Cornell University

Article

Challenging Multigenerational Punishment

Naoka Carey 

Acting Assistant Professor of Law, New York University School of Law. JD, New York University. PhD, Boston College Lynch School of Education & Human Development.

Many thanks to Rebekah Levine Coley, Lael Hiam Chester, Randy Hertz, Martin Guggenheim, Perry Moriearty, Rachel Rosenbloom, and Ryan Sakoda for helpful comments on earlier drafts, as well as participants in the Northeastern School of Law Junior Scholars Conference. Thank you also to my research assistant at Boston College, Jacob Lensen, and the editors at the Cornell Law Review, who provided excellent editorial assistance. All errors are my own.

Any views expressed are those of the author and not those of the U.S. Census Bureau. The Census Bureau has reviewed this data product to ensure appropriate access, use, and disclosure avoidance protection of the confidential source data used to produce this product. This research was performed at a Federal Statistical Research Data Center under FSRDC Project Number 2931 (CBDRB-FY24-P2931-R11936 and R12112).

30 Jul 2026

This Article presents novel empirical research showing that one in seven U.S. children have had a household member prosecuted by the state in the last ve years. Using unique data derived from millions of administrative and Census survey records from multiple states and decades, I show that for an estimated eleven million U.S. children each year, a parent, sibling, or other household member is dealing with an active criminal case or sentence. For children living in high poverty neighborhoods, and Black and American Indian/Alaskan Native children at all economic levels, rates are double or triple that of other groups.

In addition to the profound social and economic implications that such extensive criminal system exposure has for children, there are important legal consequences. Numerous civil laws impose legal disabilities on households containing people with criminal cases, disabilities that can directly subject children to eviction, homelessness, food insecurity, and other kinds of severe, life-altering hardships. These laws provide a mechanism to make “punitive containment” of large numbers of families socially permissible and are a key mechanism through which mass incarceration operates to create a new “caste” system.

This Article argues that the burdens these laws impose on millions of children are not just inhumane and unjust but unconstitutional. Drawing on the Supreme Court’s illegitimacy jurisprudence, the Article argues that multigenerational punishment—the imposition of legal disabilities on children for the purpose of punishing their parents—is prohibited by the Equal Protection Clause of the Fourteenth Amendment. Moreover, laws that distinguish between groups of children based on their household members’ conduct must have an important government purpose that is substantially related to their application to children. Specifically, the government must show that legal disabilities or burdens imposed on children have been “carefully tuned to alternative considerations,” a standard that requires a searching inquiry into the short and long-term harms to children’s well-being imposed by the classification. The Article reviews three types of laws that impose legal disabilities on chil dren based on household member criminal matters—federal “one-strike” laws, local “crime-free” ordinances, and TANF and SNAP bans related to felony convictions. I argue that, given the severe deprivation these laws impose on children, their punitive goals, the lack of any justification for their imposition on children, and the lack of any indication that they were narrowed or curtailed to reduce their harm or caste-creating qualities, these laws cannot survive the heightened scrutiny that the Constitution requires.

To read this Article, please click here: Challenging Multigenerational Punishment