Criminal Justice Section
Criminal Justice Magazine
Volume 16, Issue 1
By Myrna S. Raeder
My long-standing concern about the growing number of women facing incarceration and the resulting impact on their children became one of my priorities when I chaired the Criminal Justice Section in 1998. Females had been "forgotten" by the criminal justice community until very recently when their ever-escalating numbers finally made them impossible to ignore. By 1998, the number of women being arrested had skyrocketed to 3 million, and the number of women under correctional supervision had ballooned to one out of every 109 adult women or an estimated 950,000 women. ( See generally Lawrence A. Greenfield & Tracy L. Snell, Women Offenders, Bureau of Just. Stat. Rep. (1999).) Females now account for approximately 6 percent of state prisoners; 11 percent of jailed inmates; 21 percent of all arrests, 21 percent of those on probation; and 16 percent of convicted felons. Although these number pale in comparison to those of male offenders, they represent a dramatic shift in the way society deals with female criminality.
Over the years, little attention had been given to whether sentencing and correctional practices oriented towards men are "just" or effective when applied to women. However, in late-1999, the Office of Justice Programs of the Department of Justice under the leadership of then-Assistant Attorney General Laurie Robinson, held a National Symposium on Women Offenders. This national think tank on women offender issues was attended by individuals from every aspect of the criminal justice and correctional community who represented state and local jurisdictions. The groups were charged with creating action plans for their own communities. That conference sparked a number of creative projects around the country and set the stage for conferences in Minnesota, Hawaii, and Oregon. The media have also begun to recognize the cost of imprisonment not only to women, but also their children. This, then, is a perfect time for the Section to join the effort to educate the criminal justice community and the public, as well as to reconceptualize how society views women offenders. For this task, we are particularly fortunate to have some of the most well-respected and innovative prosecutors, defense counsel, judges, academics, and program providers in the field participating in our exploration of this topic.
As several of the articles detail, many women offenders have been victims of physical and sexual violence. Although that is not an excuse for their crimes, it is impossible to ignore in their treatment if we truly want them to become productive members of society. For example, drugs offenses have fueled the explosion in women's incarceration. Yet some women turn to substance abuse as a way of self-medicating themselves to avoid coping with the underlying traumas associated with their abuse. It is unrealistic to assume these women will stop using drugs unless the cause of their substance abuse is treated.
Judge Patricia M. Wald's article describes the many ways in which female and male offenders differ and forcefully responds to the oft-asked question "Why focus on women offenders?" Before becoming a judge of the International Criminal Tribunal for the former Yugoslavia, Judge Wald served for 20 years on the Court of Appeals for the District of Columbia Circuit. She has previously written about the impact of supposedly gender-blind sentencing guidelines on incarcerated women and their children in What About the Kids? Parenting Issues in Sentencing (10 Fed. Sent. Rep. 34 (July/August 1997). Here, Judge Wald explores the disadvantages that women prisoners face. She discusses the irony that differences in women's criminality, backgrounds, treatment needs, and child care responsibilities are sometimes viewed as illegitimate considerations by those who see nothing wrong with denying women adequate facilities, medical care, treatment, and educational and vocational programs because of their small numbers.
Indeed, my own writings have often questioned the assumption that women are always given a break in sentencing because of their gender. Even when factors such as past criminal history, use of weapons, or role in the offense do not adequately explain differences in sentencing, issues such as primary parenting responsibilities may explain any perceived lenity. ( See, e.g., Severing Family Ties: The Plight of Nonviolent Women Offenders and Their Children, 11 Stan. L. & Pol'y. Rev. 133 (Winter 1999) (with Leslie Acoca); The Forgotten Offender: Effects of Federal Sentencing Policy on Women and Their Children, 8 Fed. Sent. Rep. 157 (Dec. 1995).) Moreover, men sometimes benefit from unlikely factors such as high crowding levels in male prisons, which may result in lower sentences even when the women's prison is actually more overcrowded. (L. Stolzenberg and S.J. D'Alessio, Impact of Prison Crowding on Male and Female Imprisonment Rates in Minnesota: A Research Note, 14 Just. Q. 793 (Dec. 1997).)
