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Criminal Justice Magazine
Spring 2005
Volume 20 Number 1

A Primer on Gender-Related Issues That Affect Female Offenders

By Myrna S. Raeder

Myrna S. Raeder, a law professor at Southwestern University School of Law in Los Angeles, California, is a past chair of the Criminal Justice Section. She is also a current member of the Criminal Justice editorial board.

 

Despite the increasing influx of women into the criminal justice system, their numbers still pale in comparison to males. Thus, it is still easy to overlook gender-related differences that may play a role in evaluating why a woman commits a crime, what is important to her once arrested, and the collateral consequences of her incarceration. This overview highlights those gender issues, not only to assist defense counsel who represent female clients, but also to aid law enforcement, prosecutors, judges, and correctional officials in making more informed arrest, charging, sentencing, and programming decisions. It also identifies a host of civil issues that may arise from the criminal behavior for which little legal assistance is currently available and suggests some proactive approaches for the criminal justice community to obtain services for women offenders. In addition, this article calls into question some existing legislative policy choices relating to families that appear more likely to increase rather than lessen intergenerational crime.


The typical female offender and why are there so many?


Whether measured by prison, jail, probation, or parole statistics, the female presence in the criminal justice system has skyrocketed in the past three decades, with growth rates of women typically outpacing that of men. In part, this is a statistical anomaly caused by the low numbers of women offenders in the mid-1970s, but it is also clear that today many more women are being arrested, convicted, sentenced, and incarcerated for longer terms. In 2003, more than 100,000 women were under the jurisdiction of state or federal prison authorities. (Paige M. Harrison and Allen J. Beck, Prisoners in 2003, BUREAU JUST. STAT. BULL., 4 tbl.5 (Nov. 2004).) This reflects a tenfold increase in the last 25 years. Similarly, in 1974 only 142,000 women had ever been incarcerated in a state or federal prison compared to more than 580,00 by year- end 2001. (Thomas P. Bonczar, Prevalence of Imprisonment in the U.S. Population, 1974-2001, BUREAU JUST. STAT. SPECIAL REP., (Aug. 2003).) It has been estimated that despite a drop in crime, women are three times more likely today to go to prison than in 1986. (Women’s Prison Association, Focus on Women & Justice Series, Trends in Arrests and Sentencing (May 2004) available at http://www.wpaonline.org/WEBSITE/home.htm.)
Racial and ethnic disparities, which some attribute to the war on drugs, result in a disproportionate percentage of minority women and their children being impacted by incarceration. For example, the number of Hispanic female inmates increased 71 percent from 1990 to 1996. (Darrell K. Gilliard & Allen Beck, Prisoners in 1997, BUREAU JUST. STAT., tbl.12, (Aug. 1998).) In 2003, African-American females were more than twice as likely than Hispanic females, and nearly five times more likely than white females, to be incarcerated. (Prisoners in 2003, supra at 10.) In 2003, about 58 percent of all sentenced female inmates were minorities. (Id. at 9.)
The jail statistics are equally bleak. The midyear 2003 average daily population of females in jail was 81,650. (Paige M. Harrison and Jennifer C. Karberg, Prison and Jail Inmates at Midyear 2003, BUREAU JUST. STAT. BULL., 8 tbl.9 (May 2004).) On average, the adult female jail population has grown 6.4 percent annually in the past 10 years, while the adult male inmate population has grown 3.9 percent. (Id. at 8.) Since 1990, the number of adult jailed females has more than doubled. (BUREAU JUST. STAT., Key Facts at a Glance, revised May 28, 2004.)
Women on probation and parole are also becoming noticeable. At the end of 2003, approximately 936,000 (23 percent) of all probationers were female. (Lauren E. Glaze and Seri Palla, Probation and Parole in the United States, 2003, BUREAU JUST. STAT. BULL. 1, tb.l4 at 4, (July 2004).) Similarly, nearly 97,000 (13 percent) of all parolees were female. (Id. at 6.) When the number of women in jail, on probation, and parole are included, more than one million women are currently under correctional supervision nationwide—despite the continuing drop in the crime rate over the past decade. In other words, the 2003 FBI crime statistics reveal that even though crime decreased again in 2003, the number of arrests of females increased 1.9 percent, while the number of arrests of males decreased 0.4 percent from 2002. (FBI, Crime in the United States 2003, tbl.37.) The five-year trend showed a 2.8 percent rise in the number of arrests of females and a 5.2 percent drop in the number of arrests of males. (Id. at tbl.35.) In 2003, the number of arrests of females was 12.3 percent higher, but the number of arrests of males was 6.7 percent fewer than in 1994. (Id. at tbl.33.) In all, more than 2,250,000 females were arrested in 2003. (Id. at tbl.42.)
It is not that women have become more violent, but that society has become more punitive. Women represent less than 20 percent of those arrested for violent crime—18 percent, according to the FBI in its 2003 report (id. at 268); 17 percent in 2001, according to the Sourcebook of Criminal Justice Statistics 2002 (BUREAU OF JUST. STAT., at http://www.albany.edu/sourcebook/ at 354.) Drug offenses have fueled much of the increase in the women offender population, accounting for 91 percent of the increase in the number of women sentenced to prison in New York from 1986 to 1995, 55 percent in California, and 26 percent in Minnesota—in New York 91 percent of those women were minorities. (Marc Mauer et. al, Gender and Justice: Women, Drugs, and Sentencing Policy, EXECUTIVE SUMMARY (1999).)
At midyear 2003, California, Texas, Florida, and the federal system housed four of every 10 female inmates. (Midyear 2003, supra at 5.) Twelve states had an average annual increase of more than 10 percent between 1995 and 2003, led by North Dakota, Montana, and Maine. (Prisoners in 2003, supra at 5.) In contrast, Western Europe incarcerates one-tenth of the women incarcerated in the United States, even though it has approximately the same population. (AMNESTY INT’L, NOT PART OF MY SENTENCE: VIOLATIONS OF THE HUMAN RIGHTS OF WOMEN IN CUSTODY III at 15 (1999) available at http://www.amnestyusa.org/countries/usa/document.do?id=D0F5C2222D1AABEA8025690000692FC4.)
Females often enter the criminal justice system due to their attempts to survive victimization. For example, female offenders report very high instances of physical and sexual abuse, totaling nearly 60 percent of state inmates, 50 percent of federal inmates, 47 percent of jailed women, and 40 percent of probationers. (Caroline Wolf Harlow, Prior Abuse Reported by Inmates and Probationers 2, BUREAU JUST. STAT. (Apr. 1999).) Private studies indicate even higher rates of abuse, ranging from 60–80 percent. A recent study in the Cook County Jail in Chicago, Illinois, found that women inmates had been victims of child abuse, sexual assault, and domestic violence at rates two and three times the national average. A majority were homeless at the time of their arrest, and many also had histories of substance abuse and mental illness, often associated with their past abuse having gone untreated. A third of the women interviewed were sex workers. (CHICAGO COALITION FOR THE HOMELESS, UNLOCKING OPTIONS FOR WOMEN: A SURVEY OF WOMEN IN COOK COUNTY JAIL 1 (2001), at http://www.chicagohomeless.org/factsfigures/jailstudy.pdf).
This picture accords with the route taken by many juvenile girls into the criminal justice system. They start by running away from abusive homes; are brought into the dependency system as a status offender; then violate a court order, typically not to run away or be truant again, and thereby become delinquent. (See Joseph R. Biden, Jr., What About the Girls? The Role of the Federal Government in Addressing the Rise in Female Juvenile Offenders, 14 STAN. L. & POL’Y REV. 29, 35-36 (2003) (noting that 60% of all runaways are girls, and decrying the mixed message that we give adult women to flee abuse, while criminalizing girls for the same behavior); Alecia Humphrey, The Criminalization of Survival Attempts: Locking Up Female Runaways and Other Status Offenders, 15 HASTINGS WOMEN’S L.J. 165 (2004).)
The fact that abused women are involved in substance abuse should come as no surprise. Commentators have long agreed that many abused women turn to drugs as a way to avoid dealing with deeper traumas that have scarred them, and the link between substance abuse and criminality is well accepted. Approximately 80 percent of women in state prison have substance abuse problems (see generally Barbara Bloom et al., GENDER-RESPONSIVE STRATEGIES: RESEARCH, PRACTICE AND GUIDING PRINCIPLES FOR WOMEN OFFENDERS, ch. 1, NAT’L INST. CORRECTIONS (2003), available at http://nicic.org/pubs/2003/018017.pdf ), with half using alcohol or drugs at the time of their offense. (Lawrence A. Greenfeld and Tracy L. Snell, Women Offenders 8, BUREAU JUST. STAT. (1999)). Mental illness is also overrepresented in the female offender population, affecting at least one-quarter of female state prisoners, and many of these women have co-occurring substance abuse problems. (Paula M. Ditton, Mental Health and Treatment of Inmates and Probationers, BUREAU JUST. STAT. 3 (July, 1999).) Approximately 80 percent of mentally ill females reported physical or sexual abuse. (Id.) Some have noted that, given the relatively few community-based residential substance abuse or mental health programs for indigent women with children, the criminal justice system now serves as the de facto social service provider of last resort.
The most tragic aspect of incarceration of women offenders is its effect on their children. Given that a large majority of these women are mothers, it is not an exaggeration to say that having a mother arrested has impacted more than five million children. Nearly 70 percent of women under correctional sanction have two minor children (Women Offenders, supra at 7), and about two-thirds of women in state prisons and half of women in federal prisons with young children had lived with those children prior to entering prison. (Id. at 8.) In 1999, more than 1.3 million minor children had a mother under correctional sanction; more than a quarter million of these children had mothers who are serving time in prison or jail. (Id.) A recent study indicated that 79 percent of women in California prisons have children, resulting in an estimated 152,000 children with incarcerated mothers in 2001. (See Charlene Wear Simmons, California Law and the Children of Prisoners 1, 6, CAL. RES. BUREAU (Feb. 2003), available at www.library.ca.gov/crb/03/03/03-003.pdf.)
Many incarcerated women are single mothers, who are marginally employed. Nearly 30 percent of female inmates reported receiving welfare assistance at the time just before the arrest that resulted in their sentence. (Id.) Yet we sentence these women based on male models of criminality and violence, giving them long sentences for nonviolent drug and property offenses that ignore the disruption that children face when their sole or primary parent is incarcerated. This blindness to gender-related realities occurs even though there is no dispute that, unlike the children of male offenders who overwhelmingly reside with their mothers (90 percent), children of single mothers are typically shifted to other relatives, friends, or foster care, with less than 30 percent residing with their father. (Christopher J. Mumola, Incarcerated Parents and Their Children 1, BUREAU JUST. STAT. (Aug. 2000).) This often results in siblings being separated and living in unstable environments.
The federal system has been particularly harsh in discounting family ties as a reason to lower sentences, ignoring the fact that many of these nonviolent female offenders are single parents because it is not “extraordinary.” We are one of the few countries that routinely separate incarcerated mothers from their infants. Most keep young children with their mothers and provide alternatives to prison, intuitively recognizing that parental bonding is a necessary step in the development of a healthy child. Reactions of children to separation can include guilt, denial, anger, anxiety, inability to concentrate, depression, sadness, grief, shame, and fear. (See Simmons, supra at 6.) It is common knowledge that children of incarcerated parents have greater risk of offending. A study in Sacramento County, California, found that of all children arrested between the ages of nine and 12, 45 percent had an incarcerated parent. (Id.)
Yet few are evaluating the cost benefit analysis of imprisoning nonviolent mothers, who 30 years ago would have likely been granted probation and resided with their children in the community, by weighing the risk that such incarceration is more likely to produce a new generation of criminals than to serve valid public safety concerns. The introduction to last year’s bipartisan U.S. Senate of the Second Chance Act (S. Res. 2789, 108th Cong. (2004)) states “[t]he long-term generational effects of a social structure in which imprisonment is the norm and law-abiding role models are absent are difficult to measure but undoubtedly exist.” However, the few community correctional facilities designed to let mothers reside with their young children while providing them gender-specific substance abuse treatment and parenting classes cannot begin to accommodate the women offender population, and eligibility often applies only to women who in the recent past would have served their sentence on probation in the community.
The findings of the Second Chance Act also identify family-based treatment programs as demonstrating proven results for serving substance abusing female offenders with children that significantly decrease recidivism. (S. Res. 2789 § 2 (2004).) Similarly, the Little Hoover Commission, California’s permanent independent oversight body, recently issued a scathing report that recommended that “[a] core element of a strategic plan for women should be a robust system of community correctional facilities.” (BREAKING THE BARRIERS FOR WOMEN ON PAROLE (Dec. 15, 2004) available at www.lhc.ca.gov/lhcdir/report177.html.) Although some percentage of women offenders will merit incarceration under any policy approach, unlike earlier times, today only a handful of jurisdictions in the United States have prison nurseries, despite the fact that sentencing practices result in lengthy prison stays even for women with no previous criminal history.
After incarcerated mothers serve their sentences, the myriad collateral consequences of incarceration threaten reintegration of their families. The timelines in the Adoption and Safe Families Act (ASFA) can result in even an 18-month prison sentence being a death penalty for their parental rights, sentencing mothers to a lifetime without their children. Termination proceedings are mandated if a child spends 15 out of 22 months in foster care, unless the child is in the care of a relative, the family has not been provided with reunification services, or a compelling reason exists as to why it is not in the best interest of the child to terminate the parental relationship. (See generally Catherine J. Ross, The Tyranny of Time: Vulnerable Children, “Bad” Mothers, and Statutory Deadlines in Parental Termination Proceedings, 11 VA. J. SOC. POL’Y & L. 176 (2004).) Indeed, in the five years after ASFA was adopted, reported cases concerning termination of parental rights increased approximately 250 percent. (Philip M. Genty, Damage to Family Relationships as a Collateral Consequence of Parental Incarceration, 30 FORDHAM URB. L.J. 1671, 1678 (2003).)
We assume these children will have a better place to live, while the numbers tell us there are not enough foster care parents or homes for adoptions, particularly for children who are not infants. We blithely sever parental bonds without checking to see if we are substituting anything in their place. Indeed, states that aggressively promote adoptions from foster care are rewarded with large bonuses from the federal government. Yet, for older children who have bonded with their parent, the trauma of separation is compounded by the fact that termination may result in severing their ties with their mothers, siblings, grandparents and relatives without substituting anything in their place. Foster care is not a panacea. Many of these children will face multiple placements.
Obviously, some foster care arrangements are better for children than remaining in dysfunctional families, but it would be naive to think that being shuttled among strangers is always preferable to remaining with family. For example, a Bureau of Justice Statistics survey found 87 percent of female prisoners who spent their childhood in foster care or institutions reported being physically or sexually abused. (Caroline Wolf Harlow, Prior Abuse Reported by Inmates and Probationers 2, BUREAU JUST. STAT. (Apr. 1999).) Since substance abuse and marginalized school and job performance are often associated with low self-esteem that may result from physical and sexual abuse, some placements put children at more risk than staying with a parent who is obtaining supervised treatment. Anecdotally, since the increase in ASFA termination, some children who have aged out of foster care are attempting to find the mothers and families who no longer have legal ties to them.
Even if a single mother avoids termination of parental rights, in a majority of states she will be denied federal cash assistance and food stamps due to her drug-related felony conviction as well as denied public housing or assistance to pay for private housing, and educational benefits. Conditions of her release, such as work and drug treatment, typically take no account of her child care responsibilities, resulting in ever increasing numbers of women being incarcerated for technical violations, not new crimes. Deportation may also occur in some cases, depending upon the crime.
A host of gender-related issues are implicated by the profile, regardless of whether the woman is facing a state or federal prosecution.


