Being a prisoner is the lowest you can be in life. Being a female prisoner is so much worse.
- Toni Bunton
Toni Bunton is one of over 500 women in Michigan prisons who claim they were repeatedly sexually assaulted by guards and that prison officials either ignored or dismissed evidence of systemic sexual abuse in the state’s women’s correctional facilities. Jeff Seidel, Sexual Assaults on Female Inmates Went Unheeded, Detroit Free Press, Jan. 4, 2009. Bunton is one of the thousands of women behind bars in this country, a growing population mostly hidden from public view. Because the lives of women prisoners are largely unknown, ignored, and discounted, their civil and human rights are frequently violated.
There are now 2.3 million prisoners in state and federal prisons in America, and one in every 31 Americans is now subject to control by some aspect of the criminal justice system. Pew Center on the States, One in 31: The Long Reach of American Corrections 2, 4Р5 (2009) [hereinafter Pew Report]. Women comprise the fastest growing segment of this vast group. Although women comprise just 7.2 percent of the total prison and jail population, that percentage exploded between 1977 and 2004, by 757 percent. That increase was nearly twice as great as that in the male population during the same period. Institute on Women & Criminal Justice, Hard Hit: The Growth in the Imprisonment of Women 9 (May 2006) [hereinafter Hard Hit]. By 2004, nearly 100,000 women were serving state or federal sentences, and over one million women were subject to some form of correctional supervision. ACLU, Brennan Ctr. for Justice & Break the Chains, Caught in the Net: The Impact of Drug Policies on Women and Families 16 (2005) [hereinafter Caught in the Net].
For decades, the ever-increasing number of inmates has proceeded unchecked and largely unexamined. “Tough on crime” political rhetoric and a purely punitive correctional purpose have fueled policy choices and financial and legal decisions. But signs now suggest that the U.S. experiment in mass incarceration may finally have run its course. The reasons for this are complicated and diverse, but the current financial crisis undoubtedly has been essential to this change in the public discourse. In 2008 alone, state and the federal governments spent $68 billion on corrections, and corrections expenses were the fastest growing segment of state budgets. Over the last two decades, public spending on corrections rose over 300 percent, eclipsing funding for every other essential government service but Medicaid. Pew Report at 11. Indeed, many states are now spending more on corrections than higher education.
This crisis in our criminal justice system is the product of deliberate political choices. It was not inevitable, nor is it irreversible. We now have a chance to do better with less. To seize this moment, we must consider the factors underlying the massive increase in the numbers of women behind bars, what happens to women inside prison, and the impact female incarceration has on the women themselves, their families, and the community at large.
Why Are So Many Women Behind Bars?
The vast majority of women behind bars are serving sentences for nonviolent drug and property offenses. Indeed, even as the number of women in prison has soared, the number convicted of violent offenses has actually declined, from nearly half in 1979 to one-third in 2002. Hard Hit at 10. The stunning growth of incarcerated women over the last twenty-five years has largely been fueled by the “war on drugs.” From 1988 to 1999, the number of women in state facilities for drug offenses grew 888 percent. Caught in the Net at 1. In New York, for example, drug offenses accounted for an incredible 91 percent of women sentenced to prison between 1986 and 1995. Hard Hit at 24. Indeed, women are now more likely to serve time for drug offenses than are men. The Sentencing Project, Women in the Criminal Justice System (May 2007), http://www.sentencingproject.org/Admin/Documents/publications/womenincj_total.pdf [hereinafter Sentencing Project Briefing Paper].
Due to state mandatory minimum sentencing schemes and the federal sentencing guidelines that largely dictate sentences based on the total quantity of drugs, judges have little discretion to consider the level or circumstances of women’s involvement in an underlying drug offense, even though women very rarely play a central role in the drug trade. Ironically, because of their peripheral involvement or lack of involvement in that trade, women facing drug charges do not have the sort of information prosecutors require from defendants in order to barter for more lenient treatment. Women are frequently sentenced to ten, twenty, or more years because of the mere presence of drugs in their homes or other minimal involvement in drug-related crimes. Caught in the Net at 11Р12, 38Р41.
Women of color have been disproportionately affected. In 2005, black women were more than three times as likely as white women to be incarcerated, and Latina women were 60 percent more likely. See Sentencing Project Briefing Paper. African American and Latina women also make up a disproportionate number of the women arrested, charged, and incarcerated for drug crimes. For example, the overall increase in women serving prison time for drug offenses includes an increase of over 800 percent for African American women. Caught in the Net at 17.
Who Are the Women in Prison?