Because judges are sometimes unaware of the myriad of issues that should inform the sentencing of women offenders, the National Association of Women Judges (NAWJ) in conjunction with the National Institute of Corrections has published a curriculum for Sentencing Women Offenders. This is described in a column written by Judge Carolyn Engel Temin, who helped develop the curriculum and is currently the chair of project development for NAWJ. The one-day curriculum can be tailored to judicial training in any part of the country and is easily accessible on the NIC website. The availability of such educational materials is key to ensuring that judges have the necessary background to make appropriate sentencing decisions.
Probably the most fundamental difference between male and female crime is that women are predominantly nonviolent despite the current scare that girls are joining gangs and becoming increasingly aggressive. Those of us who remember the earlier unfounded claims that "women's liberation" would result in equal opportunity for females to rival men in violent criminal activity view these current predictions skeptically. However, it is fair to ask whether society is generally becoming more violent, thereby accounting for more women committing violent crimes even though their relative percentage of such crimes has not risen as dramatically. Meda Chesney-Lind, a professor of women's studies at the University of Hawaii at Manoa, is a nationally recognized advocate for girls and women. She tackles some of these questions in her article. Prof. Chesney-Lind has written several books on related topics including Girls, Delinquency and Juvenile Justice and The Female Offender: Girls, Women and Crime. Here, she suggests that the claimed upsurge in female juvenile violence may result from more mundane reasons such as the current tendency to recategorize how violence is measured that can significantly affect the percentage of female violence. In other words, since simple assaults comprise a large amount of girls' violent behavior, merely including conduct such as hitting or slapping, which has previously been overlooked, will produce a seemingly large increase in girls' violence. Reading the article made me wonder whether the focus on zero tolerance that is now so prevalent in juvenile justice has precipitated the headline-grabbing statistics that are being used to argue that a sea change has occurred in the nature of female criminality. Moreover, it encourages the waiver of juveniles to adult court and correctional facilities where they lose the right to be educated. The literature on juvenile girls is now coming to realize that education failure is a big predictor of girls' criminality.
However, as Victor L. Streib, dean and professor of law at Ohio Northern University's Claude W. Pettit College of Law, reminds us, some women do commit murder. His article updates some of the findings from his seminal work in this area entitled Death Penalty for Female Offenders (58 U. Cin. L. Rev. 845 (1990).) Many assume that gender bias favors women because so few women have received the death penalty. Yet, because women often have less violent criminal histories than men, and their murders are mainly of acquaintances and intimates, it is still unclear whether such differences account for what otherwise seems to be a stark disparity. Indeed, many such homicides are committed by women who have been the victims of domestic violence. Typically, murderers of intimates, whether male or female, have escaped the death penalty. However, the recent executions of several women, one of whom was battered by the man she killed, may signal a change in attitude about women being put to death.
Brenda Smith, now a professor at Washington College of Law, American University, examines a profoundly disturbing issue concerning incarcerated women that has received world attention: sexual misconduct by correctional staff members. This important topic is one that Smith was instrumental in researching and litigating at the National Women's Law Center, which published her work: An End To Silence: Women Prisoners' Handbook on Identifying and Addressing Sexual Misconduct (April 1998). Her current article graphically describes the facts leading to some of the key litigation involving sexual misconduct, as a prelude to analyzing the ensuing legal questions. She discusses the stinging reports issued by Human Rights Watch, Amnesty International, and the United Nations' Special Rapporteur for Violence Against Women, and summarizes the recent report by the United States General Accounting Office on sexual misconduct by correctional staff. Professor Smith also looks at the spate of recent legislation prohibiting such conduct and details the many practical implications for prosecutors and counsel representing female inmates who have experienced sexual misconduct.