Arrest


Where are the children? Although it is estimated that nearly 20 percent of women are arrested in the presence of their children, relatively few police departments have developed protocols for child-sensitive arrest practices. Whether or not a woman had her child with her when she was arrested, jurisdictions vary widely about obligations of police and Child Services. (See generally Clare M. Nolan, CHILDREN OF ARRESTED PARENTS: CALIFORNIA RESEARCH BUREAU CRB 03-011 (July 2003), available at www.library.ca.gov/crb/03/11/03-011.pdf.) Thus, while not typically thought of as a function of defense counsel, it is important to find out if the female defendant has minor children, and, if so, their location, because many of these women are not in intact families. In other words, counsel should assume that many women will not have voluntarily revealed to the police that they have children or disclosed their whereabouts, given the realistic fear that their children may become involved in the foster care system, triggering the ASFA timeline leading to termination of family rights. Ascertaining that a woman’s children are safe will both let her focus on assisting in her defense, and ensure that she does not face child endangerment charges if no one is at home or someone unreliable is watching the children.
Similarly, an attorney’s help may be key to ensuring that the family or friends who care for her child obtain a notarized power of attorney necessary for medical and school purposes, since finding a notary in jail is often an impossible task for an incarcerated woman. In some locations, the sheriff’s department will permit access to volunteers who provide such notarizations and follow up on the status of the children. If such services don’t exist, advocates should think proactively. Why shouldn’t the sheriff or public defender provide this service, or at least contact the local bar association to set up such an arrangement? Women Lawyers of Los Angeles has a long-standing jail project to assist incarcerated women with short-term emergency matters, such as making notaries available. A local law school might be willing to undertake such a pro bono project. Legal groups may also teach classes about family custody and visitation, as well as provide legal representation in child matters. In a few locations such as Chicago, a coordinating council exists that brings together all of the interested agencies that deal with women offenders in order to take a systemic approach that both better serves this population and results in cost savings to the agencies. Prosecutors, defenders, and judges are included, as well as service providers.
If a woman is not released pretrial, counsel should determine if there are any programs that will house both mother and child. Is there a drug court option? Not all drug courts are the same: some require the defendant to waive any suppression motions, some require a plea of guilty, while others are strictly diversionary. Moreover, some operate with near zero tolerance for failure, while others understand that success is relative for someone in the throes of addiction. Realistically assess whether the woman will succeed in the existing program, or whether the traditional criminal justice route will better serve her. Sometimes a woman may find it easier to serve time than rehabilitate herself. Although it is ultimately her choice, a discussion of the consequences for her and her children, compared to the requirements of the drug court program, should be undertaken.


