Criminal Justice Section
Criminal Justice Magazine
Volume 16, Issue 1
Give 'Em a Fighting Chance:
Women Offenders Reenter Society
By Ann L. Jacobs
The discussion about women in the criminal justice system tends to focus on prisons and, secondarily, on jails. However, there are more offenders under community supervision than are incarcerated, and most prisoners will, at some point, return to the community. It is vital, therefore, to consider the factors relating to a woman's ability to succeed in the community.
Some parole and probation officers say that it is harder to work with women than with men. But why? Men represent a greater risk to public safety than do women. So what specific difficulties do women present? I have a theory based on my experience as executive director of the oldest social services agency in the country serving women offenders and their families. Perhaps, with a woman we see clearly that, although the criminal justice system may determine whether she is incarcerated or free, many other systems actually have more to do with her prospects for successful living in the community.
Who are we talking about?
Women in the criminal justice system have multiple problems. They are overwhelmingly poor and almost always substance abusers. They are often victims of abuse and violence. Many are depressed and suffer from mental illness. They experience a high rate of HIV infection, sexually transmitted diseases, tuberculosis, and untreated chronic diseases. A great number are homeless or live in marginal housing. Typically, they are undereducated, unemployed, and have minimal legitimate work histories. Nearly 80 percent are mothers, and most have two or more children.
If women are to live healthy, sober, law-abiding lives in the community, all of these issues must be addressed in some manner. And to take on the well-being of the woman means, by extension, taking on some obligation for the well-being of her children and, often, of several other adults in her constellation of responsibility. The children have been hurt by their mother's drug use. They've been traumatized by her arrest and the resulting separation. They suffer a wide range of psychological problems including trauma, anxiety, guilt, shame, and fear. These problems frequently manifest themselves in behavior problems, poor academic achievement, truancy or dropping out of school, gang involvement, early pregnancy, drug abuse, and delinquency.
Community-based criminal justice interventions typically focus on monitoring and reporting, urinalysis, drug treatment, and referral to employment. However, these are not adequate strategies for dealing with most women offenders. To construct a law-abiding life, a woman offender is likely to require the assistance of a large number of public systems, including public assistance, homelessness services, family court, child care, public education, drug treatment, health and mental health (thus, managed care). Her prospects will also be directly shaped by federal law and local practice on matters as diverse as employment, immigration, child welfare, and eligibility for student loans.
If we are to help women succeed in the community, the criminal justice system must work more effectively with the other public systems that shape the lives of these women. Competing demands must be reconciled. Both criminal justice and social service professionals need to advocate for systemic changes that will make all systems more responsive to the needs of women offenders.
When considering the viability of any community-based intervention, we must ask how the woman will provide herself and her children with food and the basic necessities. It is common for a woman to rely on welfare until she can enter the job market, first at an entry-level position (often supplemented by public assistance), then gradually working her way up to a job that pays a living wage with, it is hoped, health benefits. Unfortunately, welfare reform has made it more difficult for these women to get started on a legitimate lifestyle.
The Personal Responsibility and Work Opportunity Reconciliation Act, enacted in 1996, permanently bars those with a drug-related felony conviction from receiving federal cash assistance and food stamps during their lifetime. The federal law gave states the opportunity to opt out or to modify the drug felon ban through affirmative legislation stating specifically that drug felons are to be eligible for benefits. At last report, though, only nine states had opted out of the ban and 18 had modified it. (For example, some states exempt individuals with drug felony convictions who have undergone drug treatment.) This means that in 23 states women who have been convicted of drug felonies are not eligible for public assistance.
The federal welfare law also prohibits states from providing Temporary Assistance for Needy Families (TANF), Supplementary Security Income, housing, and food stamps to individuals who are "violating a condition of probation or parole." And all TANF recipients are subject to a five-year limit on the length of time they can receive benefits over the course of their lives.
In addition, there are significant delays between the time a woman applies for benefits and the time she is eligible to receive them. In New York City, the mandated waiting period is 45 days and the actual wait is often longer. What is a woman supposed to do to feed and clothe herself in the interim?
Most localities impose workfare requirements on public assistance recipients. At the same time, it can be difficult for a woman to get an exemption from workfare assignments to participate in drug treatment. A missed appointment for either program can result in termination of benefits. Benefits may also be jeopardized if a recipient's child is truant. Often adequate child care is not available, creating yet another barrier to workfare and drug treatment participation.
These women may also face obstacles to attending school or a training program to acquire the skills needed to get a job that provides a living wage. For example, the Higher Education Act of 1998 suspends eligibility for any grant, loan, or work assistance for students convicted of drug-related offenses.
All of these exclusions and barriers complicate the road to a normal life. As a result, women are left few options besides illegal activity (sex work, drug trade, theft) or dependence on partners, who, all too often, are violent or abusive.
The desire to reunify with children can be the most powerful motivator for a woman's recovery from substance abuse. Denial of access to her children can trigger a woman into relapse and despair.
The Adoption and Safe Families Act of 1997 (ASFA) accelerates the termination of parental rights and bars individuals with certain convictions from being foster or adoptive parents. Although the intention of the law was to create permanency for children, it has a potentially devastating effect on families when the mother is involved with the criminal justice system. Some states have enacted even more onerous versions of the federal legislation. Practitioners should be familiar with the law and practice in their jurisdiction.
ASFA requires states to seek termination of parental rights when a child has been in foster care 15 of the previous 22 months. Yet, 15 months is a short period of time for women dealing with criminal charges and addiction, as well as with all the other barriers to stabilizing their lives, such as lack of housing and difficult relationships. Courts can make exceptions to this requirement if a relative is caring for the child or if there is a "compelling reason" for not moving to terminate parental rights. Many child welfare agencies do not realize they are able (and even obligated) to explore these exceptions before moving to termination.
