Incarceration devastates thousands of Texans every year with consequences rippling through an individual’s entire family, as a mother of three recently testified before the Texas House Corrections Committee. “Once you lose your kids, it’s hard to find anything else to fight for,” said Maggie Luna, a formerly incarcerated woman who spoke in favor of legislation that would ask judges to use their discretion to direct parents accused of nonviolent crimes to alternative community-based rehabilitation and behavioral health programs.
While Luna was serving time for various drug offenses, she lost custody of her three children, all of whom were separated and placed into the Texas foster care system. In her absence, her daughter was sexually abused by her foster parents, and her children’s quality of life declined. Unfortunately, Luna’s story is not uncommon or unusual.
Incarcerated mothers and fathers are often separated from their children for long periods during the most formative years of their children’s development. In Texas alone, nearly 81% of incarcerated women and 68% of incarcerated men are parents. An even more staggering statistic—Texas has more incarcerated women than any other state, growing by nearly 1,000% since 1980.
Research shows children with incarcerated caregivers have an increased risk of physical and mental health issues, poorer education, and higher unemployment. Many are more likely to suffer from substance abuse issues and have an increased chance of being incarcerated themselves.
Many states have sought to keep families together and improve outcomes for children by enacting caregiver mitigation and diversion laws, which benefit incarcerated parents and their children by keeping parents at home while they serve an alternative community sentence.
Within the past decade, eight states have passed laws to keep families together while their parents participate in rehabilitative programming. Louisiana, Tennessee, Missouri, Washington, Oregon, and California have all implemented laws that grant parents priority access to community-based alternatives to incarceration such as drug and alcohol treatment and other behavioral health programs. In Oregon, the state’s diversion program has shown reductions in parental recidivism and usage of the state’s foster care system.
Tennessee’s legislation, seen as a model for future diversion efforts in other states, requires judges to determine whether an offense was violent and whether an individual qualifies as a primary caretaker of a minor child. If an individual is found to have committed a nonviolent offense and qualifies as a primary caretaker, a judge may direct them to participate in programs such as anger management, job training, parenting classes, drug/alcohol rehabilitation, and/or family counseling. Additionally, at the time of passage, it was estimated that the Tennessee bill would save its state’s taxpayers over $250,000 annually.
In 2019, a bipartisan coalition of Texas House Representatives introduced HB 1389, which would have required judges to consider a defendant’s status as a primary caretaker of a minor child and their eligibility for deferred adjudication community supervision when sentencing a parent accused of a nonviolent offense. The bill passed the House with nearly unanimous support, garnering only two votes in opposition. Unfortunately, once the bill arrived at the Senate, it never progressed out of committee.
Most recently, HB 361, introduced in the 88th Legislature, passed the House but was never taken up by any Senate committee.
Looking ahead to 2025, the Texas Legislature should enact caregiver mitigation and diversion legislation that would give incarcerated Texas parents accused of nonviolent offenses priority access to alternatives to incarceration such as drug treatment programs, electronic monitoring programs, and other family-centered community-based alternatives.
By implementing caregiver mitigation and diversion laws, Texas can help preserve families, save taxpayer dollars and reduce recidivism.