Nell Bernstein

In an election season that finds both major candidates throwing themselves at the feet of the sacrosanct “middle-class family,” both have publicly ignored an aspect of national policy — the ongoing drug war — that has permanently destroyed thousands of families that don’t fit the campaign ideal. This crusade, which escalated under the current administration, is unlikely to reverse course under the next, whoever wins the election. In fact, the drug war is succeeding where the culture wars of previous election cycles failed, in writing legions of “undesirable” American families out of existence entirely.

These families are dissolving under the pressure brought by a combination of laws and policies that can truly be called bipartisan achievements: a new emphasis in child welfare law on adoption and speedy termination of parental rights (a favorite policy of President Clinton’s which George W. Bush has parroted so enthusiastically); mandatory sentences for drug offenders (a legacy of the Reagan/Bush Sr. years that the Clinton administration has made no effort to reverse); welfare reform (trumpeted by Al Gore in the first presidential debate as a heartwarming bipartisan success story); and a shift in enforcement of so-called “deadbeat dad” child support laws to target single, incarcerated mothers. The net result is that women who serve time on even relatively minor charges may find that the penalty for their crime includes forfeiture of their motherhood.

This loss is especially devastating for women struggling with drug involvement, say researchers and social workers, because when they lose the role of mother, they lose one of the most powerful motivations for recovery. For these women’s children, who have a hard time understanding that their mothers have disappeared not by choice but by decree of the court, the legal termination of their relationships with their mothers is often experienced as profound, and confusing, abandonment.

The Adoption and Safe Families Act (ASFA), passed in 1997, has hit prisoners and ex-offenders particularly hard. ASFA mandates that the states begin proceedings to terminate parental rights once a child has been in foster care for 15 out of the past 22 months — six months if the child is younger than 3 years old. The law also promises bonuses of up to $6,000 for each adoption over pre-ASFA levels.

Championed by Hillary Clinton and popular with child welfare advocates, ASFA was written to address the needs of children who spend years or decades bouncing from one foster home to another while their parents blow chance after chance to get their lives together. But, as with any pendulum swing, ASFA has had some extreme consequences, sweeping many parents into its net before they have had a fair shot at preserving family bonds.

Both adoptions and terminations of parental rights are rapidly increasing across the country. There were 46,000 children adopted out of foster care in 1999, up from 28,000 in 1996; and the number of additional children whose parents’ rights had been terminated and who were “waiting for adoption” grew from 37,000 in March of 1998 to 46,000 in September of 1999.

Meanwhile, as a result of the drug war, women have become the fastest-growing segment of the prison population. The number of women in state and federal prisons has increased fivefold in the last three decades, to 84,400 at the end of 1998, and the tide shows no sign of slowing, much less turning. Eighty percent of incarcerated women are mothers, and because most women prisoners are single mothers, their children are particularly vulnerable in their absence.

Across the country, those who work with incarcerated women say they have seen a particularly steep increase in terminations of parental rights among prisoners — an increase which, as stepped-up enforcement of ASFA collides with the ever-larger numbers of women pouring into prison, many expect will turn into a flood.

Philip Genty, clinical professor of law and director of the Prisoners and Families Clinic at Columbia University Law School, sees more than 150 prisoners a year in New York-area facilities (where he and his students lead family law workshops) and has written widely on termination of parental rights. Prisoners facing termination proceedings were once the exception, says Genty; now, among those whose children are in foster care, they have become the rule.

“It is a very rare situation where a woman prisoner with a child in foster care has not been confronted with this,” Genty says.

The reason for this lies in simple arithmetic: Long sentences for drug offenses leave many prisoners doing stints for even minor infractions that exceed ASFA’s six- and 15-month time limits. In New York, 91 percent of women convicted of felonies, including low-level nonviolent crimes, will serve at least 18 months — three months more than the longest ASFA time limit. Social services departments, Genty explains, “feel that ASFA puts pressure on them to move children out of the system quickly even when they think there may be a decent relationship between parent and child. They don’t have the ability to wait for the parent to get out of prison.”

Marilyn Montenegro, prison project coordinator of the California chapter of the National Association of Social Workers, says many social workers are themselves “very frustrated” by the constraints under which they are forced to operate. Most social workers, says Montenegro, believe that ongoing contact with biological parents is “almost always in the best interests of the child,” but the law does not create a means to facilitate that contact if parental rights must be terminated by a particular date. “They [social workers] say, ‘My hands are tied. There’s nothing I can do,’” says Montenegro.

The laws passed to implement ASFA vary from state to state. New York passed a relatively mild version last February that did not change any of the grounds for termination of rights but did, as required, incorporate the new federal timetables. According to Genty, at least half the remaining states now have legislation on the books that makes specific reference to incarceration as a factor in or grounds for termination; in these states, it is safe to assume that the number of prisoners who lose their parental rights would be even higher than in New York.

Illinois, for example, has passed a particularly harsh ASFA law, adding several new grounds for termination that specifically target incarcerated parents. Under a “three strikes”-style provision of the Illinois law, any parent with a child in foster care who has three felonies with one in the past year (including possession, writing a bad check or shoplifting, if they are charged as felonies) is presumed “unfit” and is subject to termination proceedings. The same goes for parents who will be incarcerated for the next two years, or who have already been locked up repeatedly. The result, says Joanne Archibald, advocacy director for Chicago Legal Aid to Incarcerated Mothers, is that “more and more women are losing their kids.”

Attorney Lynn Vogelstein, currently a fellow at the Institute for Children, Families and the Law at New York University’s School of Law, worked until recently with South Brooklyn Legal Services, which represents former prisoners in family court. Among New York’s incarcerated mothers, she says, the typical scenario involves a woman who hits the 15-month time limit while behind bars and find her rights terminated on the grounds of “permanent neglect and abandonment,” defined under New York law as having had no contact with the child during the past six months.

Sometimes, says Vogelstein, women whose children are in foster care do not inform the caseworker when they are arrested because they believe to do so would make their situation worse. They don’t realize that their silence can be construed as “abandonment.” Other women, Vogelstein says, find their rights terminated for “failure to plan” for the child’s future needs, despite the fact, she notes, “that it’s very hard from jail to plan for the return of your child.”

The result, says Genty, is that “the mood in prison is one of despair. Essentially, what incarcerated parents are being told is that no matter what they do, how hard they work at overcoming the issues that put their children in foster care and brought them to prison, they cannot avoid having their parental rights terminated.”

Even those inmates who manage to get out of prison with a little sand left in the hourglass face a daunting obstacle course if their children are in foster care. First, the social services department gives them a reunification plan that might require, for example, that they complete a drug treatment program, attend a parenting class and provide a stable residence for their children. Since anyone with a felony drug conviction is ineligible for benefits, including housing, under welfare reform laws in many states, this last stipulation may prove particularly challenging. A criminal record also makes finding a job difficult, so market-rate housing is likely out of the question.

Former prisoners who do manage to obtain legal work may find their wages garnished by as much as half under child support enforcement laws. Designated “non-custodial parents” during their time behind bars, prisoners can be held liable for welfare or foster care payments received in their children’s name during their absence. With interest and penalties for nonpayment, prisoners with several children may wind up with bills in the tens of thousands of dollars.

Residential drug treatment may look like the only answer, but budget cuts have left many programs with long waiting lists — longer than the time allotted to fulfill the requirements for reunification. The net result is that many former prisoners fail to meet these requirements and termination proceedings begin.

The women most affected by these laws and policies are not generally model citizens. They have hurt their children through their involvement with drugs or through their involvement with boyfriends or husbands with ties to drugs. The question is whether the current cure — lengthy incarceration, minimal treatment and, increasingly, the permanent severance of family bonds — is worse than the disease.

Elizabeth Harris is still trying to absorb the judge’s decree, handed down a year ago, that she is no longer mother to her now 7-year-old son Anthony.

“It’s a nightmare going through my head over and over,” Harris says. “In the last two years, I have turned my whole life around. I haven’t had any police contact, I have a car, a job, I maintain my home. My life has been good from when I started my [rehab] program, but as far as the system is concerned, it was too little, too late.”

Harris’ “nightmare” began two days after her release from jail following her shoplifting arrest. She had spent 30 days behind bars, during which time her sister cared for her son. The day after her release, Harris did not make it to a drug rehab program where her sister had secured a bed for her because, she says, she had to obtain a public defender and show up for a court hearing that day. She failed, however, to communicate these details to her sister, who assumed Harris simply hadn’t bothered to show up and responded by delivering Anthony to the local police station and declaring him “abandoned” rather than returning him to Harris. Unable to locate Harris, who lived in a different county than her sister, the police handed Anthony over to social services, which obtained jurisdiction over him and placed him back with Harris’ sister, then in foster homes.