Pregnancy


Pregnant inmates are more likely to be found in jails, but on occasion they are present in prison. While some pregnant inmates may be incarcerated briefly, others will require substantial medical services during their pregnancies. Maternal care is typically costly, and inadequate health care raises the possibility of litigation. Inmates have been severely limited in bringing successful class actions alleging poor health care by the Prison Litigation Reform Act (PLRA) because of the requirement that injunctions can only be granted for constitutional violations and restrictions on the recovery of attorneys’ fees. Although individual suits by prisoners are also governed by the procedural limitations of PLRA, once an arrestee is released, those restrictions no longer apply. However, in the absence of state tort claims permitting malpractice suits, any claim of inadequate health care must reach constitutional proportions to permit recovery. In addition, litigation is a poor substitute for a healthy mother and child. (See generally Ellen M. Barry, Bad Medicine: Health Care Inadequacies in Women’s Prisons, 16 CRIM. JUST. 38 (Spring 2001).) Thus, keeping pregnant defendants in the community until their children are born can be critical.
In a pretrial setting, any significant medical issues should be brought to the judge’s attention. In some circumstances, the court might reconsider bail or determine if the woman can be transferred. Amnesty International has campaigned against routinely using physical restraints on pregnant prisoners, particularly on women in labor, calling it a cruel and unusual practice that rarely can be justified in terms of security concerns, as well as a violation of international standards. (See AMNESTY INT’L, ABUSE OF WOMEN IN CUSTODY: SEXUAL MISCONDUCT AND SHACKLING OF PREGNANT WOMEN (2001).) Restraints may also factor into a claim for inadequate medical care. (See, e.g., Calloway v. City of New Orleans, 524 So. 2d 182 (La. Ct. App. 1988).)
Relatively few programs for pregnant females exist in jails because of the short time they stay. For an attempt to follow these women into the community to provide services see the MIRACLE project operated by the Center for Children of Incarcerated Parents, described at www.e-ccip.org. Tamar’s Children, in Baltimore, Maryland, is an innovative jail program for pregnant offenders who have addiction and mental health problems.
Conversely, some pregnant inmates may want to obtain an elective abortion. Although officials cannot hinder the right of a woman to obtain an abortion, courts vary on whether it is permissible to require a woman to obtain a court order for the procedure, and if the facility must pay. Compare Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326 (3d Cir. 1987), cert. denied, 486 U.S. 1006 (1988), which held it unconstitutional to require inmates to secure a court order or if indigent be required to pay for the abortion and Doe v. Barron, 92 F. Supp. 2d 694 (S.D. Ohio 1999), which granted a temporary restraining order against requiring a court order with Victoria W. v. Larpenter, 369 F.3d 475 (5th Cir. 2004), which granted summary judgment approving Louisiana’s prison policy of requiring judicial approval of all elective medical procedures, including abortions, and Bryant v. Maffucci, 923 F.2d 979 (2d Cir. 1991), cert. denied, 502 U.S. 849 (1991), which affirmed summary judgment in a section 1983 action where the delay in scheduling the pretrial detainee’s abortion was merely negligent. Bureau of Prison (BOP) funds are used to pay for abortion services only when the life of the mother would be endangered if the fetus were carried to term or in the case of rape. In all other cases, non-BOP funds must be obtained to pay for any abortion procedure, although the bureau will pay for escorting the woman to the facility where the abortion occurs. (Legal Resource Guide to the Federal Bureau of Prisons 2004, pp. 26-27, available at www.bop.gov/news/PDFs/legal_guide.pdf.)
Some jurisdictions subject pregnant women to child endangerment charges on the rationale that her substance abuse will harm the child after it is born unless the mother-to-be is incarcerated. This raises a host of issues concerning reproductive rights and access to prenatal health care, as well as the practical utility of prosecuting women ostensibly to protect their unborn children at a point in time when any prenatal damage would have already occurred. (See generally Josephine Gittler, The American Drug War, Maternal Substance Abuse and Child Protection: A Commentary, 7 J. GENDER RACE & JUST. 237 (2003).) Fourth Amendment limitations may also apply in certain cases. The Supreme Court in Ferguson v. City of Charleston, 532 U.S. 67 (2001), held that testing state hospital obstetric patients for cocaine and reporting positive test results to the police were unreasonable searches absent patients’ consent.
To the extent that a judge may decide to incarcerate an addicted pregnant defendant pretrial, counsel may need to determine if appropriate drug programs exist in the community, educate the judge about the actual conditions of the particular locked facility where the woman will be incarcerated, and determine if the woman otherwise meets conditions for release. Similarly, a judge’s condition that a defendant not become pregnant while on probation has been found to impinge upon her privacy right of procreation and not to have any discernible rehabilitative purpose. (See, e.g., Trammell v. State of Indiana, 751 N.E.2d 283 (Ind. App. 2001).)
Privacy
If the woman was arrested for a nonviolent misdemeanor, it should be ascertained whether she was subjected to a strip search. Blanket strip searches are prohibited unless there is particularized suspicion regardless of whether detention is at jail, police station, or a correctional facility prior to trial. (See, e.g., N.G. v. Connecticut, 382 F.3d 225, 239 (2d Cir. 2004).) A defense of qualified immunity is unlikely to be granted in an arrestee’s section 1983 action in future cases because current opinions give notice to officials that precludes any prospective use of the defense. At this point, most federal circuits have issued rulings. (See Savard v. Rhode Island, 338 F.3d 23, 30 (1st Cir. 2003) (en banc divided decision collecting cases and affirming qualified immunity defense for strip search of arrestees that occurred in 2000 in a maximum security prison).) A few courts have even barred blanket strip searches for some types of felonies and drug charges, rejecting qualified immunity defenses. (See, e.g., Elliott v. Strafford Co., 2001 WL 274827 (D.N.H. 2001); Foote v. Spiegel, 118 F.3d 1416 (10th Cir. 1997).) Ironically, juvenile girls not charged with a crime appear to have less protection from strip searches than adult arrestees on their initial admission to detention facilities due to the state’s enhanced responsibility to protect them from contraband. (See N.G. at 237.)
Even after conviction, privacy is not completely lost. For example, the case law concerning cross-gender pat searches and supervision while undressing and in bathrooms has afforded women more privacy rights than men, even in the context of an equal protection challenge. (See, e.g., Oliver v. Scott, 276 F.3d 736 (5th Cir. 2002). Moreover, Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993) (en banc), held that a Washington State policy allowing male staff to conduct a pat search of female inmates violated their Eighth Amendment right to be free from cruel and unusual punishment. The cross-gender searches in Jordan were random, nonemergency, and suspicionless, conducted on women offenders who had prior histories of abuse and were likely to feel revictimized by the intimate contact of their breasts and genitals by male guards. Similarly, Everson v. Michigan Department of Corrections, 391 F.3d 737 (6th Cir. 2004), recently upheld an order barring males from working in 250 positions in the housing units of female prisons because the duties required officers to patrol sleeping, shower, and bathroom areas. Designating these jobs as “female only” was found to be a bona fide occupational qualification (BFOQ) for Title VII purposes, in part based on privacy concerns.


Sexual abuse of incarcerated women


The high-profile campaigns against sexual misconduct initiated by Amnesty International and Human Rights Watch, and investigations by the United Nations and the media have resulted in the virtual universal adoption of statutes expressly criminalizing such behavior on the part of correctional personnel and extensive training programs sponsored by the National Institute of Corrections. (See generally Amnesty Int’l, Abuse Rep., supra; Amnesty Int’l Rep., NOT PART OF MY SENTENCE: VIOLATIONS OF THE HUMAN RIGHTS OF WOMEN IN CUSTODY (1999).) From a correctional perspective, to lessen the possibility of liability, there must be zero tolerance and an appropriate complaint mechanism that does not penalize the inmate for reporting abuse. The likelihood of civil recovery by the abused woman against a facility or governmental entity is typically governed by section 1983, though state tort law may also be applicable. For example, Daskalea v. District of Columbia, 227 F.3d 433 (D.C. Cir. 2000), upheld a $350,000 award of damages under section 1983, where a jail inmate was forced to perform a striptease in front of other prisoners and male and female guards. (See generally Myrna Raeder, Appendix A: Legal Considerations with Regard to Women Offenders 118-20, in Gender-Responsive Strategies, supra); see also Brenda V. Smith, Sexual Abuse Against Women in Prison, 16 CRIM. JUST. 30 (Spring 2001).)
One reaction to sexual abuse has been to designate some positions as requiring female employees. There is no national consensus favoring the wholesale exclusion of male officers from sensitive housing areas or night shifts in order to lessen the possibility of sexual abuse or to lessen the fears of male officers that they might be falsely accused of sexual misconduct. However, in upholding a bar on male officers in certain housing units in Michigan’s female prisons, Everson relied primarily on the “endemic problem with sexual abuse in Michigan’s female facilities,” as well as on the security, safety, and privacy issues that were addressed by the exclusion. Due to the strict standard for obtaining Title VII BFOQs, it is unlikely that Everson will result in any wholesale trend toward sex segregating correctional officers, which ironically would have the potential of limiting the employment opportunities of female correctional officials who might be excluded from male correctional facilities. Yet, given the numbers of sexually abused incarcerated women, Everson suggests that correctional officials have some flexibility in designating some positions as female-only.