Ellen Barry, who received a 1998 MacArthur award for her work as director of Legal Services for Prisoners with Children, has written an article aptly entitled Bad Medicine: Health Care in Women's Prisons and Jails. She describes the appalling conditions that some incarcerated women in California have faced and relates some incredibly poignant stories of lives shattered or lost by incompetent or nonexistent medical care. She examines the extent to which class action litigation has bettered the level of health care in women's facilities, but makes clear that even successful litigation may not provide complete relief. She also discusses the underlying current of sexual abuse by some medical personnel. Ellen Barry suggests that legislative hearings may be a way to focus attention on medical issues and proposes some possible remedies to correct some of the worst health care abuses.
Although most people think of women's health care issues as relating to gynecology, pregnancy, and breast cancer, it is important to note that an unusually high percentage of incarcerated women suffer from various mental illnesses. (Paula M. Ditton, Mental Health and Treatment of Inmates and Probationers, Bureau of Just. Stat. (July 1999).) Thus, we must also question whether society's failure to provide adequate mental health treatment facilities has turned jails and prisons into treatment centers for mentally ill women, a role that is inconsistent with traditional correctional goals and resources.
The next article is written by Ann Jacobs, who is the executive director of Women's Prison Association & Home, Inc. (WPA). She is the coauthor of WPA's Breaking the Cycle of Despair: Children of Incarcerated Mothers, and has been active in developing and implementing a host of programs aimed at improving the lives of incarcerated women and ex-offenders. Her current article addresses the multiplicity of problems that face women offenders in the community. She reminds us that it is critical that we recognize that most women in the criminal justice system are on probation or parole, and the vast majority of incarcerated women will return to the community. Yet these women must negotiate a maze of regulations that may bar them from the likely means to escape from their criminal pasts. Barriers to family reintegration range from welfare law prohibitions on benefits (Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, § 115, 110 Stat. 2105) to restrictions imposed by the Adoption and Safe Families Act that encourage the termination of parental rights for women whose children have been in nonkinship foster care. (AFSA, Pub. L. No. 105-89, 111 Stat. 2115, codified as amended at 42 U.S.C. §§ 620-679.) These are issues that have troubled me immensely, because our present adoption policies may unintentionally create an orphan class of children whose ties to their mothers and grandparents are severed, but who have no realistic chance of being adopted. Ann Jacobs also discusses housing, health care and substance abuse treatment and immigration as complicating the ability of women to avoid reoffending. She makes numerous public policy proposals, but also addresses what strategies we can currently employ to help these women help themselves. Ironically, when I read this section, everything she said had as much relevance to lawyers as it did to her original intended audience of service providers. Despite the weighty problems she identifies, her belief that these obstacles can be transcended is truly uplifting and a fitting springboard to a discussion of innovative programs that are currently in progress.
It is undeniable that the United States presently embraces a punitive, pro-prison model of punishment for criminal activity. As I have written elsewhere, while this policy affects men as well as women, the general impact on women is more severe because they predominantly commit nonviolent crimes that previously resulted in probation. Moreover, the war on drugs not only criminalized conduct that previously merited treatment, but assessed lengthy penalties for relatively low-level drug use and trafficking that would otherwise have resulted in much shorter sentences. Previously, it was not necessary for policymakers to address what the impact incarceration has on future generations who have been deprived of their primary parent. Are we safer with so many more women behind bars? I doubt it. Despite a similarly sized population, the United States incarcerates approximately 10 times more women than those imprisoned in all of Western Europe.
There are some hopeful signs that America is recognizing that a harsh sentencing policy may have unintended negative social consequences. Charles J. Hynes, the district attorney of Kings County (Brooklyn), New York, challenges prosecutors to act as catalysts for change in instituting a community-based alternative to incarcerations programs for defendant mothers and their children. His creation of such a program fits directly into the best tradition of prosecutors appreciating that crime prevention and restorative justice principles may serve the community and the wrongdoer better than a knee-jerk, lock-them-up attitude. Obviously, such programs are designed for those who have strong ties to their children, and whose nonviolent crimes would have received probation in an earlier era. They acknowledge that imprisoning mothers can undermine the family unit and drastically disrupt the lives of their children. Although a number of community correctional-based projects accepting mothers and children have sprung up around the country, this is the first that is based in a prosecutor's office and involves a deferred sentencing structure that results in dismissal of charges if the woman successfully completes the program.
