Need a Sitter? Get Convicted!

What Women Really Think
June 14 2010 10:45 AM

Need a Sitter? Get Convicted!

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A new report says that the past decade has brought an enormous increase in lawsuits against employers for discrimination on the basis of family responsibilities. A quieter, dramatic example of the child-care crisis is a recent postponement of the prison sentence of a mother of three, granted solely because she has no child care.

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Janira Bueno was convicted in New York federal court, after a guilty plea to multiple fraud counts in a tax-fraud conspiracy, along with 11 other defendants (including her husband). She’ll serve her two-year prison sentence eventually, but has up to three years or even longer to find suitable care for her three children, the youngest of whom is two.

Judge Harold Baer decided that the "extraordinary circumstances" related to the care of Bueno’s children and the lack of an available caregiver demanded an unusual solution in setting the terms of Bueno’s sentence. In a compassionate opinion filed last week, Judge Baer wrote that he sought to balance the need to sentence Bueno appropriately with "the need to ensure that innocent children are properly cared for and do not become wards of the state, or in foster care." He cited evidence of her devotion to her children and her lack of previous criminal record as factors in his decision. The youngest child will be kindergarten-aged by the time Bueno likely will have to surrender; the oldest of the three will be a teenager. From a child-development perspective, the adjournment of her sentence could, obviously, have (or avoid) dramatic effects on the kids. Self-described " sentencing geeks " find this kind of move interesting because it illustrates the effects of recent Supreme Court decisions that have given sentencing judges more flexibility in abiding by the notorious federal sentencing guidelines. The Bueno decision relies more on logic and on practical considerations than on a technical formula.

Too bad for workers-and for Bueno-that prison terms aren’t as easy to lose as jobs. Federal law forces employers to keep jobs available (sort of, if workers qualify, if and if and if) for a luxurious 12 weeks while you sort out child care and other family-related responsibilities. After that, better catch a windfall or find someone to watch the kids. The data reported by the Center for WorkLife Law clangs the bell: Lawsuits against employers on the basis of "family responsibility discrimination" are up 400 percent in the last 10 years, even while overall employment discrimination lawsuits decreased.

Herein lies the peculiarity of the outcome of the case of Janira Bueno. Meet and right that her kids’ welfare determined the terms of her sentence. But isn’t it weird that the American way of child care (expensive, inaccessible, both, or worse) is so gnarled that a federal judge has to tinker with details when the goal is to make sure a convict serves her time? Prison service shouldn’t be the call to arms that gets us to a reasonable solution for families who want to 1) stay employed and 2) secure care for their children. I guess, with a groan and lots of salt, we’re to ask W.W.S.D . (what would Sweden do)?

Photograph of children by Karim Sahib/Getty Images.