In the months that followed, Harris became deeply embroiled with the Department of Social Services and the court. She was given a reunification plan that required her to enter drug treatment, secure housing, attend a parenting class and get therapy. Harris says that the drug treatment programs she contacted either had long waiting lists or couldn’t reach her when they did have an opening because she was homeless (finding housing was virtually impossible in a market where prices had gone through the roof). Once she managed to secure therapy the department would no longer pay for it because her reunification services had been cut off. Armed with evidence of Harris’ failures, the court terminated her parental rights and Anthony was placed for adoption.

Harris feels that when she turned to social services for help, she came up against an impenetrable bureaucracy that failed to adequately communicate its requirements, then penalized her when she could not meet them. The department maintains (in reports her social worker submitted to the court) that Harris continued to live a life of instability and probable drug use despite the fact that she had been offered both help and a clear warning of what would happen if she did not change her ways.

This kind of perception gap, says attorney Vogelstein, is not uncommon. Often, she says, caseworkers first meet a client at her very lowest point, so they may not be receptive to evidence of transformation. By the time Vogelstein meets them, often months later, “a lot of my clients are doing great things, but have been unable to communicate that to the agency.”

Even when social workers are aware of the obstacles their clients face in meeting the criteria for reunification, they often find themselves caught between the requirements of the law and the realities of limited resources. “The social workers’ charge is to act in the best interest of the child,” says Marilyn Montenegro, “but they’re really not given enough tools to do that very well. There isn’t anywhere people can go where there’s a nice place to live that’s affordable. None of the people in the system have the ability to create that, so they’re all stuck with the same old thing.”

Harris doesn’t claim to have been an ideal mother. “Part of the problem with substance abuse is you don’t think you’re doing anything wrong,” she explains. It was only once she got into a rehab program that she realized the parenting standards she had set for herself were far too low. “I thought I was doing a good job by just providing a roof over the head, paying the utilities,” she says. “But I wasn’t there mentally and emotionally, putting his needs first.”

Harris has even come to understand her sister’s decision to turn Anthony over to the police. “She knew it wasn’t fair the way I was raising him,” Harris says. “And I know she meant it in my best interest for somebody to intervene. Somebody had to do it. She just didn’t know the system — the way it worked.”

When the courts first removed Anthony from her care in the wake of her arrest, Harris says, “I had nowhere to stay and was still using drugs. It’s hard for someone who’s never been in that situation to even imagine what a person goes through. And then to give you a certain amount of time to either clean your shit up or it’s over — I don’t think there’s any time frame you can put on a person.”

Ida McCray-Robinson, the family services coordinator at the county jail in San Francisco, spends her days organizing parenting classes, communicating with social services departments and talking with prisoners about their kids. Her evenings and weekends are consumed by the same labor; McCray founded the nonprofit Families With a Future, which facilitates contact between prisoners and their children at various state and local facilities, and runs it in her spare time.

“Half the women in here have lost children,” says McCray-Robinson, 49, standing outside a women’s unit at the San Francisco County Jail. And it’s not just happening to women with lengthy sentences, adds McCray-Robinson.

“Momentary arrests, where she’s out in two days, mean a woman could lose her kids. She gets arrested for petty theft, or whatever. There’s nobody to take the kids. Child Protective Services gets involved. They take the kids to the nearest emergency shelter. Now they’ve opened a case. When that person gets out in two days or two weeks, she can’t meet the requirements to get her kids back. And if that baby is under 3 years old, they’ve got their eyes on that baby, big time, because of the adoptability factor.”

For many women, this is the point at which despair kicks in — at their own failures, their children’s resultant suffering and the seeming omnipotence of a bureaucracy that many find incomprehensible, if not hostile. They often treat this despair with methamphetamine, heroin, crack cocaine — taking themselves one step further from the rehabilitation that is ostensibly the motive for incarcerating drug addicts.

According to Philip Genty, helping prisoners maintain family contact is one of the most effective means of achieving successful re-entry into society. When you eliminate that prospect, Genty says, “it removes one of the most effective tools towards rehabilitation.”

That has been Lisa McDonald’s experience. A crack cocaine and heroin addict, McDonald, 38, has been in and out of jail over the years; she is currently at San Francisco County Jail awaiting sentencing. Her last stint behind bars was four months for a probation violation. Her infant son was in foster care at the time and McDonald was released to a residential rehab program. Only when she called her social worker and asked for a visit with her son did she learn that her parental rights had been terminated while she was in custody.

Because she had not been notified of the hearing at which her rights were terminated, McDonald was granted another hearing after her release. By that time she was working at a center for the homeless, the first legal job she had ever held, and had completed a parenting program. Counselors from the rehab program accompanied her to the hearing, and she presented the judge with her parenting certificate. “Miss McDonald,” she says the judge told her, “you’ve made a great improvement.” But time had run out, and the termination was upheld.

“I felt like, ‘What did I do all this for?’” McDonald says. “From that point on I degraded myself. The judge says ‘no,’ and it’s like you are a bad person. That’s the message I got, and in an unconscious way, I must have believed it, because after that, I wasn’t really interested like I first was in my recovery. So nine months go by and I relapse, and that’s how I end up back here.” As a repeat offender, McDonald is now facing a possible three-year prison sentence.

Ida McCray-Robinson has experienced the rehabilitative power of family — personally as well as professionally. She was 19 when she participated in an airplane hijacking orchestrated by a boyfriend. By the time she was arrested after 16 years on the run, McCray-Robinson had five children, who went to live with McCray-Robinson’s mother and then with friends during their mother’s 10-year stint behind bars. Staying in touch with her children, who visited regularly while she was incarcerated, “gave me a means and a reason to live and not be as awful as I could,” McCray-Robinson says.

But her well-being was not the sole benefit of maintaining contact with her children, she adds. More important than her access to her children was her children’s ability to have access to her, says McCray-Robinson. She and other social work academics believe that a child needs to have some contact with its parents, whether or not they are capable of providing for their needs at that time. Unfortunately, adoptive parents often don’t provide children with regular access to their biological parents. There is no requirement that they do so, and many children adopted out of foster care lose touch with their biological parents (and their siblings) entirely.

“It doesn’t matter whether you’re a political prisoner, a robber or a dope fiend,” McCray-Robinson asserts, “your children are mad and hurt if you’re not there. An unspoken promise has been broken — that they’re going to have a mother to love them and take care of them.

“I hear people asking, ‘How long should we wait until parents get it together?’ I think there should be no limit (beyond which) there cannot be communication, except in cases of abuse. If somebody wants to be in touch with their parent, they should always have the right to know who they are and where they are.”

But what about the argument that a child whose mother is likely to serve a long sentence deserves a permanent home, even if the price is loss of contact with that mother?

“I think you should ask my kids that,” McCray-Robinson says.

McCray-Robinson’s son Jundid was 3 years old when she was arrested and 13 when she was released. He now lives with his mother, his grandmother and several other family members on a quiet cul-de-sac in San Pablo, Calif. In the grassy front yard of his family home, a sprinkler arcs through the dusk as Jundid — a soft-spoken 17-year-old in pigtails, a Reggae On the River T-shirt and gray sweats — grapples with a question he did not have to face as a child.

Growing up without his mother in the house, Jundid says, was hard. “Everything that a person takes for granted, I missed so much. Whether it was cooking breakfast in the morning. Having a homemade sandwich instead of a bought lunch. Or just being able to say, ‘Let me go home and ask my mom.’”

But Jundid is not convinced that severing his legal tie to his mother in the name of “permanency” would have healed these wounds. Visits with his mother, he says, anchored him throughout his childhood. “We made the most of each visit that we had. And my mom was very special about trying to give time to each child. Like for my sister, she would sit there and braid her hair while she had her little private time to talk to her. I remember she used to teach me karate. I’d show her my muscles, even though I didn’t have any. But just me being relaxed and having fun with my mother is what I remember most.

“I couldn’t even begin to express to you in words,” he continues solemnly, “how fulfilling that was to my soul to give my mother a hug. For her to give me a kiss. For me to sit on her lap. And for me to not do that because of what someone else thinks — I would have felt very empty then, as a child, and maybe as well now.”

When his mother returned to his daily life after 10 years, Jundid says, the adjustment was difficult but also exhilarating. He recalls asking her to walk him to school, despite the fact that he was a teenager, to make up for an experience he had missed as a child.

“A lot of kids are ashamed that their moms are walking them to school,” he says. “But I was so happy for her to be in my presence, and for the first time in my life to even come to my school, that I couldn’t care less what people thought.”

Through his ongoing contact with his mother throughout her 10-year incarceration, Jundid says, he learned something crucial about families: “When it’s hard times, you stick together. And that was just a hard time.”

