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Criminal Justice Magazine
Spring 2001
Volume 16, Issue 1

Why FOCUS on Women Offenders?

By Judge Patricia M. Wald

In an era when so many of our legal theorists and institutions are focused on gender equality-how to define it, how to achieve it-the question, "why focus on women offenders?" is a legitimate one. We may ask up front what purpose or justification is served by studying the characteristics of the woman offender, or any special problems stemming from biological or social attributes of her gender. What treatments work or don't work toward her rehabilitation or even the tolerability of her incarceration? "Why," as Henry Higgins asked in My Fair Lady, "can't a woman be more like a man?"-at least as far as the criminal justice system is concerned.

Sentencing goals

This is not an easy question, and, in truth, our sentencing theorists and corrections systems administrators have not done a particularly persuasive job of answering it. I would posit a natural place to begin is with the goals of sentencing, themselves a subject of continuing controversy. Those goals most commonly listed are: (1) retribution or "just deserts," that is, punishment proportionate to the crime, not individualized to the criminal; (2) incapacitation to keep society safe from further predation by proven criminals; (3) deterrence of both the convicted offender from future crimes and of others who might be tempted to commit crimes but wait to see what happens to those who do; and much diminished in importance these days but still mentioned, (4) rehabilitation of the offender so that she no longer wants to deviate from the path of righteousness.

Some might add a fifth goal: to preserve institutional or systemic order, permitting society to operate its justice institutions, including prisons, in a way that will inspire confidence in the citizenry that society can and is taking care of the "crime problem" and upholding legal and social norms. This last goal is important because, for most of us, it is not sufficient that offenders be brutalized or starved and beaten, even if that treatment would contribute to the retribution, deterrence, and incapacitation goals of sentencing. Our courts and prisons, after all, are agents of our society and are expected to project our basic values on how much punishment is just for any crime and what if any adjustments are warranted for particular offenders to ensure that they do not suffer disproportionate punishment.

Following in that vein, it is commonly understood that women offenders as a group display significant differences from their male counterparts in ways that materially affect the goals of sentencing. As a group, women are far less apt to be convicted of violent crimes, or, in the case of drug-related offenses, to be major dealers or kingpins of drug enterprises. Approximately 80 percent of federal women offenders have no prior records (compared to 54 percent of men), and very few of them are convicted of violent crimes. (Phyllis J. Newton, Jill Glazer & Kevin Blackwell, Individuality and Guidelines, 8 Fed. Sent. Rep. 148, 150-51 (1995).) Women offenders are far more likely to have been the principal caretakers of young children at the time of arrest than male offenders. (Julian Abele Cook, Jr., Gender and Sentencing: Family Responsibility and Dependent Relationship Factors, 8 Fed. Sent. Rep. 145 (1995).) Children are in turn far more likely to be consigned to state care if their mother, rather than their father, is imprisoned. (Myrna S. Raeder, The Forgotten Offender, 8 Fed. Sent. Rep. 157, 159 (1995).) Women offenders have distinct health needs-physical and mental-stemming from their special biological makeup; they are demonstrably more vulnerable than men to physical and sexual abuse from guards and other personnel. They recidivate less and their susceptibility to change in motivation and attitudes is determined by markedly different considerations than men. ( See John C. Coughenour, Separate and Unequal, 8 Fed. Sent. Rep. 142, 143 (1995); Kathleen Daly, Empirical Research, 8 Fed. Sent. Rep. 163, 167 (1995).) All of these differences in men and women offenders strongly suggest that the goals of sentencing may be best addressed by looking carefully at differences from, as well as commonalities with, male offenders-both individually and as a group.

Inequality of equal treatment

I find it ironic that in the federal system (and I suspect in most state systems) the concept of gender equality is sometimes raised as a bar to any special focus on women's needs or treatment. Yet the system itself rigidly segregates (usually to the disadvantage of women) institutions and programs for males and females. It's a situation I think should be looked at constitutionally after the articulation of the equal protection standard for state-supported single-sex institutions in the Virginia Military Institute (VMI) cases. ( United States v. Virginia, 518 U.S. 515 (1996).) In sum there is a strong case to be made that those who sentence women offenders are morally and ethically justified (perhaps even mandated) to ensure that the same sentence levied on a woman as on a male offender does not in reality, albeit inadvertently, impose far greater deprivations on her because of her gender, or deny her essential human needs that her male counterparts do not require.

