This week, a U.S. House Judiciary subcommittee held a hearing on women in the criminal justice system. While women only make up 7 percent of the prison population, the incarceration rate for women has increased at twice the pace as the incarceration rate for men since 1980, disproportionately impacting women of color. The imprisonment of women has a ripple impact into the larger community both in terms of human and economic cost, especially when considering that two-thirds of women in state prison have children under the age of 18.
The Congress members in the room expressed bipartisan support for drafting policy aimed at preventing future incarceration of women and girls and restoring dignity to incarcerated and formerly incarcerated women.
“We have to do more to make sure women are not an afterthought as we work to reform our criminal justice system,” said Rep. Lucy McBath (D-Ga.).
In December 2018, the Trump administration signed the First Step Act into law — the most significant overhaul to the U.S. criminal justice system in decades. The First Step Act includes measures to increase job training, create opportunities for early release, reduce mandatory minimums for nonviolent drug offenders, and outlaw the shackling of pregnant women. However, the experts present at the hearing — including Piper Chapman, author of Orange Is The New Black, and Jesselyn McCurdy of the ACLU — believe the U.S. criminal justice system still needs more gender-specific policy change.
Witnesses identified trauma, addiction, and misguided sentencing policy as the often-overlapping causes of the increased incarceration of women in recent years. To help the members present understand the danger of conspiracy charges for women in relationships with criminally-involved partners, witness Cindy Shank told her own story of imprisonment for conspiracy drug charges years after her allegedly abusive partner, a drug trafficker, died. According to the witnesses, these conspiracy charges can create a scenario where a man who is intimately involved in the criminal activity can significantly shorten his sentence by becoming an informant. But the woman he is partnered to, who may know little to nothing about the mechanics of the drug trafficking and players involved, may actually receive a longer sentence because she has no helpful information with which to negotiate a shorter sentence.
While Shank eventually received clemency from then-President Barack Obama, she spent nine years separated from her three young children. She described to the members of Congress how her daughters would cry at the end of every long-distance phone call.
“Prison destroyed my small, young family,” Shank said.
Rep. Mucarsell Powell (D-Fla.) expressed sympathy and drew a parallel between U.S. immigration policy and criminal justice policy. “As a mother, it’s been tough to hear your testimony,” she said. “It’s tough enough to see that this administration is following family separation policies, and they’re doing the same in the criminal justice system.”
Kerman urged policymakers to shift away from punitive responses to crimes of addiction.
“If harsh punishment related to drug offenses worked, then we would not be where we are with addiction and drug abuse in this country,” she said. “There’s a certain point in time, decades in, when we have to say, ‘Regardless of what our punitive instincts are, the policies and approach we have used is not working in terms of the public health and safety concerns.’”
A New York program called JusticeHome focuses on treatment rather than punishment for women with felony convictions. According to Kerman, only 12 percent of clients who complete the program have gone on to commit future crimes. In partnership with prosecutors and judges, women are permitted to stay in their homes and seek support for whatever behavior or hurt catalyzed their criminal activity. Some women receive counseling for domestic violence, for instance, while others begin vocational training. The community services and accountability that JusticeHome provides cost an average of $45,000 less per client than incarceration.
“It saves the taxpayers money,” Kerman said. “And it saves those families the trauma of being torn apart by incarceration."
McCurdy supported the other witnesses’ suggestions for change, including granting judges more discretion during sentencing, rethinking pretrial detention and bail, restricting male guards access to female inmates while they are undressing, and developing opportunities for incarcerated mothers to connect with both their newborn children and family more broadly. However, she emphasized that all these ideas are just band-aid solutions until policymakers address the real root cause of incarceration for women and girls: trauma.
The overwhelming majority of incarcerated women and girls are survivors of sexual or domestic violence, and their criminal activity is often directly tied to this trauma: substance abuse as a form of escape, violence as a form of self-defense from an abusive partner.
“Until we have real gender-responsive programming that addresses the trauma that women have experienced … we’re kind of spinning our wheels at this,” McCurdy said.