Ellen Barry, founding director of San Francisco’s Legal Services for Prisoners with Children, believes the kind of access Jundid had to his imprisoned mother is something all children deserve. “Kids own the right to have a relationship with their parents,” Barry says, “even if they’re not the best parents. The child has a right to be angry, to ask the parent to explain her behavior. That’s his choice, not the society’s choice. Society does have an obligation to keep children safe, but that’s very different from terminating parental rights.”

In fact, Barry points out, termination of parental rights is a concept most children can’t begin to grasp. “It makes no sense to them that the court could come in and, with a wave of the hand, decide that the mother who gave birth to them is no longer their mother. Whether she’s able to take care of them at this moment is a separate question.”

Elizabeth Harris often wonders how Anthony understands her disappearance from his life. “He’d just turned four when all this happened,” Harris says, “and what he understood as far as why he wasn’t in mother’s care was, ‘Mom had a drug problem and she had no place for you to live.’

“So he always thought if Mom got a house and went to this (rehab) program, that he’d come back home. Now he’s 7, and Mom did all these things, and he’s still not home. You’ve got to wonder where his little mind takes him. He’s still my child, and there’s always gonna be that question in his mind: ‘How come I’m not with Mama?’”

It’s a question that has gone unasked and unanswered this election season, despite the hundreds of references to “family” sprinkled throughout the campaigns. Most prisoners and many convicted felons aren’t allowed to vote, so they are, by definition, no one’s constituency. Their children are equally disenfranchised, and even more rarely heard from. At a political level, these two groups are simply not needed, so the fact that they may need each other is easy enough to ignore.

But despite the silence at the federal level, elsewhere in the country a conversation is opening up on the staggering costs — societal as well as economic — of the drug war, and voters are, incrementally, being given the opportunity to consider alternatives. California voters, along with choosing a president this November, will also consider an initiative that would send nonviolent drug possession offenders and parole violators into treatment rather than jail or prison; a poll found support for the initiative at 55 percent. Arizona has already shifted to a treatment-based model, saving taxpayers an estimated two dollars for every dollar spent.

The war on drugs costs millions, fills prisons, and appears to do very little to stop people from using drugs. Compounded by severe social and child welfare policies, it is also decimating families across the country.

Children have long been used as a rhetorical weapon in this war, as in “We need to lock these people up before they get our kids hooked on crack.” But “our kids” include prisoners’ kids in ever-increasing numbers. What might it mean to them to have mom in treatment instead of behind bars; to know that she might ultimately recover from her addiction and be restored to them? The 10 million children who have seen a parent arrested and imprisoned offer the most compelling reason there is to open up the debate on treatment vs. incarceration and whether it is fair to punish parents (and children) by splitting them up — permanently.

When Prop. 36 became law, it looked like an anomaly in a nation that had recently surpassed Russia as the world’s most prolific jailer. But that was before the economy tanked, tax revenues plummeted, and state governments were confronted with the worst budget crisis since World War II. Today — after two decades of overheated anti-drug rhetoric and skyrocketing prison populations — prison spending is losing its sacred-cow status, and compromises like Prop. 36 are gaining appeal.

The California measure is still considered an experiment, one that breaks down and even fails from time to time. Cases of ineffective treatment, tangled bureaucracy, and scamming by users in the program have tainted glowing reviews, but so far, the results are encouraging enough: More drug users are getting clean than under the old regime; the population of drug users behind bars for possession is diminishing (by 30 percent in 2001); the state is saving money ($95 million in the first year); and thousands of children are being spared the trauma of parental incarceration.

Can a shotgun marriage between drug treatment and criminal justice become a lasting union? The question is likely to be answered in California. And if the answer is yes, a setting like the Contra Costa County courthouse may represent the next front in a kinder, gentler war on drugs.

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A low-level criminal courtroom is often a place of tension and sorrow. The atmosphere in this room is, incongruously, one of relief and quiet competence: “We’ll get this taken care of” is a frequent refrain. Defendants here have already pleaded guilty to drug possession. Probationers on the courtroom benches are back in court for a periodic “treatment review.”

“Maybe it wasn’t entirely your fault,” Judge Douglas Cunningham suggests to a wizened, white-haired and faintly trembling man in his 60s who has failed repeatedly to make his way to treatment. A prosecutor refers to another defendant’s dirty drug test as a “speed bump” and suggests he be given another chance. A warrant is issued here and there for those who have failed to show up in court, but that is the exception and clearly not the desired outcome: In this room, putting people behind bars is not the goal.

Vallee Sunnen, a counselor, steps to the back of the courtroom to do an intake interview with a tired-looking blond woman in her 30s huddled inside a long black leather coat. “How many children do you have? Are you pregnant? Employed? Homeless?” These questions are intended to help Sunnen determine what kind of treatment the woman needs, but before Sunnen can get through them, her new client angrily interrupts her. She’d rather spend 30 days in jail and be done with it, she says, than waste her time in treatment.

Sunnen gently suggests that the woman look at the big picture and pick the option that might help her quit drugs.

“I can get clean and sober anytime I want,” the woman responds. “That’s easy.”

“Is it?” asks Sunnen. “You’re here.”

“Thirty days’ll clean me up.”

“For those 30 days.”

“I’m leaving,” the woman announces, and she strides out of the courtroom.

“She’s afraid,” says Sunnen, who is, like many other treatment professionals, herself a recovering addict. “Getting clean is the scariest thing.

“She’ll be back,” Sunnen predicts, and she is right. Twenty minutes later the woman is sitting quietly against the back wall, clutching her paperwork to her chest, her eyes fixed on the Great Seal of the state of California over Judge Cunningham’s head as she waits to be told how the court sees fit to heal her.

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There are two dominant views on drug addiction and how it should be handled: The first is that addiction is a disease like any other and should be tackled through treatment and prevention. The second is that drug use is a crime and should be dealt with through the array of threats and sanctions available to the criminal justice system.

For the past two decades, the latter approach has dominated American law and politics. As a result, the country’s jails and prisons now house a half million drug offenders — a more than tenfold increase since 1980 — and another half million prisoners convicted of drug-related crimes. California has the largest prison population in the nation and the second-greatest number of drug offenders, after Texas. Prop. 36 represents an attempt to shed this dubious distinction by merging the two opposing approaches: treating addiction as if it were a disease, but within the context of a system that continues to define it as a crime.

Advocates of the measure marketed it as a means to cut costs. The nonpartisan state Legislative Analyst’s Office bolstered this argument by estimating that Prop. 36 would save taxpayers $1.5 billion over the first five years: A prison bed in California costs more than $25,000 a year, while treatment averages $4,000.

The strongest opposition to Prop. 36 came not from law-and-order types but from proponents of drug court, a decade-old program that operates in more than 20 states. Like Prop. 36, drug courts — which handle a much smaller proportion of offenders than does Prop. 36 — rely on treatment as the preferred response to drug offenses. The primary difference is that drug court judges retain the discretion to impose short jail sentences to “wake up” recalcitrant users and inspire cooperation. Prop. 36 removed that discretion, allowing judges to impose jail time only after a defendant has tested dirty or skipped out of treatment three times and been found “unamenable to treatment.”

“Judges like options,” says Cunningham. “We don’t like to be in a corner where there’s nothing we can do but incarcerate. But we also should not be put in an all-or-nothing position of not being able to impose an interim sanction” — such as jail time.

Others suggest that Prop. 36 may not go far enough. A Prop. 36 conviction, points out Jordan Schreiber, a public defender in Contra Costa, is no free ride. “It’s onerous,” says Schreiber. “You’re going to be offered treatment, but you’re also offered all kinds of sanctions. You’re on probation for three years with a search clause, so the cops can stop and search you at any time. You have to report to a [probation officer] and to drug treatment. You pay $50 a month for probation fees, a $400 fine to the court, and you’re charged for drug treatment on a sliding scale.”

A drug conviction also can make an offender ineligible to receive welfare and disqualify him from getting a student loan or public housing.

“If you or I had a drug problem, we wouldn’t go and get ourselves arrested in order to get treatment,” notes Mark Mauer, assistant director of the Sentencing Project in Washington and the author of “Race to Incarcerate.” “Low-income people don’t have access to the treatment on demand that middle-class people with insurance do. We haven’t tried providing unlimited treatment slots. Would a third, half, 100 percent take advantage of them? We don’t know.”

Prop. 36 and similar measures, Mauer says, “make sense, given that the criminal justice system has become our model for responding to social problems in poor communities — but that’s a big given. Things are at such an extreme that that doesn’t even get questioned in public debates.”

In the political context Mauer describes, it is the economic — rather than the moral — argument for drug treatment that has gained growing national resonance. Incarcerating drug offenders in state and federal prisons costs taxpayers $5 billion a year. In 2000, corrections overall consumed 7 percent of state budgets.