Gender-related defenses and mitigation


Mental health issues. In light of the substantial percentage of mental illness among female offenders, a thorough discussion about the woman’s mental health background should be obtained by defense counsel even in cases where this issue is not obvious. While in some cases, competency, absence of specific intent, insanity, or diminished capacity may provide an avenue of defense, this history may also be significant for sentencing purposes. In cases related to substance abuse, there is research indicating that some women use alcohol and drugs as a way of self-medicating themselves from the ravages of mental illness. Similarly, domestic violence or sexual abuse may cause post-traumatic stress disorder (PTSD), which also leads to substance abuse. This history may make the woman’s otherwise unacceptable behavior more understandable, and provide a context in which defense counsel can argue to a prosecutor or judge that it is relevant to culpability and not simply a ploy to obtain sympathy.
As with any defendant who is a substance abuser, treatment is often key to obtaining an appropriate disposition. However, even if such a program or placement exists, counsel must recognize that gender-neutral programming is typically programming based on a male model. The likelihood of solving the underlying problems caused by violence, sexual abuse, and mental illness is remote unless the program recognizes the root causes that lead women to become substance abusers. Thus, more attention needs to be given to ensuring the availability of such programs to women as alternatives to incarceration. In addition, correctional officials must be educated about gender-specific programming. It is now well recognized that “the needs of female substance abusers differ greatly from their male counterparts.” (Robert A. Shearer, Identifying the Special Needs of Female Offenders, 67 FED. PROBATION 46 (June 2003).) The Bureau of Prisons and a number of state systems have recently adopted gender-specific substance abuse programs. Stephanie Covington is a pioneer in such programming, and the National Institute of Corrections Gender Responsive Strategies publication should be required reading for everyone in the criminal justice community.


Violent crimes


In relation to females charged with violent crimes, it is important for defense counsel to determine if the criminal act related to previous incidents of domestic violence against the woman. For example, homicides or serious assaults may be in response to battering by the person who is denoted as the victim. It may be feasible to argue self-defense or imperfect self-defense. In either case, the woman should be examined by a psychologist to determine if she suffers from PTSD and, more specifically, from battered woman syndrome (BWS). Although the law regarding BWS testimony varies, it is generally admissible regardless of whether offered in a Frye or Daubert jurisdiction. Some states even have specific evidentiary provisions permitting BWS. (See Cal EC § 1107.) For an excellent discussion of the multitude of issues raised in supporting such a defense, see Sarah M. Buel, Violence Against Women: Effective Assistance of Counsel for Battered Women Defendants: A Normative Construct, 26 HARV. WOMEN’S L.J. 217 (Spring 2003). In some cases, the failure to consider such testimony may trigger a claim of ineffective assistance of counsel. Judicial preclusion of such evidence may also be constitutional error. (See Pulinario v. Goord, 291 F. Supp. 2d 154 (E.D.N.Y. 2003) (preclusion of petitioner from making a well-founded defense of post-traumatic stress disorder (PTSD) and rape trauma syndrome (RTS) in murder trial as a sanction for refusal to cooperate fully in examination ordered pursuant to New York criminal rule was not harmless and violated petitioner’s constitutional right to present evidence).)
For women who were tried before such testimony was routinely admitted, clemency campaigns have been waged in a number of states. (See Linda L. Ammons, Why Do You Do the Things You Do? Clemency for Battered Incarcerated Women, A Decade’s Review, 11 AM. U. J. GENDER SOC. POL’Y & L. 533 (2003).) California has passed Penal Code § 1473.5 to permit habeas corpus in such cases if there is a reasonable probability, sufficient to undermine confidence in the judgment of conviction, that the result of the proceedings would have been different.
Similarly, in robberies, the woman’s involvement may revolve around her relationship with a male, often the father of her children. The issue of duress may be implicated by physical injury and psychological intimidation, including threats of violence against the woman or her children. Again, even if not sufficient to obtain an acquittal, this factor is generally relevant in sentencing. Sometimes, a woman’s reaction may have a cultural dimension, in that she may have been socialized to regard domestic violence as a given, and to obey the commands of her male intimate. While feminists are rightly concerned that this “Svengali” effect may sound sexist, it would be a disservice not to raise the issue where it represents the female defendant’s life history.


Child endangerment


One of the most troubling consequences of domestic abuse has been the increase of charges against women for child endangerment arising solely from abuse by the batterer of the mother. Even when the mother is not criminally charged, neglect proceedings may be filed. In Nicholson v. Williams, 203 F. Supp. 2d 153 (E.D.N.Y. 2002), Judge Weinstein granted a preliminary injunction against New York City’s administration for children services (ACS), which routinely filed neglect proceedings to remove children from their mothers’ custody solely on the grounds that mothers were victims of domestic abuse. The New York State Court of Appeals recently clarified that neglect is not established solely when a child has witnessed the mother’s domestic abuse. The child’s removal requires additional particularized evidence. (See Nicholson v. Scoppetta, 2004 WL 2381177 (N.Y. 2004).) As a result, the parties settled, and although Judge Weinstein’s injunction has lapsed, a mechanism has been set up to review any cases in which the Scoppetta decision is not being followed. Unfortunately, the ACS’s original view of neglect is not unique, and elsewhere battered women are still in danger of losing their children.
However, there are times when battered females fail to protect their children. (See Naomi R. Cahn, Battered Women, Child Maltreatment, Prison, and Poverty: Issues for Theory and Practice, 11 AM. U. J. GENDER SOC. POL’Y & L. 355 (2003).) In such cases, BWS testimony may be significant, if the child is injured or dies, even in jurisdictions that do not permit diminished capacity defenses. In Mott v. Stewart, 2002 WL 31017646 (D. Ariz. 2002), habeas was granted due to the exclusion of BWS testimony where the mother did not seek medical help for her child sooner because she was worried that authorities would take the child away because of her bruises, even though she admitted that she knew her boyfriend was physically abusing the child. (See Battered Women and Battered Children: Admissibility of Evidence of Battering and Its Effects to Determine the Mens Rea of a Battered Woman Facing Criminal Charges for Failing to Protect a Child from Abuse, 24 J. JUV. L. 101 (2004).)


Sentencing issues


Judges take offender characteristics into account in sentencing, though they may be constrained by mandatory minimums, other habitual offender statutes, truth in sentencing laws, and in some jurisdictions by sentencing guidelines. While the issue of children can be raised directly, many judges assume that women offenders are bad mothers or focus on accountability, without recognizing the underlying difficulties that may have led to a woman’s substance abuse or other nonviolent criminal activity. The National Association of Women Judges in conjunction with the National Institute of Corrections has published Sentencing Women Offenders: A Training Curriculum for Judges. (The 2000 version is available on the NIC Web site. The statistics were updated in 2003.) This resource is invaluable reading not only for all judges, but also for all in the criminal justice system who encounter women offenders. For a discussion of sentencing issues and community correctional alternatives see “Severing Family Ties: The Plight of Nonviolent Women Offenders and Their Children” by Leslie Acoca and Myrna Raeder, Stanford Law & Policy Review (vol. 11, no. 133, pp. 141-43 (Winter 1999)).