The majority of women prisoners are impoverished African Americans and Latinas with minimal education, few job skills, and little employment history. As such, female prisoners are similar to their male counterparts. These factors likely drive the indifference or outright hostility with which female prisoners are viewed by the public, lawmakers, and the criminal justice system. But female prisoners also share other significant characteristics that frequently underlie their criminal involvement, their experience of imprisonment, and their eventual reentry into the community.
First, their lives are overwhelmingly characterized by abuse. Two-thirds of women in prison have suffered physical and/or sexual abuse before incarceration. For many, coercive and abusive relationships may be the underlying cause of their incarceration. Not surprisingly, such histories of abuse translate into severe mental health problems for incarcerated women. Seventy-three percent have mental health issues, compared to 55 percent of male prisoners. Bureau of Justice Statistics, Mental Health Problems of Prison and Jail Inmates 1 (Sept. 2006). This combination fuels the maladaptive coping strategies of drug use and addiction reflected in so many women’s criminal justice involvement. Studies indicate that significant numbers of female prisoners suffer from the dual problems of mental illness and drug abuse. Drug use for these women is often characterized as self-medication. And because prescription medications and counseling to treat mental illness are beyond the reach of low-income women, illegal drugs become the only available option. Caught in the Net at 18Р19.
Second, most female prisoners are also mothers. Since 1991, the number of children with a mother in prison has grown 131 percent. In 2004, approximately 62 percent of women state prisoners had minor children. The majority of them were both custodial parents and primary financial providers. Mothers behind bars are likely to have lived in single-parent households, and the overwhelming majority report that they were responsible for the daily care of their children. Unlike male prisoners, incarcerated women report that the other parent is not the caregiver for their children while they are imprisoned. Instead, a grandmother or other relative is the most likely caregiver for a female prisoner’s child(ren). Eleven percent of mothers behind bars report that their children are in foster care or otherwise cared for by the state. Bureau of Justice Statistics, Parents in Prison and Their Minor Children 2Р5 (Aug. 2008).
What Happens to Women Behind Bars?
A terrible irony lurks in the experience of incarcerated women: the abuse and subordination that frequently brought them to prison are often replicated and often intensified behind prison walls. States have rarely seen criminal justice involvement as a moment of crisis where state intervention could provide an opportunity to rehabilitate persons and produce better outcomes for the community. Sadly, the opposite is usually the case. Although many aspects of prison life produce tangible harm to women prisoners, I address only three significant areas: sexual abuse, the lack of adequate mental health care, and the unique problems women encounter as mothers serving time.
Institutionalized sexual abuse is a commonplace experience for incarcerated women in this country and has been well documented by leading human rights organizations. See, e.g., Amnesty International, USA: “Not Part of My Sentence”: Violations of the Human Rights of Women in Custody (1999), available at www.amnesty.org/en/library/info/AMR51/001/1999; Human Rights Watch, All Too Familiar: Sexual Abuse of Women in U.S. State Prisons (1996), available at www.aclu.org/hrc/PrisonsStates.pdf. Yet it continues largely unabated. This abuse takes the form of rape, but it also includes verbal harassment; improper touching during pat-down searches; improper visual surveillance while women bathe and perform personal hygiene tasks; and “consensual” sex for protection, favors, and material goods.
Although modern prisons have many institutional rules that allegedly govern the conduct of prisoners and guards alike, these rules are often
circumvented and selectively enforced, and it is well understood that the word of a guard will almost always trump the allegations of a prisoner. Such an environment inherently breeds abuse, so it is unsurprising that guards can use bogus threats of disciplinary sanctions, which can lead to longer prison sentences, the end of visits from children and family, or long stays in solitary confinement, as effective coercion to force women prisoners to comply with demands for sex or silence.
Sexual violence is not the only form of violence women experience while incarcerated. Although significant numbers of female prisoners have mental health issues, few receive the care they need. Medication may be provided, but necessary counseling and therapy is almost nonexistent. Caught in the Net at 49. Indeed, of the 12 percent of women in jail with severe psychiatric disorders, less than one-quarter receive any mental health services at all. See Sentencing Project Briefing Paper. Instead, many women prisoners with severe mental health issues often end up in segregation and solitary confinement because their diseases, especially when untreated, make it difficult for them to conform to the conditions of incarceration. While in segregation or isolated confinement, these women frequently experience increased psychological imbalance, suffering terrible and unnecessary psychological pain as a result.
Added to this psychological suffering is the additional strain of being separated from family and children. The vast majority of women prisoners are incarcerated far away from their communities. State prisoners are generally imprisoned at least 100 miles from their homes, and 43 percent of federal prisoners are held over 500 miles from their last address. Bureau of Justice Statistics, Incarcerated Parents and Their Children 5 (Aug. 2000) [hereinafter Incarcerated Parents]. These distances take their toll on family resources. It is often difficult for low- to moderate income families to travel long distances. And if a prisoner’s child is in foster care, child welfare workers will rarely be willing or able to bring her child to prison.