In the past, prison budgets have held firm even in tough times, but that is beginning to change. As state budget deficits head toward an estimated $85 billion total for 2003, half the states have cut their prison spending, and several have repealed or reformed mandatory sentencing laws that impose long prison terms on drug offenders. Governors in Ohio, Illinois, Michigan and Florida have closed prisons. Newly constructed prisons in Illinois, Pennsylvania and Wisconsin have remained shut because legislatures have not appropriated the funds to open them.

In recent months, as budget deadlines loomed, this trend has accelerated. Lawmakers in one state after another have proposed, approved or implemented a shift away from incarceration toward treatment and community supervision.

A few examples:

Traditionally tough-on-crime Republican governors and legislators — including, in some cases, the authors of the unforgiving sentencing laws that are now being revised or repealed — have introduced many of these reforms. Republican politicians have even taken to using a new slogan to describe their approach: “Smart on crime.”

The explanation for this conversion may lie in polling numbers as well as red ink. During the ’80s and ’90s, when harsh drug laws were passed one after another, the conventional wisdom was that once these laws were on the books, they would be untouchable: Being seen as “soft on crime” was electoral poison. Several large, recent public opinion polls have challenged this assumption. A 2002 poll conducted by Peter D. Hart Research Associates for the Open Society Institute found that two out of three Americans perceive drug abuse as a medical problem that should be addressed primarily through treatment. The majority of Republican voters polled agreed with this assertion, as did the majority of fundamentalist Christians. Seventy percent of those polled described the war on drugs as a failure. Seventy-six percent favored mandated treatment — the foundation of Prop. 36.

Legislators and voters finally seem to be figuring out that the old approach to drug use — wholesale incarceration — is literally bankrupt. At the same time, decriminalization is not in the cards. Last year’s marijuana legalization initiative in Nevada flopped. The Bush administration, while paying some lip service to the notion of treatment (particularly for close relatives of the president), has displayed a steadfast loyalty to the guiding tenets of the old war on drugs — raiding the homes of elderly and frail medical marijuana patients; sending John Ashcroft north to try to scare the Canadian prime minister out of legalizing marijuana; and straining to update the drug war’s image by tying it to the more popular war on terrorism. Even hardcore reformers have concluded, through focus groups and polling, that Americans still want the police and the courts in charge of drug offenders; they are not interested in setting drug users free entirely, or in handing them over to the health department.

“We don’t run initiatives to lose them,” says Daniel Abrahamson, director of legal affairs for the Drug Policy Alliance, who drafted Prop. 36. “The public would not have gone at this point for ending prohibition, but treatment vs. incarceration was an easy one for them.”

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In a small conference room at the Contra Costa County Department of Probation, Prop. 36 clients struggle to explain themselves to a probation officer, a treatment provider, and two representatives of the Recovery Gateway Unit, the county office that coordinates Prop. 36 care. Prop. 36 clients come before this hybrid tribunal — a cross between an encounter group and the principal’s office — at the beginning and end of their treatment, and whenever they slip up in between.

Christopher (all participants’ names are changed), is the first to appear. He looks like a college kid in jeans and a white T-shirt, his straight brown hair in a shaggy layered cut. His bad teeth are the only visible sign of his long-term addiction to methamphetamine. Users’ drugs of choice vary from county to county — in Contra Costa, 60 percent of clients use meth as their primary drug. Meth is also the most popular drug among Prop. 36 clients statewide, at 44 percent. Cocaine and crack are next at 15 percent, followed by heroin at 14 percent.

“I know I was supposed to set up an appointment” to resume treatment after a lapse, he begins, launching into what will be a familiar refrain, “but I didn’t know how to go about getting the phone number.” The excuses, while plentiful, are also fairly credible. Each Prop. 36 client is responsible to several authorities — probation, a treatment provider, the Recovery Gateway Unit, sometimes the child welfare department — and drug users’ lives are often chaotic enough to make fulfilling these simultaneous mandates a genuine challenge.

“We didn’t know where you were,” says Prop. 36 program manager Lenny Williams, a sunburned man with the ice-blue eyes of a Marlboro cowboy. “You have two treatment failures. I wonder if you are still confused as to what you have to do?”

The proceedings are immensely polite, as ritualized as typical courtroom behavior but several degrees milder, designed to instill trust rather than respect and fear. But if Williams can afford to speak softly, it may be because ultimately, the court still carries a big stick: One more treatment failure and Christopher will find himself behind bars.

“I’m sick of going to jail,” Christopher concedes.

“It’s really important, Christopher, that this time you follow through,” Williams scolds gently.

“I will,” promises Christopher, as solemn as a groom. He dutifully recites the date and time of his next appointment, then asks to borrow a phone so he can call his mother for a ride.

For others, the stick is not quite big enough to induce such docility. Lester enters carrying bottled water and a leather-bound planner, a pair of sunglasses hanging from his neck. He had been close to completing an outpatient program when he tested positive for meth. He uses the drug, he informs the group, to manage his depression– “to get my ass out of bed, take a shower if need be.”

In recent weeks, Lester’s mother set him up with a chiropractor who specializes in “nervous system things.” His doctor has put him on Wellbutrin. That, he implies, ought to be sufficient.

Williams has a different plan for Lester: His probation will be extended and he will be referred back to outpatient.

“Can I ask what you’re doing over there for treatment?” Lester asks with exaggerated politeness, directing his question to a representative from the program he previously attended. “Has anything changed over time? Because I don’t consider listening to a meditation tape for 45 minutes treatment.”

“We don’t do that anymore,” she says flatly.

Lester’s impertinent question —what exactly qualifies as treatment? — goes to the heart of the challenge California faces as it scrambles to serve the 36,000 users who have poured into rehab since Prop. 36 went into effect. For the initiative to demonstrate the kind of long-term success that will ensure its survival —not to mention its replication — those funding and implementing it will have to ensure that clients get high-quality treatment tailored to their individual needs. That will take not only planning and oversight but also money, a commodity in increasingly short supply.

At the national level, research is showing that even relatively costly, high-end treatment can save money by helping to stop both drug use and its associated crime. A five-year evaluation of Brooklyn’s Drug Treatment Alternative-to-Prison program found participants 87 percent less likely to return to prison than those who were simply incarcerated and released. The program provides repeat offenders with as much as two years of residential treatment — more than six times the national average — as well as vocational training and social and mental health services. Even this intensive level of service, researchers found, costs about half what it would have to incarcerate the same offenders. (By way of contrast, a study by a consortium of the Claremont colleges found that California’s harsh three-strikes law has done absolutely nothing to reduce drug offenses.)

More broadly, a much cited RAND Corp. report concluded that every dollar spent on drug treatment saves more than seven in drug-related costs. There is mounting evidence that drug treatment can have a tremendous impact on the lives of the children of drug users — and on the costs associated with their care. Researchers at the University of Chicago, for example, recently concluded that child welfare costs added $18.8 million to the $147.5 million spent to lock up women from Cook County alone in 2000.

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Zina Carse perches on the couch of the Oakland home she shares with her boyfriend CJ and his grandmother while CJ brings her breakfast — bacon, ham, raisin toast. When Carse was using methamphetamine, she would disappear for days, coming home haggard and skin and bones. CJ, a limousine driver, cared for her in the intervals and tried to “fatten her up.” Carse has put on 20 pounds since she got clean, but CJ has yet to break the habit of making sure she eats.

An aqua-eyed 39-year-old with feathered, red-tinted hair, Carse pulls out a photograph of herself taken right before she went into treatment less than six months earlier, when she was arrested with methamphetamine in her purse. She is gaunt, pale, with stringy cropped hair, saucer eyes, drawn mouth. The only thing recognizable is her bright pink lipstick, the same shade she wears today.

Being arrested saved her, Carse believes — she calls it her “God shot” — but so did being released. “I don’t think staying in jail would ever have gotten me clean,” Carse said. “What did it was my program.”

“Fake it till you make it” is one of several aphorisms ubiquitous in drug treatment settings. That’s what Carse did. She was assigned under Prop. 36 to a weekly Thursday afternoon outpatient meeting. She got high on weekends and then stayed clean for three days so her urinalysis would come out negative. That worked fine until she and CJ got in a fight and she used on a Wednesday to console herself. Knowing she would test dirty, she stopped going to rehab.

At that point, CJ gave her an ultimatum: drugs or me. Her probation officer put out a warrant for her arrest. The combination was enough to bring her back in. This time, she was assigned to the Ozanam Center, a drug treatment program in Contra Costa. Her experience there is a testament to the power of intensive residential care in a well-run facility — the kind of care only a minority of Prop. 36 clients receive.

