[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
WOMEN AND GIRLS IN THE CRIMINAL JUSTICE SYSTEM
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HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
JULY 16, 2019
__________
Serial No. 116-37
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via: http://judiciary.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
44-092 WASHINGTON : 2021
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COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chair
MARY GAY SCANLON, Pennsylvania, Vice-Chair
ZOE LOFGREN, California DOUG COLLINS, Georgia, Ranking
SHEILA JACKSON LEE, Texas Member
STEVE COHEN, Tennessee F. JAMES SENSENBRENNER, Jr.,
HENRY C. ``HANK'' JOHNSON, Jr., Wisconsin
Georgia STEVE CHABOT, Ohio
THEODORE E. DEUTCH, Florida LOUIE GOHMERT, Texas
KAREN BASS, California JIM JORDAN, Ohio
CEDRIC L. RICHMOND, Louisiana KEN BUCK, Colorado
HAKEEM S. JEFFRIES, New York JOHN RATCLIFFE, Texas
DAVID N. CICILLINE, Rhode Island MARTHA ROBY, Alabama
ERIC SWALWELL, California MATT GAETZ, Florida
TED LIEU, California MIKE JOHNSON, Louisiana
JAMIE RASKIN, Maryland ANDY BIGGS, Arizona
PRAMILA JAYAPAL, Washington TOM McCLINTOCK, California
VAL BUTLER DEMINGS, Florida DEBBIE LESKO, Arizona
J. LUIS CORREA, California GUY RESCHENTHALER, Pennsylvania
SYLVIA R. GARCIA, Texas BEN CLINE, Virginia
JOE NEGUSE, Colorado KELLY ARMSTRONG, North Dakota
LUCY McBATH, Georgia W. GREGORY STEUBE, Florida
GREG STANTON, Arizona
MADELEINE DEAN, Pennsylvania
DEBBIE MUCARSEL-POWELL, Florida
VERONICA ESCOBAR, Texas
PERRY APELBAUM, Majority Staff Director & Chief Counsel
BRENDAN BELAIR, Minority Staff Director
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SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY
KAREN BASS, California, Chair
VAL DEMINGS, Florida, Vice-Chair
SHEILA JACKSON LEE, Texas JOHN RATCLIFFE, Texas, Ranking
LUCY McBATH, Georgia Member
THEODORE E. DEUTCH, Florida F. JAMES SENSENBRENNER, Jr.,
CEDRIC RICHMOND, Louisiana Wisconsin
HAKEEM JEFFRIES, New York STEVE CHABOT, Ohio
DAVID N. CICILLINE, Rhode Island LOUIE GOHMERT, Texas
TED LIEU, California TOM MCCLINTOCK, California
MADELEINE DEAN, Pennsylvania DEBBIE LESKO, Arizona
DEBBIE MUCARSEL-POWELL, Florida GUY RESCHENTHALER, Pennsylvania
STEVEN COHEN, Tennessee BEN CLINE, Virgina
W. GREGORY STEUBE, Florida
JOE GRAUPENSPERGER, Chief Counsel
JASON CERVENAK, Minority Counsel
C O N T E N T S
July 16, 2019
Page
OPENING STATEMENTS
The Honorable Karen Bass, Chair of the Subcommittee on Crime,
Terrorism, and Homeland Security from the State of California.. 1
The Honorable John Ratcliffe, Ranking Member of the Subcommittee
on Crime, Terrorism, and Homeland Security from the State of
Texas.......................................................... 3
The Honorable Jerrold Nadler, Chairman of the Committee on the
Judiciary from the State of New York........................... 4
WITNESSES
Jesselyn McCurdy, Deputy Director, American Civil Liberties
Union, Washington, DC, Legislative Office
Oral Testimony................................................. 6
Prepared Statement............................................. 7
Cynthia Shank, Featured in HBO Documentary--The Sentence
Oral Testimony................................................. 20
Prepared Statement............................................. 21
Piper Kerman, Author, ``Orange Is the New Black''
Oral Testimony................................................. 22
Prepared Statement............................................. 24
Aleks Kajstura, Legal Director, Prison Policy Initiative
2Oral Testimony................................................ 29
Prepared Statement............................................. 32
Patrice Lee Onwuka, Senior Policy Analyst, Independent Women's
Forum
Oral Testimony................................................. 39
Prepared Statement............................................. 40
LETTER, MATERIAL, ARTICLES SUBMITTED FOR THE RECORD
Letter submitted by the Honorable Theodore Deutch, a Member of
the Subcommittee on Crime, Terrorism, and Homeland Security
from the State of Florida for the record....................... 64
Letter submitted by the Honorable Madeleine Dean, a Member of the
Subcommittee on Crime, Terrorism, and Homeland Security from
the State of Pennsylvania for the record....................... 76
APPENDIX
Testimony submitted by Prison Fellowship for the record.......... 86
WOMEN AND GIRLS IN THE CRIMINAL JUSTICE SYSTEM
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Tuesday, July 16, 2019
House of Representatives
Subcommittee on Crime, Terrorism, and Homeland Security
Committee on the Judiciary
Washington, DC
The Subcommittee met, pursuant to call, at 10:08 a.m., in
Room 2141, Rayburn House Office Building, Hon. Karen Bass
[chair of the subcommittee] presiding.
Present: Representatives Bass, Nadler, Jackson Lee,
Demings, McBath, Deutch, Richmond, Jeffries, Cicilline, Lieu,
Dean, Mucarsel-Powell, Cohen, Ratcliffe, Chabot, Steube, Lesko,
Reschen-thaler, McClintock, and Cline.
Staff Present: David Greengrass, Senior Counsel; Joe
Graupen-Sperger, Chief Counsel; Milagros Cisneros, Detailee;
Monalisa Dugue, Deputy Chief Counsel; Rachel Rossi, Counsel;
Veronica Eligan, Professional Staff Member; Anthony Valdez,
Intern; Michael Nevett, Intern; Jason Cervenak, Minority Senior
Counsel; Andrea Woodard, Minority Professional Staff Member;
and Erica Barker, Minority Clerk.
Ms. Bass. The Committee on Crime, Terrorism, and Homeland
Security will come to order. Without objection, the chair is
authorized to declare recesses of the Subcommittee at any time.
I welcome everyone to today's hearing on Women and Girls in
the Criminal Justice system. I now recognize myself for an
opening statement.
I am very pleased that this Subcommittee is holding this
hearing today. After decades of policies that led to mass
incarceration, we are finally at a point of examining the
policies and the consequences. What has been missing from the
discussion of criminal justice reform is the special and
specific impact the tough-on-crime era has had on women and
children.
Today's hearing begins a discussion about women in the
criminal justice system. It is critical that we understand how
and why women become involved in the system, what happens to
them when they are incarcerated, and what their trajectory is
once released. We need to examine the impact of the war on
drug-related policies, that specifically targeted women in
hopes of capturing men. What happens to families, and
especially children, when women are incarcerated? We need to
examine the special needs women have when they are
incarcerated, what is different? What are is different? What
happens to their children while they are in the system, and
when they are released?
For example, Federal law can lead to termination of
parental rights if the child of an incarcerated woman remains
in foster care beyond 18 months. Some States have even
shortened the timeline to 6 or 12 months. If a woman receives a
sentence of 5 years, why should she face losing her children
forever to adoption? Examining pregnancy while incarcerated is
the most obvious difference. Specifically, prisons and jails
are not designed or equipped to deal with the issues are of
pregnant women in custody.
I would like to recognize now Charlotte Cook. Wave your
hand, please. While in prison, she complained that she was
pregnant. The medical staff at the prison insisted that it was
just because she was fat and stressed out. After much
persistence, a blood test ruled that she was, in fact,
pregnant, although 6 weeks into her pregnancy without prenatal
care. She had complications, and her son was born a preemie at
4.5 pounds. Eighteen months later, he was diagnosed with severe
autism.
The health needs of women, regardless of pregnancy, is
different, and all women should have access to appropriate
medical care. That includes access to gynecological care and
not just during the child-bearing years. So, what is to be
done?
Through this hearing we will learn the common reasons why
women enter the criminal justice system. This testimony must
inform our next steps on sentencing reform. The testimony of
Ms. Kerman and Ms. Shank will help us determine whether it is
time it to revisit our overly broad drug conspiracy laws, which
tend to leave low-level offenders, commonly women, laden with
the responsibility for actions they did not commit, or
sometimes, didn't even know about.
We must also consider methods of reviewing extremely long
sentences, as the number of women serving life sentence is on
the rise. One out of every 15 women in prison, nearly 7,000, is
serving a life, or virtual life sentence. While 80 percent of
women in the criminal justice system are mothers, these life
sentences do not only affect the person incarcerated, but they
also affect the children who lose a parent.
Thus, the conversation of incarcerated women must include a
conversation about their children. The Urban Institute's
research shows that staying in touch promotes positive outcomes
for both the children and their parents, which often reduces
recidivism.
Communities must also be part of the conversation. Teachers
and staff should prioritize knowledge and sensitivity about
issues children of an incarcerated parent face. Schools should
spearhead efforts to meet the needs of children with
incarcerated loved ones, and offer resources or clubs targeted
towards students who have been affected by incarceration,
including support groups, counseling, extracurricular
activities, providing opportunities to process experiences
through poetry, writing arts and journaling.
Perhaps if we do this, we can reduce the statistic that 50
percent of children who have a parent incarcerated wind up
incarcerated later in life. Connections should be made with
community programs and local service providers that serve
families affected by incarceration for additional support.
Finally, we cannot ignore the conditions of women in prison
and the difficulties of their reentry back into communities
after release. I hope to explore how we can improve the
conditions of women incarcerated to ensure that their most
basic needs are met, including the needs of incarcerated
pregnant women. Any facility that incarcerates women must be
held to minimal standards of care. Today, women will no longer
be overlooked in the criminal justice conversation. We must
have an overall approach to criminal justice reform that
specifically considers women.
I look forward to hearing the testimony of our panel of
witnesses and the opportunity to discuss these issues. I now
recognize the Ranking Member, Hon. Mr. Ratcliffe.
Mr. Ratcliffe. Thank you, Chair Bass. Thanks to each of our
witnesses for being here today to discuss the impact of the
criminal justice system on women and girls. To do that, I think
it is crucial that we take a step back to first understand the
importance of the criminal justice system in the first place.
Law enforcement officers, men and women of all races and all
backgrounds put their lives on the line everyday all around
this country to protect our communities. They make these
extraordinary sacrifices to ensure that children are safe from
exploitation by sex offenders. They do that to keep women and
girls safe from domestic abusers. They make these sacrifices to
defend the weak and the vulnerable among us. Importantly, they
also do it to uphold the Rule of law.
We should all agree on these fundamental principles. As
Members of Congress, our role is to ensure that Lady Justice is
blind, and that bias has no place in our criminal justice
system. As my good friend and the former chair of this
subcommittee, Trey Gowdy, once said, we should strive for
criminal justice system that is not just respected by the
American people, but is worthy of their respect.
As a former prosecutor, my role was to be a zealous
advocate for the truth. And during that time, I encountered
crimes committed that were shocking to my conscience and
sickening to my soul. In those cases, enhanced sentences and
mandatory minimums were fair and they were just. Crimes
committed against children, the most innocent and the most
vulnerable Members of our society, should stick with us, they
should haunt us, and then they should spur us to take action.
Much of the debate here in Congress has been about criminal
justice reforms and the impact of mandatory minimums and how to
reduce recidivism. We should be vigilant in determining the
causes of increasing female incarceration rates in this
country. We should be open to addressing, in a bipartisan
fashion, the unique needs of women and girls in our criminal
justice system.
As Congress has debated criminal justice reform, many
States have acted as laboratories of democracy, creating
innovative ways to handle their unique challenges in providing
Congress with a view of what works and what doesn't work. We
can and we should learn from that.
Let us not forget that even some so-called nonviolent
offenses, there are victims too numerous to mention and
unfortunately too easy for us to ignore. Drug traffickers that
profit off the importation of deadly and illicit drugs, like
heroin, methamphetamines and Fentanyl in our communities leave
a trail of destruction in their wake. The race or gender of
drug traffickers does not matter. What matters is that their
victims come from all backgrounds and from all walks of life.
I yield back.
Ms. Bass. It is now my pleasure to recognize Chair of the
full Judiciary Committee, the gentleman from New York, Mr.
Nadler.
Chairman Nadler. I thank the Crime Subcommittee chair, our
colleague from California, Karen Bass, for holding this
important hearing on the special issues related to women and
girls in the criminal justice system. In recent years, there
has been a growing consensus that our Nation's criminal justice
system must be substantially reformed. One critical element of
this national conversation that has been largely absent,
however, is consideration of the unique experiences and needs
of women and girls in the system, and our responsibility could
develop creative ways to address those issues. It is
particularly urgent that we do so, because women are the
fastest growing segment of our Nation's incarcerated
population. While recent efforts at reforming the criminal
justice system are at least partly responsible the for slight
reductions in the rate of incarceration overall, the proportion
of incarcerated women is steadily rising. This disturbing trend
must be examined.
In addition, we still must consider whether the reforms
already instituted across the country are appropriately
designed to address the issues faced by women and girls in the
criminal justice system. These issues are numerous and diverse,
impacting all stages of the criminal justice system.
One such injustice, for example, is the so-called
girlfriend problem, where a woman in a relationship is held
responsible through conspiracy charges for the entirety of a
criminal scheme orchestrated by her partner, often involving
drug distribution, in which the woman had minimal involvement.
In such cases, the women may even receive a harsher sentence
than her relationship partner who had the real role, because
the more culpable partner is able to cut a deal for shorter
sentence based on divulging information to prosecutors. The
less culpable partner does it not have much of any useful
information to divulge because she doesn't know any, and thus
lacks the leverage to obtain a more favorable plea agreement.
Addressing this unfair situation is important because the
war on drugs appears to be a large driver of the incarceration
rates of women, as illustrated by the fact that the proportion
of women in prison for a drug offense has increased from 12
percent in 1986, to 25 percent in more recent years.
Another problem is the impact of pretrial custody on women.
Over 60 percent of women who are incarcerated have not even
been convicted of a crime, and yet, they are held in pretrial
custody in jail. This is particularly disturbing because many
of these women are the only providers for their children.
