How the First Step Act can have Lasting Impacts on Women in The Criminal Justice System

Rexanah P. Wyse, Esq., New Leaders Council Maryland

Part seventeen of The New Leader series The Arc of Justice: Examining the Failures of the Criminal Justice System and the Hope of Progressive Reforms.

Close your eyes and think of someone serving time in prison. My guess is that you were thinking of a male inmate. Oftentimes male prisoners are the focus of criminal justice reform. However, women are the fastest growing population in prisons, which contributes to the United States having the highest rate of incarcerated women in the world. What is even more startling is that the number of children with a mother in prison has doubled since 1991.[1]

In an effort to address a few of the needs incarcerated women have, on December 21, 2018, the FIRST STEP Act was signed into law. This bipartisan legislation seeks to reduce recidivism among federal prisoners and represents one of the most pivotal criminal justice reforms of this generation. Alas, the FIRST STEP Act contains only two provisions that specifically targets issues unique to women that include: mandating that healthcare products, such as tampons and sanitary napkins, are provided free of charge and prohibiting restraints on women who are pregnant and who are in postpartum recovery. Additionally, this legislation only applies to those who are serving time in federal penitentiaries and does not affect those in state prisons and jails where the vast majority of incarcerated women are.

While the FIRST STEP Act is a noteworthy gesture, it is important to recognize the disparate treatment women of color often experience in receipt of services, especially black women. Even with the modest reforms included in the FIRST STEP Act, it is unlikely that implementation of this legislation will be applied equitably. Women of color are overrepresented in the criminal justice system, especially black women. To expect uniformprovision of healthcareservices for incarceratedblack women is to boldly ignore the harsher treatment black women experience due to stereotype and bias, which contributes to their heightened rate of incarceration as compared to their white counterparts. The reforms in the FIRST STEP Act are needed, but query as to whether the women who are in the most need of support will also benefit from the reforms.

Access to Healthcare Products

According to the U.S. Department of Justice (DOJ) Bureau of Justice Statistics (BJS), State and federal prisons had over 1.4 million incarcerated individuals in prison at the end of 2016, and women made up over 110,000 of the incarcerated population.[2] This represents an increase of 30 percent from 2001 with over 85,000 incarcerated women in state and federal prisons — a consistent upward trend. These women are mothers, sisters, aunts, and nieces — simply put, human beings. These incarcerated womenare entitled to dignified treatment.

This legislation’s mandate to provide incarcerated women healthcare products free of charge may not appear to be a big deal. However, this reform is a positive step in addressing an important healthcare need for incarcerated women. Typically, these healthcare products were not readily accessible to incarcerated women as these products, such as tampons, were required to be purchased at a cost between $4-$7.65 dollars. Now when you consider that incarcerated individuals earn a meager wage of 12¢ to 40¢ per hour of work according to the Federal Bureau of Prisons (BOP), it would be understandable to view payment for an important healthcare product as an unnecessary burdensome financial barrier.[3]Let that fact sink in; 40¢ is hardly enough to cover the cost of a single doughnut at Dunkin Donuts. With the FIRST STEP act moving this type of progressive reform forward for federal prisons, hopefully states and local jurisdictions will follow suit.

Prior to the passage of the FIRST STEP Act, in several BOP institutions, menstruating incarcerated women were required to ask permission from correctional staff to visit the health services department just to request extra tampons or sanitary napkins.[4] Requests for extra products were not always granted. When someone is bleeding profusely, the last thing that is helpful is to go through a chain of command to simply get a tool to contain the bleeding.

Advocacy groups have noted that this forced systemic control of access to healthcare products is dehumanizing to incarcerated women.[5] The Vera Institute of Justice — Safety and Justice Challenge Report explained that “the standard correctional procedures [does] not take into account the violence, control, trauma, and mental illness the majority of incarcerated women have experienced outside of incarceration and can perceive such treatment as invasive and thereby retriggering trauma in women who have suffered abuse.”[6]

Student Attorneys from the Bronfein Family Law Clinic of the University of Baltimore School of Law in partnership with the Reproductive Justice Inside (RJI) Coalition developed policy and advocated before the Maryland legislature, in 2018, in support of a bill that mandated Maryland facilities to have a supply of free menstrual healthcare products to meet the needs of incarcerated women.[7] Through the investigative work of the student attorneys and the Coalition, narratives from the incarcerated women illuminated the struggles of having their healthcare needs addressed. It was shared that some women would create makeshift sanitary napkins from bedsheets or choose to decline family visits because their uniforms were soaked in blood due to a lack of available menstrual healthcare products in the facilities.[8]Unfortunately for one woman, this makeshift product led to toxic shock syndrome and an emergency hysterectomy.[9]Thankfully, the State of Maryland demonstrated itself as a leader in addressing the healthcare needs of incarcerated women as the bill unanimously passed in April 2018.

