increasingly, there is no past. There is only prison. From the State, there is only the promise that the rate of deportation to Afghanistan will increase. For the children, there is only threat and more threat.

The children are cutting themselves, they are poisoning themselves, because they are children, and self-harm is the only electoral process allowed them by the modern democratic nation-State. There are currently around 700 children in immigrant detention `facilities’ in Australia.

These children of asylum-seekers, these children asylum seekers are viewed as budget targets, as opportunities for greater efficiency. In Britain, it was announced today that “thousands of child asylum-seekers are to be removed … under savage budget cuts being drawn up by the Home Office ahead of this week’s comprehensive spending review. A briefing document sent to ministers sets out detailed proposals to remove child refugees before they reach 17 years old, and recommends bearing down on benefits given to asylum seekers…. Of greatest concern will be a policy of mass removal of unaccompanied children before they reach 17 and a half, the age when they are deemed to be adult asylum-seekers. Under current rules unaccompanied child asylum-seekers are usually granted leave to remain in the UK until they can make a fresh asylum application as an adult. There are more than 4,200 unaccompanied child asylum-seekers in Britain, with most being supported in local authority social services homes.”

The opportunity for economy here, for efficiency, is great. It is so great that the United Kingdom is willing to invest £4m in a `re-integration center’ in Afghanistan. The children of Afghanistan have traveled far, to seek asylum, to seek haven, to escape the violence of the Big War and the myriad forms of violence of the more intimate wars of the everyday. These children shall be returned to Afghanistan, after having been subjected to the democratic rule of law and of due process.

The planes are waiting, the ministers are promising swift, increasing, and ever more efficient returns. The children who have come asking for help will be returned to Afghanistan because Afghanistan is a better place … for them. It must be. It has been democratically decided. Those children who have not been allowed to kill themselves shall be sent `home’. The modern democratic nation-State is bracing itself for mass removals, for bearing down, for the mutilation of children. The children who seek asylum and the children of those who seek asylum have been targeted. The children of Afghanistan haunt the modern democratic nation-State.

 

(Photo Credit: Australian Human Rights Commission)

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More than Jamaica is haunted

June 5, 2010 by 3 Comments

The burnt-out room at the Armadale Juvenile Correctional Centre in St Ann

Jamaica is haunted by the memories of charred prisoners’ bodies. More than Jamaica is haunted by their ghosts.

About a year ago, May 22, 2009, seven girls died in a fire in Armadale Juvenile Correctional Centre in Jamaica. On May 22, 2010, people around the world gathered to commemorate their deaths and to commit themselves to improving the conditions and situations of State child-care in Jamaica. Those seven girls haunt Jamaica and haunt more than Jamaica. They are part of a global story of the wasting of children and of children’s lives through incarceration, in prisons, detention centers, and `reception centers’, in impossibly overcrowded cells and solitary confinement, in adult prisons and in juvenile detention, in interminable remand or permanent lockdown or else caught in a never ending choreography of revolving doors.

But now another charred body appears to publically haunt Jamaica, that of Lester Coke:

“Wherever Christopher (Dudus) Coke is hiding in the heavily fortified neighbourhood and fief known as Tivoli Gardens, whether he’s surrounded by armed henchmen, ducking in a crawlspace, or peering from a rooftop at the police officers in flak jackets below, Jamaicans are sure of one thing: He’s thinking of his father’s charred corpse. The late Lester Coke, who went by the alias Jim Brown, and his Shower Posse gang ruled Tivoli Gardens with an iron fist – along with the steadfast support of then-prime-minister Edward Seaga – throughout the 1980s. But when he was finally arrested in 1992, and set to be extradited to the United States, a bizarre thing happened in his cement jail cell. He burned to death, despite the absence of flammable materials.”

The stories unfolding in the streets of Tivoli Gardens and across Kingston and beyond, that of the violence by State and by others, that of the bullets and bodies that haunt the nation, and all the rest of the stories, interpretations, diagnoses and critiques, meet in the story and in the ghost of the charred remains of Lester Coke, a violent man, a bad man, a prisoner of State in a global War on Drugs directed from Washington, DC, who met an impossible death.