Federal sentencing departure issues post-Booker


This article is being finalized shortly after the Supreme Court rendered its decision in United States v. Booker, 125 S. Ct. 738 (2005). Obviously, Booker’s ramifications will reverberate throughout the federal system for some time
and may ultimately cause Congress to redraft the U.S. Sentencing Guidelines. While the Court left unanswered more questions than it resolved, Booker provides a new framework for federal sentencing. First, Justice Stevens’s majority opinion applied Blakely v. Washington, 124 S. Ct. 2531 (2004), to the federal sentencing guidelines, subjecting them to jury trial requirements of the Sixth Amendment. (This article does not focus on judicial fact-finding in determining the appropriate guidelines range, but only on lowering sentences through downward departures.) Second, Justice Breyer’s majority remedial opinion held the federal sentencing guidelines are no longer mandatory, but are now “effectively advisory.” Justice Breyer emphasized that the sentencing court is required to consider the guidelines ranges, but can “tailor the sentence in light of other statutory concerns as well,” citing 18 U.S.C. § 3553(a). In addition, the Breyer opinion excised the de novo standard for review of downward departures, which was imposed by the Protect Act and the Feeney Amendment, effective in October 2003. Instead, Booker substituted “unreasonableness” as the proper standard for reviewing all sentencing decisions.
Already, the first two post-Booker district court decisions have disagreed about what role the guidelines should now play in fashioning a sentence. In United States v. Wilson, 350 F. Supp. 2d 910, 912 (D. Utah 2005), Judge Cassell indicated “in all future sentencings, the court will give heavy weight to the Guidelines in determining an appropriate sentence. In the exercise of its discretion, the court will only depart from those Guidelines in unusual cases for clearly identified and persuasive reasons.” Thus, for the near future, when arguing before judges who believe that the U.S. Sentencing Commission has adequately reflected all of the sentencing factors that are contained in the Sentencing Reform Act, defense counsel must still attempt to fit their clients into the current departure scheme, although, as I will suggest below, counsel must also present any factor that could decrease the sentence in order to preserve the issue of “reasonableness” for appeal.
In contrast, Judge Adelman in United States v. Ranum, 2005 WL 161223 (E.D. Wis. 2005), took exception to Wilson’s approach as being inconsistent with Booker. For example, Judge Adelman viewed the restrictions on considering a defendant’s characteristics found in section 5H1 as incompatible with the requirement of 18 U.S.C. § 3353(a) to consider the “history and characteristics of the defendant.” Judge Adelman noted “courts not imposing sentences within the advisory guideline range should provide an explanation for their decision,” but were not bound to follow the old “‘departures’ methodology” and “need not justify a sentence outside of them.” Thus, in district courts adopting this approach to sentencing, the guidelines are simply a jumping off point to argue for an appropriate sentence, although it appears that judges will still expect to hear whether the defendant is entitled to a departure under the guidelines.
Indeed, Justice Breyer stated directly that judges “must consult those Guidelines and take them into account when sentencing.” Thus, regardless of the approach taken by the district judge to the guidelines, it is likely that counsel will remain obligated to discuss the current ranges and departures, even if the judge is willing to disregard them based on a more holistic view of the defendant’s life history and family obligations and the absence of any perceived need for incarceration or a lengthy sentence. Further support for this view can be found in United States v. Hughes, 396 F.3d 374, 378-79 (4th Cir. 2005), where Judge Wilkins interpreted Booker as mandating that “a district court shall first calculate (after making the appropriate findings of fact) the range prescribed by the guidelines. Then, the court shall consider that range as well as other relevant factors set forth in the guidelines and those factors set forth in § 3553(a) before imposing the sentence.” In other words, despite the guidelines being discretionary, the lawyers, judges and probation officers must still go through the complicated ritual of determining the guidelines sentence before the court can use its discretion to disregard the particular case as not being reasonable. To paraphrase Mark Twain’s oft- repeated quote, “the reports of the Sentencing Guidelines’ death have been greatly exaggerated.”
However, the application of the undefined “reasonableness” standard raises the possibility that every defendant and prosecutor can now appeal a sentence not required by a plea agreement on the grounds that it is unreasonable. Such an interpretation would have the potential of flooding the courts with sentencing challenges not currently permitted, particularly by defendants who previously could not appeal from the judge’s discretionary denial of a downward departure. While it might be argued, as Judge Cassell suggests, that a guidelines sentence is presumptively reasonable, this would seem to fly in the face of making the guidelines discretionary and permitting judges to rely on section 3553(a), whose introduction specifically states that “[t]he court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes” set forth in the paragraph (2) of the Act. Those purposes include just punishment, deterrence, public safety, and rehabilitation, while the mandatory guidelines emphasized just deserts and long sentences.
The directive to consider all of the stated purposes as well as the defendant’s characteristics, which is specifically mentioned in section 3553(a)(1), would also seem to prohibit giving an automatic pass to post-Booker guidelines sentences. Similarly, Justice Breyer referenced 18 U.S.C. § 3661, which says that “[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” To the extent the guidelines do not permit such information to be used for departures, it would appear contrary to a discretionary approach to reasonableness.
Moreover, even if presumptively reasonable, such mechanical sentences appear capable of being challenged by reference to the fact that the court did not exercise its required discretion in fashioning the sentence. In other words, it is questionable whether a judge exercises judicial discretion by simply relying on a mandatory scheme that the Supreme Court has held is not constitutional in its current form. Arguably, lengthy sentences of nonviolent offenders with little or no prior criminal history and significant family obligations decided solely with reference to the present guidelines should not survive a reasonableness review in the absence of a mandatory minimum that would otherwise require the imposition of the guidelines sentence.
However, in this brave new world of discretionary federal sentencing, it is not a given that federal judges who have long chafed over the lack of flexibility imposed by the guidelines will significantly lower sentences based on individualized factors and their displeasure with the severity of many guidelines ranges. In other words, judicial complaints about being unable to fashion a just sentence are directed towards mandatory minimums as well as to the guidelines matrix. Thus, despite Justice Scalia’s belief that Booker presages “excessive sentencing disparities” that will “wreak havoc” on the judicial system, it would not surprise me if a relatively low proportion of sentences will be dramatically affected as a result of Booker, although judges may be more willing to place nonviolent first offenders on probation when the guidelines would call for some incarceration. Similarly, I do expect many judges will now refuse to require “extraordinary” circumstances for departures based on a defendant’s characteristics, which is likely to benefit most women offenders.
Even so, as previously indicated, defense counsel as well as prosecutors will still need to refer to the current guidelines ranges and downward departure structure in their sentencing arguments, both because Justice Breyer’s opinion seems to require it and because probation officers will undoubtedly still submit presentence reports based on the guidelines factors, although some probation officers might be open to counsel’s suggestion to recommend the court use its discretion to impose a lower sentence than the guidelines provide. As a result, many judges will likely remain more willing to grant a departure if it is permitted under the existing case law. However, if the shoe does not fit, it is now incumbent on defense counsel to argue that the judge has the obligation to impose a reasonable sentence that fully takes into account the personal narrative of the defendant. Obviously, there will be circumstances, particularly with violent offenders, where the absence of a mandatory sentencing scheme may disadvantage a defendant when compared to the current matrix, but for most women offenders, discretion is likely to be a benefit.
The following discussion identifies the guidelines most associated with gender-related issues and briefly mentions their current restrictions. As previously mentioned, this should be the start, not the entirety of counsel’s presentation. Elsewhere, I have written extensively about these issues. Since section 5H1.10 prohibits consideration of sex as a factor in determining sentences, discussion of gender is typically couched in terms not “based” on sex or gender, but instead is identified “gender related.” (See Nancy Gertner, Women Offenders and the Sentencing Guidelines, 14 YALE J.L. & FEMINISM 291, 296 (2002).) Ironically, despite the 5H1.10 ban, being female is positively correlated with rehabilitation, and studies show lower rates of recidivism for females than males. (See, e.g., U.S.S.C., Measuring Recidivism: The Criminal History Computation of the Federal Sentencing Guidelines 11 (May 2004) (listing two-year recidivism rate for men as 24.3%, compared to a 13.7% rate for women; and noting a 15% difference in recidivism in Criminal History Categories V and VI.) The general literature is summarized in “Women’s Imprisonment” by Candace Kruttschnitt and Rosemary Gartner in Crime and Justice (vol. 30, no. 1, pp. 50-54 (2003)). Similarly, there is evidence from a recent study of probationers that gender has a statistically significant effect on recidivism, and that women may be overclassified in terms of risk. (See David E. Olson et al, Men Are from Mars, Women Are from Venus, but What Role Does Gender Play in Probation Recidivism? 5 JUST. RES. & POL’Y 33 (Fall 2003).)
The U.S. Sentencing Commission recently published a report on racial, ethnic, and gender disparities as part of its larger report, Fifteen Years of Guidelines Sentencing, which found gender disparity favoring women in federal sentencing, but did not conclude whether this was based on considerations such as paternalism or child care responsibilities. (The report is available at www.ussc.gov.) Also, it is unclear whether this simply reflects that more women than men have absolutely no prior criminal history, which is not adequately addressed in the current guideline matrix. (See U.S.S.C., Recidivism and the “First Offender” 11 (May 2004) (noting substantially higher proportions of first offenders are female.) Previous studies have been inconsistent as to whether any disparity exists when the relevant factors are controlled.


Departures that required exceptional circumstances


A number of departures found in section 5H1 require exceptional circumstances. Now that the Protect Act’s tightening of downward departures and the Feeney Amendment’s de novo standard are no longer applicable, defense counsel is on solid ground asserting that any restrictions on departures cannot bind the judge. Indeed, Justice Stevens’s dissent from the remedial opinion points out that “Congress’ demand in the PROTECT Act that departures from the Guidelines be closely regulated and monitored is eviscerated—for there can be no ‘departure’ from a mere suggestion.” (125 S. Ct. at 788.) Not only can counsel be more assertive in judicial argument, but also in identifying these issues in plea negations with the prosecutor, and with the probation officer, who in some cases may be willing not to oppose a reduced sentence. In fact, one of many unresolved issues is the role of the probation officer in recommending a sentence. The federal guidelines had changed the orientation of probation officers from social workers to number crunchers. Now their role in sentencing also bears rethinking.


Section 5H1. 3: Mental and emotional condition


Several circuits have recognized that psychological abuse falls within section 5H1.3. (See, e.g., United States v. Roe, 976 F.2d 1216, 1217-18 (9th Cir. 1992); United States v. Vela, 927 F.2d 197, 199 (5th Cir.), cert. denied, 502 U.S. 875 (1991); United States v. Desormeaux, 952 F.2d 182, 185 (8th Cir. 1991). See also United States v. Shore, 143 F. Supp. 2d 74 (D. Mass. April 10, 2001).) Typically, these cases involve profound histories of sexual victimization and personality disorders. United States v. Rodriguez, 214 F. Supp. 2d 1239 (M.D. Ala., 2002), granted a departure for a woman who was raped while awaiting sentence pursuant to sections 5H1.3 and 5K2.0. The rape caused the woman to suffer from post-traumatic stress disorder and major depression.