In the 2018 U.S. Department of Justice, Office of the Inspector General’s (OIG) Report, OIG made clear that “any distribution method that tightly controls access to feminine hygiene products and requires inmates to request more from staff, with no guarantee that their requests will be granted, places an excessive burden on inmates.”[10]

When we consider the data of how such healthcare practices can disparately impact women of color, it is important to fully grasp the magnitude of its impact. In the Bureau of Justice Statistics 2018 report, the data illuminated that the imprisonment rate for black women (96 per 100,000 black women residents) was almost double the rate for white women (49 per 100,000 white women residents).[11]Further, among women ages 18 to 19, black women were 3.1 times more likely than white women, and 2.2 times more likely than Latina women to be imprisoned in 2016.[12]This demonstrates that black women, followed by Latina women, have a strong likelihood of being disproportionately affected by negative healthcare practices while incarcerated. With the passage of the FIRST STEP Act, let us have confidence that this law will enable incarcerated women to have equitable access to healthcare products with the dignity they deserve.

Pregnancy and Shackling

The FIRST STEPAct addressesanother need of women by prohibiting the use of restraints on women who are pregnant and who are in postpartum recovery. Pregnancy and childbirth causes a significant physical and emotional toll on women. Shackling women who are pregnant and immediately postpartum can have serious and unwarranted trauma to both mother and child.

The American College of Obstetricians and Gynecologists stated that shackling women puts the health of the mother and baby at risk.[13]While the FIRST STEP Act prohibits shackling, the exceptions to this prohibition are concerning due to the level of discretion provided to perceived authority figures, versus accounting for the needs of the incarcerated woman. Shackling is deemed appropriate if either a corrections official decides that 1) the woman is deemed a flight risk or 2)poses an immediate and serious threat of harm to herself or others; or if a healthcare professional determines that the use of restraints is appropriate for the medical safety of the prisoner.[14]This Act’s provision authorizing full discretion to a correctionsofficial or a healthcare professional is uniquely alarming for women of color. According to the Institute for Women’s Policy Research report on “The Status of Black Women”, black women experience disparities in health status, mortality, access to healthcare, and quality of care received. [15] When combining the disparity with the level of discretion enacted, this discretion-based provision is likely to have an adverse impact on women of color.

In this National Women’s Law Center post, the author illustrates that black women’s health concerns are often underestimated or otherwise dismissed when they seek medical treatment from a healthcare provider. Multiple factors can contribute to racial health disparities, including socioeconomic factors, lifestyle behaviors, social environment, and access to preventative healthcare services.[16]According to the Centers for Disease Control, for “African-Americans in the United States, health disparities can mean earlier deaths, decreased quality of life, loss of economic opportunities, and perceptions of injustice.”[17]For society, these disparities translate into less productivity, higher health-care costs, and social inequity.[18] A CDC study shows thatblack women are three times (3X) more likely to die from childbirth that white women.[19]The level of discretion authorized for a correctional official or healthcare service provider to have on shackling a pregnant or parenting mother could literally mean a matter of life-or-death for incarcerated women of color.

Implementing the FIRST STEP Act

Passing the FIRST STEP Act was just the beginning. Now it is imperative that this legislation is enforced and that leadership of the prison systems follow-up with implementation that ensures the healthcare provisions of the law better address the needs of women — particularly women of color.

Develop and Implement Best Practices
One provision of the FIRST STEP Act mandates the Director of Bureau of Prisons to develop guidelines for the prison system on shackling women and mandates that the guidelines are incorporated in training programs.[20] Developing guidelines, eliminating administrative barriers, and creating a climate that enables and empowers women to obtain free healthcare products, will help change the narrative for how incarcerated women are treated. Additionally, implementing oversight to ensure equitable distribution of menstrual healthcare products would go a long way in meeting the needs of these women.

Data and Research
More research needs to be conducted to gather current data trends on incarcerated women who are pregnant or parenting and the impact it may have on their children. With strengthened knowledge, begets strengthened policies to better serve the needs of women as well reduce the racial disparities faced by incarcerated women of color.