Such innovation deserves to be applauded and receive nationwide recognition. But care must be taken with all programs that include treatment for substance abuse to ensure that they are gender-specific and also that they recognize the inevitability that relapses will occur. Rehabilitation occurs one step at a time and here, as elsewhere, zero tolerance rather than a graduated system of penalties can result in setting up women (and men) to fail.
The criminal justice community must also encourage the establishment of more community correctional alternatives for sentencing judges and correctional officials. Those of us who toil in this field remember the dismal failure of Congress to fund the Family Unity Demonstration Project that would have provided money to create community correctional facilities. Despite the ABA's urging that the legislation be funded and reauthorized ( See Myrna S. Raeder, Creating Correctional Alternatives for Nonviolent Women Offenders and Their Children, 44 St. Louis U. L.J. 377 (2000)), no action was taken. However, there is some good news.
In mid-February, Senate Bill 304, cosponsored by Senators Hatch, Leahy, DeWine, and Thurmond, was introduced that would provide $30 million for residential community treatment centers for drug-addicted women with minor children. The children would reside in the facility or nearby while treatment was ongoing. Given the bipartisan sponsorship and support for the bill from both liberal and conservative senators, some better alternatives for incarcerated mothers may yet emerge. Though the bill is silent as to the length of term that a woman may reside in such facilities, given the long terms facing many women, any realistic alternative must provide the option for long-term residence. The bill would also provide money for reentry programs to ensure that inmates are not simply given bus fare and expected to fend for themselves when they leave the totally structured prison environment. It also provides $25 million for programs for children of incarcerated parents.
In addition, the recently passed budget included $4 million for the National Institute of Corrections (NIC) to address issues related to children of prisoners, and previously funded projects are beginning to bear fruit. For example, the Mother Child Community Corrections Project, supported by a grant from the Office of Justice Programs (OJP), has created a website for the exchange of information about mother-child community correctional facilities (linked through www.nicic.org). The group also established a listserv for selected providers and people working in this field, brought together a National Resource Group to focus on these issues, and ran a seminar where providers engaging in new projects could share ideas. Mary Shilton, the former cochair of the CJS Sentencing and Corrections Committee, is one of the individuals responsible for this project. In general, the NIC website has a wealth of material about women offenders. In addition, the OJP cosponsored a symposium to identify best practices in residential mother-child correctional programs with the Center for Children of Incarcerated Parents. The center, under the direction of Dr. Denise Johnston, recently held a second symposium on this topic and is in the process of publishing findings from these meetings. Incarcerated women and their children in California can now take advantage of community correctional facilities funded by the Pregnant and Parenting Women's Alternative Sentencing Program Act (Cal. Penal Code §§ 1174-1174.9).
Beyond the community correctional movement, systemic efforts to reevaluate how to further communication and interaction among the various parts of the criminal justice community are beginning to have an impact on improving the lives of women offenders. Lauren Simon and Mary Kay Moore, respectively a public defender and a prosecutor in Cook County Chicago, have written an article explaining the benefits of collaboration by multiple agencies, ranging from increased ability to monitor women and provide them with appropriate services to significant cost savings. Ultimately, the public and legislators should be willing to rethink how we are dealing with women offenders when those who are typically viewed in adversarial terms- judges, prosecutors, defense counsel, sheriffs, correctional officials, probation and parole officers, and service providers-come together to carve out fair and effective sentencing and correctional policy directed towards women and their children. ( See also Partnerships in Corrections, Six Perspectives, Center for Community Corrections (1999).) Interestingly, the Criminal Justice Section itself has long followed a similar model of interaction in its Council, which regularly issues policies that carry significant weight because they are the result of discourse and compromise by people who represent the different constituencies embodied in the criminal justice community. But I have already taken too long to introduce what I hope will be an eye-opening journey into the world of women offenders and their children.
Myrna S. Raeder is a law professor at Southwestern University Law School in Los Angeles. She is a former Section chair and a current member of the Criminal Justice magazine editorial board.