The rise of women in prison: Fighting for equity in the criminal justice system

Image credit: Snuvina

Sens. Cory Booker (D-N.J.) and Elizabeth Warren (D-Mass.) introduced The Dignity for Incarcerated Women Act on Tuesday, July 10. The bill, which aims to take initial steps in reforming the U.S. criminal justice system, is uniquely targeted toward women behind bars. Which, naturally, means many men have been outraged over it the in succeeding days.

In 2016, activist and scholar Angela Davis attended the JHU Forums on Race in America, where she said, “We cannot simply call for [criminal justice] reform. We want an end to incarceration, period.”

Also in 2016, the “law and order” candidate himself, Donald J. Trump, glorified the idea of more incarceration, expressed a desire to throw Hillary Clinton in prison at their own debate, condemned the idea of clemency, and said, “I do think we can do a lot of privatization and private prisons. It seems to work a lot better.”

This is the divide that is the United States of America. What a time to be alive.

The Dignity for Incarcerated Women Act would certainly not be extreme enough for Davis and will likely never be signed into law thanks to extremists in Washington like Trump himself, but it does well to at least begin a discussion surrounding criminal justice and, dare I say it, sexism in the United States.

Incarcerate, incarcerate, incarcerate

“We are the incarceration nation,” Sen. Booker said when introducing the legislation. “We incarcerate more people than anywhere else on the planet Earth.”

Indeed, while the United States may be slipping on the list of wealthiest nations in the world, it is certainly holding strong on the most incarcerated list; and we’re talking per capita. But it’s not just about how many we’re incarcerating, it’s also about whom.

“America incarcerates more women than every other country in the world except Thailand,” Sen. Warren said.

Sen. Warren has built a political career out of using her voice as a tool to speak for under represented peoples.

And while Thailand was among the first countries in Asia to allow women the right to vote in 1932, they have remained underrepresented in Thai politics. Additionally, Thai people generally do not value women and see no place for them in society, depriving them of equal societal and economic status. Take into account the sex trafficking and un- or under-payment for work, and it’s clear to see that putting women’s rights in the United States toe-to-toe with women’s rights in Thailand is setting a pretty low bar.

According to The Sentencing Project, the number of incarcerated women in the United States increased by more than 700 percent between 1980 and 2014. Of course, we cannot have this discussion without noting that these incarcerated women are disproportionately WoC, with 109 per 100,000 black women facing prison compared to 53 per 100,000 white women. Overall, 30 percent of all the world’s incarcerated women are right here in the United States.

So instead of shouting platitudes like, “If you do the crime, you do the time,” may we should ask why this phenomenon is happening.

Eyes on the target

The statistical spike in women’s incarceration rates really started taking off around the 1980s. According a study by the U.S. Department of Justice titled, “Research on Women and Girls in the Justice System,” more women started finding themselves behind bars as laws changed that targeted women — specifically WoC.

In introducing The Dignity for Incarcerated Women Act, Sen. Warren stated, “86 percent of women in jail are victims of past sexual violence.” The circumstance of simply being a women existing in a rape culture, where men are rarely punished for their crimes against women, greatly increases your likelihood of spending time in prison.

The “story of women behind bars,” told by a man, of course.

Sociologist Beth Richie once defended that is it is impossible to understand crime without taking circumstance into account. Those circumstances are not limited to the inherent oppression women, specifically WoC , but expand to socioeconomic status and beyond.

Her 1999 paper, “Exploring the Link Between Violence Against Women’s Involvement in Illegal Activity,” looks at the link between gender abuse and criminal acts.

“While their absolute numbers are much smaller than those of their male counter-parts, the annual rate of increase is significantly higher for women,” Richie states. “On average, the female prison population grew more than 11 percent annually since 1985, while the male prison population grew 8 percent at the same time. This precipitous increase is tentatively attributed to a change in both arrest policies and crime patterns.”

The question remains: What was happening around and before the 1980s that encouraged the spike in incarceration? Obviously, women did not become inherently more vulnerable to criminal activities during that time. However, forces started entering the picture and molding both the criminal and judicial systems to further oppress women and PoC.

Hockey stick growth curve

The hockey stick graph is an infamous image in the conversation surrounding climate change, but a similar slope appears when we talk about the number of women incarcerated since the early 1900s. From 1910 until roughly 1970, the women’s incarceration rate in the United States was holding strong as around 20 per 100,000. In 1980, the upward statistical trend began and by 1990, the United States was already incarcerating over 60 women per 100,000 — triple the amount just 20 years prior. That number continued to rapidly grow over the years, reaching nearly 140 per 100,000 by the early 2000s.

Did women change or did the laws change to target women?

Richard Milhous Nixon served as president of the United States from Jan. 20, 1969 to Aug. 9, 1974. Nixon and his administration did a decent amount of work internationally and, much to everyone’s surprise, led the charge in establishing the U.S. Environmental Protection Agency, spurring a modern American environmental movement. However, the man is most known for two things: Watergate and the War on Drugs.

In a report from Harper’s Magazine, journalist Dan Baum catches up with John Ehrilchman, Nixon’s former domestic policy advisor.

“You want to know what this was really all about,” Ehrilchman told Baum. “The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”

Since the Nixon held the White House, the crime that has been most likely to land women in prison has been drug related crimes. In 2000, 40 percent of women’s criminal convictions leading to incarceration were for drug crimes.

The effects of the War on Drugs are still felt today, with nearly 200 per 100,000 black women ending up behind bars in the early 2000s, compared to less than 50 per 100,000 white women. Black women make but just 13 percent of the female populate, but account 30 percent of all incarcerated women in the United States.

