August 20, 2020 Feature

The Cycle of Women in the Criminal Justice System

by Cynthia Thomas
The prospects for women entering the criminal justice system remain grim.

The prospects for women entering the criminal justice system remain grim.

Cristian Ibaez / EyeEm / Getty Images

The year 2020 marks the centennial of women’s suffrage. As we celebrate this 100th anniversary guaranteeing and protecting women’s constitutional right to vote, let’s take this opportunity to look at women in the criminal justice system, where, sadly to say, women’s prisons are not treated equally.

According to the Prison Policy Initiative, there are 231,000 women locked up in the United States (Aleks Kajstura, “Women’s Mass Incarceration: The Whole Pie 2019,” Prison Policy Initiative, October 29, 2019; https://tinyurl.com/y778pclg). Although this represents approximately only 10 percent of the total incarcerated population, over the past 30 years the number of women and girls involved in the criminal justice system has skyrocketed. This report shows an 834 percent increase in the number of women incarcerated in state prisons between 1978 and 2015. That’s more than double the pace of growth among men. In a few states, women’s prison populations have even grown enough to counteract reductions in the men’s population. One of the main reasons for this influx is the more expansive law enforcement efforts of the war on drugs. These stiffer drug sentencing laws and post-conviction barriers to reentry uniquely affect women as opposed to men.

Many women inmates struggle with substance abuse, mental illness, and histories of physical and sexual abuse. In my opinion, to truly correct some of the problems in the criminal justice system, society must change its view of mental illness. However, that is another article for another day. For now, let’s look at the cycle of women in the criminal justice system.

Entering into the System

In a national survey conducted by the Sentencing Project, 80 percent of female respondents serving life sentences without parole had experienced a history of physical abuse, 77 percent had experienced sexual abuse, 84 percent had witnessed violence at home, and more than one-third had attempted suicide (“Incarcerated Women and Girls,” The Sentencing Project, June 6, 2019; https://tinyurl.com/vbf9q5t). Compared to men, women reported higher levels of psychiatric disorders and histories of physical and sexual violence. More than two-thirds of women in the American criminal justice system have a history of mental health problems (Jennifer Bronson and Marcus Berzofsky, “Indicators of Mental Health Problems Reported by Prisoners and Jail Inmates, 2011–12,” U.S. Department of Justice, June 2017; https://tinyurl.com/y773gmer). This is compared to 41 percent of male prisoners. These psychological disorders include depression, bipolar disorder, schizophrenia, and post-traumatic stress disorder or anxiety. Although experts do not fully understand why there is such a wide gender disparity when it comes to mental disorders, it is speculated that, in a world where mental illness can be viewed as a sign of weakness, women are more likely to report psychological distress to prison mental health services than male inmates. Additionally, the number of mental health cases is often higher among women of color and those in lower socioeconomic classes. Sadly, while incarcerated, female inmates’ mental health often continues to deteriorate.

It should also be noted that, at the time this article is being written, there is great civil unrest spurred by racial inequality thought the country (and throughout the world in solidarity). According to statistics compiled by the Department of Justice and various criminal justice advocacy organizations, women of color are overrepresented among female inmates. African American women are twice as likely to be incarcerated as white women: 92 per 10,0000 versus 49 per 10,0000 (“Incarcerated Women and Girls,” The Sentencing Project, June 6, 2019; https://tinyurl.com/vbf9q5t).

Consider the case of Cyntoia Brown. Tried as an adult at 16 years of age and convicted of first-degree murder, first-degree felony murder, and aggravated robbery, she will spend more than half her life behind bars for killing a 43-year-old child predator and her “pimp” (Mallory Gafas and Tina Burnside, “Cyntoia Brown Is Granted Clemency after Serving 15 Years in Prison for Killing Man Who Bought Her for Sex,” CNN, January 8, 2019; https://tinyurl.com/yao7pgkr).

Thomia Hunter, after suffering years of beatings and abuse including being choked and having hot sauce poured in her eyes, received a life sentence for killing her ex-boyfriend (Cory Shaffer, “Kasich Grants Clemency to Cleveland Woman Who Killed Abusive Ex-Boyfriend,” Cleveland.com, January 9, 2019; https://tinyurl.com/yb755prg).