Memories of those impossibly charred remains of his father haunt not only Christopher Dudus Coke, not only Tivoli Gardens, not only Jamaica. They haunt a world order whose War on Drugs relies on extrajudicial violence in the streets and phantom executions in the prisons. Eighteen years ago, Lester Coke burned to death in a room where no fire could occur. Impossible fires produce eternal smoke. A fire that never happened cannot be extinguished. This is the magical realism of the prison state, and it haunts the world.

Whatever happens next in Jamaica, whatever happens to Christopher Coke, whatever happens to the US government that forced all of this on the Jamaican people, nothing substantive will have happened until the magical realism of the prison state is shut down and replaced with a better story. The story of the lives of the seven girls who died in the Armadale fire is not the same as the story of the life of Lester Coke, but the story of the flames that consumed them is. We must do better than continually raking ashes.

 

(Photo Credit: The Jamaica Gleaner)

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What is left: after solitary confinement in schools

January 19, 2010 by 17 Comments

Prison is a bad place for children. Solitary confinement is worse yet. Extended solitary confinement is lethal. These are not surprising statements, and the news that underwrites them, though dismaying, is not particularly shocking.

Immigration detention centers in the US, such as the Eloy Detention Center in Arizona, run by Corrections Corporation of America, or the Reeves County Detention Center, run by GEO, are lethal, fatal black holes for all residents. Joe Arpaio’s jail in Maricopa County is only the best known example of humiliation and terror against all Latinas and Latinos, irrespective of status, and which results in increased anxiety and mental health problems for Latina and Latino children.

And it is estimated that more than 60 of those held in Guantanamo were under 18 when they were arrested and sent to Cuba.

In England, Yarl’s Wood Immigration Removal Centre is so terrible for children that the entire nation is now considered unsafe for children of immigrant parents, including those seeking asylum and refuge. The place literally drives children mad.

Juvenile centers in the United States report that sexual abuse of prisoners, by other prisoners and, more, by staff, is off the charts. In 2008 – 2009, in more than a few juvenile detention centers, a recent study suggested that nearly one out of every three prisoners suffered some sort of sexual abuse.

When children go to prison, how are they educated? According to some, they’re not at all. California is being sued in a federal class action case for failing to educate youth in their `probation camps.’

These are terrible and tragic and all too familiar. Prison is a bad place, after all. Bad things happen.

Those bad things that happen to children are not restricted to prisons. Take “seclusion rooms”, for example: “Seclusion is the involuntary confinement of a student alone in a room or area from which the student is physically prevented from leaving. This includes situations where a door is locked as well as where the door is blocked by other objects or held by staff.”

This happens in schools all over the United States.

In the state of Georgia, public schools have “seclusion rooms,” solitary confinement cells. The doors are double bolted on the outside: “Seclusion rooms are allowed in Georgia public schools provided they are big enough for children to lie down, have good visibility and have locks that spring open in case of an emergency such as a fire. In 2004, Jonathan King, 13, hanged himself in one such room, a stark, 8-foot-by-8-foot “timeout” room in a Gainesville public school.” Time out. When schools put children into solitary confinement, what time is left?

What is left for Jonathan King’s parents, so many years later? Pain, anguish. Only now is Georgia finally responding by considering a law that protects all students from seclusion and restraint. It only took the State legislature six years … equal to almost half of Jonathan King’s entire life.

In May 2009, the Missouri state legislature passed a law giving the school districts two years in which to devise written policies governing the use of seclusion rooms. Before that, there were no policies, only the practice of solitary confinement of school children without a single written guideline or rule. This is now an issue in the upcoming GOP primary for State Senate. One candidate sees restrictions on solitary confinement of children as a violation of local sovereignty.

Florida state legislators are also considering a bill to restrict the use of restraint and seclusion. There are seclusion rooms all over the state school system, from elementary on up. Up til now, there has been no written policy.

