Yesterday a judge in the Lowell Superior Court chose not to sentence my client to the 5 years in state prison that he was facing and instead put him on probation. The judge made clear that his decision was based on the motion that we filed asking him to consider my client’s role as a primary caretaker to his children. The primary caretaker provision in Mass General Laws chapter 279 section 6B is fairly new legislation with enormous potential to keep parents of minor children out of custody. The provision allows and encourages judges to consider a defendant’s status as a primary caretaker to a child before imposing a sentence and to consider alternatives to incarceration.
The primary caretaker provision reflects a consensus that incarcerating parents has long-lasting and serious adverse impacts on children. In fact, the Center for Disease Control designates the experience of having a parent in prison as an “Adverse Childhood Experience,” a classification that also includes physical and sexual violence, and neglect. Initially the proposed legislation was restricted only to people facing non-violent charges, but the law that passed applies to any charges that do not carry mandatory minimum sentences.
As I dove into this statute in preparing my motion, it became apparent that this law is quite broad in the scope of people that can seek relief. The statutory definition of a “primary caretaker of a dependent child” is a parent with whom a child under the age of 18 has a primary residence. The term parent is not defined and is therefore not limited to biological or adopted parents. This provision applies to anyone with a demonstrable parental role of a child with whom they share a primary residence. It is not limited to single parents or to parents without a support network to assume care of their children should they be incarcerated. While these factors would certainly make a motion under this section stronger, the recognition of the psychological harm that a child endures when their parent is incarcerated allows for relief even if there is a second parent in the home or there are other available caregivers to assume responsibility of the child.
To request relief at sentencing as a primary caretaker, the accused must file a motion and supporting affidavit within ten days of the judgment (which would be a guilty finding or probation revocation.) The affidavit must demonstrate that the accused qualifies as a primary caretaker and should give specific information about the roles and responsibilities that they have in the child’s life. Supporting documentation like letters, and family photos can be helpful as could an evidentiary hearing with live testimony.
Progressive legislation like the primary caretaker statute does not write itself. They are the work of tireless advocates like the amazing people from Families for Justice and Healing and the National Council for Incarcerated and Formerly Incarcerated Women and Girls (H/T Andrea James, founder of both organizations). The legislation was filed by Senator Will Brownsberger who is consistently on the right side of justice.
If you or someone you love has a criminal case that could benefit from primary caretaker consideration, please contact my office for a consultation.