I. INTRODUCTION

For over a quarter of a century, New York's drug laws have mandated severe prison sentences for drug offenses and have filled the state's prisons with low-level offenders, most either black or Hispanic. Many of the 150,000 prison sentences handed down to drug offenders have been so disproportionate to the crime-mostly retail street sales and other minor drug offenses-that they violate basic principles of justice and internationally recognized human rights, as detailed in an earlier report.¹ Excessively long sentences can constitute cruel and counterproductive punishment for those who are incarcerated. Such sentences also needlessly harm the children left behind.

Children of incarcerated drug offenders are one of the collateral casualties of the state's war on drugs. Many advocates for drug law reform have cited the experience of children who have lost their mothers or fathers to prison on drug charges. While anecdotal evidence abounds, to date there have been no statistical studies to help assess the magnitude of the problem. In this report, Human Rights Watch presents the first such statistics about New York's children of incarcerated drug offenders.²

Among our findings:

· An estimated 23,537 children currently have parents in prison convicted of drug charges.
· An estimated 11,113 currently incarcerated drug offenders are parents of children.
· Since 1980, an estimated 124,496 children have had at least one parent imprisoned on drug charges.
· Some 50 percent of mothers and fathers in prison for drug convictions do not receive visits from their children.

Safeguarding communities and protecting families from drug trafficking and drug abuse are important public interests. But the means chosen to combat drugs should neither violate fundamental human rights nor inflict unnecessary collateral harm. As New York debates reform of its drug laws, it needs to consider steps to restore proportionality, fairness, and common sense to drug sentences. New York also needs to attend to the emotional, developmental, and economic consequences of parental imprisonment on children.

Children of convicted drug offenders typically grow up in families and communities struggling to cope with poverty, inadequate work and educational opportunities, discrimination, crime, and substance abuse. The loss of a parent to prison can be yet another terrible burden for these children, one that experts agree can have a significant adverse impact on their emotional and social development.³ While some drug offending parents abuse or seriously neglect their children, many others do not. Contrary to prevalent stereotypes, even if a parent is addicted, he or she may nonetheless be a source of love, care, and stability. In many cases, community-based substance treatment would address the addicted parent's needs and the public interest, as well as benefit the children far more than incarceration.

Some offenders' crimes are so serious that imprisonment is warranted regardless of the implications for their families. But for many low-level nonviolent drug offenses, alternatives to incarceration-including community-based sanctions and drug treatment programs-are a more proportionate sanction and one that would be less costly for their families. Human Rights Watch has consistently urged the State of New York to eliminate harsh mandatory minimum sentences for drug offenders and to authorize judges to tailor criminal sanctions that reflect the individual offender's conduct and other relevant factors. Restoring fairness and proportionality to New York's drug laws would reduce the number of drug offenders needlessly sent to prison. By reducing their numbers, the state would also reduce the number of children who must suffer from losing a parent to prison.

1 For a detailed human rights analysis of New York's drug laws, see Human Rights Watch, "Cruel and Usual: Disproportionate Sentences for New York Drug Offenders," A Human Rights Watch Report, vol. 9, no. 2, March 1997.

2 The Department of Justice has published statistics on incarcerated offenders and their children nationwide, but does not provide a breakdown of information for drug offenders in particular or on offenders by state. See Bureau of Justice Statistics, "Incarcerated Parents and Their Children," (U.S. Department of Justice, 2000).

3 We have attached, as Appendix 2, a short bibliography of documents on the impact of parental incarceration on children.