A recent survey revealed that more than 150,000 children
had a parent in jail, because the parent could not afford bail.
Not because the parent presented a particular risk to the
community or risk of not appearing at trial. That means
children are impacted by pretrial detention in startling
numbers. This problem is most often caused by pretrial
incarceration by sole provider mothers. Clearly, we must take
steps to address this crisis of vastly overused pretrial
custody.
We must also focus on unique inequities that women face
while incarcerated. As a result of Subcommittee Chair Bass'
leadership, Congress final passed legislation implementing
reforms at the Federal level, that ban shackling during
pregnancy and require the provision of feminine hygiene
products in Federal prison. These provisions were enacted last
year in the first setback with bipartisan support, including
the efforts of our current Ranking Member of the committee,
Doug Collins.
Much more must be done to improve the conditions for women
in Federal and State prisons and jails, and I hope this will
also be a bipartisan priority. As this Committee develop plans
to further reform our criminal justice system, it is clear that
our efforts must be informed by the unique issues faced by
women in that system. I appreciate the chair for holding this
important hearing, which will assist us in this process. I look
forward to hearing from our witnesses and I yield back the
balance of my time.
Ms. Bass. It is now my pleasure to introduce today's panel:
Ms. Jesselyn McCurdy is Deputy Director at the Washington
Legislative Office of the American Civil Liberties Union, where
she represents the ACLU before Congress and the executive
branch. She covers various criminal justice issues, including
Federal sentencing, prison reform, drug policy and capital
punishment. She previously served as the lead counsel with this
Subcommittee on the historic Fair Sentencing Act of 2010, which
lowered the 100-to-1 disparity between crack and powder
cocaine.
Ms. Cindy Shank is a mother of three beautiful children,
turned advocate for criminal justice reform following her time
in prison. Ms. Shank's 15-year sentence under drug conspiracy
laws was commuted by President Obama after she served 8 years
in prison. Ms. Shank was featured in the HBO documentary, ``The
Sentence.''
Ms. Piper Kerman, author of ``Orange is the New Black,''
which about the 13 months Piper served at the Federal
correction institution in Danbury, Connecticut. She is an
advocate who teaches writing classes at two State prisons in
Ohio, as an affiliate instructor with Oberlin University.
Ms. Aleks Kajstura is the legal director for the Prison
Policy Initiative and has played a central role in building
Prison Policy Initiative campaign against prison
gerrymandering, and led the organization's work on its second
major issue, sentencing enhancement zones.
Ms. Patrice Onwuka, a senior policy analyst at Independent
Women's forum. We welcome our witnesses and thank them for
participating in today's hearing. Please note that your written
statement will be entered into the record in its entirety.
Accordingly, I ask that you summarize your testimony in 5
minutes. To help you stay within that time, there is a timing
light on your table. When the light switches from green to
yellow, you will have 1 minute to conclude your testimony. When
the light turns red, it signals that your 5 minutes expired.
Before proceeding with testimony, I hereby remind each witness
that all your written and oral statements made to the
Subcommittee in connection with this hearing are subject to
penalties of perjury.
Ms. McCurdy.
TESTIMONY OF JESSELYN McCURDY
Ms. McCurdy. Thank you, Chairwoman Bass. The American Civil
Liberties Union would like to thank you and the Ranking Member
Ratcliffe for the opportunity to testify at today's hearing on
Women and Girls in the Criminal Justice System. Prison is a
woman's issue. Lost in the sobering statistics on this
country's prison population and the narrative surrounding mass
incarceration is the degree to which women are ensnared in the
criminal justice system.
Over the past 30 years, the number of incarcerated women
has grown exponentially. Again, women are the fastest growing
segment of the prison population, increasing by 700 percent
from 1980 to 2017, a rate twice that of men. Today, more than
200,000 women are incarcerated in jails and prisons across this
country. The majority of women in prison are incarcerated for
low-level offenses, most often property and drug-related
crimes. Even as the rate of incarceration for women has risen
dramatically in recent years, the percentage of women sentenced
for crimes involving violence has fallen.
Much of the growth in the women's prison population over
the past 30 years can be attributed to the war on drugs. From
1988 to 1999, the number of women in State facilities for drug
offenses grew by 888 percent. Drug and property offenses are
often fueled by conditions of poverty, addiction, and untreated
mental health issues, which is experienced by many women
cycling through the criminal justice system.
In addition to poverty, what often lands women in prison is
their history of physical and sexual abuse, high rates of HIV,
and substance abuse problems. When they participate in more
serious crimes, including serious drug crimes and robbery,
women are minor accomplices. When women commit homicide, they
often do so to protect themselves from men who have abused
them. Women of color are disproportionately represented in the
population incarcerated women. In 2014, Black women were more
than twice, and Latino women were 20 percent more likely than
White women to be incarcerated. Although the racial disparities
among incarcerated women have narrowed over the past 15 years,
the legacy of the disparity remains. Girls are more likely than
boys to be in the juvenile facilities, due to low-level status
offenses, or technical violations, and are far less likely to
be detained for violent offenses.
Women make up approximately 7 percent of the Federal prison
population. Almost 13,00 women compared to 1980 when there were
13,000 women in both State and Federal prisons combined. More
than 70 percent of the women sentenced in 2017 in the Federal
system were convicted of drug trafficking, fraud, or
immigration offenses.
In the same year, 68 percent of females sentenced had
little or no prior criminal history. Furthermore, women
frequently end up in Federal prison due to Federal drug
conspiracy laws. Too often, Federal drug conspiracy laws
disproportionately punish those who unwittingly and unknowingly
find themselves caught in the net of drug-related activity,
even in a peripheral role.
Women who are minimally involved in drug dealing but who
have partners or family Members involved in the drug trade can
be required to serve long sentences as a result of conspiracy.
Some of these relationships are abusive, or coercive, or leave
women vulnerable and with few options.
Women of color often find themselves subject to prosecution
based on relationships and associations, rather than their own
personal conduct. Adding to the burden of women behind bars is
the majority of women in prison are mothers. Since 1991, the
number of children with a mother in prison has grown 131
percent. The majority of these women are both custodial parents
and primary financial providers. Further, mothers behind bars
are five times more likely than men to report that their
children are in foster care or cared for by the State.
The very existence of parental relationships can be
endangered when a parent is incarcerated. Incarcerated parents
who have not abused or neglected their children are far
likelier to lose their parental rights permanently than a
nonincarcerated parent who has assaulted their child.
Women are the fastest growing population in the U.S.,
leaving far too many children and families without a mother,
despite the fact she is often their primary caregiver. Until we
recognize the unique circumstances, needs, and consequences
associated with women who come in contact with the criminal
legal system, we will never truly address this Nation's mass
incarceration problem.
Thank you.
[The statement of Ms. McCurdy follows:]
STATEMENT OF MS. McCURDY
Introduction\1\
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\1\ Special thanks to Lauren Kuhlik Equal Justice Works Fellow,
Sponsored by Crowell & Moring for drafting portions of this testimony.
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The American Civil Liberties Union (ACLU) would like to
thank Crime Subcommittee Chairwoman Karen Bass and Ranking
Member John Ratcliffe for the opportunity to testify before the
House Committee on the Judiciary's Subcommittee on Crime,
Terrorism, and Homeland Security during this hearing on Women
and Girls in the Criminal Justice System.
For nearly 100 years, the ACLU has been our nation's
guardian of liberty, working in courts, legislatures and
communities to defend and preserve the individual rights and
liberties that the Constitution and the law of the United
States guarantee to everyone in the country. With more than
four million Members, activists, and supporters, the ACLU is a
nationwide organization that fights tirelessly in all 50
states, Puerto Rico, and Washington, DC, for the principle that
every individual's rights must be protected equally under the
law, regardless of race, religion, gender, sexual orientation,
gender identity or expression, disability, national origin, or
record of arrest or conviction. The ACLU advances equality
through litigation and policy advocacy. The ACLU's priorities
include defending the rights of immigrants, advocating for
economic justice, and defending the housing rights of
vulnerable populations.
I. Trends Among Women in Prison
Prison is a women's issue.\2\ Lost in the sobering
statistics on the country's prison population and the narrative
surrounding mass incarceration is the degree to which women are
ensnared in the criminal justice system. Over the past thirty
years, the number of incarcerated women has grown
exponentially. Women are the fastest growing segment of the
prison population, increasing by 700% from 1980 to 2017--a rate
twice that of men.\3\ Recent statistics from the Federal Bureau
of Justice Statistics (BJS) indicate that, of the estimated 6.9
million persons under the supervision of adult correctional
systems at year-end 2013, 18%, or 1.2 million, were women.\4\
Today, more than 200,000 women are incarcerated in jails and
prisons nationwide.\5\ As of 2013, almost 60% of all women in
correctional facilities were between the ages of 18 and 39.\6\
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\2\ Prisoners are nearly always housed according to their sex as
assigned at birth. See Classification and Housing of Transgender
Inmates in American Prisons, 127 Harv. L. Rev. 1746, 1748 (2014).
``Women in prison'' refers to individuals housed in women's facilities,
who may include transgender men and other gender non-conforming people;
transgender women, who are often housed in male facilities, also face
similar obstacles in prison arising from their own trauma histories and
are equally entitled to appropriate gender-responsive programming.
\3\ The Sentencing Project, Incarcerated Women and Girls (updated
2019), available at https://www.sentencingproject.org/publications/
incarcerated-women-and-girls/ [hereinafter Incarcerated Women]. https:/
/www.sentencingproject.org/publications/incarcerated-women-and-girls/.
\4\ Lauren E. Glaze & Danielle Kaeble, Bureau of Justice
Statistics, Correctional Populations in the United States, 2013 1, 6
(2014), available at http://www.bjs.gov/content/pub/pdf/cpus13.pdf
[hereinafter BJS Statistics].
\5\ Aleks Kajstura, Prison Policy Initiative, Women's Mass
Incarceration: The Whole Pie 2018 (2018), available at https://
www.prisonpolicy.org/reports/pie2018women.html; E. Ann Carson, Bureau
of Justice Statistics, Prisoners in 2016 4 (2018), available at https:/
/www.bjs.gov/content/pub/pdf/p16.pdf; Zhen Zeng, Bureau of Justice
Statistics, Jail Inmates in 2016 9 (2018), available at https://
www.bjs.gov/content/pub/pdf/ji16.pdf.
\6\ E. Ann Carson, Bureau of Justice Statistics, Prisoners in 2013
8 (2014), available athttp://www.bjs.gov/content/pub/pdf/p13.pdf
[hereinafter Prisoners in 2013].
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The majority of women are incarcerated for low-level
offenses, most often property and drug-related crimes.\7\ Even
as the rate of imprisonment for women has risen dramatically in
recent years, the percentage of women sentenced for crimes
involving violence has fallen.\8\ Much of the growth in the
women's prison population over the past thirty years can be
attributed to the ``War on Drugs.'' From 1988 to 1999, the
number of women in State facilities for drug offenses grew by
888%.\9\ In New York for example, drug offenses accounted for
91% of the increase in the number of women sentenced to prison
between 1986 and 1995.\10\ This legacy has continued, and, at
the end of 2012, a higher percentage of incarcerated women than
men are serving time for drug offenses.\11\ Drug and property
offenses are often fueled by conditions of poverty, addiction,
and untreated mental health issues, which is experienced by
many of the women cycling through the criminal justice
system.\12\
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\7\ Id. at 15. In 2013, approximately 63% of women in prison were
incarcerated for non-violent offenses. Id.
\8\ In the late 1970s, the rate of imprisonment for women was 10
per 100,000 in the State prison system, 49% of whom were sentenced for
violent crimes. Natasha A. Frost et al., Institute on Women and
Criminal Justice, Hard Hit: The Growth in the Imprisonment of Women,
1977-2004 7, 10 (2006), available at http://csdp.org/research/
HardHitReport4.pdf [hereinafter Hard Hit]. By 2011, the imprisonment
rate had risen to 65 per 100,000; however, as of 2012, approximately
37% of women in State prisons were sentenced for violent crimes. See
Prisoners in 2013, supra note 5, at 6, 15.
\9\ Leonora Lapidus et al., Caught in the Net: The Impact of Drug
Policies on Women and Families 16 (2005), available at https://
www.aclu.org/sites/default/files/field_
document/asset_upload_file431_23513.pdf.
\10\ Hard Hit, supra note 6, at 24.
\11\ BJS Statistics, supra note 3, at 15.
\12\ ACLU of Pennsylvania, Reproductive Health Locked Up: An
Examination of Pennsylvania Jail Policies 2 (2012), available at http:/
/www.aclupa.org/download_file/view_inline/756/484/ [hereinafter
Reproductive Health Locked Up].
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Women are more likely than men to commit crimes because of
poverty. Women represent a disproportionate number of people
arrested for and convicted of property crimes such as fraud,
forgery, and embezzlement.\13\ When they participate in more
serious crimes, including serious drug crimes and robbery,
women are generally not principals of the crime, but rather are
minor accomplices.\14\ When women commit homicide, they often
do so to protect themselves from men who have abused them.\15\
Thus, a man and a woman convicted of the same crime and given
the same sentence may have been treated unequally by the
system. Women's sentences are often disproportionate to their
crimes and often do not take into consideration these
mitigating factors.\16\
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\13\ Federal Bureau of Investigations, Arrests by Sex, 2017 (2018),
available at https://ucr.fbi.gov/crime-in-the-u.s/2017/crime-in-the-
u.s.-2017/topic-pages/tables/table-42.
\14\ Darrell Steffensmeir & Emilie Allan, Gender and Crime-
Differences Between MAle and Female Offending Patterns (2002),
available at http://law.jrank.org/pages/1250/Gender-Crime-Differences-
between-male-female-offending-patterns.html; see also Myrna S. Raeder,
Gender-Related Issues in a Post-Booker Federal Guidelines World, 37
McGeorge L. Rev. 691, 726-31 (2006) (explaining the ``girlfriend
problem,'' which forces female romantic partners of male drug offenders
to decide between leaving those partners--and the security they
provide--and participating either actively or passively in their
crimes).
\15\ Meda Chesney-Lind, Women and the Criminal Justice System:
Gender Matters 3, available at https://www.gvsu.edu/cms4/asset/
903124DF-BD7F-3286-FE3330AA44F994DE/women_
and_the_criminal_justice_system_gender_matters.pdf#page=3.