Section 5H1.6: Family ties and responsibilities


If followed, the recent amendment to this section makes this departure even more difficult to obtain. Although the guidelines do not consider family ties as a relevant departure factor, and several circuits have considered single mothers as not extraordinary, additional requirements now apply: The caretaking loss is now required to be “essential,” exceeding the harm that ordinarily occurs, the parent must be “irreplaceable” and the departure must effectively address the loss of caretaking. Practically, the sentence must be one that either results in no incarcerative sentence or one that is sufficiently short so that the departure is not viewed as benefiting the mother more than the child. (See, e.g., United States v. Jebara, 313 F. Supp. 2d 912 (E.D. Wis. 2004), imposing a split sentence of five months’ imprisonments followed by home confinement, on the theory that the family could adequately care for the children during that time, but not long term.) Several recent cases claim that the new requirements do not change the previous case law. While it is likely to be an accurate assessment in some circuits, other circuits had been more flexible than the current interpretation mandates.
Despite the added limitations, some section 5H1.6 departures were being granted pre-Booker, particularly where the child or children have significant medical or emotional issues. (See, e.g., United States v. Spero, 382 F.3d 803 (8th Cir. 2004) (affirming downward departure for male who had critical role regarding autistic son, who was one of four children, even though defendant was married); United States v. Roselli, 366 F.3d 58 (1st Cir. 2004) (male granted departure where two of his children had cystic fibrosis and he was irreplaceable in their care); United States v. Davis, 2004 WL 1965698 (N.D. Ill. 2004) (single mother of five children who developed severe emotional and behavioral problems since learning of their mother’s arrest and likely incarceration).) A family ties departure was also granted where the defendant’s six children would probably be placed in foster care. However, due to the seriousness of the crime in which the defendant was a lookout to a bank robbery, the court still imposed an incarcerative sentence that might result in the children spending some time in foster care. (See United States v. White, 301 F. Supp. 2d 289 (S.D.N.Y. 2004).)
In one recent case, United States v. Eisinger, 321 F. Supp. 2d 997 (E.D. Wis. 2004), the court denied a family ties departure despite finding compelling circumstances and discussing the family ties literature, instead granting the departure on other grounds. It is unclear whether this route was taken to avoid an appeal of the section 5H1.6 issue. In United States v. Jurado-Lopez, 338 F. Supp. 2d 246 (D. Mass. 2004), Judge Gertner called the case law prohibiting her from granting a departure based on the defendant’s family ties “cruel.” (Id. at n.17, 254).
It is disheartening that this departure, which has provided some relief to single mothers and their children, has been rendered even less available without any real focus on the weighty policy issues concerning the children. The view that family ties is a gender break for females has overshadowed the reality that avoiding the needless disruption of the lives of children is an appropriate sentencing factor for nonviolent offenders. Moreover, the current approach ignores the fact that many women suffer trauma because of the separation from their children, with its attendant guilt and recognition that their children may believe they have been abandoned, and the possibility that parental rights will be terminated.
Since the new list of criteria does not specifically identify single parenting as an inappropriate factor, the circuits that have been favorable to family ties departures still have the ability to affirm them. For example, the Sixth Circuit recently affirmed a 10-level downward departure for a woman caring for three children and one grandchild, where the children’s father was incarcerated. (See United States v. Marine, 94 Fed. Appx. 307 (6th Cir. 2004).) Given the strong support for family ties departures long demonstrated by the Second Circuit, a similar approach would not be surprising. (See, e.g., United States v. Johnson, 956 F.2d 124, 125 (2d Cir. 1992).) (For extensive discussion of the previous case law, see Myrna Raeder, Remember the Family: Seven Myths about Single Parenting Departures, 13 FED. SENT. RPTR. 251 (2001); Myrna Raeder, Gender and Sentencing: Single Moms, Battered Women and Other Sex-Based Anomalies in the Gender Free World of the Sentencing Guidelines, 20 PEPPERDINE L. REV. 905 (1993).)
As previously mentioned, I am hopeful that judges will now exercise their discretion to grant more family ties departures, and the reasonableness standard of review will result in these lower sentences being affirmed. However, the Second Circuit has just signaled that care must still be taken to identify the factors that make the case extraordinary. In United States v. Daidone, 2005 WL 435409 (2d Cir. 2005) (unpublished), the government argued that family circumstances were not sufficiently extraordinary because of the availability of the father to help care for and support their four children, two of whom have mental or emotional disorders. The appellate court remanded the case for resentencing in light of Booker, suggesting that it would be useful in determining the reasonableness of any sentence for the trial court to more completely discuss its factual findings concerning the extent of the children’s emotional dependency on the mother, as well as whether other family members could meet the children’s needs, and the availability of other family to provide financial support.


Other departures


Coercion or duress. Section 5K2.12 of the federal guidelines provides that coercion or duress not amounting to a complete defense may be a reason for the court to grant a downward departure. Since extraordinary circumstances are not required, the departure may be applicable in many cases where a woman is subject to battering, yet appears not to be extensively cited. (See Judge Gertner, 14 YALE J.L. & FEMINISM at 303, noting that “[i]n my experience few lawyers even bother to examine the relationship between the woman offender and her male codefendants, much less litigate it.”) In practice, departures for coercion are more significant for females than for males, and appear to be used more frequently by white than minority women.
The built-in limitation to this departure is that “ordinarily” such coercion will be sufficiently serious to warrant departure only when it involves a threat of physical injury. The recent amendment provides that the extent of a departure based on coercion and duress ordinarily should depend on several considerations, including the proportionality of the defendant’s actions to the seriousness of the coercion, blackmail, or duress involved. The seminal case in this area is United States v. Johnson, 956 F.2d 894 (9th Cir. 1992), which considered battered women’s syndrome as an affirmative defense of duress for acts of distribution that are included as relevant conduct under section 1B1.3, and as evidence of incomplete duress for which the court could grant a discretionary downward departure. More recently United States v. Davis, supra, departed where the defendant was beaten so severely that she miscarried twice, and her decision to stay and sell drugs was significantly related to her dependent personality disorder. (See also United States v. Jurado-Lopez, supra, where a woman was locked in a room and forced under threats to insert heroin pellets in her rectum.) United States v. Gaviria, 804 F. Supp. 476, 479-80 (E.D.N.Y. 1992), applied section 5K2.12 to a woman whose history established a pattern of dependence due to male control from a combination of physical and psychological abuse, cultural norms, economic dependence, and other factors. However, generalized fear is insufficient to support this departure. (See Cotto v. United States, 347 F.3d 441 (2d Cir. 2003).)
Diminished capacity. A sentence below the applicable guideline range may be warranted under section 5K2.13 if the defendant committed the offense while suffering from a significantly reduced mental capacity that contributed substantially to the commission of the offense. The recent amendment now requires causation, making it difficult to obtain based simply on mental incapacity. The amendment also limits the extent of departure to the contribution of the reduced mental capacity to the offense. This departure is limited to nonviolent offenses, prohibits consideration of voluntary drug usage, and is discouraged for defendants with significant criminal history.
The Safety Valve. Congress enacted the Safety Valve, which is reflected in section 5C1.2, because of the generally acknowledged unfairness of punishing first-time, low-level drug offenders more severely than high-level conspirators who had information they could trade in exchange for substantial assistance departures. Because the Safety Valve appears in section 3553(f) in mandatory language, it appears that this provision has not been abrogated by Booker, which made no reference to excising it. In other words, while the guidelines are discretionary, the Safety Valve is still mandatory. (See, e.g., United States v. Ochoa-Suarez, 2005 WL 287400 (S.D.N.Y. 2005) (Booker does not affect application of the safety valve).) However, since the statute specifically contains the same criteria as appear in the guidelines, it is unlikely that the provisions will be interpreted to give judges the ability to depart below a mandatory minimum if the provisions of the statute are not met. In other words, the restrictions, such as one-point criminal history and truthful disclosure to the government, are still in effect. Thus, in Ochoa-Suarez, the judge found the female defendant ineligible for the safety valve because she was a manager for safety valve purposes and failed to make a full and truthful disclosure.
While the safety valve provision section 5C1.2 was given to 30 percent of drug offenders in 1999 (U.S.S.C. 1999 ANNUAL REPORT, at 44), it does not trump a statutory prohibition on probation. (See United States v. Dickerson, 381 F.3d 251 (3d Cir. 2004) (citing case law).) Similarly, counsel must always ascertain that the plea is to a drug offense to which the safety valve applies. For example, in United States v. Anton, 380 F.3d 333 (8th Cir. 2004), the safety valve was unavailable, although the defendant met its eligibility criteria, where the listed chemical guideline under which she was sentenced did not provide for the reduction. Eligibility also depends on the defendant not being a supervisor or having any other significant role in the offense. While the criminal history cannot exceed one point, many more women than men have no prior criminal history. The fact that no weapon can be possessed may pose difficulties for women who are living with a male who has a significant role in the drug offense and may keep a weapon in the house. As in Ochoa-Suarez, the most problematic qualification for the application of the safety valve to females is the truthful proffer to the government before the sentencing hearing of all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan. It is well accepted that many women will not disclose negative information about the father of their children or other male intimates, even though that will preclude application of the departure. Claiming fear of one’s male codefendants to avoid full disclosure is also not a sufficient response.
Aberrant behavior. A departure based on aberrant behavior, section 5K2.20, is permitted only if the defendant committed a single criminal occurrence or single criminal transaction that (1) was without significant planning; (2) was of limited duration; and (3) represents a marked deviation by the defendant from an otherwise law-abiding life. The requirement of a single incident limits the applicability of this departure, but circumstances may warrant it in individual cases. For example, in United States v. Patterson, 281 F. Supp. 2d 626 (E.D.N.Y. 2003), a female was given a 13-level downward departure for aberrant behavior where she had refused the offer by her friend, a narcotics trafficker, to accept money to help import drugs, but communicated the offer to a second friend and introduced them without otherwise participating in the conspiracy or receiving payment for the introduction. Given the number of aberrant behavior departures before the U.S. Sentencing Commission limited this departure to a single incident, it is likely that some judges will return to their previous practice and now use their discretion to apply this departure more broadly in evaluating the reasonableness of the sentence.
Acceptance of responsibility and mitigating role. Because many women facilitate the criminal activity of their male intimates, they are likely candidates for receiving departures of two to four points for playing a minor or mitigating role in the offense under section 3B1.1. Acceptance of responsibility under section 3E1.1 is also a possibility for women who plead guilty. However, since women often have a relatively low offense level, they are prohibited from receiving an additional departure point. However, in Eisinger a three-point departure was granted under this rule for atypical rehabilitation efforts by the pregnant defendant who was attempting to turn around her life before giving birth.
Creative departures. Creativity was substantially limited by the revision to section 5K2.0, which narrowly construes the appropriateness of departures. However, there is always some possibility to improvise. For example, in United States v. K, 160 F. Supp. 2d 421 (E.D.N.Y., 2001), sentencing of a 21-year-old, nonviolent, first-time drug offender was deferred for one year pending his completion of the Special Options Rehabilitation Service (SORS) program. This avoided the prohibition against departures based on postsentencing rehabilitative efforts. In the post-Booker world, creativity has been restored, assuming that counsel proactively investigates the defendant’s background to fashion arguments favoring leniency.