Educate Incarcerated Women on Resources
Currently BOP manages the Mothers and Infants Together (MINT) Program, a community residential program that aims to assist incarcerated women during the last two months of pregnancy. The incarcerated women are transferred to a Residential Reentry Center and remain there for up to three months after birth to bond with their children before returning to the prison facility to complete their sentence. The MINT Program is currently only available in Arizona, Florida, Illinois, Texas, and West Virginia.[21] While this program is a great resource to have, according to OIG’s report this program has been underutilized during the 2012–2016 period, with roughly a quarter of those eligible utilizing the program.[22]Educating incarcerated women and staffon the availability of the MINT Program willincrease the likelihood of pregnant and parenting women utilizing such services.

Training
The American College of Obstetricians and Gynecologists recommends providing further educational training to correctional and healthcare staff about issues specific to incarcerated pregnant and postpartum women and adolescents.[23]Training that incorporates thoughtful patient care and cultural proficiency in maternal healthcare when working with incarcerated women from all backgrounds would be useful. Staff members who work directly with incarcerated women as well as senior leadership should all be trained on the healthcare issues of providing free healthcare products to menstruating women and to avoid shackling women who are pregnant, birthing, and in postpartum recovery.

Effects on Youth with an Incarcerated Mother

According to a report by the U.S. Department of Health & Human Services (HHS), when a family member is incarcerated, this often “compounds other forms of disadvantage such as challenges associated with living in poverty.”[24] When a child’s primary caretaker is incarcerated, this increases the likelihood that child will have restricted economic resources, which often leads to household instability and trauma. According to the National Institute of Justice, the number of youth with lived experience of having their parent incarcerated ranges from 1.7 million to 2.7 million. From the HHS report, families of color are disproportionately impacted these circumstances, particularly African-American families.”[25]

Next Steps

While the FIRST STEP Act is a first step in identifying and correcting many of the healthcare needs of incarcerated women, it only applies to those held in federal prisons, with state and local prisons and jails implementing a patchwork of regulations and laws that affect women and families.

Find out whether your state or jurisdiction prevents incarcerated women from obtaining menstrual healthcare products for free and shackles pregnant women. If this is current practice in your state or local jurisdiction, contact your local legislature to address and prohibit these issues from continuing.

The FIRST STEP Act sets the foundational framework to reduce recidivism among federal prisoners. As more information is revealed about the needs of incarcerated women and the disparities black women face within the criminal justice system, let us keep our legislators accountable to ensure that the needs of our incarcerated neighbors are addressed appropriately.

Rexanah P. Wyse, Esq. is a former Maryland prosecutor dedicated to changing the narrative for vulnerable populations. Currently, Rexanah serves as a member of the Maryland Department of Juvenile Services State Advisory Board, Central American Resource Center (CARECEN DC) Board of Directors, University of Maryland-College of Behavioral and Social Sciences Alumni Chapter Board, and NLC Speaker’s Bureau. She is a proud NLC-Maryland 2018 alum, native Washingtonian, and Sierra Leonean-American.


[1]Elizabeth Swavola, Kristine Riley, and Ram Subramanian, Overlooked: Women and Jails in an Era of Reform, Vera Institute of Justice and The Safety and Justice Challenge (Aug. 1, 2016), retrieved from: http://www.safetyandjusticechallenge.org/resource/overlooked-women-jails-era-reform/

[2]E. Ann Carson, Ph.D., Prisoners in 2016,U.S. Department of Justice, Office of Justice Programs, Bureau of Statistics Bulletin (last updated August 7, 2018). Retrieved from: https://www.bjs.gov/content/pub/pdf/p16.pdf

[3]Federal Bureau of Prisons, Work Programs, Custody and Care. (last retrieved January 09, 2019) Retrieved from: https://www.bop.gov/inmates/custody_and_care/work_programs.jsp

[4]Id.

[5]Id.

[6]Elizabeth Swavola, Kristine Riley, and Ram Subramanian, Overlooked: Women and Jails in an Era of Reform, Vera Institute of Justice and The Safety and Justice Challenge (Aug. 1, 2016), retrieved from: http://www.safetyandjusticechallenge.org/resource/overlooked-women-jails-era-reform/

[7]Makeda Curbeam; Katherine Haladay; Alexis Holiday; and Alexis Sisolak, Bronfein Family Law Clinic Student-Attorneys Make Progress on Providing Dignity to Menstruating Inmates, UPDATES Blog by the University of Baltimore School of Law (December 10, 2018), retrieved from: https://ublawaccolades.wordpress.com/2018/12/10/bronfein-family-law-clinic-student-attorneys-make-progress-on-providing-dignity-to-menstruating-inmates/

[8]Professor Margaret Johnson, Progress on Providing Dignity to Menstruating Inmates, Human Rights at Home Blog, Law Professor Blogs Network, (December 9, 2018), Retrieved from: https://lawprofessors.typepad.com/human_rights/2018/12/progress-on-providing-dignity-to-menstruating-inmates.html?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+HumanRightsAtHome+%28Human+Rights+at+Home+Blog%29.