Not surprisingly, solitary confinement is of particular concern to parents of children living with disabilities. Here are two stories from Florida:

When a twelve year old girl with autism repeated names of movies, shoved papers off her desk or waved her arms and kicked her legs toward approaching teachers, they responded by grabbing the eighty pound girl, forcing her to the ground and holding her there. This happened forty-four times during the 2006-07 school year.  She was held once for an hour, and, on average, twenty-two minutes at a time.  At least one incident left her back badly bruised.

When a seven year old girl, diagnosed with autism and bipolar disorder had her head pushed to the floor, the parents discovered several other frequent inappropriate uses of restraint and seclusion. The county where they live leaves it to individual schools to write their own policies on restraint or seclusion use.

These come from a 2009 report issued by the National Disability Rights Network: School is not supposed to hurt: Investigative Report on Abusive Restraint and Seclusion in Schools.  The stories come from all over the United States.

On the cover is the picture of a lovely, smiling seven year-old girl, from Wisconsin:

A seven year old girl was suffocated and killed at a mental health day treatment facility when several adult staff pinned her to the floor in a prone restraint.  This child, who was diagnosed with an emotional disturbance and Attention Deficit Hyperactivity Disorder, died because she was blowing bubbles in her milk and did not follow the time-out rules regarding movement.

Greenfield School District, outside Milwaukee, Wisconsin, applied to use Federal stimulus funds to build seclusion rooms in elementary and middle schools. The Wisconsin Department of Public Instruction recently rejected the application, instructing all school districts in the state that stimulus funds and special education funds not be used for that purpose. Greenfield is disappointed.

School is not supposed to hurt. It’s not only the children sent to isolation who suffer. What are the other children in the classrooms, in the hallways, in the school offices, who witness these acts and know of these rooms as part of the norm, what are they being taught? What becomes of a generation of child witnesses to torture?

 

(Video Credit: Vimeo/StopHurtingKids.com)

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Black Looks: Yarlswood refuses xmas for imprisoned children

December 16, 2009 by Leave a Comment

December 15th, 2009 

I heard on Sunday morning of an asylum seeker who was picked up yesterday and sent to Yarlswood women and children’s detention center. I have visited and met some of the women in Yarlswood and personally know two women, a young Nigerian lesbian and a young Ugandan woman both deported last year to Lagos and this year to Kampala – two cities where neither has lived or has family. The Ugandan woman had spent 5 years within the legal process of seeking asylum on the basis of sexual assault. Every few weeks asylum seekers have to check in with the police. As the date nears one becomes more and more anxious wondering if this will be the time they decide to physically grab you and send you to Yarlswood and 24 hours later on a plane.

Once again, the papers are full of reports about children being placed in Yarlswood which is run by a private security company SERCO. The horror of Yarlswood is that it is a prison yet no one imprisoned there has committed a crime. Still they are locked up, harassed, subject to body searches, abuse and sexual assault by guards, and wait for the moment they will be physically restrained en route to Gatwick or Heathrow and forced on to a plane. The latest story centers on SERCO refusing to allow two Anglican pastors from bringing Christmas presents for the children.

The Mothers’ Campaign of the All African Women’s group are mothers who have had to flee to the UK. The mothers had to make the very difficult decision to leave their children behind because they felt they would be safer without them. They have launched a petition for family reunion which they plan to submit on Mothers Day in March 2010. You can sign here. .

Sokari Ekine writes and organizes at Black Looks: http://www.blacklooks.org/ . This post appeared originally at http://www.blacklooks.org/2009/12/yarlswood_refuses_xmas_for_imprisoned_children.html

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Baring the brunt

October 10, 2009 by Leave a Comment

September, the song was, “Women hold up half the sky.” By the look of news reports this week, October, Domestic Violence Awareness Month, the tune might well be “Women and children bear the brunt”. From households and intimate relations to the armed forces to global poverty, women bear the brunt, children bear the brunt. This is not good news.

The new song began last Friday, with an article that centered on LeAnna M. Washington, Pennsylvania State Senator from the 4th District, which covers part of Philadelphia and Montgomery County. Senator Washington’s official Senate biography reports, “Washington has triumphed over many personal challenges in her life. She was a high school dropout, teen parent, and victim of domestic violence early in her marriage. Her tenacity, perseverance and faith in God allowed her to transform victimhood to victory. Washington, who earned a Master’s degree in Human Services from Lincoln University said of the road she has traveled: “I will go where there is no path and I will leave a trail for others to follow.””

