The woman was facing four years in jail for up to 40 counts of credit card fraud that she had committed while under a suspended sentence for similar offences. At first, Sachs wanted to jail the mother, but a female colleague urged him to consider the rights of the woman’s children separately. Here is how the 74-year-old judge explained his decision to an international audience of human rights lawyers in Edinburgh a couple of weeks ago:
"She said: 'There is something you are missing. What about the children? Mrs M has three teenage children. She lives in an area that we politely call fragile, an area of gangs, drug-peddling and a fair amount of violence. The indications are that she is a good mother, and the magistrate gave no attention to the children's interests.'As a result, Sachs created a legal precedent in 2007: now in South Africa at least in borderline cases, primary caregivers of children should not be sent to jail. And if the court decided to jail a primary caregiver, it had to take some responsibility for what happens to the children. "The court can't simply say that she should have thought of that before she committed the offence, or that she can't hide behind her children."
"The minute my colleague spoke to me about the importance of the three teenage children of Mrs M, I started to see them not as three small citizens who had the right to grow up into big citizens but as three threatened, worrying, precarious, conflicted young boys who had a claim on the court, a claim on our society as individuals, as children, and a claim not to be treated solely as extensions of the rights of the mother, but in their own terms."
Judge Sachs did not know it at the time, but similar ideas were being framed in Scotland in a report by the then children's commissioner, Kathleen Marshall.
The report, Not Seen, Not Heard, Not Guilty, argues that the rights of offenders' children to family life under the UN Convention on the Rights of the Child are systematically ignored by the court system. The report found that almost two-thirds of prisoners in the Cornton Vale women's prison in Stirling had children under 18, but there was no provision to take their rights into account during sentencing.
This is fascinating. A new way of thinking is emerging within the criminal justice system. Children have rights on their own, which the court system should take into account. And children don’t forfeit their rights because their parents have committed a crime. Of course, it is not a one-fit-all answer: some convicted mothers and fathers are terrible parents and being a parent shouldn’t be a license to commit a crime with impunity. But the principle is important and, if we think about it, rather basic: children shouldn’t be punished for their parents’ crimes. Both the children and society would benefit.
I wonder if the same argument could be made about unborn children – the children of pregnant women in prison. Many years ago, fellow journalist Loren Stein and I worked for the Center for Investigative Reporting in San Francisco on a year-long investigation (published in the Progressive and Boston Herald magazine) into the alarming number of miscarriages among pregnant women in US prisons. Packed into routinely overcrowded, understaffed and ill-equipped facilities, pregnant inmates were often denied essential pre-natal and emergency care, although their health needs were both greater and more specialized. As a result, more than 30 percent of pregnancies in prison ended up in miscarriage (often during the third semester, which is very rare among the general population) or the loss of the baby during or after birth.
For many of these inmates’ unborn children, a prison sentence actually meant a death sentence.