Further, termination of parental rights does not necessarily result in a good outcome for the child. Adoption and permanency are not assured. Termination only means with certainty that the mother and child will not have access to each other. This is particularly wrenching for older children who have memories of their mother and who often prove more difficult to get adopted. In many cases, a child's prospects are not improved by moving so quickly to sever the relationship with the mother.
The pressures of ASFA make it imperative to address family preservation issues at an early stage in a woman's journey through the criminal justice system.
Moreover, women involved in the child welfare system may have additional requirements placed on them that contribute to the complexity of their service plan, including family court dates, supervised visitation with children, mandated drug treatment, and parenting classes. Some even face child support demands for periods in which they were incarcerated or were not the custodial parent. Such demands may conflict with employment, parole, probation, or welfare requirements.
In some jurisdictions children are now removed from households in which one partner is battering another because officials argue that the victim is unable to protect the children. Instead of providing better protection for children, this practice may simply drive family violence further underground. Given the prevalence of violence in their experience, women offenders should be encouraged-not discouraged-from seeking services.
The scarcity of safe, affordable housing is one of the biggest barriers to women's successful adjustment in the community. They end up going back to abusive and drug-using households because they don't have any other real options. They may not be able to return to a relative's home if that relative is providing kinship foster care to the woman's child. Yet, without acceptable housing, these women cannot regain custody of children through family court.
For some time, people with drug convictions have been barred from living in federally funded public housing. Some jurisdictions have also implemented criminal record checks for people applying for Section 8 certificates. Section 8 pays private landlords the difference between the fair market value of a unit and the rent that is affordable to a tenant with limited income. Although denials of eligibility can be appealed, it is a labor-intensive process. At a time when many other rental subsidies are also being eliminated, it is increasingly difficult for a poor population to acquire housing.
Health care and substance abuse treatment
Managed care has changed the way in which we all access medical services. These changes are particularly dramatic for poor women who have relied on emergency room care in lieu of preventive and regular health care. Further, it has made it even more difficult to place women in drug and alcohol treatment programs. Managed care gatekeepers typically prefer shorter and less intensive treatment regimens than the requirements imposed by the court or parole.
In addition, many traditional treatment models do not work well for women. First, most do not include children and, therefore, require a woman to choose between treatment and caring for her children. And many programs rely on a confrontational approach that is not effective with women and can be very damaging to women with histories of abuse. Traditional treatment demands that she deal with issues sequentially: first treatment, then a job, then housing, then (much later) reunification with her children. Women are concerned with all of these things at once and will not participate-and will not succeed -in models that deny their realities and their concerns.
Recovery is a long process that can be started during incarceration. However, treatment works best when it continues in the community. Women must learn to live drug-free in the context of the stresses and pressures that they face in everyday living. Treatment is most effective when it specifically focuses on women's issues, relationships, and trauma. Reaching sobriety is not enough. For women who used alcohol and drugs to self-medicate in response to abuse, treatment must be followed by long-term counseling.
The immigration factor
During the period from 1988 to 1996, Congress amended the Immigration and Nationality Act seven times to increase the negative consequences of conviction for noncitizens accused of crimes. As a result, immigrants who are not U.S. citizens-even if they have been lawfully admitted to the United States for permanent residence-may now be declared ineligible for citizenship, subject to mandatory deportation, and never allowed to return. An immigrant may suffer these consequences even if her criminal case is decades old and did not result in a criminal conviction. This is particularly wrenching to a mother facing deportation and separation from her children who were born in the United States. A woman facing consequences of this magnitude may have difficulty participating productively in any course of treatment.
What can be done?
The U.S. criminal justice system has become increasingly punitive, especially toward drug offenders. Often the laws are harsher on drug felons than on murderers and rapists. This has made it very difficult for even the most motivated women to get their lives together. They are relentlessly challenged. To help them, the criminal justice and social services systems should focus less on punishment and more on developing resilience and self-sufficiency. To work more effectively with the multiple systems involved in the lives of women offenders, social services and criminal justice professionals can:
o learn what is driving the other systems involved in clients' lives;
o teach practitioners in other systems what is driving the criminal justice system;
o change practices and policies to accommodate other systems when possible;
o encourage professionals in other systems to get them to recognize and be more responsive to the criminal justice populations hidden in their populations; and
o advocate for policy and program changes that will make those systems more responsive.
In addition, some guidelines can help criminal justice professionals work with women. First, institutions responsible for female offenders should foster environments that encourage both clients and staff to become more competent and self-reliant. It is important to avoid helping (or rescuing) clients in ways that foster dependency. Instead, interventions should aid clients in moving through an accelerated developmental process (in which they can make mistakes and learn from them). This kind of intervention is challenging and difficult to achieve. It is not "tough love," should not be overly parental, and has not been widely modeled in most criminal justice professionals' own experience.
The criminal justice system should strive to avoid overloading offenders with conditions, and recognize that the requirements on them should be in proportion to the offense. The goal should be to help them succeed-not increase the likelihood that they will fail.
Interventions should acknowledge the accomplishments of both the clients and criminal justice employees. Court officials, the public, and staff need this refocusing from failure to success as much as do clients.
In short, working with women in the criminal justice system requires ways of working more effectively with the many other human services systems that are involved in their lives. We must hold a vision of what is possible and not be held captive by our desire to know all the answers. Paradox and ambiguity must be allowed, and we should anticipate unintended consequences. We must constantly evaluate, refine, and modify, and be willing to let go of innovations that, despite the best of intentions, don't work.
To give women offenders a fighting chance requires significant change in our strategies and in our public systems. Surely, we should expect as much of ourselves as we do of our clients.
Ann L. Jacobs is the executive director of the Women's Prison Association in New York City.