At “Oz,” Carse was introduced to an iconography of healing — a collection of stories and symbols that helped her understand what had happened to her and what she had to do next. Her addiction was her “red dog,” her recovery her “blue dog” — it was up to her to choose which one to feed. A paper heart torn to pieces represented what she did to those who loved her every time she used.

Carse saw a therapist who helped her deal with the childhood sexual abuse that Carse believes triggered her initial descent into drugs. She took parenting and anger management classes, a class on codependency and another on relapse prevention. She cooked and cleaned and learned to get along with her housemates. She discovered how to relax without drugs, by meditating or swinging on the swing set in the spacious back yard.

After a few weeks, Carse called CJ and told him, “I cannot think of a single reason why I would want to do any dope right now.” She couldn’t remember the last time she had felt that way.

Next, Carse reached out to her children, who live with their father. When she completed her time at the Ozanam Center, they came to the awards ceremony. Now Carse sees her kids every weekend, asks them how school is going, checks up on their grades. “They’re proud of me,” she said. For now, that’s enough.

Carse is well aware that many Prop. 36 clients are “perpetrating” — manipulating a system they perceive as permissive and going back to drugs at the earliest opportunity. They’re just not ready yet, she says — but Prop. 36, unlike the system that preceded it, gives them the time and opportunity to get there.

“Prop. 36 is a big opportunity to save a lot of lives,” Carse says, “where jail wouldn’t.”

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There is no question that the California model is a work in progress. For every Zina Carse, there is another user with a story of bureaucratic chaos, conflicting requirements, unhelpful or even unnecessary treatment. One Prop. 36 client tells of going through treatment in one county only to be required subsequently to serve six months’ jail time in another county on a bad-check charge related to her by-then-defunct habit. Another complains that Prop. 36 and the child welfare department couldn’t agree on which rehab she should go to; when she followed the orders of one system, she was penalized by the other.

A public defender tells of a client who tried meth once and had the bad luck to be caught; the treatment program to which he was referred was about as useful to him as traffic school. Two teenage girls tell parallel stories: Their addicted mothers were released under Prop. 36 but months passed and they never received the paperwork they needed to begin treatment. One is using heavily again; the other recently received a long prison sentence for a new charge.

Prop. 36, because it requires both addicts and bureaucrats to change long-term habits, faces considerable hurdles. Its impact, and that of the related changes taking place across the nation, is still a drop in the bucket: The nation’s prisons remain filled to overflowing with people who are there because they use drugs.

But the hypothesis that Prop. 36 is testing — drug treatment can save the money, lives and families that incarceration squanders — is a crucial one. As President Bush’s latest round of tax cuts threatens to intensify already dire budget crises across the country, it may finally get the large-scale trial it has long deserved.

If California’s Proposition 36 can demonstrate better results than the policy that preceded it, it might do more than save local lives and dollars. It might herald the end of a decades-long drug war — rife with wastefulness, fiscal as well as human — that an ailing economy will no longer support.

McLain is a small child, the middle of three sisters living with their parents in Fresno, Calif., when her family embarks on what will be their last collective outing. A lyrical account of a trip to the drive-in — “everything was monsters and stars in the Morse-code night” — bleeds into disaster when McLain’s father decides to go back after the movie to rob the ticket window. He is promptly arrested and jailed.

Not long after, McLain’s mother heads out to the movies again, with a boyfriend, and never comes back. The girls’ paternal grandmother holds on to them for a few months, until their father is released and returns to retrieve them, only to hand them over to the state.

McLain enters foster care with a childish optimism she manages to maintain through multiple placements and serial disappointments: “Up ahead somewhere was a family, a mother, a place not to wait, but to stay.”

Instead, she gets the elderly, crotchety Spinozas, who pitch the girls out when their grandson falsely accuses McLain’s sister of stealing change from a jelly jar.

“If there’s anything odder than being introduced to your new family of complete strangers, I don’t know what that might be,” McLain observes. Her next home is a stifling place where the girls are locked out when they go outside to play and the furniture is triple-wrapped in plastic to prevent them from coming into contact with the upholstery. Mrs. Clapp, their foster mother, addresses their bed-wetting by feeding them a “dry dinner” and denying them water until the following day. McLain dreams of fountains and sneaks into the bathroom in the middle of the night to suck bath water from used washrags.

One of the book’s most striking qualities is its conspicuous lack of drama. The most extreme moments — episodes of physical and sexual abuse at the hands of various foster parents — are simply woven into the narrative, dulled by dailiness. When Mr. Clapp begins pulling the 5-year-old McLain into his armchair and forcing her hand into his underwear, it feels less like a startling breach than a stop on a continuum of isolation and confusion.

When, after two years of abuse, McLain tells Mrs. Clapp what her husband has been doing, she is met with silence. The following day, her social worker appears at school to take the sisters to meet their next new family — a childless young couple who lavish their ready-made daughters with gifts and affection, until they tire of the effort and pack them back up again.

As McLain travels from one household to the next, that family “up ahead somewhere” never materializes. She never feels loved, never “real.” Her story unfolds like a grim reversal of “The Velveteen Rabbit,” in which a child, through lack of love, comes to feel less and less human and more and more a toy, a prop in other people’s domestic dramas.

The McLains land finally at the Lindberghs’ rundown country home outside Fresno, where they will stay for the next 10 years. Hilde is a chilly German war bride who does inexplicable things like hiding McLain’s gym shorts under the kitchen sink, and periodically beating her with a broomstick. Bub is a more complex figure. He gives the girls affectionate nicknames, buys them ponies and takes them fishing; he also, as they hit puberty, begins to tickle them “a little too long.” On McLain’s 14th birthday, he takes it upon himself to teach the girl he’s raised from age 8 to “kiss like a woman.”

A poet by training, McLain paints the Lindbergh years in dripping detail — from the Lindberghs themselves, with their “pie-plate faces, fingers like Vienna sausages, shoulders biscuity and broad and stooped,” to the “toast-colored grasshoppers sticking to the toast-colored grass” in the fierce heat of a central California summer — evoking the sounds and sights of the house and family that, for better or worse, came the closest of any to feeling they might be hers.

If the description sometimes feels overly lavish, the extravagance serves a function: It is a constant reminder that childhood in foster care is a lived experience, not merely a collection of outcomes and ills. The most striking passages are those that don’t deal directly with the fact of foster care — the pages in which McLain climbs trees with her sisters; fishes for crawdads in a drainage ditch; observes her older sister’s puberty and wants her own “more than world peace” — the days and hours in which, despite everything, she grows up and into herself.

Foster youth often speak of not having had a childhood. If McLain has managed to secure one in the margins of other people’s families, it may well be because, atypically, she had her sisters with her all the way through. Faced with the challenge of finding homes that will take sibling groups, many social services departments resort to splitting them, scattering siblings to separate foster or adoptive homes. Children who have lost their parents go on to lose each other — the only family they had left.

This was not McLain’s experience. “Sometimes I felt like we were all the same person, one nerve, one want,” she writes of Penny and Teresa, the sisters who were her only constant. Other times, the sisters feel so estranged that they must sneak looks at hidden diaries to learn each other’s secrets. Adolescence tests their bond as each retreats into her own room to blast Bryan Adams or Duran Duran on a boombox, or disappears with a boyfriend who is the new center of the universe. It doesn’t matter. Together, they manage to envision a future beyond that prescribed for them as wards of the state, to feel “the pure good weight of our possible selves, of everything we could and surely would make happen.”

When they age out of foster care they move in together and weather the crises of early adulthood. “We hugged like people who had saved each other,” McLain recalls, after Teresa crashes her car and McLain finds her stumbling, bloodied, down the side of the road, “which was true. Had always been true.”

McLain’s graceful and deceptively simple memoir is also unprecedented. A few works of reportage — Jennifer Toth’s “Orphans of the Living,” Nina Bernstein’s beautifully reported “The Lost Children of Wilder” — have attempted to depict the foster care experience through the eyes of those who lived it, but none come close to the immediacy and authenticity of McLain’s interior angle. The best-known and biggest-selling first-person account of the foster care experience — Dave Pelzer’s “The Lost Boy” — is so broadly drawn as to be almost cartoonish, peopled with villains and saviors and a much-oppressed protagonist hellbent on “beating the odds.”

Critics of the victimized tone endemic to many recent memoirs will find much to admire here, as will those who mistrust heartwarming stories of scrappy youth overcoming adversity. McLain presents only a sketch of her life after foster care — in which she garners three degrees, including an MFA in poetry; marries, has a child and divorces; and moves to Wisconsin to be near her older sister — but it’s enough to make clear that she sees her childhood neither as something that permanently marred her prospects nor as something over which she valiantly triumphed. She simply lived it, and that is how she tells it.