Some commentators have suggested that we need to look even deeper at the disparate treatment of women offenders that inheres in the sentences prescribed for particular offenses in guideline jurisdictions. Those sentences are based predominantly on the way in which men commit the crimes in question. (Daly, supra, at 166-67.) More refined research, one author concludes, shows that the circumstances under which women commit the same crimes are significantly different, often meriting less severe "just deserts." For instance, women are less likely than men to use a gun or other weapon during commission of a crime. They are far less apt to have played a major planning role in any joint enterprise. And a substantial number of them have been involved in a coercive or domination-type relationship with a male criminal whom they assisted in committing the crime. ( Report of the Special Committee on Gender to the Gender, Race, and Ethnic Bias Task Force Project in the D.C. Circuit, 84 Geo. L.J. 1657, 1803-04 & n.105 (1996) [hereinafter Task Force].) In the words of one researcher: "[M]ale and female offenders are not equals in the male-dominated criminal world, where aggression and physical prowess are the main determinants of role and status. Women, generally, being less aggressive and lacking the physical strength of men, have lower status and play a lesser role in criminal enterprises." (Maria Rodrigues McBride, The Probation View, 8 Fed. Sent. Rep. 154, 155 (1995).) After all, men have typically made up 80 percent of all those arrested, 90 percent of those arrested for violent crimes, and 94 percent of those imprisoned nationally. (Daly, supra, at 166.) This difference shows up even in property crimes such as embezzlement where male defendants far more often worked in groups and held higher positions of trust than women: 51 percent of male embezzlers were managers or officers of the victimized bank; 60 percent of the women embezzlers were bank tellers. (Daly, supra, at 164, 166.)

The circumstances surrounding the commission of a crime vary significantly between men and women. Yet penalties are most often based on the circumstances of crimes committed by men, creating a male norm in sentencing, which makes the much-touted gender neutrality of guideline sentencing very problematical. In those circumstances when the pattern of conduct involved in women's commission of a crime is ignored or almost totally subordinated to the male pattern, it becomes all the more important to consider the variants that characterize women's commission of the crime in meting out individual sentences. This, in my opinion, is at the heart of the Federal Sentencing Guidelines' gender bias. While commanding that gender never be a relevant factor in sentencing, the Guidelines nonetheless base their core sentences on a predominantly male behavior pattern. Many state systems have done the same. It is important, then, that these differences be examined and, to the degree feasible under the law, decisions made as to the appropriateness for adjustments to base-level sentences.

Thus, old notions such as women being treated more leniently than men in the criminal justice system are gradually giving way to research showing that pre-Guideline sentencing had in fact reflected different behaviors exhibited in the commission of the same crime. The Guidelines, however, have too often cemented the male model and applied it indiscriminately to women as well.

Designing programs for female offenders

Apart from the failure of sentences themselves to reflect women's behavior accurately, there are other important reasons for focusing on women's special status and problems in the criminal justice system. No one disputes that women offenders as a group simply do not present the same degree of danger to the community that male offenders as a group do. Indeed, the Bureau of Prisons has instituted a separate classification category for women offenders based on their predominantly nonviolent character. (Phyllis J. Newton, Jill Glazer & Kevin Blackwell, Individuality and Guidelines, 8 Fed. Sent. Rep. 148, 152 (1995).) Subject to individual exceptions, it would make sense in terms of efficient and more cost-effective administration as well as substantive justice to design programs and security regimes for the "typical" woman offender that ensure the necessary degree of protection for society, but permit us to meet essential needs and even promote rehabilitation. If a woman offender's sentence is five years, why must it be spent in a high-security remote prison when a nearby community-based residence would do as well and would save her the extra punishment involved in being transported hundreds of miles away from her family? If a lesser level of deprivation will ensure an orderly routine and even improve the offender's motivation to become a law-abiding citizen in the process, what is the point of refusing to employ intermediate or alternative sanctions to traditional jail time? If allowing very young children to stay with their mothers in custody or to participate with them in special programs within prison walls will advance a mother's incentive to assume family responsibilities when she is released, where is the inequity in using such tools? If, as research shows, women respond more readily than men to certain kinds of therapy or incentives, why should a smart system not offer such programs freely? We are told that "[w]omen inmates are perceived by prison officials as more willing than men to participate in programs that will enhance their self-awareness and personal growth." ( Task Force, supra, at 1795.) Why should women's prisons or correctional programs be just like men's when women's criminal conduct is often not the same, when women's likelihood of recidivating is not the same, and when the most important things in women's lives, such as the upbringing of children, are not always the same? That is why it is in the interests of a resource-scarce society to find and use the special techniques that work best for different groups of offenders, rather than insisting on a rigid imposition of exactly the same routine in the same setting for convicted men and women.