\16\ See generally Raeder, supra note 119 (arguing that defense
counsel and judges should do more to take women's backgrounds into
consideration during sentencing).
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Women of color are disproportionately represented in the
population of incarcerated women. In 2014, Black women were
more than twice as likely as White women to be incarcerated and
Latina women were 20% more likely to be incarcerated than White
women.\17\ Although the racial disparity among incarcerated
women has narrowed in the past fifteen years--the rate of
incarceration for Black women in prison declined by 30% between
2000 and 2009--the legacy of disparity remains.\18\ Among women
ages 18-19, the results were particularly pronounced--Black
women were almost five times more likely than White women of
the same age to be incarcerated.\19\ Latina women were also
incarcerated at a disproportionate rate.\20\ Although Black
children make up only 14% of all youth under age 18, 34% of
girls incarcerated in youth facilities are Black; similarly,
Native American youth make up only 1% of all youth but
represent 3% of girls incarcerated in juvenile facilities.\21\
Girls are more likely than boys to be in juvenile facilities
due to low-level status offenses or technical violations and
are far less likely to be detained for violent offenses.\22\
---------------------------------------------------------------------------
\17\ Incarcerated Women, supra note 2, at 2.
\18\ See Marc Mauer, The Sentencing Project, The Changing Racial
Dynamics of Women's Incarceration 1 (2013), available at http://
sentencingproject.org/doc/publications/
rd_Changing%20Racial%20Dynamics%202013.pdf.
\19\ Id.
\20\ Id.
\21\ Wendy Sawyer, Prison Policy Initiative, Youth Confinement: The
Whole Pie (2018), available athttps://www.prisonpolicy.org/reports/
youth2018.html.
\22\ Offense Profile of Committed Residents by Sex and Race/
Ethnicity for United States, 2015, Office of Juvenile Justice and
Delinquency Protection (2014), https://www.ojjdp.gov/ojstatbb/ezacjrp/
asp/Offense_Committed.asp.
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II. Women in the Federal Prison
A. Mandatory Minimums and Federal Crimes
The Sentencing Reform Act of 1984 (SRA) is the framework
for the current federal sentencing system. In an effort to
increase uniformity and reduce sentencing disparity, the SRA
eliminated indeterminate sentencing (i.e., federal parole) and
established the U.S. Sentencing Commission (Sentencing
Commission) which led to the creation of the Federal Sentencing
Guidelines (Guidelines).\23\ In 1986, not long after the SRA
was enacted, the Anti-Drug Abuse Act (ADAA) established
mandatory minimum sentences for federal drug crimes.\24\ The
ADAA and other laws pass after 1986 included long sentences for
many drug offenses based on the drug type and quantity, not the
role the person played in a drug conspiracy.\25\
---------------------------------------------------------------------------
\23\ CCTF, Transforming Prisons, Restoring Lives: Final
Recommendations of the CCTF 5 (Jan. 2016), https://www.urban.org/sites/
default/files/publication/77101/2000589-Transforming-Prisons-Restoring-
Lives.pdf.
\24\ Id.
\25\ Id.
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There are only two options judges have to reduce mandatory
sentences for people convicted of drug crimes. These options
occur when:
An individual cooperates or provides substantial
assistance to prosecutors investigating related offense; or
A person qualifies for the ``safety valve.'' The five
part ``safety valve'' criteria is when an individual has: (1) No more
than one criminal history point; (2) not been involved in violence or
had a weapon; (3) not committed an offense involving serious bodily
injury or death; (4) not played a leadership role; and (5) fully and
truthful disclosed information.\26\
---------------------------------------------------------------------------
\26\ Id.
Furthermore, federal drug conspiracy laws result in long,
harsh sentences for people who are not involved in crimes
beyond their associations with intimate partners and family
Members. According to Sec. 21 U.S.C. 841 and 21 U.S.C. 846,
anyone who attempts or conspires to commit a drug offense will
be subject to the same penalties as those for the actual
offense.\27\ Too often, federal drug conspiracy laws
disproportionately punish those who unwittingly or unknowingly
find themselves caught in the net of drug-related activity,
even in a peripheral role. Women who are minimally involved in
drug dealing, but who have partners or family Members involved
in the drug trade can be required to serve long sentences as a
result of conspiracy laws. Some of these relationships are
abusive or coercive and leave women vulnerable and with few
options. Women of color often find themselves subject to
prosecution based on their relationships and associations
rather than their own personal conduct. Drug conspiracy laws
have contributed to the recent explosion of drug convictions
and incarceration rates for women in the federal system.
---------------------------------------------------------------------------
\27\ 21 U.S.C. 841 and 846.
---------------------------------------------------------------------------
One such story is that of Danielle Metz, a mother of two
who received a triple life plus 20 years sentence for her
involvement in her husband's cocaine distribution enterprise
which was her first offense.
``Danielle was the youngest of nine children raised in New
Orleans and became involved with a drug dealer named Glenn when
she was 18. She recalls that Glenn, then 30, promised to care
for her and her baby. She says that she knew he was involved in
drug distribution and that she was not initially involved in
his activities. They married after they had a daughter
together, Gleneisha.
Metz says her husband was very controlling and forbid her
from getting a job or leaving their home for more than an hour
at a time. According to Metz, he became physically and mentally
abusive after they married and made her feel subservient
because he paid the bills. She recalls that he later asked her
to ride with her aunt Angela, a petty drug dealer who had
become involved in Glenn's drug activities, to transport money
to Houston. Metz says she accompanied her aunt twice and
brought cocaine back to New Orleans on one of these occasions.
According to Metz, she also collected money from Western Union,
also at Glenn's request.
In 1990, they moved to Las Vegas, separating her from her
family. According to Metz, Glenn struck her, causing her nose
to gush with blood, while they were visiting her sister in Los
Angeles. While returning to Las Vegas, Metz planned her escape.
The next day, before boarding a flight to New Orleans, where
her family still lived, Metz says she called Glenn to tell him
where she had left the car and that she was leaving him. Two
months later, she was arrested and indicted for participating
in a drug conspiracy with her estranged husband.
Metz, then 26, was sentenced to three life without parole
sentences plus 20 years in 1993. It was her first conviction.
Metz was convicted largely on the basis of testimony from her
aunt Angela, who had earlier been arrested for an unrelated
drug charge and testified against Metz and her husband as part
of a plea deal. Metz says that she had no useful information
she could trade, the only way to win a sentence reduction under
federal mandatory sentencing.'' \28\
---------------------------------------------------------------------------
\28\ ACLU, A Living Death: Life without Parole for Nonviolent
Offenses 45 (Nov. 2013), https://www.aclu.org/report/living-death-life-
without-parole-nonviolent-offenses.
In 2016 after serving 23 years in federal prison, President
Barack Obama granted Metz clemency. At the age of 50, Metz
enrolled in school at Southern University of New Orleans and is
studying to become a social worker. She recently made the
dean's list with a 3.75 grade point average.
Women, like Danielle, make up approximately 7% of the
federal prison population.\29\ More than 70% of the women in
federal custody in 2017 were sentenced for drug trafficking
(37.2%), fraud (20.4%), or immigration (15.3%) offenses.\30\
60-eight percent (68.0%) of females sentenced to federal prison
had little or no prior criminal history and only 3% had serious
or significant criminal histories. Latina women made up 44% of
women convicted for drug trafficking while White women were 35%
and Black women made up almost 15%.\31\ Black and White women
each made up 37% of those sentenced for fraud, with Latina
women making up 20%. In 2017, almost 77% of females in the
federal system were sentenced to prison, but 15% received a
mandatory minimum sentence.\32\ However, the difference in the
length of sentence between those who received mandatory
sentences and those who did not is drastic. Women who were
sentenced to mandatory minimum sentences received an average of
75 months or over six years while those who did not were
sentenced to an average of 19 months or a little over a year
and a half.\33\
---------------------------------------------------------------------------
\29\ Inmate Gender, Federal Bureau of Prisons (July 6, 2019),
https://www.bop.gov/about/statistics/statistics_inmate_gender.jsp.
\30\ U.S. Sentencing Comm'n., Quick Facts: Women in the Federal
Offender Population 1 (2018), https://www.ussc.gov/sites/default/files/
pdf/research-and-publications/quick-facts/Female_Offenders_FY17.pdf.
\31\ Id.
\32\ Id.
\33\ Id.
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Today, there are almost 13,000 women\34\ in Bureau of
Prisons (BOP) facilities across the country compared to 1980,
when there were 13,000 women in both State and federal
prisons.\35\ Since that time, women in prison have increased by
twice the rate of men incarcerated.\36\ Unfortunately, in
addition to poverty, what often lands women in prison are their
histories of physical and sexual abuse, high rates of HIV, and
substance abuse problems.\37\ When women are incarcerated,
their children and families are also impacted. Others, in
particular, are an integral part of the family structure.
---------------------------------------------------------------------------
\34\ Trends in U.S. Corrections, The Sentencing Project at 4 (last
updated June 2019).
\35\ Id. at 4.
\36\ Id.
\37\ Id.
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B. Conditions of Confinement for Women in Federal Prison
In September of 2018, the U.S. Department of Justice (DOJ)
Office of Inspector General (OIG) released a report that
evaluated the Federal Bureau of Prisons (BOP) management of
women in the agency's custody entitled Review of the Federal
Bureau of Prisons' Management of Its Female Inmate
Population.\38\ OIG examined BOP's capacity and efforts to
address the unique needs of women in federal prisons through
the agency's policies, programs, and decisions from FY 2012
through FY 2016. The OIG evaluated how BOP's Women and Special
Populations Branch and other relevant offices implemented
pregnancy programs, gender-responsive trauma treatment and
policies related to physical searches of female inmates as well
as inmate access to feminine hygiene products. Finally, the OIG
reviewed BOP's decision to convert its Danbury, Connecticut low
security facility from a female to a male prison and how that
affected women who had been housed at Danbury.\39\
---------------------------------------------------------------------------
\38\ Review of the BOPs' Management of its Female Inmate
Population, Office of the Inspector Gen. (September 2018), https://
oig.justice.gov/reports/2018/e1805.pdf/.
\39\ Id. at 45 Appendix 1.
---------------------------------------------------------------------------
The OIG concluded that BOP had not been strategic in its
management of females in its custody. They remended that BOP
take supplemental steps to ensure that individual facilities
are meeting the needs of females. The report found instances
where BOP's programming and policies did not fully consider the
needs of women inmates, thus making it hard for women to take
advantage of important programs and supplies. The OIG concluded
that BOP was following Prison Rape Elimination Act (PREA)
standards and regulations, but the policies prohibiting cross
gender searches were carried out inefficiently. Lastly, they
determined the BOP's conversion of Danbury to a male prison had
negatively affected some females who had been housed at the
facility.
III. Burdens of Mothers in Behind Bars
The majority of women in prison are mothers. Since 1991,
the number of children with a mother in prison has grown
131%.\40\ In 2004, approximately 62% of women had minor
children.\41\ The majority of these women were both custodial
parents and primary financial providers. Mothers behind bars
are likely to have lived in single-parent households and the
overwhelming majority report that they were responsible for the
daily care of their children. Unlike males, incarcerated women
report that the other parent is not the caregiver for their
children while they are incarcerated. Instead, a grandmother or
other relative is the most likely caregiver for a woman's child
or children. Further, 11% of mothers behind bars--five times
more than men--report that their children are in foster care or
otherwise cared for by the state.\42\
---------------------------------------------------------------------------
\40\ Lauren E. Glaze & Laura M. Maruschak, Bureau of Justice
Statistics, Parents in Prison and Their Minor Children 2 (2010),
available at http://www.bjs.gov/content/pub/pdf/pptmc.pdf.
\41\ Id. at 3.
\42\ Id. at 5.
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Since women are more likely than men to be the primary or
sole caretaker of their children prior to incarceration,\43\
children and families are profoundly affected by the rising
numbers of women sent to prison.\44\ Between 1991 and 2007, the
number of children with a mother in prison more than
doubled.\45\ About 62% of women in State prisons, and 56% of
women in federal prison, have minor children.\46\ The very
existence of the parental relationship can be endangered when a
parent is incarcerated.\47\ Incarcerated parents who have not
been accused of neglect or abuse are far likelier to lose their
parental rights permanently than are non-incarcerated parents
who have assaulted their children. Thousands of parents in the
last decade have had their rights terminated solely on the
basis of their incarceration.\48\ In addition to the
devastating consequences of parental incarceration on families,
children's future prospects also dim; children with mothers in
custody are more likely to develop depression and anxiety, are
at heightened risk of future substance abuse problems, and are
more likely to become involved in the criminal justice
system.\49\
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\43\ In 2004, 64.2% of mothers in prison reported living with their
minor children in the month prior to arrest or just prior to
incarceration, compared to 46.5% of men. Further, 41.7% of mothers
reported they were single parents in the month prior to arrest or just
prior to incarceration. Nearly 11% of mothers in custody reported that
their children were currently in foster care, compared to 2.2% of men.
While 88.4% of men in prison reported their children were being cared
for by another parent, only 37% of women in prison reported the same.
Id. at 2, 4-5.
\44\ Violence Against Women, supra note 112, at para. 49; Dorothy
E. Roberts, Prison, Foster Care, and the Systemic Punishment of Black
Mothers, 59 UCLA L. Rev. 1474, 1479-83 (2012) (describing how the
increasing number of incarcerated Black mothers is destroying
``critical family and community ties'').
\45\ Glaze & Maruschak, supra note 129, at 2.
\46\ Id.
\47\ For an overview of how incarceration can lead to the
termination of parental rights--especially of mothers--see Eli Hager &
Anna Flagg, How Incarcerated Parents Are Losing Their Children Forever,
The Marshall Project (Dec. 2, 2018), https://
www.themarshallproject.org/2018/12/03/how-incarcerated-parents-are-
losing-their-children-forever (noting that incarcerated parents who
have never been accused of child neglect or abuse are more likely to
have their rights terminated than non-incarcerated parents who have
physically or sexually assaulted their children). See also Adoption and
Safe Families Act of 1997 (``ASFA''), Pub. L. No. 105-89, 111 Stat.