Programs for inmates with young children


Despite the negative impact of maternal separation on young children, relatively few programs foster the mother- child bond. The Bureau of Prisons (BOP) operates a program entitled Mothers and Infants Together (MINT). Eligible women who have been sentenced to incarceration reside in a community correction setting with their infants for up to 18 months after delivery. California funded its Pregnant and Parenting Women’s Alternative Sentencing Program Act and has opened two long-term community correctional facilities pursuant to California Penal Code 1174, to which women are sentenced directly, without serving time in prison, where they can reside with their minor children under six years of age for up to three years. The focus is not only on treatment of the mother, but emphasizes the development of the mother-child bond. In addition, for the last 20 years, California also has operated a Community Prison Mother Program, where inmates with less than six years remaining on their sentences may reside with their children in a residential facility where they receive comprehensive programming to enable them to better reintegrate into their communities. Small programs exist in a number of states, but currently there is no groundswell to make such programs the norm rather than the exception. One innovation program, the Regina Drew House, is being developed by Brooklyn District Attorney Charles J. Hynes, as a community-based residential alternative to prison for defendant mothers and their children. In other words, prosecutors as well as the correctional community have a role to play in creating alternatives that serve female offenders and their children.


The federal community confinement center snafu


The BOP had a long-standing policy of placing eligible offenders in community confinement centers (CCC), sometimes in lieu of prison for short sentences but generally for the last six months of a prisoner’s sentence. In late 2002, the Office of Legal Counsel of the Department of Justice determined that the BOP did not have the statutory authority to place an offender in a CCC at the beginning of the sentence or to transfer an offender from a prison to a CCC at any time during the sentence. The BOP then adopted a new policy, implementing what is known as the 10 percent rule, that transfer is appropriate only for the last six months of a sentence or 10 percent of the sentence, whichever is less. Substantial litigation resulted, with many courts holding the statutory interpretation underlying the new interpretation to be erroneous. (See, e.g., Elwood v. Jeter, 386 F.3d 842 (8th Cir.2004) (rejecting statutory interpretation underlying 10 percent rule); Goldings v. Winn, 383 F.3d 17 (1st Cir. 2004) (same). See generally Solomon v. Zenk, 2004 WL 2370651 (E.D.N.Y. 2004) (citing existing case law).) Judge Weinstein noted in Solomon that “[a]rguably the BOP’s policy is contrary to sound public policy as well as the plain meaning of section 3621(b) and section 3624(c) of title 18 of the United States Code. When appropriate, placement in a CCC promotes the prisoner’s reintegration into society, reduces unnecessary strains on the prisoner’s family and public welfare and lowers prison costs.”
The resolution of this issue is significant for women offenders, who have been disproportionately affected by the Department of Justice’s change in policy. At the same time the overall decrease in the federal community correctional population was 4.8 percent, the female community correctional population decreased by 12.5 percent. This may be attributed to the fact that many women are nonviolent offenders who are serving short sentences and are prime candidates for both immediate placement in community correctional facilities and prerelease placement in such facilities for six months. It has been suggested that judges can still effectively designate that a defendant be placed in a CCC by sentencing the individual to probation, with time served in the CCC as a condition of the probation. After Booker, some judges may be amenable to following this route, since it may involve a downward departure to a guidelines sentence. However, this approach is difficult for those judges who intend to follow the guidelines and their increased restrictions on departures. While it is always a possibility that the prosecutor will not contest the departure, a judge may not believe it is appropriate to depart if the case law appears to prohibit that result.
Even if the judicial battle is won, the BOP has proposed a rule that categorically limits “inmates’ community confinement to the last ten percent of the prison sentence being served, not to exceed six months.” (69 Fed. Reg.
51, 213 (Aug. 18, 2004).) The ABA has written in opposition to this proposal. Last year’s Senate version of the Second Chance Act, which encompasses a number of reentry issues, takes no position on the BOP’s authority under the current rules, but increases the total time that an individual can spend in a CCC. Apparently, the BOP rule became effective on February 14, although the controlling program statement is, as yet, unrevised. Litigants whose cases arose before that date will likely argue that the change should not apply retroactively.