Special needs

Women have special needs in the correctional system. The two needs that incarcerated women rank highest-and the two that the criminal justice system needs to deal with more adequately than it does now-are their health (physical and mental), and their need to keep their families intact. On the health side, there is evidence that women prisoners are not always properly screened for pregnancy or gynecological illnesses on entry into the system. ( See Task Force at 1790 n.40, 1798). Seven to 10 percent of women prisoners are pregnant and face all of the prenatal needs and risks that that status entails. (Ellen M. Barry, Pregnant Prisoners, in 2 Prisoners and the Law 17C-3, 17C-4 (Ira P. Robbins ed., 13th release 1995).) Postpartum care is frequently slapdash: the usual routine is to take the expectant mother to a local hospital for the birth where she stays 24 to 48 hours and then is returned, sans child, to the prison. The baby goes to relatives or to child care services. (National Association of Women Judges, Statement of Position, 8 Fed. Sent. Rep. 176, 177 (1995) [hereinafter NAWJ]; Task Force at 1797 n.71.) Counseling for the abandoned mother is rare. Well over half of women inmates have themselves been the victims of physical or sexual abuse in their own childhoods and have unresolved feelings about parenthood, which the forced separation from their children exacerbates. ( NAWJ at 177; Mary-Christine Sungaila, Departures for Coercion and Duress, 8 Fed. Sent. Rep. 169, 169 (1995).) According to a Department of Justice publication: "The issues surrounding male inmates as parents are not unimportant, but major traumas involving bonding, parenting, and separation are much more common among incarcerated mothers." ( Task Force at 1796 n.66.) Federal prison officials report that a prison mother "has more and different medical and psychological needs than her male counterpart; frequently has a history of physical or sexual abuse; has low self-esteem; and often views obtaining independence as impossible." ( Id. at 1795.)

Women also experience special dangers in prison. They are particularly vulnerable to sexual harassment and outright misconduct by their guardians. Studies have documented the "profound" effects of prolonged and continuous sexual harassment on women prisoners. ( Id. at 1790 n.40.) Intensified surveillance is necessary to prevent that syndrome.

Consider the children

On the family front, like it or not, society has a vital interest in the 1,500,000 children across the country who have at least one parent in prison. Although 88 percent of all offenders have children, the impact of incarceration on women offenders and their families is, on average, dramatically different. (Newton, Glazer & Blackwell, Individuality and Guidelines, supra, at 151-52.) In 1999 more than 125,000 children had a mother who was a state or federal prisoner. (Christopher J. Mumola, BJS Special Report, Incarcerated Parents and Their Children, table 2 at 2 (August 2000).) In the federal system, which I know best, 80 percent of women offenders have young, dependent children. Although that percentage is quite a bit lower for men (50 percent), the critical fact is that 70 percent of those mothers had been the primary care parent, and 66 percent of them were single parents. (Judge Patricia M. Wald, What About the Kids? 8 Fed. Sent. Rep. 137, 137 (1995); see also Newton, Glazer & Blackwell, Individuality and Guidelines, supra, at 151; NAWJ, at 176). Thus, when a parent is incarcerated, it matters which parent that is. If it is the father, 92 percent of the children continue in their mother's care. But if it is the mother, only 26 percent stay in the father's care. (Myrna S. Raeder, The Forgotten Offender, 8 Fed. Sent. Rep. 157, 159 (1995); see also Task Force, supra, at 1805.) Statistics from 1999 confirm this stark discrepancy. (Mumola, BJS Special Report, supra, table 4 at 3 (August 2000).) Predictably, mothers get far fewer prison visits from their children than fathers, both because the child is more likely to be taken out of the family circle and because women are more likely to be sent a good distance away to one of only a small number of women's facilities. In 1995 the average distance from home for a federal female inmate was 347 miles, almost half again as much as for a male inmate. (Newton, Glazer & Blackwell, Individuality and Guidelines, supra, at 152; Coughenour, Separate and Unequal, supra.) The paltry statistics we have on what happens to the children suggest that when the mother is imprisoned, siblings are often separated and moved around from relative to relative, if they are not taken over by the state altogether. Researchers for the Federal Sentencing Commission document that there is an increase in antisocial, delinquent, and criminal behavior in children when their caretaker parent is incarcerated. (Newton, Glazer & Blackwell, Individuality and Guidelines, supra, at 151.) Other studies show that the closer the family ties are maintained during incarceration, the lower is the recidivism rate of the offender. ( Id. at 152). Women especially, we are told, experience a sense of isolation and abandonment in prison because of their inability to keep their families intact. ( Id.) The proven greater impact of imprisonment on mothers and their children suggests a heightened need for alternative approaches that will allow frequent contacts between a caretaker mother and her children-for both their sakes and for society's future as well.