The National Research Council put out “The Growth of Incarceration in the United States: Exploring Causes and Consequences” in 2014, where they state, “Incarceration rates have increased more rapidly for females than for males since the early 1970s. In 1972, the prison and jail incarceration rate for men was estimated to be 24 times higher than that for women. By 2010, men’s incarceration rate was about 11 times higher. Women’s incarceration rate had thus risen twice as rapidly as men’s in the period of growing incarceration rates.”

Crimes of survival

While the war on drugs continues to target women — specifically WoC — other underlying factors assist in the rise of women behind bars. Social and economic oppression often push women to commit crimes of survival, especially when children are involved.

“A majority of women prisoners are mothers, who must grapple with the burden of being separated from their children during incarceration,” claims the National Research Council. “In 2004, 62 percent of female state and federal inmates (compared with 51 percent of male inmates) were parents. Of those female inmates, 55 percent reported living with their minor children in the month before arrest, 42 percent in single-parent households; for male inmates who were parents, the corresponding figures were 36 and 17 percent.”

Aside from being mothers, the majority of women prisoners are also non-violent offenders. Often, women face sentencing for crimes committed out of desperation, not for the sake of committing crime, which could be said about men in the criminal justice system as well.

The Dignity for Incarcerated Women Act

Women’s prison systems have historically been under resourced and under served, offering less programming and worse treatment than their male counterparts receive. Women prisoners are much more likely to be targets of sexual abuse by staff, adding to the already sub-human environment that most women in prison exist in.

These jarring statistics sometimes even lead to bipartisan legislation such as the Prison Rape Elimination Act, where George W. Bush signed the relatively comprehensive federal law addressing sexual assault of prisoners into order on Sept. 4, 2003.

The Dignity for Incarcerated Women Act is just another cog on the wheel of criminal justice system reform. The bill demands that federal prisons provide free, quality sanitary napkins and tampons to female inmates. Access to tampons and pads is not just a sanitation issue, it also raises a health issue as women who cannot afford the high price of the product based on their cents an hour salary attempt to use other objects that could pose health risks. (The fact that tampons are not free outside of prison either and are additionally charged a luxury tax is another form of subtle sexism, but that conversation is for another time.)

It also bans shackling during pregnancy and placing pregnant women in solitary confinement. A final affect proposed by Sens. Booker and Warren includes keeping incarcerated women in prisons close to their families, allowing for a better family network to aid rehabilitation, including more visiting hours, physical interactions, and not charging for phone calls home.

Is this fair to male prisoners?

The proposed legislation is specifically for incarcerated women, which prompted [non-incarcerated] men to scream about demands of equality in treatment, reverse sexism (whatever that is), and the fact that menstruation is not a “sanitary” issue.

To understand if The Dignity for Incarcerated Women Act is fair and necessary, me must ask two overarching questions: Do we believe in biological sex? Do we see biological sex? What about when it comes to the prison system?

Feminist icon Chimamanda Ngozi Adichie recently came under fire for recognizing biological sex differences. She defended her initial statement by saying, “I think gender is about what we experience, gender is about how the world treats us, and I think a lot of the outrage and anger comes from the idea that in order to be inclusive, we sometimes have to deny difference. I think that because human difference for so long, in all its various forms, has been the root of so much oppression, sometimes there’s the impulse to say let’s deny the difference, as though by wishing away the difference we can then wish away the oppression.”

An article in the Independent recently noted the importance of recognizing biological sex as well, noting why differentiating the experience of having a biological female body is different than that of a biological male body.

“Every single human being on this planet exists because of the reproductive labor of female bodies. Around 830 women die every day due to preventable pregnancy complications,” the article reads. “The world is missing an estimated 90 to 100 million women due to the extermination of female — not feminine — infants. In such a situation, to boldly declare that you “see no sex difference” reveals both ignorance and privilege. We’re back to the idea that female people cannot be credible witnesses to their own lives.”

The second questions we must ask ourselves is: Do we believe in circumstance? Do we believe that circumstance is to be acknowledged in the criminal justice system or are all to be cast in the same light, regardless of sex, color, religion, sexual orientation, etc.?

If men in prison are of Jewish descent, they can qualify for kosher meals. Muslim inmates are allotted time for prayer. Violent prisoners are often kept separate from non-violent prisoners. We constantly make qualifying distinctions based on circumstance in other situations, so why can we not do the same based on biological sex?

If we believe in circumstantial treatment and biological sex, then The Dignity for Incarcerated Women Act actually represents a huge step toward equity for women in the criminal justice system. Not privilege, not special treatment; equity.

To men (and women) who believe this legislation is unfair to male prisoners, I ask: Is denying women tampons really unalloyed equity? Is allowing women to give birth outside of shackles really constituting differential treatment? Is acknowledging that men and women are, indeed, different and have different needs wrong? Do banal statements like, “If you did the crime, you do the time,” really cover the complexity and plurality of all of the people that exist in the criminal justice system?

I once covered a story for Philadelphia Gay News where then director of the Philadelphia Office of LGBT Affairs, Nellie Fitzpatrick, said, “I’ll be damned if I sit around and sacrifice progress for absolute perfection.” That quote also makes its way to the front of my brain when I start to contemplate social justice issues. The Dignity for Incarcerated Women Act is not perfect. We need complete reform of the criminal justice system. We need to put more money in education and program for youth so we can reduce the criminal population. We need to fight systemic racism that lands a disproportionate number of PoC behind bars. We need to restructure laws and finesse sentencing the in judicial system. We need to stop throwing people in jail for carrying a dime bag of weed and start persecuting the wealthy that embezzle billions of dollars that should be going toward the betterment of the country. But just like Fitzpatrick, I will be damned if I sit around and wait for all of that to happen before taking any initial steps. The Dignity for Incarcerated Women Act may be a small step for criminal justice reform, but it is a step; and you know how those small steps can sometimes lead to giant leaps.