Fall 2021 The Law Office of George J. Skuros Justice in Family Law Scholarship Winner

Jessica Terkovich

The Law Office of Geroge J. Skuros is pleased to announce the Fall 2021 recipient of our Justice in Family Law Scholarship, graduate student Jessica Terkovich. Our scholarship team selected Jessica based on the essay she submitted with her application, in which she details the injustices faced by children whose parent is a death row inmate.

Read Jessica’s Essay:

When most people think of visitation rights, what comes to mind is the right of each parent to visit a child after a divorce that has granted custody of the child to one parent. Most people forget, however, that there are special concerns with familial visitation rights when it comes to death row inmates. Death row inmates are oftentimes restricted to only visiting with immediate family members, but the Supreme Court declared that there is no constitutional right to visitation in its Kentucky Dept. of Corrections v. Thompson opinion. 490 U.S. 454 (1987). Children are oftentimes left out of visitations entirely, but this deprivation is far worse than if the parent was merely sentenced to serve time in prison: The child is forced to grapple with the difficulties of a judicial process they cannot understand, social stigma, and the lasting trauma of having a parent permanently taken from their lives by the State. Children in this situation need compassion, support, and age-appropriate information, but they do not often receive it.

When a parent is forced to spend any time at all behind bars, one of the most important considerations is keeping the parent-child relationship intact for as long as possible. When a parent is on death row, however, additional hurdles can prevent children from seeing or contacting their parent even if they are allowed to visit under the correctional institution’s policies. Travel concerns, for example, may make it difficult for the child to have regular visits with the parent if the parent is held on the state’s death row, which can be hundreds of miles away from home.

Even if a child is able to travel, they may not be permitted contact visits with their parent when they arrive. Contact visits provide a host of security concerns, as acknowledged by Block v. Rutherford, 468 U.S. 576, 587 (1984), but contact visits are crucial for children. When a parent has been suddenly removed from a child’s life, not being allowed to hug them during a visit is a draconian punishment not only for the parent but for the child. Correctional facilities must carefully balance security concerns with the concerns of the child: Though the prison system prides itself on punishment, its rehabilitative functions cannot be served if children cannot hug their parents, an inmate cannot hold their newborn child, or positive social relationships are not encouraged. Even on death row, where there is almost no hope of leaving the prison, prosocial attitudes should be encouraged, and allowing familial contact visits when at all possible is a step in the right direction.

These problems are compounded by the fact that some states see a capital sentence as justification for terminating parental rights. See State ex rel. J.T.C., 895 So. 2d 607, 614 (La. Ct. App. 2005). Though entirely dependent on state law, states can decide to terminate parental rights if the period of incarceration would prevent the parent from being able to care for the child for an extended period of time.

Removing a parent from a child’s life and introducing sometimes unmanageable obstacles to visitation is arguably a violation of the rights enshrined in the Convention of the Rights of the Child, which provide children with the right to special protections when State action deprives them of their usual family environment and normal social development. The United Nations has specifically resolved that death row inmates and their families be “provided, in advance, with adequate information about a pending execution, its date, time and location, [in order to] to allow a last visit or communication [. . . and . . .] the return of the body to the family [. . .] or to inform on where the body is located” unless the child’s best interests would be served by doing otherwise. [Human Rights Council Resolution 19/37, Rights of the Child A/HRC/RES/19/37 (April 2012).].

Even if the security concerns on death row are staggering, children deserve to be able to visit their parents and be able to say goodbye to them when all appeals have been exhausted. They deserve to be informed in an age-appropriate manner, and deserve the same dignity and respect that adult family members are given when grieving and coming to terms with both the crime their loved one committed and the lifelong repercussions of a trial and execution. There are no protections like the U.N. resolution specifically enshrined in American law, leaving children to suffer from a lack of support that can be compounded by several factors, such as being compelled to testify against a parent or having family resources being focused on the appeals process and not the child’s needs.

There are several ways to increase children’s access to their parents on death row. The most sweeping, naturally, would be to eliminate capital punishment, and thus eliminate the trauma a child has to go through when a parent is subjected to a State-sanctioned execution. Thought this is a good first step, many states are reticent to abandon the death penalty altogether, and commuting all death sentences to life in prison without parole would not solve the issue of a child’s access to their parent in prison.

A much more feasible approach would be to reform the methods of access that families have to their loved ones on death row and in prisons and jails as a whole. Even though families may not be able to travel for visits frequently, increasing access to telephone calls and video visitation can help to bridge that gap. Currently the cost of phone and video calls is astronomically high. Even if the per-minute rate set by the prison is not incredibly expensive, paying for the ability to make a call might be.

Inmates’ families are able to send their loved ones money to cover the cost of phone calls and other privileges, but JPay, the leading system for electronic money transfers in prisons, has transfer fees as high as 45%. [Eleanor B. Fox & Daniel Wagner, Time is Money: Who’s Making a Buck Off Prisoners’ Families?, The Center for Public Integrity (Sept. 30, 2014), https://publicintegrity.org/inequality-poverty-opportunity/time-is-money-whos-making-a-buck-off-prisoners-families/.]. This means that sending a loved one $100 to cover the cost of phone calls could cost the family nearly $145, money that many families, especially those paying for appeal after appeal, simply do not have.

Although phone bills must still be paid for by someone, tying them to a system that overcharges for services and transfer fees hinders family communication. A good first step would be to allow inmates access to phone calls at the same going rate as most major phone carriers. Child-rights activists will encounter significant roadblocks to change, however, as JPay and similar services are core to the for-profit prison system that our country has turned to in order to handle its correctional needs. Painting this as a children’s rights issue instead of an inmates’ rights issue may garner much-needed support to bring about incremental change in how the prison system is run. Ensuring children have as much access to their parents as possible in order to maintain a semblance of a normal familial environment is an issue that even the most pro-punishment audience should be able to agree with.

Expanding access to victims’ resources to include the children and families of inmates will also offset the burden placed on them. Having access to support helps children process the emotions associated with having a parent suddenly removed from their lives, the appeals process, and potentially an execution. Giving the family the resources to explain what is happening to the offending parent in an age-appropriate manner and the resources to help the child cope with the process will encourage positive outcomes. While trauma is unavoidable when a parent is arrested, tried, and sentenced to death, having the resources to help allay some of these pressures will do nothing but help all of those involved.

Though penological interests must be taken into account, there are ways that the justice system can protect the interests of capital inmates’ children and give them the ability to access crucial resources, voice their concerns, and keep in contact with their parent. By taking a careful look at those affected by a capital charge, trial, and sentence, and accounting for those that are left behind, we as a society can better serve the children who are often overlooked in the wake of a prospective death sentence. Our children truly are our future, and by looking out for all of them -- even those society associates with the worst of the worst -- we can ensure a better future for ourselves.