California May Give Parents Special Diversion Programs to Avoid Incarceration

Advocates like Akilah Shands are hoping California Gov. Gavin Newsom will sign a bill that would allow judges to offer services to parents of dependent children in lieu of incarceration. Photo courtesy of the Anti-Recidivism Coalition.

It wasn’t until Akilah Shands arrived at the Central California Women’s Facility that she realized  she was going to be a mom.

In 1999, Shands had been arrested for violating her parole and was sentenced to a year in prison. A blood test administered at the California state prison in Chowchilla revealed that Shands was pregnant, to her surprise. She would deliver her baby behind bars, shackled to a bed.

When she was 18, Shands had been sentenced to three years in prison for the possession of $40 worth of cocaine with an intent to sell. Shands was on parole for two years when a probation officer saw her celebrating her birthday at a club in Santa Barbara, located a short drive from her home in another county. The terms of her parole forbade her from crossing county lines, so she was sent back to prison for a year.

Three days after the baby was born on July 1, 2000, Shands handed over her daughter to a social worker, who promised she would send Shands a picture of the baby and let her know where the infant would be placed during her lock-up. According to Shands, by the time she emerged from prison and tracked down case information from a dependency court judge, her daughter had already been adopted.

“On that day, they walked off with my child. I haven’t seen her since, and that was 19 years ago.” Shands said. “The two things I can’t ever forget are giving birth to my daughter while in prison and then having her taken out of my arms.”

That story is painfully familiar for Shands. Her own parents struggled with heroin addictions, and were in and out of prison while she grew up as a ward of the state.

“I was system impacted since before I could even put together my first sentence,” said Shands, an advocate for criminal justice reform with the Anti-Recidivism Coalition and other organizations. Most of her childhood was spent cycling through group homes, juvenile hall and other foster care placements.

When she heard about Senate Bill (SB) 394 — a California bill that would open up opportunities for pretrial diversion to some parents caught up in the criminal justice system — Shands said she couldn’t stay silent.

“I’ve never told my story before this because it’s a part of my life that’s horrible,” Shands said. “It’s a heaviness I’ve been living with for a long time, but this pattern has to stop somewhere.”

On Wednesday, SB 394 received a final stamp of approval from the California legislature and now heads to the desk of California Gov. Gavin Newsom (D). Shands and other advocates across the state are hoping that he will sign a measure that would chip away at an intergenerational cycle of family separation through incarceration, especially for parents for whom incarceration can sometimes mean placing children in foster care.

Sponsored by state Sen. Nancy Skinner (D), SB 394 would create a pretrial diversion program for defendants who are the primary caregivers of a child, allowing judges to identify people who could benefit from services rather than incarceration early in the legal process.

“This is really about trying to ensure that if there is a clear path for a person who has demonstrated their rehabilitative potential and we can keep a family from being separated and thus a child from going into foster care, this is an option we might have to pursue,” said Sen. Skinner at a hearing for the bill in May.

Not all parents would be eligible. To qualify, defendants would have to be a custodial parent or legal guardian, and only parents facing certain types of charges would be eligible: misdemeanors and non-violent, non-serious felony charges. Parents who are facing charges related to crimes committed against their own children or other minors also would not able to claim diversion services, which include drug and alcohol treatment, mental health screening, anger management, domestic violence prevention and vocational services. Judges would be able to hand out diversion in lieu of sentencing for between six months and two years.

In California, judges have discretion to hand out alternative sentences for non-serious felony charges after conviction. Most diversion programs in the state are available in specialty courts for mental health, drugs, and since 2015, veterans in the state.

But opportunities for diversion that occur before a case goes to trial are becoming more popular as a way to bypass deeper involvement with the criminal justice system while also improving access to services. If an offender fails to complete required services, criminal cases can be reopened, offering a measure of accountability, according to advocates like Erin Haney.

“This gives judges a different option when they see a primary caregiver standing before them,” said Haney, senior counsel with the criminal justice reform organization #cut50. “We hope that this will help the court look at the health and welfare of the child, not just the defendant, the person in front of the court.”

The bill has not received a warm reception from prosecutors in the state, who say that while they are broadly supportive of diversion, the bill would unfairly favor defendants with children.

“This bill is overly broad, would usurp valuable judicial resources, and could unfairly impact innocent crime victims,” said a letter signed by L.A. District Attorney Jackie Lacey.

The proportion of incarcerated women like Shands has increased over the past 15 years, even as the overall number of people incarcerated in jails and prisons has shrunk. For example, according to FBI statistics cited by the Vera Institute, drug arrests for men declined by 9 percent between 2008 and 2017, though that number increased by 23 percent for women during the same period.

Sixty-two percent of women in prison are mothers to minor children, and incarceration often means serious disruption of that parenting bond. According to a conservative count from 2016, more than 5 million American children have a parent who was incarcerated at some point, or about 1 in 14 children nationally. One quarter of African American children have experienced the incarceration of parent by age 14, compared with only 4 percent of white children.

In some cases, it results in the removal of children into foster care. In California, the state with the largest number of children placed in foster care in the country, just 2 percent of children enter foster care because of parental incarceration. That’s below the national average of 7 percent and well behind states like Utah and Arkansas, where incarceration accounts for about one quarter of all children removed from their homes.

When a parent is incarcerated in jail, a child may be placed with family members or foster parents on a short-term basis. But a parent’s long-term incarceration presents serious challenges for reunification under the timelines imposed by the federal Adoption and Safe Families Act of 1997. With only a few exceptions, if a child has been in foster care for 15 of the most recent 22 months, child welfare agencies must file a petition to terminate a child’s parental rights by the end of the child’s 15th month in foster care.

After leaving prison in 2001, Shands says she spent nearly a decade in and out of trouble with the law, nursing the heartache of losing her daughter and the traumas of nearly lifelong system involvement.

Shands with three of her daughters in 2013. Photo courtesy of Akilah Shands.

Shands has had five other daughters since losing her first daughter while incarcerated. Soon after leaving state prison again in 2009, she was involved with child protective services, and on two occasions, her children were again nearly claimed by the system. In dependency court, Shands realized she had to do things differently in order to make sure her daughters had a new trajectory.

“At that moment, I made the decision that after watching the cycle affect my family twice, I had to make that change,” Shands said.

She now works as a re-entry case manager for Tarzana Treatment Centers in L.A. County, part of a calling to provide hope for those who are battling issues after incarceration, including those who have lost their children to the child welfare system.

“There’s not anything in this life that I’ve struggled with and suffered from that I can’t be that voice to reach somebody else,” Shands said.

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Jeremy Loudenback
About Jeremy Loudenback 318 Articles
Jeremy is the child trauma editor for The Chronicle of Social Change.