In November 2000, California voters decided it was time for Tracy Carter, and drug users like her, to try something different. With 61 percent of the vote, they passed Proposition 36, a measure that sends most nonviolent drug offenders into treatment rather than to jail. Two years later, similar initiatives are on the ballot in Ohio and the District of Columbia; several more states have implemented or are working on legislative fixes to tough drug laws; and more than 70 percent of Americans are telling pollsters they’d like to see the government ease up on addicts.

This new climate may be based in pragmatism as much as in compassion. The number of drug offenders in state and federal prisons has increased more than tenfold over the past decade, from 40,000 to nearly 500,000. Incarcerating them costs five billion dollars a year. With a faltering economy draining government coffers — and the war on terrorism competing for dollars formerly reserved for the war on drugs — the price tag for being the world’s largest jailer is starting to look a little steep.

A national shift from incarceration to treatment has the potential to save much more than dollars. More than 8 million of America’s 75 million children have a parent or parents addicted to drugs or alcohol. Parental drug addiction fuels the foster care system; it feeds the juvenile justice system. It affects welfare caseloads, school performance and child health. And parental addiction is self-perpetuating: Up to 70 percent of the children of addicts become addicted to drugs themselves.

Might drug treatment slow the staggering growth in the nation’s foster care system, which has more than doubled in the past 15 years, to over half a million children? Child welfare workers think so. In a 1997 survey by the Child Welfare League, child welfare workers estimated that 67 percent of the parents they dealt with needed treatment, but only 31 percent got it. According to researchers at the National Center on Addiction and Substance Abuse at Columbia University (CASA), parental substance abuse is implicated in seven of 10 cases of child abuse and neglect, and is responsible for $10 billion of the $14 billion spent nationally each year on child welfare costs. Nationwide, according to the Office of National Drug Control Policy, 5 million Americans need drug treatment but only 2 million receive it.

Might treatment stem the tide of juvenile incarceration, which has left 125,000 adolescents behind bars at last count — many of whom have experienced parental drug addiction and incarceration? Might it aid those hardest cases that stymie welfare reformers — the families that lose their benefits to time limits before they manage to find another means of support, many of whom are thought to have drug problems?

If these are questions we are only just beginning to ask; the children of drug-addicted parents are well ahead of us.

In 1999, in researching a report on foster care, I interviewed and surveyed in writing more than 150 current and former foster youth in California and New York. When I asked the question, “What might have kept your family together?” one answer came up over and over: Help with a parent’s drug problem.

“My father was into drugs instead of me,” one teenager wrote. “That’s why I’m in the system.”

“If there wasn’t drugs,” wrote another, “I probably would not know what a system is.”

Our response to these children has to date lacked imagination: We incarcerate addicted parents and place their children in foster care, or leave them to fend for themselves. CASA researchers spent three years scrutinizing state budgets in an effort to figure out the dollar cost of this approach. In 1998, they determined, the states spent $81.3 billion dealing with drug abuse and its consequences, but of each dollar spent, only 4 cents went to prevention and treatment. This imbalance, they found, had a particularly powerful impact on the young: The states spent $5.3 billion addressing cases of child abuse and neglect, 79 percent of which could be traced to parental drug or alcohol abuse.

But as the nation tentatively embarks on a new way of doing things, early indications are promising. In California, the Department of Corrections has reported a 20 percent drop in the number of drug offenders in its custody since Proposition 36 was implemented, and a 10 percent drop in women inmates overall. As the measure is fully implemented, the state Legislative Analyst’s Office estimates, it will save between $100 and $150 million each year in prison costs.

When parents do get treatment, the federal Center for Substance Abuse Treatment has found, kids come home and taxpayers save even more money. In a Florida pilot program, for example, 180 women treated in a single residential program regained custody of 580 children who had previously been in the care of the state.

Charles (not his real name), 18, grew up in Northern California under the old drug enforcement regime. He spent his childhood and adolescence in a series of foster homes and juvenile halls while his crack-addicted mother cycled in and out of jail and prison. When Charles was 16, his mother put herself in rehab. Today, she works at a church and has her own two-bedroom apartment. She hasn’t used drugs in two years.

“It feels good,” says Charles. “That little piece that’s lost — it’s filled the gap there. At first I used to think my mom would be dead, but now I know she’s going to see my kids. She’ll see me graduate from high school, go on to college. I used to pray at night for a new mommy and daddy. Now I’m getting my mama back.”

Does large-scale treatment work as an approach to drug addiction? We don’t know, because we’ve never tried it. But as the casualties of our decades-long war on drugs continue to fill not only our nation’s prisons but its foster homes, group homes and juvenile halls, there’s plenty of evidence that the alternative has failed the children it was meant to serve.

Despite years of disappointment and betrayal, children of addicts will likely tell you they are willing to give their parents another chance. Three decades into a failed war on drugs, voters may finally be ready to do the same.

“It was awful,” she says. “I’ve always had her with me, ever since she was born, and then all of a sudden she was snatched away from me. I know I felt bad, so she must have felt even worse, because she didn’t understand. She must have thought I didn’t want her anymore.”

If sweeping changes in prison visitation rules proposed by the California Department of Corrections (CDC) become law, Marie’s experience is likely to be repeated in state prisons across the state, where prisoners with drug-related convictions will be barred for the first year of their terms from contact visits with anyone, including their children. Often a rule of incarceration in county jails, a ban on contact visits in state prisons, where inmates serve much longer sentences, is rare. And, according to research, it is potentially harmful to inmates and their children.

Decades of research, including at least one study commissioned by the CDC, have concluded that prison inmates do better when they get visits with the ones they love. In terms of both rehabilitation and development, incarcerated parents and their children benefit from time together: The adults are less likely to return to prison; the children do better with emotional adjustment, behavior, even with I.Q. scores.

And the younger the child, the more crucial the contact. “Touch is basic to the nurturing process,” says Dr. Barbara Howard, associate professor of pediatrics at the Johns Hopkins School of Medicine and co-director of the Center for Promotion of Child Development Through Primary Care, in Annapolis, Md. “A baby looking through a plate of glass at his incarcerated mother would really be looking at his reflection in the window, not making a connection with the parent at all.”

But a baby looking at himself in a glass partition cannot smuggle drugs to his parents, say California prison officials, who maintain that visitation is a point of transfer for drugs from outside. Under this rationale bonding, regardless of its therapeutic qualities, is an indulgence that prisons can ill afford. In fact, additional changes proposed by the CDC include a rule that would limit kisses between inmates and visitors to five seconds or less, and another that would prohibit fathers in prison from holding children older than 7 on their lap at any time, a step that officials say is aimed at preventing potential molestation.

The new revisions explicitly define visitation as a privilege, not a right, a change that some inmate relatives and advocates claim is meant to unfairly punish inmates rather than strike a blow against drug smuggling. In the process, they say, children may suffer the most.

“It’s beyond insulting,” said Chris Jackson at a March hearing on the proposed changes. She testified that her husband is serving a life sentence at Folsom State Prison on a third-strike burglary conviction. “It’s inhumane. It just punishes the families.”

Adds Donna Wilmott, family advocacy coordinator at Legal Services for Prisoners with Children in San Francisco and herself a former prisoner: “These new regulations criminalize family members, saying that if you care about somebody in prison, you’re suspect. Communication and association are human rights, not privileges.

“The right to a mother’s touch,” she adds, “is beyond fundamental — it’s primal.”

Even President George W. Bush stood up recently for the rights of the children of prisoners, rallying his “armies of compassion” to “help to heal broken families once prisoners are released,” and mentor a group he called, in an address to the NAACP, “the forgotten children [who] should not be punished for the sins of their fathers.” His 2003 budget, he told the audience, includes $25 million for the Mentoring Children of Prisoners Initiative.

The California crackdown on contact visits comes at a time when state prisoners are being held mainly in remote rural areas, and visitation already has dropped off dramatically nationwide due to the inability of inmate relatives to get to their loved ones behind bars. According to the federal Bureau of Justice Statistics, 60 percent of parents in state prison nationwide report being held over 100 miles from home.

In 1978, according to a study by the National Council on Crime and Delinquency, only 8 percent of women prisoners had not received a visit from their children. By 1999, when the Bureau of Justice Statistics conducted its own major survey, 54 percent of mothers in state prisons — nearly all of which allow contact visits, reported never having had a visit from their children.

About 200,000 children currently have a parent in a California state prison. It is difficult to determine how old these children are and where they are living; police, courts and prisons are not required to ask those they arrest, sentence and detain about the status of their children. But nationwide, according to the Bureau of Justice Statistics, 58 percent of the 1.5 million children of incarcerated parents are younger than 10 years old. A survey of visitors to three California state facilities found that 55 percent of visiting children were 6 or younger, and 34 percent were 3 or younger.

