Law & the Courts

Criminal-Justice Reform Should Take Women’s Needs into Account, Says New Report

A handcuffed woman at the Los Angeles County women’s hail in Lynwood, April 2013. (Reuters photo: Lucy Nicholson)
Locking them up is often not the best answer.

From 1970 to 2014, the number of women in jail in the United States increased almost 14-fold, says a new report from the Vera Institute and the MacArthur Foundation’s Safety + Justice Challenge. Think about that rate of increase for a moment. In 1970, there were 8,000 women in jail across the United States; in 2014, there were 110,000. In 1970, jails in three-fourths of counties across the country held zero women. In 2014, nearly every one of the 3,000 county and municipality-run correctional facilities across America housed women, with those in small counties (defined as those home to less than 250,000 people) seeing jailed females increase 31-fold. Meanwhile, over the same period of time, the general female population in the United States has not even doubled. Why are so many more women being admitted to and detained in county jails today than in the past?

Overlooked: Women and Jails in an Era of Reform” seeks to answer this question and offer policy proposals for curbing the growth of the number of jailed women, the fastest growing correctional population in the United States. The reasons it offers for the population’s growth are to be expected: the shift toward the “broken windows” policing of the 1990s that focused on low-level crimes, which women are more likely to commit, and the War on Drugs. But the report is unique in that it considers the particular challenges women in jail face — often overlooked since females make up only a fraction of the incarcerated population — and offers gender-specific solutions.

First, the report provides a portrait of women in jail, noting that over half of incarcerated women are held in jails, rather than state or federal prisons. Most of these women have not been convicted of a crime, but are being held pre-trial because they are considered a flight risk or a danger to the community or because they are unable to post bail; others are serving short sentences, waiting to be transferred to a prison, or have violated parole. The majority of these women — 82 percent — are in jail for nonviolent behavior, such as property offenses, drug offenses, and public-order offenses. Many are quite poor and come from difficult life circumstances. To name a few of these circumstances, 82 percent of these women have experienced drug or alcohol abuse/dependence in their lifetime; 86 percent have experienced sexual violence; 60 percent lacked full-time employment prior to arrest (compared with 40 percent of men); 30 percent received public assistance prior to arrest (compared with 8 percent of men); and 32 percent suffer from serious mental illness (compared with 14 percent of men).

Is it best for the community that women who have committed low-level, nonviolent crimes be detained in jail — or might their communities be better served by more creative solutions? The report makes the case for more creative solutions, noting that “as national crime rates have declined over the past two decades, law-enforcement agencies are more willing to explore approaches that help people who come into contact with the police get treatment or other services rather than a jail stay.” Some of the solutions the authors propose: courts’ increased use of release on recognizance, or “no-cost bail” that requires the defendant to pay bail only if she does not show up in court; problem-solving or restorative courts, which help keep defendants accountable while also treating core issues; diversion programs that treat needs related to substance abuse, trauma, and mental health; and moving away from prosecuting low-level crimes, such as simple drug possession. There are “opportunities at key points in the criminal-justice process,” the authors write, “to redirect women caught up in the justice system toward healthier, more stable, and productive lives in their communities.”

At first glance, an argument for gender-specific prison reform may seem unfair. Why should women in jail be treated differently from men? One reason is that women have higher rates of drug abuse and serious mental illness — conditions that need to be treated rather than criminalized; another is women’s roles as mothers. According to the report, 79 percent of women in jail are mothers, most of them single mothers and primary caregivers to their children. A mother’s incarceration affects children in a way that a father’s incarceration does not. When a father is incarcerated, a child typically retains one parent. But a mother’s jail sentence, even a short one, can quickly lead to permanent parent-child separation. According to one study in Illinois, incarcerated mothers are half as likely as other mothers to reunite with children placed in foster care; and under the Adoption and Safe Families Act of 1997, states are legally required to terminate the parental rights of children who have been in foster care for 15 of the last 22 months. When a mother is incarcerated, the effects are far-reaching.

Reducing the number of women in jail for low-level, nonviolent offenses is not only financially prudent; it will also likely be better for our communities, keeping more families intact and helping women get the treatment they need. As local and state governments and the federal government adopt criminal-justice reforms in the coming months and years, it is imperative that women in jail not be overlooked — because when incarcerated women are overlooked, so are their families.

— Madison V. Peace is the former assistant to the editor at National Review. She works in non-profit communications and recently finished a Robert Novak Journalism Fellowship project considering how incarceration affects families. She lives in New York City. 

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