2115 (legislation incentivizing adoption of children in foster care in
the name of finding a permanent home) (codified in scattered sections
of title 42 of the United States Code); Deseriee A. Kennedy, Children,
Parents & the State: The Construction of A New Family Ideology, 26
Berkeley J. Gender L. & Just. 78, 104-7 (2011) (describing and
criticizing how ASFA in conjunction with State laws has increased
terminations of parental rights due to incarceration for more than 15
months); Violence Against Women, supra note 112, at para. 49 (noting
the danger of ASFA leading to termination of parental rights of mothers
who leave their children in foster care due to incarceration).
\48\ See Hager & Flagg, supra note 136.
\49\ Roberts, supra note 133, at 1481-2 (noting that ``[s]eparation
from imprisoned parents has serious psychological consequences for
children, including depression, anxiety, feelings of rejection, shame,
anger, guilt, and problems in school''); The Rebecca Project for Human
Rights & Nat'l. Women's Law Ctr., Mothers Behind Bars: A State-by-State
Report Card and Analysis of Federal Policies on Conditions of
Confinement for Pregnant and Parenting Women and the Effect on Their
Children 9, 12-13 (2010), available at https://www.nwlc.org/sites/
default/files/pdfs/mothersbehindbars2010.pdf (noting the prevalence of
``significant attachment disorders,'' substance abuse, sexual
promiscuity, and criminal behavior among children affected by maternal
incarceration).
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IV. Needs of Women in Prison
A. Differing Health Needs
Women in prison have medical and mental health histories
and needs that differ from the nonincarcerated population as
well as their male counterparts. Women in jails and prisons
have significantly higher rates of both chronic conditions
(which include cancer, diabetes, asthma and other conditions)
and infectious diseases (which include tuberculosis and
sexually transmitted infections) than do their male
counterparts.\50\ Prison itself can contribute to health
concerns; incarceration is directly linked to premature
mortality for women, but not for men.\51\ Additionally,
substance abuse issues and mental illness are more prevalent
among incarcerated women. A staggering proportion of
incarcerated women suffer from mental health problems. In
federal facilities, more than 40% more women than men have been
diagnosed with mental health conditions.\52\ Much higher
numbers of women in State prisons and local jails are reported
to suffer from mental health problems than similarly situated
men.\53\ Women also report past physical or sexual abuse, as
well as other traumas, at a higher rate than their male
counterparts.\54\ In one BJS study, for example, 57% of women
in State prison facilities, as compared with 16% of men,
reported having been abused prior to admission.\55\ These
numbers might be significant underestimates; for example, the
Federal Bureau of Prisons (BOP) relies on estimates that
upwards of 90% of women entering prison have experienced
trauma, most often sexual abuse.\56\
---------------------------------------------------------------------------
\50\ Laura M. Maruschak, et al., Bureau of Justice Statistics,
Medical Problems of State and Federal Prisoners and Jail Inmates, 2011-
12 5 (2015), available at https://www.bjs.gov/content/pub/pdf/
mpsfpji1112.pdf#page=5. However, women in prison are no longer more
likely to be diagnosed with HIV than men in prison. Laura M. Maruschak
& Jennifer Bronson, Bureau of Justice Statistics, HIV in Prisons,
2015--Statistical Tables 4 (2017), available at https://www.bjs.gov/
content/pub/pdf/hivp15st.pdf.
\51\ Michael Massoglia, et al., The relationship between
incarceration and premature adult mortality: Gender specific evidence,
46 Social Science Research 142, 150 (2014), available at https://
www.ncbi.nlm.nih.gov/pmc/articles/PMC6123019/ (finding that, after
controlling for all known factors that could impact the outcome,
incarceration led to increased risk of death for women; for men,
socioeconomic factors explained the difference in premature mortality
between those who had and had not been incarcerated).
\52\ Doris J. James & Lauren E. Glaze, Bureau of Justice
Statistics, Mental Health Problems of Prison and Jail Inmates 1, 4
(2006), available at http://www.bjs.gov/content/pub/pdf/mhppji.pdf.
\53\ Id.
\54\ Caroline Wolf Harlow, Bureau of Justice Statistics, Prior
Abuse Reported by Inmates and Probationers 1 (1999), available at
http://www.bjs.gov/content/pub/pdf/parip.pdf.
\55\ Id. Additionally, in federal prisons, 39.9% of women reported
past abuse, compared to 7.2% of men. In jails, 47.6% of women reported
past abuse, compared to 12.9% of men. More than a third of women in
State prisons or local jails reported being physically or sexually
abused before the age of eighteen. Id.
\56\ Office of the Inspector General, U.S. Department of Justice,
Review of the Federal Bureau of Prisons' Management of Its Female
Inmate Population 6 (2018), available at https://oig.justice.gov/
reports/2018/e1805.pdf [hereinafter OIG Report].
---------------------------------------------------------------------------
Because the great majority of people in prisons have always
been men, corrections health care policies were created with
the needs of men at the forefront, without regard for women's
unique health needs. Despite the constitutional mandates of
Estelle v. Gamble, which requires prisons to provide adequate
medical care to the people in their custody,\57\ widespread
deficiencies in appropriate healthcare standards for females
continue to exist. These deficiencies are cast in no sharper
relief than in the context of reproductive health care policies
and practices for women in prison. Particularly given the
demographic composition of incarcerated women,\58\ reproductive
health care is one vital component in the provision of adequate
access to health care for women in prison. In many core areas,
the reproductive health services rendered to pregnant women are
abysmally inadequate. Lawmakers and correctional facilities can
ill-afford to continue to ignore the reproductive health care
rights of incarcerated women. The public and our leaders must
raise our voices to demand these critical rights for all.
---------------------------------------------------------------------------
\57\ Estelle v. Gamble, 429 U.S. 97, 103 (1976).
\58\ See Prisoners in 2013, supra note 5 and accompanying text.
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B. Prenatal Care
Approximately between four and five percent of women
admitted into prisons and jails are pregnant at intake, though
data on the actual number of pregnant women in prisons and
jails remains elusive.\59\ As the number of incarcerated women
increases, correctional institutions must increasingly face the
task of caring for pregnant women in jails and prisons. They
are increasingly responsible for providing prenatal medical
treatment, caring for women who give birth behind bars, serving
the needs of mothers and their children, and providing access
to abortions for those who wish to terminate their pregnancies.
Corrections facilities have repeatedly shown that they are
either unable or unwilling to provide the level of care
necessary to ensure the health and safety of pregnant women who
are incarcerated.
---------------------------------------------------------------------------
\59\ Bureau of Justice Assistance, Best Practices in the Use of
Restraints With Pregnant Women and Girls Under Correctional Custody 3
(2014), available at https://www.nasmhpd.org/sites/default/files/
Best_Practices_Use_of_Restraints_Pregnant(2).pdf [hereinafter BJA Best
Practices]; see also Victoria Law, Pregnant and Behind Bars: How the US
Prison System Abuses Mothers-to-Be, The Guardian (Oct. 20, 2015),
http://www. theguardian.com/us-news/2015/oct/20/pregnant-women-prison-
system-abuse-medical-neglect?
CMP=share_btn_tw.
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Little formal data exists about the quality of medical care
provided to pregnant females.\60\ However, what reports do
exist tend to indicate that prenatal care is lacking or
completely absent in many cases.\61\ Lack of access to prenatal
care is especially dangerous because most women have high-risk
pregnancies and need special care to keep them and their
children safe during and after pregnancy.\62\
---------------------------------------------------------------------------
\60\ See Law, supra note 27; The Rebecca Project for Human Rights &
National Women's Law Center, Mother's Behind Bars 8 (2010), available
at https://www.nwlc.org/sites/
default/files/pdfs/mothersbehindbars2010.pdf#page=8 (describing lack of
formal policies related to prenatal care across the country).
\61\ Barbara A. Hotelling, Perinatal Needs of Pregnant,
Incarcerated Women, 17 J. of Perinatal Educ. 37, 37-42 (2008),
available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2409166/pdf/
JPE170037.pdf.
\62\ Id.
One example is a former inmate at Wichita County Jail in
Wichita Falls, Texas, who brought suit against jail officials
and staff in May 2014 after she was forced to give birth in a
prison cell, ultimately resulting in the loss of her baby.\63\
Nicole Guerrero was eight-and-a-half months pregnant when she
was admitted to the jail. According to her complaint, several
days later, Ms. Guerrero began experiencing lower back pain,
cramping, and vaginal discharge and bleeding. Over the course
of several hours, Ms. Guerrero experienced excruciating pain
while her repeated requests for help and medical attention were
ignored. Ms. Guerrero went into labor while locked in a cell.
She was aided by detention officers only in the final stages of
her delivery, and even then, no medical personnel assisted her.
The baby's umbilical cord was wrapped around her neck, and she
was dark purple in appearance and unresponsive. The detention
officer assisting Ms. Guerrero made no attempt to revive the
baby while awaiting emergency services. Her baby was pronounced
dead later that morning.\64\ Ms. Guerrero's lawsuit has since
been settled.\65\
---------------------------------------------------------------------------
\63\ See Complaint at 4-8, Guerrero v. Wichita Cty., No. 14-00058
(N.D. Tex. May 21, 2014).
\64\ See id.
\65\ County Commissioners Approve Settlement in Nicole Guerrero v.
Wichita County, Texomas (Dec. 7, 2015), https://
www.texomashomepage.com/news/local-news/county-commissioners-
approve-settlement-in-nicole-guerrero-vs-wichita-county/290456878.
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C. Shackling Pregnant Women
In addition to failing to provide necessary care, prisons
may also actively harm pregnant people by shackling them.
Shackling pregnant women is a dangerous and inhumane practice
and widely regarded as an assault on human dignity, as well as
an unsafe medical practice. Although significant progress has
been made to prohibit this practice in federal prisons, women
in prisons across the country are still routinely shackled
during pregnancy and childbirth.
Shackling poses an unacceptable risk to the health of the
pregnant woman. Freedom from physical restraints is especially
critical during labor, delivery, and during postpartum
recovery. Women often need to move around during labor,
delivery and recovery, including moving their legs as part of
the birthing process. Restraints on a pregnant woman can
interfere with the medical staff's ability to appropriately
assist in childbirth or to conduct sudden emergency
procedures.\66\ Because shackling limits the ability of a woman
to move during labor, she is left unable to adequately shift
positions to manage the extreme pains of labor and childbirth.
This limitation of movement during pregnancy and labor can also
increase the risk of blood clots.\67\ Leg restraints may also
cause severe cuts on women's ankles because of the strains
associated with childbirth.\68\ Using restraints after delivery
may prevent mothers from effectively healing.\69\
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\66\ American College of Obstetricians and Gynecologists, Health
Care for Pregnant and Postpartum Incarcerated Women and Adolescent
Females 2-3 (2011), available at http://www.acog.org/-/media/Committee-
Opinions/Committee-on-Health-Care-for-Underserved-Women/
co511.pdf?dmc=1&ts=20151027T1653481414 [hereinafter ACOG, Health Care
for Incarcerated Women].
\67\ Id. at 3.
\68\ Dana L. Sichel, Giving Birth in Shackles: A Constitutional and
Human Rights Violation, 16 Am. U. J. Gender Soc. Pol'y. & L. 223, 225
(2007).
\69\ Dana Sussman, Bound by Injustice: Challenging the Use of
Shackles on Incarcerated Pregnant Women, 15 Cardozo J.L. & Gender 477,
487 (2009).
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Additionally, during all stages of pregnancy, shackling
poses an unacceptable risk to the health and safety of the
fetus and the life of a child. Pregnancy can create problems
with balance that are exacerbated by shackling. Falls can
injure not only the mother, but also the fetus.\70\ When
restraints are used during labor, doctors are limited in how
they can manipulate a mother for the safety of the unborn
child. During the final stages of labor it is important for the
physician to Act quickly to avoid potentially life-threatening
emergencies for both the mother and the unborn child. Shackles
severely limit such actions and as such pose a threat to the
survival of the fetus. Doctors may not be able to perform
emergency caesarean sections in time due to shackles.\71\
---------------------------------------------------------------------------
\70\ Julie B. Ehrlich & Lynn M. Paltrow, Jailing Pregnant Women
Raises Health Risks, Women's Enews (Sept. 20, 2006), https://
womensenews.org/2006/09/jailing-pregnant-women-raises-health-risks/.
\71\ Sussman, supra note 47, at 487.
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Among the states that have restricted shackling of pregnant
females, none have documented instances of women in labor
escaping or causing harm to themselves, the public, security
guards, or medical staff. In most instances, armed corrections
officers accompany shackled women into or around the delivery
room. These officers can ensure the safety of the physicians,
mothers and the newborn without the use of shackling
restraints.\72\ Currently, twenty-two states--Arizona,
California, Colorado, Delaware, Florida, Hawaii, Idaho,
Illinois, Louisiana, Maine, Maryland, Massachusetts, Minnesota,
Nevada, New Mexico, New York, Pennsylvania, Rhode Island,
Texas, Vermont, Washington and West Virginia and the District
of Columbia, have laws prohibiting or restricting shackling
pregnant women.\73\ The Federal Government has also codified a
long-standing ban on shackling pregnant females in federal
custody with the just enacted First Step Act.\74\
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\72\ See Chris DiNardo, Pregnancy in Confinement, Anti-Shackling
Laws and the ``Extraordinary Circumstances'' Loophole, Duke J. L. &
Gender Pol'y. 271, 281 (2018).
\73\ See ARiz. Rev. Stat. Sec. 31-601; Cal. Penal Code Sec. Sec.
3407, 3423; Colo. Rev. Stat. Ann. Sec. Sec. 17-1-113.7, 17-26-1104.7,
19-2-924.7, 26-1-137; Del. Code Ann. Tit. 11, Sec. 6603; Fla. Stat.
Sec. 944.241; Haw. Rev. Stat. Sec. 353-122; Idaho Code Ann. Sec. 20-
902; 55 Ill. Comp. Stat. 5/3-15003.6; 730 Ill. Comp. Stat. Ann. 125/
17.5; La. Rev. Stat. Ann. Sec. Sec. 15:744.2-744.7; Me. Rev. Stat.
Ann. tit. 30-a, Sec. Sec. 1581-83; Md. Code Ann., Corr. Servs. Sec.