Or consider Theresa McIntyre Smith, a college-educated flight attendant divorced after 21 years of marriage and raising four daughters. Having no prior criminal record, Smith was arrested in 1999 at an airport after providing an airline “buddy pass” in lieu of payments to her hairstylist Roy Mercer—who unbeknownst to her was a drug dealer and used the airline pass for drug trafficking. For this first-time, non-violent offense, Smith was sentenced to a ten-year mandatory prison term (“Theresa McIntyre Smith,” The Sentencing Project; https://tinyurl.com/y7dpvfar).

The criminal justice system fails to acknowledge or understand the pathway to prison of women such as these, even amid an alarming increase in the rates of arrest and incarceration for women.

Pregnancy and Motherhood

Women face particular difficulties in prison that make their experience behind bars different from that of men. The foremost of these are pregnancy and motherhood.

It is difficult to believe that in 2020, many states still shackle nonviolent women offenders during labor and delivery. Despite a federal law that prohibits the shackling of expectant mothers, and even in states where anti-shackling laws have been put in place, this inhumane practice continues to occur all too often. A 2019 study suggests that 83 percent of pregnant inmates were shackled at some time during their pregnancy or the postpartum period (Lorie S. Goshin, et al., “Perinatal Nurses’ Experiences with and Knowledge of the Care of Incarcerated Women During Pregnancy and the Postpartum Period,” Journal of Obstetric, Gynecologic, and Neonatal Nursing, Vol. 4, No. 1, January 2019, at 27–36).

In 2017, Sophia Casias, in her third trimester of pregnancy, was placed in chains while being shuffled across the floor at the Bexar County Adult Detention Center in San Antonio, Texas. Casias was jailed for shoplifting to feed her heroin addiction. She was placed in chains one and a half years before the passage of the First Step Act in December 2018 (Lori Teresa Yearwood, “Pregnant and Shackled: Why Inmates Are Still Giving Birth Cuffed and Bound,” Economic Hardship Reporting Project, January 24, 2020; https://tinyurl.com/y6vaplob).

The First Step Act prohibits federal correctional authorities from shackling incarcerated women during pregnancy and for a period thereafter, with some exceptions. The Act also requires the Federal Bureau of Prisons to provide sanitary napkins and tampons at no charge. However, this federal legislation fails to protect women in state prisons and county jails—approximately 85 percent of the incarcerated women in America. Therefore, pregnant inmates are at the mercy of the guards to do as they please.

Eighty percent of women in jails are mothers. Moments after birth, most of the infants are immediately taken from their mothers, leaving little time for maternal bonding. Considering that mothers are most often the primary caretakers of their children, excessive incarceration—and the subsequent separation it causes—hurts innocent children the most, causing them to experience severe isolation and trauma. Furthermore, beause the criminal justice system disproportionately locks up people of color, children of color also disproportionately suffer.

Economic Inequality

This country’s gender-based pay gap also poses a unique problem for women behind bars. The gap between the wages of women of color when compared to those of white men can have especially onerous implications in the criminal justice system. Economically disadvantaged women of color have fewer resources to make bail, causing them to wind up behind bars for far too long, even for crimes they’ve only been charged with and often are not found guilty of.

According to the Prison Policy Initiative and the ACLU’s Smart Justice Campaign, 60 percent of women in jail have not been convicted of a crime and are awaiting trial (https://tinyurl.com/yxa6boo6). This means that poor people are automatically criminalized more often and for longer periods of time. This extra time in jail can lead to a seemingly never-ending downward financial spiral. Defendants can lose their jobs, along with access to benefits and even their housing. In short, incarcerating a woman who is poor will only make her poorer.

Incarcerating Women for Drug Offenses

Twenty-five percent of the women in state prisons are serving nonviolent convictions related to drugs. Strict penalties designed to combat the distribution of illegal drugs have done little to stop drug use, nor have they decreased the number of drug addicts sent to prison. These overly harsh penalties sweep up women experiencing challenges related to drug addiction into an ever-expanding criminal justice system rather than attempt to solve the drug addiction problem.

