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.<\/p>\n\n\n\n
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 \u201cpunitive containment\u201d of large numbers of families socially permissible and are a key mechanism through which mass incarceration operates to create a new \u201ccaste\u201d system.<\/p>\n\n\n\n
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\u2019s illegitimacy jurisprudence, the Article argues that multigenerational punishment\u2014the imposition of legal disabilities on children for the purpose of punishing their parents\u2014is prohibited by the Equal Protection Clause of the Fourteenth Amendment. Moreover, laws that distinguish between groups of children based on their household members\u2019 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 \u201ccarefully tuned to alternative considerations,\u201d a standard that requires a searching inquiry into the short and long-term harms to children\u2019s 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\u2014federal \u201cone-strike\u201d laws, local \u201ccrime-free\u201d 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.<\/p>\n\n\n\n