In Friday’s article, Senator Washington is described as having been married at 18, and then living with the big secret of domestic violence, of spousal abuse. She is described as one of `many black women across the country….It’s about absorbing the reality that close to five in every 1,000 black women aged 12 and up are victims of domestic violence, according to the U.S. Department of Justice. It’s understanding that among those abused aged 15 to 34, murder by a husband or boyfriend remains a leading cause of death. More importantly, it’s about actively working on changing those outcomes….Verbal, sexual and physical abuse are forms familiar to a large swath of black females. Historically so…. These are the scars of slavery, lack of education, discrimination, unemployment and other frustrations that have been exacerbated among African-Americans. Poverty tends to be an indicator for abuse, though violence is not confined to one social class. The difference is having options and resources to escape – options not always afforded by those struggling to survive day-to-day. Feeling trapped leads many women to stay put – and in peril.”

The article is titled “Black women bear the brunt of domestic violence,” and it appeared in blackamericaweb. In every community, women bear the brunt of domestic violence. In every community, the language of that particular brunt, of that bearing, is silence.

And those communities are not only defined by race and ethne. For example, on Thursday we `learned’ that in the U.S. military “lesbians bear brunt of military discharges….Every military branch dismissed a disproportionate number of women in 2008 under the policy banning openly gay service members. But the discrepancy was particularly marked in the Air Force, where women were a majority of those let go under the policy, even though they made up only 20 percent of personnel.”

On the same day, Thursday, it was reported that in Lesotho, “children bear the brunt of the deepening economic crisis…”Adult frustration” translated into a grim reality of child abuse, violence, neglect and exploitation, with thousands left to fend for themselves, excluded from crucial services such as hospitals and schools.” The next day, the Africa Child Policy Forum sent out a press release, announcing a new publication, Child Poverty: African and International Perspectives. Here’s what they said in the release: “Poor children to bear the brunt of global economic crisis. New book looks at the brutal reality of child poverty….The book also includes analysis of the impact of the current financial crises on child poverty in the face of increased estimates of the actual number of newly poor and reduced economic growth in sub-Saharan Africa estimated to be down to 3.5 percent – implying a 7 percent increase in poverty in Africa, of which children will bear a huge brunt.”

From one community to another, what exactly is meant by “bearing the brunt”, and why is it always women and children who are endowed with that particular role and capacity? Can community exist without women and children bearing a, or the, brunt? A brunt is “An assault, charge, onset, violent attack….The shock, violence, or force (of an attack)…. The chief stress or violence; crisis.” To bear can mean so many things, from carry to bring forth fruit or offspring, but when it comes to bearing the brunt, it means “to suffer without succumbing, to sustain without giving way, to endure.” Bearing the brunt as an acceptable facet of everyday life, as an acceptable `neutral’ phrase, is a perversion of any vision of sustainability as articulated with wellbeing.

Domestic Violence Awareness must transform the language and the logic of the brunt. It’s time to stop talking about bearing the brunt and start talking and acting on baring the brunt. What is the attack, who and what are the assailants, what is the violence, the force, the stress, the crisis? All must be addressed as part of the same question and part of the same solution. And it begins and ends with women, not majestically holding up half the sky but rather ordinarily and daily populating and sustaining all the daily world. Bare the brunt now, today, and always.

(Photo credit: Precious Jones in NCKU)

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The rule of lawless

August 8, 2009 by 4 Comments

The United States immigrant detention system has been called a gulag. The California state prison system has been called a golden gulag. Millions of women, children, men inhabit severely overcrowded, ferociously under-resourced, rigorously unmonitored and opaque `centers’. This gulag has been likened to sites of bare life where national sovereignty is articulated by the power and capacity to kill and to reduce life to physical survival, and less. These descriptions are accurate, but they miss something. It turns out that the U.S. immigration detention system is just the most recent articulation of the rule of lawless.