Luckily for some women between the ages of 18 and 25 serving time in the York Correctional Institution in Connecticut, there is a hope to overcome recidivism. The WORTH program (Women Overcoming Recidivism Through Hard Work) is a mentoring program that allows young women (mentees) to live with older women (mentors) who are also serving time. The mentors provide the mentees a version of parenting that many inmates lacked before entering into the criminal system. Counseling is also provided by the correctional officers. This program focuses on planning for a crime-free life after release. The participants learn basic life chores such as doing laundry and job interviewing. There are also programs available to inmates after being released to reduce the rate of reentry. Although these programs have proven successful, they tend to be expensive (especially the in-prison programs) and unfortunately are not widely available.

Life after the System

According to information obtained from the Bureau of Justice Statistics National Corrections Reporting Program and the Prison Policy Initiative, in 2016, approximately 81,000 women were released from prison and 1.8 million were released from jail (https://tinyurl.com/y7bbf8rh). Unfortunately, very little attention and very few resources have been directed to meeting the reentry needs of these women.

In a 2017 National Institute of Corrections report, Women InJustice: Gender and the Pathway to Jail in New York City (https://tinyurl.com/ycb2x2ra), the lack of stable housing and homelessness were identified as major problems of women releasees. In fact, 80 percent of women released from Rikers Island Correctional Facility needed help finding housing upon discharge. The lack of stable housing makes it difficult for women not only to find stable employment and obtain financial independence but also to regain custody of their children. The inability for newly paroled women to secure safe housing often results in returning to abusive relationships or family situations.

As illustrated above, most women have different pathways to incarceration than men do. Female prisoners have distinct needs, including but not limited to treatment of past trauma, drug and alcohol addictions, and mental disorders. These needs are often coupled with difficulty escaping poverty and meeting the needs of their children and families. According to the National Institute of Justice, 79 percent of women interviewed 30 days prior to their release date identified “employment, education, and life skills” services as their greatest area of need, followed closely by transition services (Marie Garcia with Nancy Ritter, “Improving Access to Services for Female Offenders Returning to the Community,” National Institute of Justice Journal, March 2012, No. 269; https://tinyurl.com/y7vqp36u).

Because of these differences, and to reduce the tribulations of incarceration and curtail the rate of recidivism, many prison systems have begun to implement gender-responsive policies and programs. Some of the highlights of these programs are to:

  • acknowledge that gender makes a difference;
  • provide women with opportunities to improve their socioeconomic conditions;
  • address substance abuse, trauma, and mental health issues;
  • create an environment based on safety, respect, and dignity; and
  • create programs to promote healthy connections to children, family, significant others, and the general community.

One successful gender-responsive programs is A New Way of Life Reentry Project, which operates eight houses in Los Angeles, California. Founded in 1998, this program focuses on providing multi-dimensional solutions to the effects of incarceration. Services include transitional housing, addiction counseling, career development, and pro bono legal aid to help former inmates restore their legal rights, including regaining custody of their children. Other multi-dimensional programs include the Center for Women in Transition in St. Louis, Missouri, and Angela House in Houston, Texas. It should be noted that Angela House, founded in 2020, also provides programming addressing the health and psychosocial needs of women recovering from sexual exploitation.

Life Sentences

Although women represent only 3 percent of the prisoners sentenced to life imprisonment, they are a growing segment of the lifer population (“Women and Girls Serving Life Sentences,” The Sentencing Project, July 3, 2019; https://tinyurl.com/yd24u843). Until society changes its view on mental illness and provides more education and programming to end domestic violence, the prospects for women entering the criminal justice system remain grim. We need to pay attention to the nuanced life experiences of women serving life sentences, as these experiences have shaped their behaviors as well as their prison experiences in different ways than those of men.

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Cynthia Thomas is the executive director of PLMC & Associates, a law firm management consulting firm, and the administrative manager of A to Z Law. She is the associate editor of Law Practice, the magazine of the ABA Law Practice Division, the co-chair of the Law Practice Division’s Lawyer Leadership and Management Committee, and a member of the GPSolo eReport and GLA ALA Magazine editorial boards.