9-601; Mass. Gen. Laws Ch. 127, Sec. 118, as amended by 2014 Mass.
Acts Ch. 103; Minn. Stat. Sec. 241.87-.88; Nev. Rev. Stat. Ann. Sec.
209.376; N.M. Stat. Ann. Sec. 33-1-4.2; N.Y. Correct. Law Sec. 611;
61 Pa. Cons. Stat. Ann. Sec. 5905; R.I. Gen. Laws Sec. 42-56.3-3;
Tex. Gov't. Code Ann. Sec. 501.066; Tex. Loc. Gov't. Code Ann. Sec.
361.082; Vt. Stat. Ann. Tit. 28, Sec. 801a; Wash. Rev. Code Sec. Sec.
72.09.651, 70.48.500; W. Va. Code Sec. Sec. 31-20-30a, 25-1-6.
\74\ First Step Act, H.R. 5682, 115th Cong. Sec. 301 (2018).
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D. Solitary Confinement
Women may also disproportionately be placed in solitary
confinement, especially pregnant women,\75\ individuals with
mental illness,\76\ transgender women and other sexual
minorities,\77\ and--in a particularly disturbing trend--
victims of sexual assault by prison guards.\78\ Women of color,
especially Black women, are held in solitary confinement at
rates far exceeding their White counterparts.\79\ Women are
also more likely than men to receive disciplinary actions for
minor, nonviolent infractions like ``disobedience'' and also
more likely to be placed into solitary confinement as
punishment for such minor infractions.\80\
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\75\ See, e.g., Reassessing Solitary Confinement: Hearing Before
the Senate Judiciary Committee's Subcommittee on the Constitution,
Civil Rights and Human Rights, 2011-12 Leg. Session 4 (N.Y. 2012)
(statement of Correctional Association of New York) available at http:/
/www.correctionalassociation.org/wp-content/uploads/2012/10/testimony-
solitary-confinement-june-2012.pdf (describing challenges pregnant
women in isolation can face in trying to access medical care);
Complaint at 9, Seitz v. Allegheny Cty., No. 16-1879 (W.D. Pa. Dec. 19,
2016), available at https://www.aclupa.org/download--file/view--inline/
2943/1055.
\76\ See, e.g., James Ridgeway & Jean Casella, Locking Down The
Mentally Ill: Solitary Confinement Cells Have Become America's New
Asylums, The Crime Rep., Feb. 18, 2010, available at http://
www.thecrimereport.org/news/inside-criminal-justice/locking-down-the-
mentally-ill; Mary Beth Pfeiffer, Crazy in America: The Hidden Tragedy
of Our Criminalized Mentally Ill 42-49 (2007); Jennifer R. Wynn, et
al., Correctional Ass'n. of New York, Mental Health in the House of
Corrections: A Study of Mental Health Care in New York State Prisons 48
(2004). In some places, mentally ill women awaiting trial in jail may
be transferred to solitary confinement at a State prison indefinitely
because the cost of treating them at the jail is too high. Allen Arthur
& Dave Boucher, Too Sick For Jail--But Not for Solitary, The Marshall
Project (Feb. 15, 2018), https://www.themarshallproject.org/2018/02/15/
too-sick-for-jail-but-not-for-solitary.
\77\ Gay and bisexual prisoners, both male and female, are far more
likely to have experienced solitary confinement than their cisgender
straight counterparts. Ilan H. Meyer, et al., Incarceration Rates and
Traits of Sexual Minorities in the United States: National Inmate
Survey, 2011-2012 4 (2017), available at https://
williamsinstitute.law.ucla.edu/wp-content/uploads/
Meyer_Final_Proofs.LGB_.In_.pdf#page=4.
\78\ Kim Shayo Buchanan, Impunity: Sexual Abuse in Women's Prisons,
42 Harv. Civ. RTS--Civ. Librs. L. Rev. 45, 66 (2007) (describing sexual
abuse of women including the variety of forms the abuse takes).
\79\ Alexandria M. Foster, Unfinished Uniformity in Systematic
Sentencing: Oppressive Treatment and Disproportionate Punishment
Outcomes for Black Women in Federal Prisons, 6 Ind. J.L. & Soc. Equity
267, 276 (2018). The racial disparity of who gets placed into solitary
confinement is far more pronounced in women's institutions than in
men's. For example, Black women account for under 24% of the female
prison population but nearly 40% of women in solitary confinement.
Black men represent a much higher percentage of the male population at
42.5% and represent 46.1% of the male population in solitary
confinement. The Association of State Correctional Administrators & The
Linman Center for Public Interest Law at Yale Law School, Reforming
Restrictive Housing: The 2018 ASCA-Liman Nationwide Survey of Time-In-
Cell 23 (2018), available at https://law.yale.edu/system/files/
documents/pdf/Liman/
asca_liman_2018_restrictive_housing_revised_sept_25_201_8_embargoed_unt.
pdf#
page=25.
\80\ Joseph Shapiro, et al., In Prison Discipline Comes Down
Hardest on Women, NPR (Oct. 15, 2018), https://www.npr.org/2018/10/15/
647874342/in-prison-discipline-comes-down-hardest-on-women.
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Solitary confinement can wreak extreme psychological harms
on people generally, and pregnant women particularly. Even
without the heightened risks created by solitary confinement,
pregnancy often carries greater risks of stress and
depression.\81\ Placing pregnant women in solitary confinement
only amplifies these risk factors. Stress on a pregnant woman
may result in grave harms to the pregnant woman and her fetus,
including preterm labor, low birth weight, and mental health
problems for the child.\82\
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\81\ See generally Christine Dunkel Schetter & Lynlee Tanner,
Anxiety, Depression, and Stress in Pregnancy: Implications for Mothers,
Children, Research, and Practice, 25 Curr Opin Psychiatry 141, 141-48
(2012), available at https://www.ncbi.nlm.nih.gov/pmc/articles/
PMC4447112/pdf/nihms-693331.pdf (describing high rates of depression
and anxiety among pregnant people, especially the poor and people of
color, and associated negative birth outcomes).
\82\ Id.
---------------------------------------------------------------------------
For these reasons, international standards set by the
United Nations Rules for the Treatment of Women Prisoners and
Non-Custodial Measures for Women Offenders--known as the
Bangkok Rules--prohibit the placement of pregnant or nursing
women in solitary confinement.\83\ States are starting to take
notice: Pennsylvania,\84\ New York,\85\ Massachusetts,\86\ and
California \87\ limit the placement of pregnant people in
solitary confinement under statutes, regulations, or settlement
agreements. However, most pregnant women in the United States
remain vulnerable to the threat of solitary confinement and the
terrible risks this practice creates for both women and their
pregnancies.
---------------------------------------------------------------------------
\83\ G.A. Res. 65/229, para.7(b), U.N. Doc. A/RES/65/229 (Mar. 16,
2011).
\84\ See Settlement at 19, Seitz v. Allegheny Cty., No. 16-1879
(W.D. Pa. Nov. 9, 2017), available at https://www.aclupa.org/
download_file/view_nline/3230/1055#page=19.
\85\ Settlement at 37, Peoples v. Fischer, No. 11-2694 (S.D.N.Y.
Dec. 16, 2015), available at https://www.nyclu.org/sites/default/files/
releases/20151216_settlementagreement_filed.pdf#
page=36.
\86\ Mass. Gen. Laws ch. 127, Sec. 39A (2018).
\87\ California Department of Corrections and Rehabilitation
Operations Manual Sec. 54045.11 (2017), available at https://
www.cdcr.ca.gov/Regulations/Adult_Operations/docs/DOM/DOM%202017/
2017_DOM.PDF#page=493.
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E. Birth Behind Bars
After giving birth, women who are incarcerated must face
the additional strain of separating from their newborns.
Currently, the overwhelming majority of children born to
incarcerated mothers are immediately separated from their
mothers after birth and placed with relatives or into foster
care.\88\ It is estimated that 85% of incarcerated mothers in
the United States are involuntarily separated from their child
as a result of their incarceration.\89\ In-prison nurseries and
community based residential parenting programs are available in
only a handful of states.\90\ Only 42% of mothers in prison
reported weekly contact with their children through in-person
visits, video communications, telephone, mail, or e-mail.\91\
These options tend to be infrequent, unpredictable, and of poor
quality. Tragically, more than half of incarcerated mothers
reported that they had never experienced an in-person visit
with their child.\92\
---------------------------------------------------------------------------
\88\ Michal Gilad & Tal Gat, United States v. My Mommy: Evaluation
of Prison Nurseries As A Solution for Children of Incarcerated Women,
37 N.Y.U. Rev. L. & Soc. Change 371, 372 (2013).
\89\ Id.
\90\ Elizabeth Chuck, Prison Nurseries Give Incarcerated Mothers a
Chance To Raise Their Babies Behind Bars, NBC News (Aug. 4, 2018),
https://www.nbcnews.com/news/us-news/prison-nurseries-give-
incarcerated-mothers-chance-raise-their-babies-behind-n894171.
\91\ Gilad & Gat, supra note 72, at 386.
\92\ Id.
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Pregnant women facing imminent separation from their
newborns experience profound trauma.\93\ The children who
experience this separation are similarly harmed. The separation
is considered an adverse childhood experience, which can cause
long-lasting emotional and behavioral problems, especially
compounded by other adverse experiences common among children
with incarcerated parents such as poverty.\94\ Empirical
evidence shows that the separation of an infant from her mother
during the first year drastically impairs her ability to
sympathize or show concern for others.\95\ Additional common
symptoms of maternal separation include attachment disorders;
aggression and anger; developmental and behavioral problems;
sleeping, eating, or attention disorders; delays in educational
development and achievement; excessive hostile behaviors toward
peers; problems with social adaptation; greater likelihood to
develop addiction to drugs or alcohol or engage in criminal
activity; and unhealthy sexual behavior.\96\
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\93\ See Robin Levi et al., Creating the ``Bad Mother'': How the
U.S. Approach to Pregnancy in Prisons Violates the Right To Be a
Mother, 18 UCLA Women's L. J. 1, 55 (2010).
\94\ Lindsey Cramer, Urban Institute, Parent-Child Visiting
Practices in Prisons and Jails 2 (2017), available at https://
www.urban.org/sites/default/files/publication/89601/
parent-child_visiting_practices_in_prisons_and_jails.pdf#page=6.
\95\ Gilad & Gat, supra note 72, at 381.
\96\ Id.; see also Megan McMillen, I Need To Feel Your Touch:
Allowing Newborns and Infants Contact Visitation With Jailed Parents,
2012 U. Ill. L. Rev. 1811, 1823 (2012) (noting that if the ``mother-
child bond is disrupted between the ages of six months and four years,
a child's development may be greatly [a]ffected,'' including increased
anxiety disorders, impairment of the child's ``ability to sympathize or
show concern for others'' later in life, and--even controlling for
other factors--increased risk for future criminal behavior).
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Access to sufficient supplies of menstrual hygiene products
is a basic health care need that still goes unfulfilled at many
institutions. Not all states require adequate access to
menstrual products; even some indigent females are forced to
purchase some or all of their monthly supply.\97\ Because many
facilities require women to ask correctional officers for
menstrual products, the opportunity for abuse is rampant.
Officers may use basic hygiene needs to coerce them for sexual
or other favors or to punish them for any reason. They may also
use the threat of withholding necessary products to keep women
in line or to prevent them from reporting abuse or other
harmful conditions. These possibilities are not just abstract;
many women have had to navigate the difficulty of accessing
menstrual hygiene products that should have been made freely
available to them. For example, Maryland legislators heard
testimony from women who were denied menstrual hygiene products
by officers to control them and firmly establish a dangerous
power dynamic; \98\ a formerly incarcerated woman in
Connecticut also recounted the fear and humiliation of having
to ask officers for menstrual products knowing that her
requests might be derided or even denied.\99\
---------------------------------------------------------------------------
\97\ See Lydia O'Connor, Federal Prisons Made Menstrual Products
Free. Now Some States May Follow Suit, Huffington Post (Feb. 7, 2018),
https://www.huffingtonpost/entry/state-prison-free-pads-
tampons_us5a7b427be4b08dfc92ff5231.
\98\ See Brian Witte, No Tampons in Prison? #MeToo Helps Shine
Light on Issue, Associated Press (Mar. 27, 2018), https://
www.apnews.com/6a1805c4e8204e5b84a0c549ff9b7a31.
\99\ See Chandra Bozelko, Prisons That Withhold Menstrual Pads
Humiliate Women and Violate Basic Rights, The Guardian (June 12, 2015),
https://www.theguardian.com/commentisfree/2015/jun/12/prisons-
menstrual-pads-humiliate-women-violate-rights.
---------------------------------------------------------------------------
In one Michigan jail, women were regularly denied access to
desperately needed menstrual products.\100\ Females there
received such products late, after begging for them, or not at
all. They were therefore forced to use toilet paper to staunch
the bleeding or else bleed into their prison jumpsuits. Because
laundry day occurred once a week, women were forced to re-wear
bloody clothes for up to a full week. In addition, prison staff
forced women to compete for limited menstrual products, in one
case ordering 30 women to share a pack of 12 sanitary napkins.
This behavior was cruel and senseless--except as a method of
humiliation and control.
---------------------------------------------------------------------------
\100\ Complaint at 13-14, Semelbaucher v. Muskegon Cty., No. 14-
1245 (W.D. Mich. Dec. 4, 2014), available at https://
www.clearinghouse.net/chDocs/public/JC-MI-0010-0001.pdf.
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F. Access to Menstrual Hygiene Products
Even when policies to provide menstrual hygiene products do
exist, they are not always fully implemented. For example, BOP
guidelines require provision of menstrual hygiene products, but
a review by the OIG determined that women still do not have
sufficient access.\101\
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\101\ OIG Report, supra note 24, at 29.
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V. Gender Responsive Programming
Because women entering prison have trauma histories and
needs different from men, correctional institutions must
develop and implement gender-responsive programming. Gender-
responsive programming includes medical and mental healthcare
that is responsive to women's needs.