The rule of lawless haunts the rule of law. In fact, when the rule of law looks in the mirror, it’s the lawless it sees, and then quickly names as dangerous other. This became clear this past week, when the Obama administration announced its intention to overhaul the immigrant detention system.

National Public Radio reported, “The Obama administration is planning to overhaul the nation’s immigrant detention system.” According to The New York Times, “The Obama administration intends to announce an ambitious plan on Thursday to overhaul the much-criticized way the nation detains immigration violators, trying to transform it from a patchwork of jail and prison cells to what its new chief called a `truly civil detention system.’” The Austin American-Statesman called it a larger and then, the next day, a broader “overhaul of the nation’s immigration detention system”.

Everyone cried overhaul. Overhaul, to change significantly, abruptly, swiftly, with force or violence.

The first site of this supposed overhaul is the T. Don Hutto Residential Center, in Taylor, Texas, a notorious private prison, run by the Corrections Corporation of America, and just down the road from Austin.

Hutto came to public attention over the past few years for its abysmal treatment of children and women. The ACLU, the Women’s Refugee Commission and others weighed in and waged mighty campaigns. Now, children will no longer be sent to Hutto. In fact, `families’ will no longer be sent to Hutto. They’re going to the Berks Family Shelter Care Facility, in Leesport, Pennsylvania.

But Hutto will stay open, as an all-women’s immigration detention center. Michelle Chen, of RaceWire, wrote a terrific piece, “New Direction for Detention?”, that explains in great detail what Hutto means for women, what immigrant detention has meant for women. It’s been terrible, and there’s no reason to think it will improve.

At the same time, and here’s where the rule of lawless kicks in, many think the only way to overhaul the system would be to actually overhaul the system. NPR reporter Michelle Brand interviewed NPR reporter Daniel Zwerdling on the overhaul. Zwerdling reminded Brand that immigrant detainees are “civil detainees”. They are charged with having broken civil, or administrative, laws, “like overstaying a visa”, but are housed with “regular criminals”, and so are treated accordingly: beaten, overcrowded. Many die for lack of medical care. Treated like prisoners in the U.S. system. Ask California, under order to release 43,000 prisoners. The difference is that the immigrants are, again, civil. As Zwerdling explained, “government officials have told me that 90 percent of the immigrants they detain never have a lawyer. So they can’t really even challenge their own detention.”

Why don’t they have lawyers? Because constitutionally, they don’t exist.

“Zwerdling: ` lawyers say the best way to make sure the jails treat immigrants humanely is to pass a law that requires it. Period.’

Brand: ` So, wait, there’s no law that says treat detainees humanely?’

Zwerdling: ` No, absolutely not. The detention standards are legally just guidelines, you know, so nobody can actually force the government and the jails to obey them.

And now some members of Congress have introduced bills that would turn those standards into law. And I asked the Homeland Security spokesman today, will you support that? And he said, no. And I said, why? And he did not give me an answer.’”

That, in a nutshell, is the rule of law. If no law says your category must be treated humanely, you have no legal, juridical protection. Period. And you will not get an answer from members of State about that. More accurately, radical silence shall be your answer.

According to Michelle Brané, Director of the Detention and Asylum program at the Women’s Refugee Commission, when it comes to immigrants, “Our current laws are unforgiving and unrealistic.” Yes, but our current system of non-laws is lethal.

This legal system is one of negation. Everywhere, this negation, this system of absence-of-law, this reliance on written law as the only means of preventing abuse and atrocity, as the only means of `protection’, this is the rule of lawless. The rule of lawless haunts the rule of law, and it targets women. Don’t send women to Hutto. Shut it down.

(Image Credit: WomensRefugeeCommission.org)

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How do you like your torture, fast or slow?