Conditions of visitation also dissuade families from seeing loved ones in prison. Long waits are not infrequent, and visits can be denied without warning. All visitors are subject to searches and can be frisked. This may be unsettling for children, but the rules regulating contact and touching during prison visits can be even more difficult for a child to endure. Rules governing the duration and nature of mother-child contact are routine in prison. For example, in Michigan visitors are limited to one kiss and one embrace at the beginning and end of each visit, and when a picture is being taken. A prisoner parent may also hold a child, but only if the child is under two years old. Mich. Dep’t of Corr. Policy No. 05.03.140(v). Some prisons and jails prohibit contact visits altogether, where a child will only be able to see his or her mother through a window or mesh screen.
Added to the difficulties involved in visitation are the exorbitant costs of collect calls from prison. On top of fiscal constraints, prisons often regulate the frequency and duration of calls, and the people a prisoner is permitted to call. As a result of all these barriers to maintaining family connections, over half of all female prisoners have never received a visit from their children, and one-third have never spoken with their children by phone. Incarcerated Parents at 5.
The difficulties involved in maintaining contact with family are not just emotionally traumatic; they can also mean the termination of parental rights. The Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115 (1997), was passed to facilitate the quick termination of parental rights in order to reduce long-term stays in foster care and promote speedy adoption. Under this act, states can authorize termination of parental rights when a child has been placed in foster care for fifteen of the last twenty-two months. For the 60 percent of mothers in prison who are expected to serve more than a twenty-four-month sentence, this law can be devastating. Because judges need not consider the current incapacitation of a mother behind bars when deciding termination proceedings, female prisoners can be irreparably cut off from their children and families because of their involvement in the criminal justice system.
What Happens When Women Leave Prison?
Women who are released from prison confront enormous obstacles to successful reentry into the community. Regardless of their needs, they probably did not receive any drug treatment or mental health counseling while in prison. It is also unlikely that they received any educational or vocational training to help them build more productive lives. At the same time, women returning to their communities often face severe collateral consequences, from lifetime disenfranchisement to prohibitions on certain jobs and professions. Oftentimes, the most immediately debilitating consequences are federal laws imposing lifetime bans on receiving government assistance due to drug convictions. Section 115 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (1996), imposes a lifetime ban on receiving cash assistance and food stamps for people convicted of a state or federal felony involving drugs. Similarly, in 1996, the federal government passed the Housing Opportunity Program Extension Act, Pub. L. No. 104-120, 110 Stat. 834 (1996), which authorizes state public housing authorities to deny Section 8 and other federally assisted housing to anyone who has been involved in a drug-related or violent offense. The lifetime loss of these benefits undermines the basic needs of impoverished women and their children and makes it almost impossible for many former female prisoners to attain self-sufficiency, provide for their families, and return to the community as contributing members of society.
What Is to Be Done?
The lives of women prisoners before, during, and after incarceration present a tremendous dissonance with our social and constitutional ideals. For years, this dissonance has gone unrecognized and unacknowledged by American citizens and their leaders. Yet the conditions these women and their families face are frequently a direct product of ill-conceived, yet politically popular, criminal justice policy decisions made by the community. This need not be so. The current fiscal crisis at the state and federal levels provides an opportunity to rethink how we treat women prisoners and their families and reconsider the social, political, and fiscal outcomes that we want to produce.
A primary target for reform should be the mandatory sentencing schemes that bring vast numbers of women into the penal system, regardless of how peripheral their involvement in the drug trade may have been. Such mandatory sentencing schemes should be replaced by alternative sentencing structures that keep nonviolent women (and men) in the community with their children and provide for family-based drug treatment.
Not all women can be diverted from the prison system, but their period of incarceration need not, and should not, be brutalizing. Unfortunately, prison conditions are subject to little public scrutiny or governmental accountability. The federal courts have long been the only watchdogs of these institutions, but court-stripping laws, such as the Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (1996), create nearly insurmountable barriers for prisoners with legitimate constitutional claims to have their cases heard in federal court. Congress must take another look at this law and change or repeal the provisions that make effective prison oversight by the courts nearly impossible. Congress must also take a second look at the Adoption and Safe Families Act and fix provisions that unintentionally affect women prisoners and their families. At the same time, prison administrators should be charged with recognizing and supporting women’s roles as mothers by creating more family-friendly visitation policies and programs.
Finally, the barriers to reentry created by federal laws that establish lifetime bans on certain federal benefits due to drug-related convictions should be repealed or, at the very least, include exceptions for women (and men) who have been, or currently are, enrolled in drug treatment.