1Pregnancy testing, prenatal care, and access to abortion
must become standard in all institutions that house women. Some
facilities have already begun to do this, but not nearly
enough. For example, one study found that fewer than 40% of
jails test women for pregnancy upon entrance and fewer than 50%
utilize appropriate opioid withdrawal protocol for pregnant
women.\102\
---------------------------------------------------------------------------
\102\ See C.M. Kelsey, et al., An Examination of Care Practices of
Pregnant Women Incarcerated in Jail Facilities in the United States, 21
Maternal and Child Health J. 1260 (2017).
---------------------------------------------------------------------------
A number of states and the Federal Government have
experimented with gender-responsive pregnancy programs. A few
states have piloted doula programs, in which pregnant women are
given training and emotional support during pregnancy. Women
were generally satisfied with these programs and had lower
caesarean-section rates, although they did not lessen the grief
the mothers felt at having to part with their infants after
birth.\103\ A more intensive program in Michigan allows some
pregnant women to live in a special housing unit during
pregnancy, receive intensive specialized prenatal care
including substance-abuse treatment, receive other necessary
social services, and live and bond with their children for a
month after birth. This program has a high success rate, with
positive outcomes for the children and lower recidivism rates
for the mothers.\104\ A federal program allows some women to
live and bond with their infants after giving birth.
Participants spoke positively of the program and the
opportunity to form a bond with their children, but the program
is underutilized.\105\ These programs show the benefits of
pregnancy-focused programming and care, but they have not been
sufficiently replicated--prisons can do much more.
---------------------------------------------------------------------------
\103\ See Hotelling, supra note 29, at 41.
\104\ Id.
\105\ OIG Report, supra note 24, at 26.
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Similarly, states and facilities must work to ensure that
women have access to menstrual hygiene products. Maryland now
leads the way with a law requiring correctional facilities that
house women to provide sufficient menstrual hygiene products to
their females and to maintain records on the availability of
such products.\106\ Reporting and review of policies and actual
availability is important, as the OIG report showed. Even when
a policy exists, outside actors, such as legislatures or
independent agencies, may need to step in when it does not
translate to true access.\107\
---------------------------------------------------------------------------
\106\ Md. Code, Corr. Servs. Sec. Sec. 4-214, 9-616 (2017).
\107\ See OIG Report, supra note 24, at 31-32.
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Trauma victims may suffer when guarded during their most
private moments by men without a female guard present, in
addition to the potential for abuse and degradation.\108\ The
loss of privacy experienced by people in prison is especially
damaging to the many incarcerated women who are also victims of
past sexual abuse, since close supervision and discipline by
male guards can reinforce feelings of vulnerability and can re-
traumatize women who have experienced violence by men.\109\ The
presence of male guards in women's facilities also increases
the danger of staff sexual misconduct,\110\ which remains a
serious problem in spite of increased awareness of the
issue.\111\
---------------------------------------------------------------------------
\108\ PREA regulations have prohibited male guards from viewing
female prisoners while they shower, change clothes or use the toilet
since 2012. 28 CFR 115.15 (d). However, this still regularly occurs.
See Letter from Jocelyn Samuels, Acting Assistant U.S. Attorney
General, to Governor Robert Bentley re Investigation of the Julia
Tutwiler Prison for Women and Notice of Expanded Investigation 11 (Jan.
17, 2014) available at https://eji.org/sites/default/files/justice-
department-findings-letter-tutwiler-prison-investigation.pdf#page=11
(finding female inmates at Julia Tutwiler Prison for Women in Alabama
had no privacy in bathroom or showers and male officers routinely
entered shower and bathroom facilities unannounced); Peter Goonan,
Strip-Search Videotaping of Female Inmates by Male Guards Ruled
Unconstitutional by U.S. Judge in Springfield, Masslive (Aug. 27,
2014), (Massachusetts guards watched videotaped strip searches of
female inmates). International standards clearly prohibit cross-gender
supervision. Rule 53 of the UN Standard Minimum Rules for the Treatment
of Prisoners (SMR) explicitly prohibits all cross-gender surveillance
and provides for a female guard to accompany any male personnel in a
women's facility. First U.N. Congress on the Prevent1ion of Crime and
the Treatment of Offenders, Standard Minimum Rules for the Treatment of
Prisoners, Rule 53 (1955), available at http://www.unodc.org/pdf/
criminal_justice/UN_Standard_Minimum_Rules
_for_the_Treatment_of_Prisoners.pdf [hereinafter SMR 53]; see also
Interim Report of the Special Rapporteur of the Human Rights Council on
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
at para. 46 (noting the SMRs are ``widely accepted as the universal
norm for the humane treatment of prisoners'').
\109\ Elizabeth Swavola, et al., Vera Institute of Justice,
Overlooked: Women and Jails in an Era of Reform 14 (2016), available at
http://www.safetyandjusticechallenge.org/wp-
content/uploads/2016/08/overlooked-women-in-jails-report-
web.pdf#page=14 (danger of retraumatization/PTSD due to male guards
viewing them at intimate moments).
\110\ Allen Beck & Ramona Rantala, Bureau of Justice Statistics,
Sexual Victimization Reported by Adult Correctional Authorities, 2009-
11 1, 8 (2014) available at https://www.bjs.gov/content/pub/pdf/
svraca0911.pdf (despite comprising only 7% of the population, women
prisoners accounted for 33% of substantiated staff-on-inmate sexual
victimization; in local jails, male guards perpetrated 80% of such
incidents).
\111\ See, e.g., Report of the Special Rapporteur on Violence
Against Women: Addendum, para. 34, Mission to the United States of
America, 6 June 2011, United Nations General Assembly A/HRC/17/26/
Add.5, available at http://www.ohchr.org/english/bodies/hrcouncil/docs/
17session/A.HRC.17.26.Add.5_en.pdf [hereinafter Violence Against Women]
(describing continued sexual abuse of women in custody, both physically
forced and otherwise coerced); Buchanan, supra note 62 at 55-57
(describing sexual abuse of women including the variety of forms the
abuse takes); Elizabeth Chuck, ``Frequent and severe'' sexual violence
alleged at women's prison in Alabama, MSNBC (May 23, 2012), http://
usnews.nbcnews.com/_news/2012/05/23/11830574-frequent-and-severe-
sexual-violence-alleged-at-womens-prison-in-alabama?lite.
---------------------------------------------------------------------------
Thus, correctional facilities need to ensure that policies
and programs are responsive to trauma. This includes not just
counseling services, but a holistic approach to ensure that
prison staff do not re-traumatize victims or prevent their
recovery. Trauma-responsive programming has been instituted in
some places. For example, the BOP has instituted two gender-
responsive programs: Resolve and Female-Integrated Treatment
Program (FIT). Resolve is a national program offered to women
with trauma-related mental illness that includes education,
psychological testing, and various types of group therapy
intended to teach skills for overcoming symptoms.\112\ Women
who took the whole program have found it helpful in dealing
with past trauma and preparing for life after prison, but
staffing is so low that only 3% of women sentenced in BOP can
be accommodated at a time.\113\ FIT is a more intensive,
individualized program tailored to each woman's mental health,
substance abuse, and trauma history. However, this program is
only offered at one low-security institution and is therefore
not available to the vast majority of women in BOP
custody.\114\
---------------------------------------------------------------------------
\112\ OIG Report, at 7-8.
\113\ Id. at 19.
\114\ Id. at 8-9.
---------------------------------------------------------------------------
VI. Conclusion and Recommendations
Women are the fastest growing incarcerated population in
the United States, leaving far too many children and families
without a mother. Until incarcerating women in this country
becomes a punishment of last resort, the criminal legal system
has to determine how to deal with the healthcare, childcare and
gender programming needs of women in jails and prisons. With
the unprecedented rise in the number of women behind bars,
federal and State systems must figure out how best to keep
women safe and healthy while in custody.
Once incarcerated, women are subjected to a system that was
designed by and for men--with glaring voids of resources,
treatments and conditions required for women. To create a
smarter, fairer justice system, we must establish policies
specifically designed with women in mind. Until we recognize
the unique circumstances, needs and consequences associated
with women who come into contact with the criminal legal
system, we will never truly address the nation's mass
incarceration problem.
Below are a number of recommendations that encourage the
criminal legal system to use incarceration as a last option and
to focus on keeping women home in society, and with their
children and families.
1. Develop Alternatives to Incarceration. Compared to men,
women--and girls--are more often first-time, low level
offenders. Even women convicted of more serious offenses often
became involved in criminal activity on behalf of male partners
or other family Members. Society would be better served if more
women were provided with opportunities to avoid incarceration
through diversion programs, probation and other rehabilitative
alternatives. Ensuring that women can access jobs, education,
housing and adequate medical and mental health care would
afford greater public safety without punitive and unnecessary
incarceration.
2. Foster Mother-Child Relationships. Correctional
facilities must develop and implement policies that support the
bond between a mother and her child, even while the mother
remains incarcerated. The mother-child relationship must be
fostered through such measures as broader visitation policies,
carefully designed in-prison nursery programs, child-friendly
visitation areas, video visitation to supplement, rather than
replace, in-person visitation, access to email and keeping
incarcerated women in close proximity to their home
communities.
3. Ban Shackling and the Use of Solitary Confinement on
Pregnant Women. All states must end the practice of shackling
women during pregnancy, delivery and postpartum. The practice
is inhumane and unsafe. Those states that have yet to enact
anti-shackling laws must do so, and those states with anti-
shackling laws need to strengthen their laws to ban the
practice outright, as well as fully enforce their laws.
Likewise, all states and jurisdictions should enact laws and
policies to ban the practice of placing pregnant women in
solitary confinement and ensure that those laws and policies
are implemented.
4. Implement Clear Health Policies for Women. All
correctional facilities housing women and girls must develop
and implement clear policies regarding their specific health
care needs, including but not limited to pregnancy care,
postpartum care, the provision of abortions, routine
gynecological care, and pre- and post-menopausal care. These
policies must conform to the community standard of care and the
law.
5. Train Corrections Staff. All corrections facilities
housing women and girls must appropriately train their custody
and medical care staffs to address women's unique needs,
including their trauma history, higher rates of mental health
diagnosis, menstrual needs, general health and reproductive
health care needs, and their ongoing role as mothers and
community Members.
6. Implement Gender-Responsive Programming. Many
correctional facilities have experimented with various gender-
responsive programming, including access to pregnancy-care and
menstrual hygiene products and trauma-informed approaches to
correctional management. Successful programs must be replicated
and expanded to provide appropriate programming to all women
under correctional supervision.
Ms. Bass. Thank you. Ms. Shank.
[The statement of Ms. Shank follows:]
TESTIMONY OF CYNTHIA SHANK
Ms. Shank. Hi, thank you for allowing me to come here today
and share my story. May name is Cynthia Shank, and in 2008, I
was convicted on drug conspiracy charges from a crime that
happened when I was 24 years old. I met a man when I was 24
years old in 1997 and he--in the course of our relationship
over 5 years, he grew into a drug dealer, and he became a very
large drug dealer. During my relationship with him, he was very
abusive to me, keeping me from my family, keeping me from my
friends, to the extent that there were locks on all the doors,
double-sided locks and bars on all the windows. In the last
year I was with him, I wasn't allowed to leave the house at
all. Over the course of him being such a large drug dealer, his
paranoia and control took over to the point where I had no
control over anything that I could even do. He was murdered in
2002, and I was initially charged with conspiracy to his drug
operation.
The charges were actually dropped, and I actually moved on
with my life. I gave my life to the Lord. I started focusing on
myself and bettering myself. I met a wonderful man, we got
married, had two beautiful daughters. I was pregnant with my
third daughter when I was indicted 5\1/2\ years later, all
those crimes that were committed 5 or 6 years prior.
I then went away to prison in 2008 when my daughter,
Annalise, was just 6 weeks old; Autumn was 4; and Ava was 2
years old. Needless to say, that prison destroyed my small
young family. Prison is set up to separate and destroy bonds
that are there, and as a mother, you need to be there for your
children.
I was initially sent to Pekin, Illinois, which I was
getting regular visits, and I was able to see the girls about
every 6 to 8 weeks. The prison closed for women and it was
transferred to a men's R gap, so I was sent to Coleman,
Florida. So now, I saw my daughters once a year at that point,
and they were still so young.
During my time in Florida, my husband filed for divorce,
which I completely understood, because he was serving the
sentence, too, with me. I wanted him to have a chance and a
life. Sorry.
I spent 8\1/2\ years in Federal prison before I was given
clemency by President Obama. During my time in Federal prison,
though, I met many women who were just like me, who were
serving long sentences for crimes related to their then,
husbands or boyfriends that they had little knowledge of.
I had to witness and hear the cries of mothers at night who
had just signed over custody of their children, because they no
longer could be there for them, and they were taken away from
them. To hear mothers cry at night over and over again,
different mothers every night for something that--to have your
child taken away from you forever and signed away is something
that I will never forget, or coming back from a visit, and
having a mother cry in my arms, because her daughter said, Mom,
the person that I have been staying with has been touching me.
These are the realities that when mothers leave, their children
are put in places where they are not 100 percent protected.
Nobody is going to care for your child as a mother does. So,
when a mother is taken away, it is the children who suffer.
STATEMENT OF CYNTHIA SHANK
Thank you for the opportunity to testify today about the
impact of the federal criminal justice system on my life and
that of my family. My name is Cynthia Shank and I was released
from federal prison in March, 2017 after President Barak Obama
commuted my 15-year sentence for drug related offenses. I
served nine years in federal prison.
My story is not uncommon. Prior to my conviction for my
involvement in a drug conspiracy, I had no criminal record. I
had been happily married for 4 years, was the mother of two
young girls--Autumn and Ava--and 8 months pregnant with my
third daughter, Annalise. My incarceration broke our young
family apart and left permanent emotional and psychological
scars on our daughters.
My offense stemmed from a relationship I began years
earlier when I was 24-years-old. I was working as a bartender
and met a young, attractive and attentive man named Alex. We
started dating and soon began living together. Eight months
into our relationship I came home from work early one day to
find him selling a small amount of crack cocaine to a stranger
in our living room. After my discovery Alex became anxious that
I would report him and began following me to work and spending
all day watching me to make sure I said nothing about his drug
selling. After months of this my boss complained, and Alex
pressured me to quit my job, which I did.