July 13, 2009 by 4 Comments

Saleyha Ahsan has been visiting Y, an Algerian who fled Algeria for the United Kingdom, seeking asylum. His story is being enacted in a video on the Guardian website. He can’t see it, because he’s “a threat to national security”, and so he can’t access a computer, much less the internet or a mobile phone. His crime? “Y was tortured in Algeria – the evidence is clear from the scars on the front and back of his head. His crime was to speak out against human rights abuses in the early 1990s. When it was clear that he had to leave he came to the UK, and with his powerful testimony he was given full rights to remain. Not a false passport or fake name in sight. Leaving saved his life. Not long after, he was issued with a death sentence in absentia in Algeria.” Wait. That can’t be right. His crime is that he `agreed’ to be tortured? Yes, that made him a threat. However one parses the niceties, Ahsan has watched “an isolated edgy young man turned old through the “slow torture” of these last eight years in the UK. Detained for a total of 57 months in prison – first for the ricin case, for which he was fully acquitted, then detained again based on…? Your guess is as good as mine. It’s called secret evidence and neither Y or his lawyers have any idea what it is.”

This practice of slow torture is particular to women and takes many forms.

In the UK, according to the most recent Prison Reform Trust Fact Files, “The number of women in prison has increased by 60% over the past decade, compared to 28% for men. On 12 June 2009 the women’s prison population stood at 4,269. In 1997 the mid-year female prison population was 2,672. In 2007, 11,847 women were received into prison.” Twelve years of step-by-step, rung-by-rung escalating incarceration of women. Twelve years of silence. Slow torture.

Nadera Shalhoub Kevorkian has been thinking and writing about the slow torture of Palestinian women. Palestinian women have been placed in a condition of betweeness: “we as women are in a state of betweeness, we are kind of border patrolling everything, we are border patrolling the border between the outside and the inside, the private and the public – our bodies, our lives, our future are all in the state of betweeness….Look at the example of the checkpoints …; I was dropping my partner off at his clinic… they stopped us and they put the men on the right side and the women on the left side, and they told the men to raise their hands and body searched them, and we were on the other side, and this kind of not knowing, this uncertainty that we were all living at that moment, this geography of fear that they created in a very small space, our space as women, all of a sudden it became militarized and they kind of stole our space from us. We became exilic in our own space and the men became dehumanized and demonized in front of our very eyes….This militarization … ends up putting us, as women, as boundary markers, so we are the punching bag for the men outside and the punching bag for the men inside, and we want to move and change the situation, but we are in a state of ‘betweeness’.” The checkpoints are the fast and the quick of torture. The slow torture is the state of exile in one’s own home. How many decades of silence before a new language and a new home are fully established?

Slow torture is a product of a particular application of the rule of law to women and men deemed to be foreigners, and so [a] menace to society and [b] meant to be grateful for whatever juridical crumbs they can get.

In California, for example, activists have targeted undocumented residents and their U.S.-born children. They want to cut off public services to undocumented residents, to challenge the citizenship of any U.S. born citizens of undocumented residents, and set harsh new standards for birth certificates. Who’s targeted here? Women. Making pregnant women worry about what will happen, to them and their children, if they go to hospital in labor is that same as shackling women prisoners while in labor and childbirth. It’s criminal, and it happens all the time. It’s slow torture.

Veronica Lopez  is from Guatemala. She lives in California. She lived with a violent and abusive partner. She reported him. He was tried and deported to Guatemala. Lopez then spent nine months in immigration detention, terrified that she would be deported back to the reach of her abusive husband. Only at the eleventh hour, and then some, did the State come through and grant her a U-Visa, which is designed precisely for women in Lopez’s situation. Others have not been so lucky, and have been deported. The state of betweeness for women stretches across the world. The practice of slow torture haunts us.

(Photo Credit: Los Angeles Center for Law and Justice)

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Children of Incarcerated Mothers, or Albie Sachs haunts U.S. prisons!

July 6, 2009 by 1 Comment

Albie Sachs is a South African judge who haunts the U.S. prison system. Why? Because he is a decent human being, that’s why. He decided to listen to a woman colleague. He decided that primary caregivers of children should not be sent to jail. Here’s a version of the story:

“Albie Sachs…was fleetingly in the UK last week, primarily to tell the story behind the judgment he made in South Africa not to send a woman to prison because it would infringe the human rights of her three children.…

“Judges are the storytellers of the 21st century,” says 74-year-old Sachs….