Visiting and termination of parental rights


Visits with children are significant for women offenders and are often made difficult by the placement of women far from home. Due to the fewer number of female facilities, it is not uncommon for women to be located further from home than men. As Judge Posner wrote in Froehlich v. Wisconsin Department of Corrections, 196 F.3d 800, 802 (7th Cir. 1999), concerning the transfer of a female state prisoner whose children sued to keep her in Wisconsin, while such an accommodation is not constitutionally imposed on prison officials, “it may be a moral duty.” Relatively few volunteer organizations exist to fund or coordinate travel by visitors. For a model program see Aim to Imprisoned Mothers, an Atlanta program described at www.takingaim.net. Advocates on behalf of women offenders should reach out to correctional facilities and charitable or faith-based organizations in the community to organize buses to a women’s facility.
Visits are also subject to regulation. In Overton v. Bazzetta, 539 U.S. 126 (2003), restrictions on noncontact visits to prisoners were upheld that excluded visits by minor nieces and nephews and children as to whom parental rights had been terminated. The regulations did allow visits between an inmate and her own children, grandchildren, and siblings. Overton did “not imply, that any right to intimate association is altogether terminated by incarceration or is always irrelevant” to prisoner claims, but sustained the restrictions because they bore a rational relationship to legitimate penological interests. The correctional officials had argued that the regulations promoted internal security by reducing the total number of visitors and by limiting the disruption caused by children. In addition, they protected children from exposure to sexual or other misconduct or from accidental injury.
Bazzetta also upheld a requirement that children be accompanied by a family member or legal guardian as reasonable to ensure that the child is supervised by adults who have the child’s best interests in mind. A two-year ban on noncontact visits for inmates with two substance abuse violations was also upheld, despite the fact that it relegated some inmates to brief and expensive phone calls. However, the Court recognized that if withdrawal of all visitation was permanent or for a much longer period, or arbitrarily applied, the result could be different.
After Bazzetta, visiting still remains key to ensure that children bond with their mothers, and to encourage inmate rehabilitation. The decision does not prohibit or discourage the adoption of expansive visiting regulations of both a contact and noncontact nature. However, the scope and nature of those regulations are clearly within the discretion of the prison administrators, so long as restrictions are reasonable. In other words, while requiring a family member or guardian to accompany the child is tantamount to prohibiting the visit in many cases, correctional officials can implement such rules. Thus, advocates on behalf of female inmates must educate correctional officials as to the benefits of strengthening family ties, not only for the women and their children, but also for the facility, which is likely to experience fewer problems from inmates when they are not stressed about their family relationships. In lieu of or addition to visiting, telephone calls maintain the parent-child bond. While the federal system ensures that telephone services will be reasonably priced, in many jurisdictions calls are a profit center for facilities, and consequently are prohibitively expensive for the inmates, who typically must call collect. Given the importance of family ties, correctional facilities should not view the relationships with phone companies as a profit center.
Visits are also essential to ensuring family reunification to avoid termination of parental rights under ASFA. (See Timothy Ross et al., Hard Data on Hard Times: An Empirical Analysis of Maternal Incarceration, Foster Care, and Visitation, VERA INST. OF JUST. (Aug. 2004); Philip M. Genty, Incarcerated Parents and the Adoption and Safe Families Act (ASFA): A Challenge for Correctional Services Providers, ICCA J. 42 (2001).) Laws concerning termination of parental rights vary and pose significant problems for incarcerated women. (See Philip M. Genty, Permanency Planning in the Context of Parental Incarceration: Legal Issues and Recommendations, 77 CHILD WELFARE 543, 545 (Sept./Oct. 1998); Lanette P. Dalley, Imprisoned Mothers and Their Children: Their Often Conflicting Legal Rights, 22 HAMLINE J. PUB. L. & POL’Y 1 (2000); Heidi Rosenberg, California’s Incarcerated Mothers: Legal Roadblocks to Reunification, 30 GOLDEN GATE U. L. REV. 285 (2000).)
Lassiter v. Dep’t of Social Services, 452 U.S. 18 (1981), rejected any requirement that a state must provide a parent with an attorney in termination proceedings, although a majority of states provide an attorney for the court appearance. However, often such appointment occurs well after the need arises for the mother to connect with her child and the foster care system. The difficulty for incarcerated parents to contact foster parents, social workers, child protection agencies, and others responsible for parental rights determinations can be daunting without an attorney. Attempts to require the state to provide such legal advice, if not otherwise legislatively mandated, have not proved successful. Glover v. Johnson, 75 F.3d 264 (6th Cir.), cert. denied, 519 U.S. 816 (1996), held that the fundamental right of access to courts did not require the state to provide legal assistance for inmates in connection with custody matters. Thus, unless a local bar association or law school provides pro bono services to women to undertake representation or simply to provide a contact with the woman’s attorney or foster care mother, incarcerated women have a difficult time of meeting reunification plans. Similarly, if a parent is incarcerated in another state, there appears to be near unanimous agreement that her presence is not required at the termination proceeding as long as she is represented by counsel. (See In re Adoption/Guardianship No. 6Z980001 in Dist. Court for Montgomery County, 748 A.2d 1020, 1023 (Md. App. 2000), citing case law.)
In some states by statute child welfare agencies must offer and provide reunification services to incarcerated parents. (See CAL WELFARE & INST. CODE § 361.5(e)(1); see also N.Y. SOC. SERV. LAW 384-b(2)(b), (7)(f) (1992). See generally Cristine H. Kim, Note, Putting Reason Back Into the Reasonable Efforts Requirement in Child Abuse and Neglect Cases, 1999 U. ILL. L. REV. 287).) Some claim that this requirement is often ignored. In order to escape from ASFA, many advocates on behalf of incarcerated mothers work to avoid foster care placements by the use of guardianships, which also requires legal assistance. Some programs also attempt to provide services in cases where the children are at risk of foster placements. Women’s Prison Association has a number of programs aimed at women offenders and their children. (See www.wpaonline.org.; see also Chicago Legal Advocacy for Incarcerated Mothers, www.c-l-a-i-m.org; and Legal Services for Prisoners with Children, www.prisonerswithchildren.org.) Keeping a child out of governmental supervision may also have the benefit of eliminating any later attempts to recoup payment from incarcerated mothers for such services, an issue that arises with some regularity.
Usually, state and federal foster care systems offer cash payments to non-relatives to care for children placed in foster care. In reality, however, many of these children are placed not in the homes of strangers but with their relatives who are willing to provide temporary care in “kinship care” providers. Yet even if relatives want to provide a home for the children they may not be able to afford this luxury, since similar payments are often not available to kinship caregivers. For example, Lipscomb v. Simmons, 962 F.2d 1374, 1376 (9th Cir.1992) (en banc), upheld an Oregon statute that provided aid to foster parents who were not related to their foster children, but denied state aid to foster parents who were related to their foster children. Changes in welfare laws, mandated by the passage in 1996 of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), make it even more difficult for relatives to obtain the financial support necessary to care for these children. Temporary Assistance for Needy Families (TANF) not only removes any entitlement to benefits but also imposes time limits on eligibility for benefits and even more stringent work requirements. Similarly, relatives may not necessarily be able to adopt children to keep them within the extended family. (See Mullins v. State of Oregon, 57 F.3d 789 (9th Cir. 1995), holding a biological connection, standing alone, did not give grandparent constitutionally protected liberty interest in adoption of grandchild.)
Despite a mother’s incarceration, even a damaged parent-child relationship is likely to be better than no relationship. (Philip Genty, Procedural Due Process Rights of Incarcerated Parents in Termination of Parental Rights Proceedings: A Fifty-State Analysis, 30 J. FAM. L. 757, 804 (1991-92).) Ironically, the substance abuse problem that is a significant reason for a mother being incarcerated often cannot be easily treated in the community prior to arrest. For example, less than 10 percent of child welfare agencies were able to find substance abuse treatment programs for most of their clients within 30 days. (DEP’T HEALTH & HUM. SERVS., Blending Perspectives and Building Common Ground: A Report to Congress on Substance Abuse and Child Protection 80 (1999).)
Over time, we have compounded our bad sentencing choices with equally shortsighted refusals to fund community correctional facilities where parents can reside with their children while obtaining the treatment and skills that are necessary for them to live productive lives. Despite the low risk to public safety posed by nonviolent female offenders, we ignore the fact that incarceration is more costly than community corrections and seven times more expensive than supervision by probation officers. (See Costs of Incarceration and Supervision, 36 THE THIRD BRANCH 1 (May 2004).) At the same time, changes in social policy have made it more difficult for single parents to avoid losing their children or to successfully reunify with them after release. Federal welfare and adoption legislation is reducing access to essential public benefits for women offenders while simultaneously reducing the amount of time incarcerated mothers have to reunite with their children before losing custody. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, (PRWRA), Pub. L. No. 104-193 115, 110 Stat. 2105; Adoption and Safe Families Act of 1997, (ASFA), Pub. L. No. 105-89; (codified as amended in scattered sections of 43 U.S.C.) “This growing interface between the criminal and civil court systems may create the equivalent of a legal pincer movement, catching and separating successive generations of women and children in its midst.” (Acoca and Raeder, supra, at 138).


Programming


Due to their lesser numbers, women offenders have often been given less access to programming and services. Limitations on class actions imposed by the PLRA, and a change in approach to equal protection challenges in the prison context, have made many of these claims less feasible. (See generally Raeder, Legal Appendix 110-14 in Gender Responsive Strategies; Marsha L. Levick and Francine T. Sherman, When Individual Differences Demand Equal Treatment: An Equal Rights Approach to the Special Needs of Girls in the Juvenile Justice System, 18 WIS. WOMEN’S L.J. 9 (Spring 2003).) Ironically, this hostile legal environment also permits prison administrators to provide gender-responsive substance abuse and trauma programming with less concern about litigation. Another example of gender-related programming involves the development of parenting programs for mothers who hope to reunify with their children. Some states have started to recognize the need to design female classification protocols, recognizing that female inmates often suffer from over-classification based on models designed for male inmates who are more likely to escape or engage in violent prison behavior. (See Patricia L. Hardyman and Patricia Van Voorhis, Developing Gender-Specific Classification Systems for Women Offenders, NAT’L INST. CORRECTIONS (2004).) In the current litigation context, many advocates on behalf of women offenders have begun to work with rather than against correctional administrators to provide the best results for their clients.


The future


The Second Chance Act, which was introduced in the Senate during the last congressional session, and is expected to be reintroduced shortly, would authorize a task force related to reentry of offenders that would study many of the collateral consequences that are so debilitating to all offenders, but particularly to women who are trying to reunify their families. The topics to be evaluated include:

(1) parental incarceration as a consideration for purposes of family reunification under the Adoption and Safe Families Act of 1997;
(2) admissions in federal housing programs;
(3) child support obligations and procedures;
(4) Social Security benefits, veteran’s benefits, food stamps, and other forms of federal public assistance;
(5) Medicaid and Medicare procedures, requirements, regulations, and guidelines;
(6) education programs, financial assistance, and full civic participation;
(7) TANF program funding criteria and other welfare benefits;
(8) employment;
(9) reentry procedures, case planning, and the transition of persons from the custody of the Federal Bureau of Prisons to a federal parole or probation program or community corrections;
(10) laws, regulations, rules, and practices that may require a parolee to return to the same county that the parolee was living in prior to his or her arrest, and the potential for changing such laws, regulations, rules, and practices so that a parolee may change his or her setting upon release, and not settle in the same location with persons who may be a negative influence; and
(11) prerelease planning procedures for prisoners to ensure that a prisoner’s eligibility for federal or state benefits (including Medicaid, Medicare, Social Security, and veteran’s benefits) upon release is established prior to release, subject to any limitations under the law, and the provision of referrals to appropriate social and health services or are linked to appropriate community-based organizations.

In addition, money would be given to programs that foster the mentoring of children of incarcerated parents, as well as financial support for the Federal Resource Center for Children of Prisoners. The reentry barriers for women with children are discussed by Ann L. Jacobs, in “Give ’Em a Fighting Chance: Women Offenders Reenter Society” in Criminal Justice magazine (vol. 16, no. 1, p. 44 (Spring 2001). The entire spring 2001 issue of Criminal Justice, which was devoted to issues concerning women offenders, is available at www.abanet.org/crimjust/cjmag/16-1/toc.html. (See also CHILDREN OF INCARCERATED PARENTS (Katherine Gabel & Denise Johnston, eds., 1995); PRISONERS ONCE REMOVED (Jeremy Travis & Michelle Waul eds., 2003).) The ABA recently adopted Criminal Justice Standards Concerning Collateral Sanctions and Discretionary Disqualification of Convicted Persons that address a number of these reentry issues.
Innovative reentry programs do exist. For example, Our Place is a program that provides postrelease services for recently released women and their families in the District of Columbia. (See www.ourplacedc.org.). However, such programs are currently the exception not the norm. Hopefully, the future will hold some promise that nonviolent women offenders can obtain the treatment to enable them to reunify with their children and succeed in the community. If not, we are likely to face what I have called an “orphan-class” of children who are at risk of following in their incarcerated mothers’ footsteps.

 

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