It is for the very young that touching, being held and listening to a mother’s voice are crucially important to development. “If you’re talking about children under a year of age, your main means of communication is touch,” says Barbara Howard of Johns Hopkins. “Yes, we encourage people to talk to babies and read to babies, but babies don’t really understand what you’re saying. They respond to eye contact and the rhythm of your voice.”

Denise Johnston, M.D., director of the Center for Children of Incarcerated Parents in Pasadena, Calif., conducted a study of county jail visiting environments at 57 facilities and found that, when viewed from a child’s perspective, they were hostile and confusing.

“There are things people normally don’t think about,” says Johnston, a pediatrician. “Cement floors, concrete walls, a steel counter in front of the window, plastic or metal chairs — that seems so irrelevant, but in fact for small children, the amount of the surface of their body that comes into contact with this cold environment is huge compared to adults. There can also be aural distortions, and they often can’t hold the phone correctly because they’re little.”

Johnston recalls one young girl who was so confused by visiting her mother through glass that when her mother called the next day, the girl asked her, “Are you dead, Mommy?”

When her mother reminded her that she had just visited the day before, the child replied, “It’s like TV in there — I’m not sure it’s really you.”

Researchers David Fanshel and E.B. Shinn, authors of the 1978 book “Children in Foster Care,” found that children who regularly visit with parents from whom they are separated show better emotional adjustment, higher I.Q. scores and more improvement in behavior than those who do not. A 1972 study of California prisoners — still the most frequently cited in the field — found that inmates who had regular, ongoing visits were six times less likely to reenter prison during their first year out than those who had no visitors.

These findings, wrote researchers Norman Holt and Donald Miller in “Explorations in Inmate-Family Relations,” a 1972 report from the research division of the California Department of Corrections, suggest that “it might be well to view the inmate’s family as the prime treatment agent and family contacts as a major correctional technique.”

Additional studies, including one conducted by the New York state Department of Correctional Services in the early 1980s, found that family visits improved offender behavior — in prison and after release. A 1985 study by the Massachusetts Department of Corrections concluded that corrections programs that worked to support social bonds, including those to family, decreased recidivism.

Nonetheless, under the proposed regulations for California prisons, contact visits will be denied to all drug offenders, with the exception of those convicted of simple possession. Those convicted of other crimes, including murder, will still be eligible for such visits. The rationale for singling out this population, as spelled out in the CDC’s notice of proposed regulations, is that contact visits may provide drug offenders with a means of “continuing their enterprise.”

The presumption that contact visits facilitate drug smuggling, says CDC spokesperson Russ Heimerich, is based on experience. Of 800 documented drug-related incidents in state prisons last year, he says, 150 involved visitors, accounting for more than half the total amount of drugs coming in. (The rest, he says, enter via packages, mail and “miscellaneous”). While the CDC does not keep track of how many such incidents involve children, he says there is plenty of “anecdotal evidence” of visitors using children to ferry drugs inside — even going so far as to hide drugs in a soiled diaper.

Although drug offenders are not the only ones who receive drugs from visitors, adds Heimerich, “We clamp down as tightly as possible especially on those who are drug offenders because it gives them a way to clean up.”

The CDC figures on contraband come from incident reports rather than a systematic statewide study. But a recent report to the Florida Legislature by the Justice Council Committee on Corrections — which did conduct a statewide study — contained an illuminating finding: While 46 percent of corrections officers surveyed believed that most contraband came from visitors, only 2.5 percent of contraband incidents statewide in fiscal year 1997-1998 were actually attributable to visitors.

“Security measures which are overzealously applied, resulting in only a small improvement in institutional safety and which extract a huge toll in disenfranchising families,” the Florida committee concluded, “must be revisited and reevaluated.”

About 43 percent of women prisoners in California state facilities are drug offenders. The majority of these are single mothers, most of whom are expected to resume caring for their children at the end of their sentences. Withholding contact for a year is likely to make that difficult and crucial reunion even more challenging.

Once an incarcerated parent is released, notes Dr. Howard, “if they don’t have a good relationship with the child, then their ability to take care of the child and have the child be responsive to them will be much diminished. If there were no bodily contact at all, I would expect no relationship at all with young children.”

Alissa went just three months without touching her children, but undoing the damage took much longer. She was in the county jail at the time for credit fraud. The thought of her small boys sitting in plastic chairs shoulder to shoulder with other visitors, gaping at her through the glass, was too much for her — and, she feared, for them — to bear, so, like quite a few other mothers in county jail, she chose to forgo visits altogether.

“Every time I want to hug you,” 6-year-old Dion told his mother when she called home, “I have to go to your picture.”

When Alissa was transferred to a state facility where she could see her children in person, she couldn’t wait to hold them. But the reunion was not as she had imagined it. “When they came the first time it was so sad,” she recalls. “They just looked, and they smiled, but they were afraid to come touch me. I grabbed them and I held them for a long time, and they were really cheesy. They were stiff, like I was a stranger.”

Donna Wilmott’s daughter was 4 years old when Wilmott went to prison for two years on conspiracy charges related to her involvement with the Puerto Rican independence movement. Wilmott spent her first weeks behind bars in solitary confinement. During that time she was permitted only window visits. Her husband came twice a week, but Wilmott asked him not to bring their daughter.

“I was desperate to see her,” Wilmott says, “but I didn’t want to put her through that. If you put a glass barrier between a child and a parent, it’s crazy-making for the children. They feel they can’t get to the person they love — there’s this wall between them that they don’t understand. It’s almost like putting the parent in a box. The message children get is ‘Your mother is so bad you can’t touch her. She’s dangerous.’”

Should the new regulations be enacted, says Wilmott, many women prisoners will likely decide to forgo visits altogether. “Most women I’ve interviewed in the security housing units (high-security prison wings where contact visits are not allowed) said, ‘No, I don’t want my child to see me in here. I can’t do visits like this.’ If drug offenders lose contact visits, I can guarantee there will be people who will just defer the visits. It’s too painful.”

Wilmott was fortunate enough to be transferred to a federal prison that had a special area set up for mother-child visits, with a patio, swings and a carpeted room with books and toys. “A lot of times my daughter would just sit curled up on my lap the whole time,” Wilmott recalls. “It was very reassuring to her, and I think it was one of the reasons she did so well while I was incarcerated. The frequency of our visits, the physical contact and the more relaxed setting really made a difference.”

The debate over prisoners’ rights — which ones they must relinquish as a means of punishment and which ones they retain — is a perennial one. But the issue of which rights, if any, children should retain once their parents are sent to prison is rarely discussed with an eye to law or policy. That children will suffer for their parents’ crimes is virtually inevitable. The question is whether the system that exists to punish the parent should be modified to reduce — or exaggerate — the effect on the child.

“Kids want that motherly touch,” says Dorothy Gaines, who spent six years in federal prison on drug conspiracy charges before President Clinton commuted her sentence last year. “They already feel that you’re distant from them, and when they can’t touch you, it’s not good for them mentally.”

Like Donna Wilmott, Gaines started out in a facility that did not allow contact visits but was ultimately transferred to one that did. “My son wanted to be selfish,” she recalls. “He wanted to get the most hugs, sit on my lap the longest. I remember one visit when my kids set their watches back, thinking that would give them more time to visit.”

According to the CDC’s Russ Heimerich, the department is now considering public comment on the proposed changes and may make revisions before finalizing new regulations. “We’re weighing the benefits of contact with children against the benefits of keeping drug offenders off drugs,” he says.

Dr. Howard suggests that the needs of the prisons, their prisoners and the prisoners’ children could be managed without the suspension of contact visits between parents and young children. “If you’re worried about babies smuggling drugs in, take the diaper off,” she proposes. “Hand the baby to the parent naked and provide a diaper on the inside. Get over it.”

And now there is Treva Throneberry, a woman who spent her 20s traveling from town to town, skipping from identity to identity, always posing as a high school student, until finally, after more than a decade, she was found out and prosecuted for defrauding the state. According to writer Emily White, who profiled Throneberry in the New York Times Magazine, the perennially young scam artist was mysterious and insistent, “fixated on 18 as some kind of Rubicon she could not cross; she didn’t believe in her own existence after that threshold.”

White mentions, without much reflection, that Throneberry grew up in foster care. It could be a meaningless detail, a fact that fails to explain her pathological shifts in identity, her constant lying and deceit. But Throneberry’s many years as a ward of the state might also be the key to her behavior, a significant motivation for her “con.” In fact, in the context of a lifetime in foster care, Throneberry’s tireless charade might be about as mysterious as the ruse of a mother who, in order to claim welfare benefits for her kids, says she’s jobless when she’s actually working at the local McDonald’s.