At first sight, he had intended to throw out an appeal on behalf of Mrs M, who was facing four years in jail for up to 40 counts of credit card fraud that she had committed while under a suspended sentence for similar offences. “I remember drafting an extremely dismissive response. I said: ‘This doesn’t raise a constitutional question. She simply wants to avoid going to jail. She doesn’t make out a case, and her prospects of success are zero.’ “It was a female colleague…who insisted that the case be heard. She argued that the human rights of the accused woman’s children were not being looked at separately.

“She said: ‘There is something you are missing. What about the children? Mrs M has three teenage children. She lives in an area that we politely call fragile, an area of gangs, drug-peddling and a fair amount of violence. The indications are that she is a good mother, and the magistrate gave no attention to the children’s interests.’

“The minute my colleague spoke to me about the importance of the three teenage children of Mrs M, I started to see them not as three small citizens who had the right to grow up into big citizens but as three threatened, worrying, precarious, conflicted young boys who had a claim on the court, a claim on our society as individuals, as children, and a claim not to be treated solely as extensions of the rights of the mother, but in their own terms.”

As a result, Sachs created a legal precedent in 2007: a woman who otherwise would have gone to jail did not have to, because of her children’s rights. “We could have said the children’s rights must be considered but sent Mrs M to jail anyway, perhaps for a lesser term. But that would not have changed anything.”…

Although three judges dissented from the majority verdict, the precedent was set in South Africa that – at least in borderline cases – primary caregivers of children should not be sent to jail. And if the court decided to jail a primary caregiver, it had to take some responsibility for what happens to the children. “The court can’t simply say that she should have thought of that before she committed the offence, or that she can’t hide behind her children.”…

At the time he was drafting the judgment, Sachs did not know of any country that took the rights of offenders’ children into account, but he subsequently discovered that similar ideas were being framed in Scotland in a report by the then children’s commissioner, Kathleen Marshall. The report, Not Seen, Not Heard, Not Guilty, argues that the rights of offenders’ children to family life under the UN Convention on the Rights of the Child are systematically ignored by the court system. The report found that almost two-thirds of prisoners in the Cornton Vale women’s prison in Stirling had children under 18, but there was no provision to take their rights into account during sentencing.

“This was astonishing,” Sachs told the audience. “In a totally different legal system, in a totally different society, a conclusion was being reached that is almost identical. It showed that the time has come for new ways of thinking.””

Albie Sachs haunts the United States, home of “the incarceration generation”: “The chances of seeing a parent go to prison have never been greater, especially for poor black Americans, and new research is documenting the long-term harm to the children they leave behind. Recent studies indicate that having an incarcerated parent doubles the chance that a child will be at least temporarily homeless and measurably increases the likelihood of physically aggressive behavior, social isolation, depression and problems in school — all portending dimmer prospects in adulthood. “Parental imprisonment has emerged as a novel, and distinctly American, childhood risk that is concentrated among black children and children of low-education parents,” said Christopher Wildeman, a sociologist at the University of Michigan who is studying what some now call the “incarceration generation.” Incarceration rates in the United States have multiplied over the last three decades, in part because of stiffer sentencing rules. At any given moment, more than 1.5 million children have a parent, usually their father, in prison, according to federal data. But many more are affected over the course of childhood, especially if they are black, new studies show. Among those born in 1990, one in four black children, compared with one in 25 white children, had a father in prison by age 14. Risk is concentrated among black children whose parents are high-school dropouts; half of those children had a father in prison, compared with one in 14 white children with dropout parents, according to a report by Dr. Wildeman recently published in the journal Demography. For both blacks and whites, the chances of parental incarceration were far higher than they were for children born just 12 years earlier, in 1978.”

None of this is new, news or surprising. Cage the fathers, superexploit the mothers, forget the children. It’s simple. Put a nation of mothers behind bars, where too often there are no fathers or other guardians around and there is no public support, and you imprison the children. Where’s the surprise? Shackle pregnant women prisoners in labor and delivery, in the name of security. Are you surprised? This has all been said before. It’s common knowledge.

In South Africa, Albie Sachs acted. In Scotland, so did Kathleen Marshall. In the U.S., it’s time, it’s way past time, for similar action.

(Image Credit: http://childrenofprisoners.eu)

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