Recommendations

We must ask ourselves what can be done to better direct our efforts toward the appropriate goals of sentencing for women offenders, in light of their special needs and potentials, as well as the avoidance of any perception of gender preference or leniency because they are women. Securing knowledge about women offenders in each jurisdiction is crucial to making individualized sentencing judgments possible. Lawyers, judges, and social activists alike should familiarize themselves with the limits of sentencing discretion in each jurisdiction and be prepared to advocate for more where discretion is limited. We need to expand the facilities and programs available to incarcerated women that can hasten their return to society as motivated good citizens. Arrangements that allow nonviolent, caretaker parents to stay with or near their children should be explored to keep families intact. We are in an era in which the number of women offenders is increasing annually, and the length of jail time women offenders serve is increasing in some jurisdictions by leaps and bounds. An average sentence for a woman federal offender in 1985 was 4.5 months; in 1995 it was 21 months. (Newton, Glazer & Blackwell, Individuality and Guidelines, supra, at 148.) More disconcerting, in 1999 the average sentence of mothers in federal facilities was 83 months. (Mumola, BJS Special Report, supra, at 6.) Is this a necessary development or is it an inadvertent byproduct of a rising tide of male criminality? As one commentator put it: "For too long women have been boxed in by a grid-like structure which is dominated by visions of male criminality. It is time that the gender realities which dominate the lives of many females are integrated into the assumptions underlying the guidelines." (Raeder, The Forgotten Offender, supra, at 161.)

Fortunately, those who labor in the vineyards of sentencing and corrections are beginning to realize that sex blindness is not the answer, nor is it true gender neutrality. In the words of Myrna Raeder, a longtime student of the status of women offenders: "Non-violent women offenders are forgotten by
. . . reforms based on a primitive pro-prison model for sentencing males who are assumed to be violent and/or major drug dealers." ( Id. at 157). A 1996 issue of the Federal Sentencing Reporter carried more than a half dozen articles by men and women judges, professors, and Sentencing Commission staff documenting an increasing realization that women's needs and characteristics, as well as their role outside the prison walls, need to be looked at again. This year another issue of the Federal Sentencing Reporter will be devoted to "family ties" departures. Congress passed, but unfortunately did not fund, a demonstration project to look for ways in which low-level first offenders can serve their sentences near their families in the community. Our neighbor to the north, Canada, back in 1990 established a Task Force on Federally Sentenced Women to come up with recommendations for the right median between gender neutrality and women's special needs. ( Id. at 161.) In 1999 the Office of Justice Programs sponsored a National Symposium on Women Offenders, which has sparked interest in a number of states and localities to focus their attention on their female correctional population. The Bureau of Prisons has established programs inside prisons, such as all-day or weekend visits with children and parenting classes for mothers of young children.

Many of these proposed reforms need not be gender-specific. Fathers who are primary caretakers of their children deserve equal consideration. But the fact remains that, as a group, women present a unique profile to the sentencing and prison system. To reiterate, this group's primary characteristics include: (1) nonviolence; (2) exceedingly high levels of drug and alcohol abuse; (3) proven vulnerability to male domination; (4) a low recidivism potential; and (5) special health needs tied to unique physical and biological makeup. The members of this group are overwhelmingly mothers who have been the primary caretakers for young children. All of these characteristics suggest that appropriate custody and rehabilitation with minimal disruption of family ties for this group of offenders can reduce prison costs, as well as the costs of family assistance. By adopting such policies society can hasten a return to productive civilian status of a significant number of female offenders and increase the potential for intact families and the eventual well-being of a new generation.

Professor Judith Resnik has said: "Law can't wash away inequities of treatment, but must instead explore what substantive equality entails and then how to achieve it in practice." ( Sentencing Women, 8 Fed. Sent. Rep. 134, 135 (1995).)

Hon. Patricia M. Wald served for 20 years as a judge on the United States Court of Appeals for the District of Columbia Circuit, and became a judge on the International Criminal Tribunal for the Former Yugoslavia in 1999.


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