A year into our relationship I was completely dependent on
Alex as he became more deeply involved in the drug trade. He
was controlling and possessive of me and was both physically
and verbally abusive. If I tried to visit my family he would
insist I return home after only a short 30-minute visit. He
eventually placed locks on all the windows and doors of our
home and I rarely left the house. Even during periods when Alex
would leave for extended trips he had me monitored. He called
regularly to make sure I was at home and he sent his associates
to knock on the door to make sure I was telling the truth.
During one of Alex's last trips away I gathered up enough
nerve to leave and went to my sister's place. Three days later
he came for me with a gun. To protect her and her young
children, I left with him without a fight.
Alex did not love me but he wanted to keep me close because
he thought I knew too much about his drug operation. I began to
smoke an ounce of marijuana every day just to numb myself to
the pain of my existence. My sister suspected I was being
abused by Alex when she found out I had gone to the hospital
after I was beaten with a broomstick and had seriously injured
my eye. There was nothing she could do, however, because I
would never admit to the abuse and never report him to police.
Alex told me, ``if you call the cops I am going to shoot you.''
I believed him. At night he slept next to me with his hand
under my pillow holding a gun.
The bigger his drug operation got the more paranoid and
violent he became. Five years after we met, Alex was murdered
in a shootout in front of our home. I was awakened by the sound
of bullets and was called out of my bedroom by Alex's associate
and was instructed to drive Alex to the hospital where he died.
I could not believe he was dead when the police told me. To
this day, I don't know who killed him.
My relationship with Alex would impact the rest of my life.
I told police I had known about his drug operation. Months
after his death my attorney told me that the case against me
had been dismissed. I moved on with my life. I quit smoking
marijuana. I reconnected with my faith. I got married and gave
birth to two daughters. But years after Alex's death
prosecutors decided to charge me under drug conspiracy laws and
for intent to distribute large amounts of cocaine, crack and
marijuana. I never sold drugs but I lived with a dangerous and
manipulative drug dealer and in the eyes of prosecutors there
was no difference.
I fought the charges and went to trial because I was not
going to admit to something I did not do. I needed to finally
stand up for myself and show my daughters how to be brave. I
thought if I could just tell my story, they would understand.
But all the trauma inflicted upon me by Alex didn't matter.
Ultimately, I was convicted and because of mandatory
minimum sentencing requirements I received a 15-year term. My
youngest daughter, Annalise, was six weeks old when I went to
prison. My husband, Adam, became a single father. I believe the
years and miles of separation caused by incarceration are
designed to break the bonds between families. Phone calls and
visits are strictly limited both by expense and prison rules.
There is no support for the aftermath of incarceration,
especially for the children left behind. The week I left for
prison my girls started going to therapy, but that is a luxury
most families cannot afford.
Most of the women I was incarcerated with were in prison
because of drugs or money. They were poor and had struggled
with a substance use disorder and never gotten help. Many were
like me and had a partner who was primarily responsible for the
crimes for which they had been convicted. If they had access to
therapy, education and jobs their circumstances may have turned
out differently.
According to The Sentencing Project, between 1980 and 2017,
the number of incarcerated women increased by more than 750%
nationwide. The rate of growth for female imprisonment has been
twice as high as that of men since 1980. Today, the Bureau of
Prisons incarcerates nearly 13,000 women.
I finally left prison because nine years after I was
sentenced President Obama granted my petition for clemency. I
was lucky but so many deserving women are still incarcerated
and need relief from their excessive sentences.
Today, my life is amazing. I work full-time. I have my own
home. And, I am reunited with my girls and enjoying every
minute of being with them and raising them. I share my story
with you today because I want to help other incarcerated women
and help them achieve their own success story. I hope Congress
will give them a second chance.
Ms. Bass. Thank you very much. Ms. Kerman.
TESTIMONY OF PIPER KERMAN
Ms. Kerman. Thank you, Chairman Bass, Ranking Member
Ratcliffe and Members of the committee. I appreciate you
inviting me here. In my memoir, ``Orange is the New Black,'' I
recount the 13 months that I spent incarcerated in the Federal
prison system with most of my time served at the Federal
correctional institution in Danbury, Connecticut. I was also
incarcerated for a first-time drug offense.
I am grateful to add my voice with other return citizens
like Cindy Shank and Charlotte, who are here with us today, to
call for changes to the U.S. criminal justice system. Our
experiences are essential to understanding the reform that is
needed in the system, so that it will both provide for public
safety, but in a way that is legal, humane and sensible, and
that is why I am here today.
So, incarceration rates are not driven by crime rates. They
are driven by policy decisions. For decades, women and girls
have been the fastest growing part of the prison population in
the United States. Is this because of an unprecedented crime
wave perpetrated by American women? No. Rather, the 700 percent
increase in female incarcerations has been driven by government
policy, bad policy decisions, like the 1994 Federal crime bill,
which resulted in inflated incarceration rates at both the
Federal and the State levels. One of most clear-cut examples of
the failed policies of mass incarceration is the increased
imprisonment of women and girls and what happens to them and
their families, like families like Cindy's.
There is very little public safety rationale for most
women's prison sentences which impose a very heavy cost to the
American public, both socially and economically. Almost all
women--among all women in prison and jail, it is estimated that
between 80 and 90 percent have themselves been victims of
violence, or serious trauma, prior to their incarceration.
Because our law enforcement system does not target or treat
all Americans equally, the data shows that women of color are
over-represented in the criminal justice system, even though
they are not more likely than White women to commit crimes. One
of the reasons that my memoir caught the public imagination is
that it is so unusual for a middle-class White woman to policed
and to be prosecuted and to be punished with prison.
Unfortunately, the same cannot be said for women of color.
American prisons and jails are built by and for men, and
they are governed by policies and procedures that are developed
for male prisoners.
In addition, American prisons and jails are punitive, and
they rarely rehabilitate or restore the people we send there,
almost all of whom will return to the community. I was
incarcerated in a women's prison, and I now teach in a men's
medium security prison. I can assure you that there is no
institution more hierarchical, dominance-orientated,
patriarchal, and operating constantly on the threat and the
promise of violence than an American prison.
This is not an accident; it is by design. The failure of
punitive policy is reflected in our high recidivism rates. So,
for most incarcerated women, regardless of their background,
their prison sentence does not only punish them, and that is
because most mothers in prison have kids under the age of 18.
Most incarcerated mothers are also the single heads of
household, and when we lock them up, the effect on their family
is seismic. On all measures from stable housing, being well-
fed, to doing well in school, parental incarceration seriously
harms children. So, we don't have to do things this way.
Before I conclude my testimony, I want to draw your
attention to just two policies that could, if replicated across
the country, help to fix some of the mistakes of the last four
decades.
So, one is a program in New York called JusticeHome.
JusticeHome began in 2013. As part of the program, in
cooperation with judges and prosecutors, women who are facing
prison or jail for a felony are given a chance to remain at
home with their families, to be held accountable in the
community, and to get the help and support that they need to do
better.
That is exactly what happens and 88 percent of JusticeHome
graduates remain arrest-free after they complete the program.
JusticeHome also realizes massive fiscal savings. If the total
cost to taxpayers to incarcerate a woman in New York, if she
has two children who go into foster care is over $130,000 a
year. It costs less than $20,000 a year to support a woman to a
better future via JusticeHome. It gets much better results.
Again, looking to the States for innovation, we see two new
primary caretaker legislations adopted in Massachusetts and
Tennessee. These new measures require judges in those States to
consider family impact when they are sentencing a person who is
a primary caregiver of minor children, and to impose
accountability measures that are appropriate for the offense
that will not harm those children.
It is worth pointing out that Massachusetts and Tennessee
have very different political landscapes. Everybody can see the
value of this kind of reform, regardless of their political
party. Primary caretaker policies should be adopted within the
Federal system, so that Federal judges are required to make the
same considerations at sentencing.
Ms. Bass. Thank you.
Ms. Kerman. So, I look forward to today's important
testimony on women and girls' pathways into prison, the harsh
conditions that we must survive there, and the steps that are
necessary for a safe and successful return to the community. I
implore the Members of this Committee and all public officials
to prioritize policy changes that will reduce the number of
women and girls ever going into a correctional facility because
those are changes that will make us safer. Thank you.
Ms. Bass. Thank you.
[The statement of Ms. Kerman follows:]
STATEMENT OF MS. KERMAN
I spent 13 months as a prisoner in the Federal Bureau of
Prisons system from 2004-2005, with most of my time served at
the Federal Correctional Institution in Danbury, Connecticut.
If you are familiar with my book, Orange Is the New Black,
I'm the first to acknowledge that unlike many prisoners, I have
the resources and support to take my own experiences in prison
and use them to try to make critical improvements to this
country's criminal justice system. Since my release, I have
worked with many criminal justice-involved women who advocate
for the changes they need to be safe and to get back on their
feet. I am here today in that capacity.
Women's incarceration is a growing problem and has been for
years.\1\ The majority of incarcerated women in this country
are charged with drug offenses or property crimes; many of
these are low-level offenses, yet they may be met with prison
or jail sentences. A sentence means the removal of a woman from
her community, from her family, from her children if she is a
mother, and exile into a correctional facility.
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\1\ Since 1978, women's State prison populations have grown 834%,
while men's State prison populations have grown 367%. Wendy Sawyer, The
Gender Divide: Tracking Women's State Prison Growth (2018). Prison
Policy Initiative. Available at https://www.prisonpolicy.org/
reports/women_overtime.html.
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American prisons and jails are built by and for men,
governed by policies and procedures developed for male
prisoners. I was incarcerated in a women's prison and I now
teach in a men's medium-security prison and I can assure you
there is no institution more hierarchical, dominance-oriented,
patriarchal and based on the threat and promise of violence
than an American prison. This is not an accident; it is by
design.
Incarceration rates are driven by policy, not by crime
rates. It's essential that current policymakers fully
comprehend this crucial fact, as they bear the responsibility
of reversing decades of bad criminal justice policy decisions
and repairing their negative consequences for all Americans.
Specifically, the federal crime bill of 1994 had the effect of
not only inflating federal incarceration rates but also
incentivizing the states to incarcerate more people. As a
Nation we are still struggling with the legacy of this bad
policymaking; many individuals, corporations and special
interests draw huge benefit--and in some cases profit--from the
status quo of mass incarceration.
While the lack of correlation between crime rates and
incarceration is widely acknowledged by criminology experts, it
remains unknown or unacknowledged by many policymakers and the
public. The conventional wisdom that incarceration is the best
or only response to crime is dead wrong, and has had corrosive
consequences for this nation, especially for people of color
and poor people who are most likely to be incarcerated.
According to the 2014 report by the National Research Council
of the National Academies on The Growth of Incarceration in the
United States:
Yet over the four decades when incarceration rates steadily
rose, U.S. crime rates showed no clear trend: The rate of
violent crime rose, then fell, rose again, then declined
sharply. The best single proximate explanation of the rise in
incarceration is not rising crime rates, but the policy choices
made by legislators to greatly increase the use of imprisonment
as a response to crime. Mandatory prison sentences, intensified
enforcement of drug laws, and long sentences contributed not
only to overall high rates of incarceration, but also
especially to extraordinary rates of incarceration in Black and
Latino communities. Intensified enforcement of drug laws
subjected blacks, more than whites, to new mandatory minimum
sentences--despite lower levels of drug use and no higher
demonstrated levels of trafficking among the Black than the
White population. Blacks had long been more likely than whites
to be arrested for violence. But three strikes, truth-in-
sentencing, and related laws have likely increased sentences
and time served for blacks more than whites. As a consequence,
the absolute disparities in incarceration increased, and
imprisonment became common for young minority men, particularly
those with little schooling.\2\
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\2\ National Research Council (2014). Summary. In Travis, J.,
Western, B. & Redburn, S. (Eds.), The Growth of Incarceration in the
United States: Exploring Causes and Consequences (pp.
1-12). Washington, DC: The National Academies Press.
It's important to emphasize this disconnect because we've
so normalized prison and jail as our only response to problems
and conflicts in our communities. The United States
incarcerates far more of its own people than any Nation in the
world. No society in human history has ever locked up so many
of its own citizens. And yet: American prisons and jails don't
fix problems like substance abuse and addiction, mental
illness, or family or community violence. Quite the opposite,
most correctional settings in this country unquestionably make
these problems worse, not better, hidden behind the walls where
we exile our own people.
After a person returns from prison or jail, their sentence
is not over. Probation and parole are problematic systems that
continue to punish rather than help people, and are
particularly harmful to the poor, who make up the bulk of
Americans caught in the maze of the criminal justice system. As
civil rights lawyer Bryan Stevenson has noted, we have a legal
system that treats you better if you are rich and guilty than
if you are poor and innocent. I draw your attention to the
Jeffrey Epstein case as just one among many very recent
examples of this truth.
Among the most vulnerable people caught in the maze of the
American criminal justice system are women and girls. Women are
the fastest growing population in the American criminal justice
system, and their families and communities are also punished by
what happens when we choose to incarcerate a woman. A
significant majority of women in prison are there for a
nonviolent offense.\3\ Many women are incarcerated due to
substance abuse and mental health problems, which are
overwhelmingly prevalent issues in prisons and jails. For women
and girls there is also a staggering, widespread incidence of
victimization by sexual abuse or other physical violence before
incarceration.\4\
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\3\ In 2012, 37.1% of women in State prison were held for a violent
offense, compared with 55.0% of men. E. Ann Carson, Bureau of Justice
Statistics, Prisoners in 2013, Tbl. 9, September 30, 2014, available at
http://www.bjs.gov/content/pub/pdf/p13.pdf.
\4\ In 2012, 86% of women in jails had experienced sexual violence,
77% had experienced partner violence, and 60% had experienced caregiver
violence before their incarceration. Lynch
et al. Women's Pathways to Jail: Examining Mental Health, Trauma, and
Substance Use (2013). Bureau of Justice Assistance. Available at
https://www.bja.gov/Publications/WomensPathways
ToJail.pdf.