[9]Id.

[10]U.S. Department of Justice, Office of the Inspector General, Review of the Federal Bureau of Prisons’ Management of Its Female Inmate Population, Evaluation and Inspections Report 18–05 (September 2018) retrieved from: https://oig.justice.gov/reports/2018/e1805.pdf

[11]DOJ Bureau of Justice Statistics, Prisoners in 2016, Summary, (January 2018) retrieved from: https://www.bjs.gov/content/pub/pdf/p16_sum.pdf

[12]E. Ann Carson, Ph.D., Prisoners in 2016,U.S. Department of Justice, Office of Justice Programs, Bureau of Statistics Bulletin (last updated August 7, 2018). Retrieved from: https://www.bjs.gov/content/pub/pdf/p16.pdf

[13]The American College of Obstetrics and Gynecologists, Health Care for Pregnant and Postpartum Incarcerated Women and Adolescent Females,Committee on Healthcare for Underserved Women Opinion, Committee Opinion №511, (Reaffirmed 2016) retrieved from: https://www.acog.org/-/media/Committee-Opinions/Committee-on-Health-Care-for-Underserved-Women/co511.pdf?dmc=1&ts=20181127T2224345171

[14]115thCongress, FIRST STEP Act, (December 21, 2018), retrieved from: https://www.congress.gov/bill/115th-congress/senate-bill/756/text?q=%7B%22search%22%3A%5B%22first+step+act%22%5D%7D&r=5&s=1#toc-id55891034f20e48488f5c60f457cb6e27

[15]Institute for Women’s Policy Research, The Status of Black Women in the United States, (2017) retrieved from:

https://www.domesticworkers.org/sites/default/files/SOBW_report2017_compressed.pdf

[16]Center for Disease Control and Prevention, Health Disparities Experienced by Black or African Americans — — United States, Morbidity and Mortality Weekly Report (January14, 2005), retrieved from: https://www.cdc.gov/mmwr/preview/mmwrhtml/mm5401a1.htm.

[17]Id.

[18]Id.

[19]Center for Disease Control and Prevention, Pregnancy and Mortality Surveillance System, Reproductive Health (August 7, 2018) retrieved from: https://www.cdc.gov/reproductivehealth/maternalinfanthealth/pregnancy-mortality-surveillance-system.htm

[20]115thCongress, FIRST STEP Act, (December 21, 2018), retrieved from: https://www.congress.gov/bill/115th-congress/senate-bill/756/text?q=%7B%22search%22%3A%5B%22first+step+act%22%5D%7D&r=5&s=1#toc-id55891034f20e48488f5c60f457cb6e27

[21]Federal Bureau of Prisons, Female Offenders, Custody and Care. (last retrieved January 09, 2019) Retrieved from: https://www.bop.gov/inmates/custody_and_care/female_offenders.jsp

[22]U.S. Department of Justice, Office of the Inspector General, Review of the Federal Bureau of Prisons’ Management of Its Female Inmate Population, Evaluation and Inspections Report 18–05 (September 2018) retrieved from: https://oig.justice.gov/reports/2018/e1805.pdf

[23]The American College of Obstetrics and Gynecologists, Health Care for Pregnant and Postpartum Incarcerated Women and Adolescent Females,Committee on Healthcare for Underserved Women Opinion, Committee Opinion №511, (Reaffirmed 2016) retrieved from: https://www.acog.org/-/media/Committee-Opinions/Committee-on-Health-Care-for-Underserved-Women/co511.pdf?dmc=1&ts=20181127T2224345171

[24]U.S. Dept. of Health and Human Services, Office of the Assistant Secretary for Planning and Evaluation, Multi-Site Family Study on Incarceration, Parenting, and Partnering: Program Impacts Technical Report, (Oct. 06, 2017), retrieved from: https://aspe.hhs.gov/system/files/pdf/257881/MFSIPImpactReport.pdf

[25]U.S. Dept. of Health and Human Services, Office of the Assistant Secretary for Planning and Evaluation, Multi-Site Family Study on Incarceration, Parenting, and Partnering: Program Impacts Technical Report, (Oct. 06, 2017), retrieved from: https://aspe.hhs.gov/system/files/pdf/257881/MFSIPImpactReport.pdf