Like all foster kids, Throneberry knew that at 18 she would be cut off from the system that had constituted her only legal parent. She had, like a lot of her peers, acquired skills she found to be necessary to stay off the street, get fed and get into school. In the same way that it would be ridiculous to suggest that a struggling mother commits welfare fraud because she derives pleasure from impersonating an unemployed person, it may be missing the point to assume that Throneberry was avoiding 18 for perverse thrills and disposable income.

Not many foster kids would engage in or even approve of the kind of lying and manipulation that Throneberry sustained for more than a decade, but more than a few would understand.

“I’ve had to live a life by myself where the only thing I’ve had is my respect and my facade, what I put out in front, whether or not it was me,” says 15-year-old Dee, a veteran of 22 foster and group-home placements in three years. “I’m a victim of not being able to be myself, because being myself might not get me what I need. I’m a victim of learned manipulation, instilled by the system. I’m a victim of not being able to be real sometimes.”

Young adults who faced their 18th birthdays in foster homes or group homes often describe “emancipation” as a frightening event that brings overwhelming anxiety and profound loneliness. Some spend the night of their 18th birthday on the street. Others feel they have no choice but to return to the same parents who abused or neglected them. A smaller number of the estimated 20,000 18-year-olds emancipated each year manage to go on to college, or a job and an apartment, but often find themselves with no family or friends to provide moral support.

“Once you turn 18, it’s like, bam, an explosion,” said one young woman, who wound up living in a friend’s car upon hitting the age of maturity. “People look at you different, like you’re supposed to be a adult, but you’re a kid.”

By posing as a teenager and a runaway, Throneberry was eligible for foster care in each city she chose, thereby gaining access to a home, food on the table and, if she was lucky, someone to tell her “goodnight” before she went to bed. In this context, she looks less like a con artist, and more like a desperate social services Scheherazade, spinning stories to prolong her care. But Throneberry was an emancipated foster child and her behavior amounted to an illegal scam. She was convicted of defrauding the public school and foster care systems of $19,400, and sentenced to three years in a state prison.

Imagine if Throneberry’s actions were duplicated by a young woman with parents. Imagine if that young woman couldn’t make it on her own after high school and ended up moving back home. Then imagine if her parents kicked her out — without so much as a bag lunch — and had her arrested for bilking them for the cost of her care. Most of us would describe that as cruelty. Is it less than cruel when the teenager is a ward of the state?

“I’ve lived in about 10 places since I left the group home. You don’t have any family, no blood family or anything like that, and they just open the door and kick you out,” said Angel, a 22-year-old with a 6-month-old daughter who was wearing out her welcome on friends’ couches, still trying to figure out where to go next, when we met.

The rejection is compounded by what the foster teens understand about their seeming abandonment. However emancipation might be framed — as a graduation, privilege or liberation — there is no concealing from foster teens the real reason for their newfound independence: The money has dried up. “Once I hit that hour of being an adult,” explained one recently emancipated group home resident, “they can’t use me anymore.”

“There’s no reason to put us in the system just to put us out in the street,” said Ida, who at 24 was opening up her own one-bedroom apartment to a constantly shifting array of recently emancipated foster youth. “You get put in the system because of abuse or neglect or rape. Then at 18 you have to go back to the same parents who beat or raped you, because you’re desperate.”

“We don’t have anybody to lean on,” she added. “If the state is supposed to be your parent, normally parents don’t leave you alone at 18.”

Ida offered an analysis that makes Throneberry’s affinity for the regimented, predictable life of high school look perfectly reasonable. “When we’re in the system,” she explains, “we’re trained — what to do, how to do it, what time to do it. Then we’re put out at 18 with no one telling us anything. After emancipation you don’t know what to do. You run out of friends once you run out of money. Getting a job is hard because you’re labeled.

“When you first enter the system,” Ida continues, “every new group home is a gang. You finally get used to them, then you have to learn how to play the staff to get what you need. By the time you turn 18, all you know is to hustle the system. Boys normally go from the system of care to the system of the military or the system of prison. If you’re a girl, you get pregnant to get welfare.”

Some needs — housing, medical care, training in “life skills” — are addressed by the Foster Care Independence Act, which became federal law at the end of 1999. The five-year initiative, paid for with $700 million in federal funds, is meant to boost state Independent Living Programs, which offer training in skills like balancing a checkbook or looking for an apartment and a job. It also allows (but doesn’t require) the states to pay for living expenses for some emancipated foster youth, and to extend Medicaid coverage until age 21 — but to date, these benefits have reached only a fraction of those who need them.

But when asked what they most lacked when they turned 18, emancipated foster kids talk about wanting relationships, about feeling and being alone. Having grown up without family — and often without any stable, permanent relationship in its place — they are painfully aware of the need to be self-reliant. What they long for is someone they can count on.

“It’s not about needing someone to secure me and be there every step of the way,” Angel said, “but just to give me that motivation — ‘You can do it’ — which we never had. To this very day I need that. But it’s hard to find people like that.”

When Throneberry was arrested — having graduated, yet again, from high school and finally exhausted her extended adolescence — she was living in a shelter. But she hadn’t skipped town this time. She had enrolled in college, and actually seemed to be considering acting her age. White speculates that, had Throneberry not been arrested at that point, she might finally have managed to “cross the border into adulthood … and face her fear that she could not exist past 18.”

In fact, the explanation for Throneberry’s relative stability may be less complex: She may simply have been in better shape to run her own life at 30 than she had been at 18. It is a development that many parents consider a fact of life. But there is no room in the foster care system for a gradual transition to adulthood, even though this may be more necessary for foster kids than for children with parents at home.

“I had no identity until I was 25,” said one system veteran who attributes her thwarted development to her successful accommodation to institutional life. “I basically got it through other people. I didn’t think for myself. I didn’t project any goals for myself. I let someone else do it for me. And now I find myself at the age of 30 trying to find out what I really want. Everything seems fresh, because I’m still in a learning stage as a group home kid right now.”

At 21, Phu was a foster-care success story. He had graduated from high school and gone on to San Jose State University, where he worked 20 hours a week to support himself and studied deep into the night to keep up with the rigorous requirements of the engineering department.

His freshman year, Phu slept in his car over Christmas vacation because the dorms were closed and he had nowhere else to go. By his junior year, he was living in an off-campus apartment and driving himself relentlessly, dreaming of his schoolwork during the few hours of sleep he allowed himself each night.

“If I don’t study enough, I don’t learn enough, and I’m gonna be nothing,” he explained. “Maybe if I have a family, if I have my parents, that pressure would be less. You feel like in case something happens, you call your parents to rely on. But for me, if I don’t take care of everything by myself, then who’s gonna take care of me? Here, I do everything by myself. I feel like I’m a family, but only one person — a family to myself.”

Jennifer, 24, a classmate and friend of Phu’s, also was doing well, but she struggled with the powerful stigma that many foster youth say they carry well into adulthood.

“The image people have of former foster youth is that we’re going to become welfare dependents and rip off the state for all this money,” she said. “I’d hear people who didn’t know I was in the system talking about, ‘Oh, those kids in group homes — they’re just gonna grow up and get welfare, and they’re going to be taking my taxpayer money, sitting on their butts eating potato chips and soda.’ I had been told all my life, ‘You’re just going to take, take, take.’ That really hurt me, so I decided no matter what I do, I’m going to be working. And that’s exactly what I did my whole way through college.

“But it’s not as clear-cut as just, ‘Pick yourself up by the bootstraps and move on,’” Jennifer continued, “when you don’t have the supports to do that. People don’t understand that because they think everybody has a family.”

In their panicked competency and subsequent achievements, Jennifer and Phu represent the minority of emancipated kids. A major study in 1991 by Westat Inc., a Maryland-based social services research group, of children raised by the state found that within two and a half to four years of emancipation, 46 percent had not completed high school, 51 percent were unemployed, 25 percent had been homeless for at least one night and 40 percent had been on public assistance or incarcerated.

“There is a lot of emphasis in the system on ‘independent living skills,’ making these kids independent,” observes Joan Merdinger of the College of Social Work at San Jose State University, who has conducted research on emancipated foster youth. “And yet is that a good idea at that age? It sounds so harsh to me as a parent. You want your kids eventually to be independent — of course that’s the goal. But it seems for youth in foster care, the driving force is to make them independent, and part of that is so they’re not in the system.”

In practice, foster kids cease to belong to anyone once they leave the system. But the truth is that the half-million young people under the jurisdiction of the foster care system are by definition — by legal decree — ours. If it were possible for us to accept that, maybe it would be impossible for us to abandon our children at the stroke of 18, ignoring their needs or level of maturity.

If Treva Throneberry were part of our family, it is difficult to imagine that our response to her “scam” would be to put her in prison. But, if Treva Throneberry were part of our family, she might not have been afraid to grow up.