Well-Intentioned Efforts at “Reform” Have Uniquely Hurt Incarcerated Women

For the first time, the landscape of female incarceration has been painted in detail. The Prison Policy Initiative’s “Whole Pie” analysis, focusing solely on the number of women who are held in different kinds of custody, highlights several important takeaways; as someone who spent more than six years incarcerated, I was struck by how even so-called “progressive” criminal justice policies may impact women adversely.

Michaelann Bewsee / Creative Commons

Women make up less than 10 percent of the entire correctional population. Approximately 219,000 women are in custody in the U.S. 96,000 of them are in jail. And almost half of those women—40 percent—are kept in the worst conditions and not allowed to move to better facilities. This is clearly a women’s issue: Only 24 percent of male inmates live in the same circumstances.

There are only six states where this isn’t happening: Alaska, Connecticut, Delaware, New Hampshire, Rhode Island and Hawaii. Those states have what’s called “unified” systems, which means women are never housed in jails, but rather held with sentenced prison inmates from the moment they enter custody.

To understand why this is a problem, one has to appreciate the difference between prisons and jails. Colloquially, we interchange the two terms, but significant differences exist between jail and prison—the main two being not length of stay or jurisdiction, but comfort and rehabilitative prospects. Far fewer jobs and educational opportunities are available to women in jail because of so-called “jail churn,” a term that refers to the approximately 11 million people who cycle in and out of jails in any given year.

It takes two years for the nation’s prison population to turn over once; in that same time, jail populations turn over 20 to 25 times. Traditionally, it was assumed that residents weren’t in jails long enough to make offering classes or activities worthwhile; as a result, jails are more violent, enable less contact with the outside and have far more suicides than prisons. Criminologist Daniel Fogel calls jails “the worst blight in American corrections.”

It’s hardly a wonder that jail, as opposed to prison, has criminogenic effects on people. A study from the Laura and John Arnold Foundation found that defendants held in jail for two to three days were almost 40 percent more likely to re-offend before trial than similarly situated defendants who were released within 24 hours of arrest. Yet we leave almost half of all incarcerated women in this milieu, even after they’re eligible to move to facilities that can better serve their needs.

The only time a woman wants to go to prison is when she’s in jail.

Aleks Katsjura, Legal Director and author of the Prison Policy Initiative study, guesses that leaving incarcerated women in jail when they are eligible for transfer to a prison might actually be an unintended consequence of some of the justice reform efforts to keep women out of custody. “It might be that women are getting shorter sentences and therefore not getting bumped out of jail into prison even after sentencing,” she told Ms. “That guess is based on the types of crimes women are convicted for as well as the large number of women on probation pointing to some other factors keeping women at the ‘lower rungs’ of the correctional ladder.”

This wouldn’t be the first time that policies intended to help justice involved people ended up hurting women. Between 1997 and 2007, the number of women on probation increased from 524,200 to 987,427—an 88 percent increase over the span of a decade. During that same time period, the percentage increase for male probationers was only 21 percent. (The number of women on probation now stands at almost 1.2 million.)

Growing numbers of women on probation could mean more courts are embracing leniency and choosing not to confine them—but the number of incarcerated women is growing, too, and at a rate much faster than that for any other group. Historically, women are also more likely to violate probation with a technical status offense (versus another crime), so this was almost a set-up for women to head back to confinement.

We’re putting more women under correctional control—even though we could be resolving minor charges with dispositions like unconditional discharges after treatment, which are just convictions with no formal punishment attached. Instead, we traded the least restrictive option for the less restrictive option, when it should have been the other way around.

It might even be worse for women in California prisons. When the Golden State depopulated its prisons pursuant to a court order from the Supreme Court in Brown v. Plata, the state released so many female prisoners that they had to close a facility to women in order to use it to relieve overcrowding amongst the male inmates. Initially, this was good for women—as almost 3,000 of them were allowed to serve the remainder of their sentences at home. The problem came when the remaining women got crammed into an existing facility to the point that it became more overcrowded than it had been prior to the order. Realignment, which was meant to be a boon for California inmates, ended up boomeranging on women in a bad way.

All of these policies are reform-minded. All of them were enacted with declarations in the hopes of de-carceration. They were not supposed to place women in worse stead than they started. But we need more than benign purpose to craft policy.

Since 2010, the United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders has recommended gender impact assessment of all new criminal justice policies. Those assessments are rarely done in the U.S., most likely because no one can even conceive of unanticipated adverse consequences for reform efforts—but they’re happening, and disproportionately they’re hurting women. We need to see how laws will affect this tiny, yet still too large, segment of prison populations—and we need to weigh that knowledge before we act.

Chandra Bozelko writes the award-winning blog Prison Diaries  She’s a 2018 “Leading with Conviction” Fellow with JustLeadership USA and a 2018 Pretrial Innovation Leader with the Pretrial Justice Institute. You can follow her on Twitter at @aprisondiary.

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