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Before we even think about where or how women and girls
should be incarcerated, we should consider if they should be
incarcerated. There are other ways for them to serve their time
that result in less damage to them and their families. When we
look to the states, we see such innovations, such as
JusticeHome in New York. JusticeHome allows some women who
plead guilty to felonies to remain in their homes with their
children. The women report regularly in court and are visited
weekly by case managers to make sure they receive supervision
and guidance about jobs, education and management of their
homes and children. Some must receive treatment for drug
addiction and mental illness. The cost of JusticeHome is less
than 20,000 per family, while it costs over $130 K to
incarcerate a woman in New York City for one year if two of her
children are sent into foster care.\5\ What is priceless about
this program is that it is working hard to keep families
together which we know is an effective way to reduce crime and
increase safety, and to stop a cycle that can condemn entire
families to the penal system. 88% of JusticeHome graduates
remain arrest-free after completion of the program.\6\
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\5\ McHugh, Diana. ``Re: JusticeHome Success Data Points.'' Message
to Kamara Jones. July 2, 2019. Email.
\6\ McHugh, Diana. ``Re: JusticeHome Success Data Points.'' Message
to Kamara Jones. July 2, 2019. Email.
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Again, looking to the states for innovation, we see new
primary caretaker legislation adopted in Massachusetts and
Tennessee that acknowledges that when a sentence is imposed it
impacts not only the convicted person but also her children and
family.\7\ These new measures require judges in Massachusetts
and Tennessee to consider family impact when sentencing a
person who is the primary caregiver of minor children, and to
impose accountability measures appropriate for the offense that
will not harm those children. This legislative reform was
conceived of and championed by formerly incarcerated women from
the National Council of Formerly Incarcerated and Incarcerated
Women and Girls,\8\ a true example of the power of women's
wisdom and activism in service of the lives of others; it
should be adopted within the federal system so that federal
judges are required to make the same considerations at
sentencing.
---------------------------------------------------------------------------
\7\ Human Impact Partners. (April, 2019) Keeping Kids and Parents
Together: A Healthier Approach to Sentencing in MA, TN, LA. Retrieved
from https://humanimpact.org/hipprojects/
primary-caretakers/.
\8\ ``Current Legislation.'' Families for Justice as Healing,
available at http://justiceashealing .org/current-legislation/.
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Incarcerated women suffer from disproportionately high
incidences of mental illness, substance use disorder, and
survival of serious trauma like sexual assault or domestic
abuse. However, these issues are not being addressed adequately
in the federal prison system. With more than 200,000 people in
its custody, the Federal Bureau of Prisons has grown to become
the nation's largest prison system.\9\ The federal prison
population has increased more than eight-fold since 1980,\10\
reflecting the United States' unique and regrettable reliance
on incarceration to inappropriately and ineffectively address
social problems like substance abuse, mental illness and
poverty. Below I outline some of the ways in which the Bureau
could and should improve its treatment of women in custody.
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\9\ Federal Bureau of Prisons, Inmate Statistics, July 30, 2015,
available at http://www .bop.gov/about/statistics/
population_statistics.jsp#pop_report_cont.
\10\ Federal Bureau of Prisons, Past Inmate Population Totals,
available at http://www .bop.gov/about/statistics/
population_statistics.jsp#old_pops.
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The Bureau of Prisons should adopt gender-responsive
policies and programs along the lines of best practices in
states such as Washington that reduce recidivism rates and give
women opportunities to reintegrate into their communities and
succeed post-incarceration.
Gender-responsive correctional approaches are guided by
women-centered research. They are strengths-based, trauma-
informed, culturally competent, and holistic. These approaches
recognize the importance of relationships as a target of
intervention for women. Finally, they account for the different
characteristics and life experiences of women and men who are
involved with the criminal justice system, and respond to their
unique needs, strengths and challenges.\11\
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\11\ National Resource Center on Justice Involved Women, Gender
Responsive Discipline and Sanctions Policy Guide for Women's
Facilities, Key Definitions, n.d., available at http://
cjinvolvedwomen.org/sites/all/documents/
DisciplineGuideSection1Overview.pdf.
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Most research in the correctional field has been conducted
on men. The research that has been done on women shows that the
risk factors I mentioned, and others specific to women, require
different approaches than the BOP takes for men to reduce
women's recidivism and achieve more successful outcomes. This
is not unlike findings in other fields such as healthcare,
where gender-specific research found that women experience
heart attack symptoms quite differently from men.
This understanding in turn led to gender-specific responses
to these symptoms.
Female prisoners are different from male prisoners in a
number of obvious and less obvious ways. In addition to having
a higher percentage of mentally ill people among their ranks,
incarcerated women are often single moms with young children.
Very high incidences of sexual and physical assault \12\ are a
reality for women in prison, jail and immigration detention
centers, both before and during their incarceration. It is
essential to consider this trauma to establish rehabilitation
that works, and to avoid correctional settings that make things
worse.\13\
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\12\ In State prison, 57.6% of women reported past physical or
sexual abuse, compared to 16.1% of men. In federal prisons, 39.9% of
women reported past abuse, compared to 7.2% of men. In jails, 47.6% of
women reported past abuse, compared to 12.9% of men. Caroline Wolf
Harlow, Bureau of Justice Statistics, Prior Abuse Reported By Inmates
And Probationers 1 (1999), available at http://www.bjs.gov/content/pub/
pdf/parip.pdf. More than a third of women in State prisons or local
jails reported being physically or sexually abused before the age of
eighteen.
\13\ Human Rights Watch, All Too Familiar: Sexual Abuse of Women in
U.S. State Prisons (1996), available at http://www.hrw.org/legacy/
reports/1996/Us1.htm [hereinafter All Too Familiar] (``One of the clear
contributing factors to sexual misconduct in U.S. prisons for women is
that the United States, despite authoritative international rules to
the contrary, allows male correctional employees to hold contact
positions over prisoners, that is, positions in which they serve in
constant physical proximity to the prisoners of the opposite sex.'').
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Instituting gender-responsive policies garners
significantly improved outcomes including reductions of inmate-
on-staff assaults and inmate-on-inmate assaults, segregation
placements, disciplinary reports, one-on-one mental health
watches, petitions for psychiatric evaluation, crisis contacts,
self-injury incidents and suicide attempts.\14\
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\14\ National Resource Center on Justice Involved Women, Gender
Responsive Discipline and Sanctions Policy Guide for Women's
Facilities, Exhibit 1: Benefits of Implementing Trauma-Informed
Approaches at MCI Framingham Frequency of Incidents in 2011 and 2012,
n.d., available at http://cjinvolvedwomen.org/sites/all/documents/
DisciplineGuideSection1Overview.pdf.
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These policies clearly make women's correctional facilities
safer for prisoners and staff, which is the first step towards
creating a rehabilitative environment. If we want to reduce
recidivism for women and help them be more successful when they
return home, we need to address their specific risk factors and
needs--gender-responsive policies and programming, such as the
following, account for these differences.
Gender-responsive policies, first and foremost, recognize
that there are gender-specific needs and modify facility operations,
supervision, management, programs and services to address them.
They ensure that all staff who work with women are
trained in trauma-informed care, understand gender-responsive
principles and how justice-involved women are different from men, and
at a minimum, have effective communications and intervention skills.
These policies influence facility culture so that there
is a physical environment that is conducive to change (positive
messages on walls, positive images), an attitude of respect among staff
and inmates, positive encouragement for family visits and interactions,
and calming environments (reduced noise level, banging, shouting).
Practices and procedures are implemented that do not
(re)traumatize or trigger women's trauma, such as letting women know
ahead of time what is going to happen during a procedure, telling them
what is happening during the procedure, and checking in with them after
the procedure is conducted. Other similar examples include limited use
of solitary confinement or segregation (which may trigger women), more
limited use of strip searches (which may be reminiscent of rape), and
limited or no use of restraints during pregnancy and delivery.
Gender-responsive risk and needs assessments (such as the
Women's Risk and Needs Assessment developed by Dr. Pat Van Voorhis and
colleagues at the University of Cincinnati) should be used to identify
specific risk factors 1such as past trauma, abuse and anger. Treatment
programs should be available that address the risks and needs
identified through these assessments.
It is critical for the Bureau of Prisons to address the
unique situation of women in prison when making choices about
policies and programming for institutions that hold them. In
addition to the roadmap to system-?wide implementation that
Washington State offers, the National Resource Center on
Justice Involved Women--funded by the U.S. Department of
Justice Bureau of Justice Assistance in partnership with the
National Institute of Corrections--is an organization that the
BOP can collaborate with to work for rapid adoption of gender-
responsive policies and programs. Additionally, the Adult and
Juvenile Female Offenders Network \15\--a national network of
corrections workers, academics and community practitioners--has
been working for decades to establish gender-responsive
policies and programs in American prisons and jails, and its
Members should prove valuable advisors to the BOP if it wishes
to fulfill its responsibilities to the women in its custody.
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\15\ Association on Programs for Female Offenders (APFO), an
American Correctional Association, available at http://www.ajfo.org/.
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One of the biggest needs is to keep these women, many of
whom are single moms, close to their kids. When I was
incarcerated at Danbury FPC, I met women who were raising their
children in the visitors' room during brief visits, fending off
sexual harassment, and struggling to get a high school
education so when they got out they stood a chance at
surviving. I saw women denied necessary medical care, and I saw
women with mental health issues wait for months to see the one
psychiatrist who was available for 1,400 women.
During my time in prison, I was transferred from Danbury to
the federal Metropolitan Correctional Center in Chicago (MCC)
to serve as a witness in a federal trial there. The Chicago MCC
is 26 stories high and houses approximately 700 men. There were
approximately 35 women in the female unit there and the
conditions were abysmal. Federal jails are not intended for
long-term housing, and thus lack programming, physical plant
and other acknowledged essentials for a person serving a prison
sentence, which are intended to hold them accountable and
rehabilitate them so they can return safely to the community.
Despite this, people often spend long periods of time locked up
in federal jails. When I was in the MCC, there was a woman who
had been held there for two years.
At the Chicago MCC, women were kept locked on the 12th-
floor unit for many days at a time; access to the library and
to physical recreation and the outdoor area was sporadic at
best; no women were allowed to participate in GED programs or
any educational opportunities; female prisoners were not
allowed to work and earn money; we had no direct access to any
medical staff, or in fact any administrative staff; and we were
largely reliant on a single correctional officer to get any
concerns addressed. Many women on the unit were severely
mentally ill. The last two months of my incarceration were
exponentially more difficult than the first 11 because of the
conditions in the Chicago MCC, and I have many more resources
and opportunities than most women incarcerated in federal
prisons.
Women in federal custody have less access compared to male
federal prisoners to important rehabilitative programs like
UNICOR (vocational training in prison industry programs that
provide the highest compensation among federal prisoner jobs)
and the Residential Drug & Alcohol Program (an intensive
program that cuts a year from a prisoner's sentence).
Many women have been sent far from their families and
communities, much further than the BOP's stated parameter of
500 miles from a prisoner's home.\16\ For a family that lives
in poverty in New Hampshire, the Bronx or Pennsylvania, a place
like Aliceville, Alabama, Dublin, California or Waseca,
Minnesota might as well be the moon in terms of children and
other family Members being able to visit. The majority of women
in prison were their children's primary or sole caregiver prior
to incarceration.\17\ When these women are incarcerated,
maintaining any semblance of a relationship with their children
largely depends on regular visitation.\18\ A child's need to
see and hold his or her mother is one of the most basic human
needs.
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\16\ Federal Bureau of Prisons, Custody and Care: Designations,
July 30, 2015, available at http://www.bop.gov/inmates/
custody_and_care/designations.jsp.
\17\ Lauren E. Glaze & Laura M. Maruschak, Parents in Prison and
Their Minor Children, U.S. Dep't. of Justice, Of Justice Statistics
Special Report, 4, (2008), available at http://bjs.ojp.usdoj.gov/
content/pub/pdf/pptmc.pdf.
\18\ Susan D. Phillips, The Sentencing Project, Video Visits For
Children Whose Parents Are incarcerated: In Whose Best Interests? 1-2
(2012), available at http://sentencingproject.org/doc/publications/
cc_Video_Visitation_White_Paper.pdf (describing the importance of and
barriers to visitation of incarcerated parents).
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Important things to consider about women in federal custody
are disconnection from young children and family who rely
heavily on these mothers prior to incarceration; vastly and
disproportionately inadequate living conditions compared with
male prisoners; and, a marked lack of rehabilitative
programming or work opportunity that is tailored to address
women's pathways into prison, which is the best way to ensure
their safe and permanent return home. These realities are
emblematic of the BOP's indifference to the situation and
outcomes of female prisoners. The BOP is currently seeking to
appoint a new Director; a commitment and ability to implement
gender-responsive policies and programming should be a
requirement for the job. To fulfill its public safety mission
and to avoid discriminatory practices, the BOP must adopt
gender-responsive policies, programs and facility design,
following the best practices of corrections departments in
states like Washington and Iowa. At the Washington Corrections
Center for Women for instance, the Gender Responsiveness Action
Plan allows female prisoners to attend seminars focusing on
healthy relationships, safety awareness, health, nutrition,
handling anger and stress, and goal setting.\19\
---------------------------------------------------------------------------
\19\ Jennifer Sullivan, Female Inmates Treatment is Evolving, The
Bulletin, November 7, 2013, available at http://www.bendbulletin.com/
news/1262705-151/female-inmates-treatment-is-evolving.
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The BOP has a legal and moral obligation to ensure that
time in custody is equitable, safe, and rehabilitative for
women. In addition, Congress should use all measures available
to facilitate the BOP's early release of currently incarcerated
people who are eligible to return to their communities.
The BOP could exercise greater discretion, granted in the
Second Chance Act and the First Step Act, to move thousands out
of federal prison facilities to complete their sentences in
their communities. In addition to reducing overcrowding,
utilizing the Second Chance Act and the First Step Act would
keep incarcerated people closer to their homes, creating
benefits for prisoners and their communities. They would be
following the precedent of the U.S. Sentencing Commission's
2014 decision to reduce the length of time that certain federal
prisoners are spending in incarceration.\20\
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\20\ Hearing before the Senate Judiciary Committee, Oversight of
the Bureau of Prisons Hearing, Liman Statement for the Record,
November, 12, 2013, available at http://www.lawyale .edu/documents/pdf/
Liman/Senate_Judiciary_Committee_BOP_Oversight_Hearing_ Liman_
Statement_for_the_ Record_Nov_ 12_2013.pdf_website.pdf.
---------------------------------------------------------------------------
The bottom line is that mass incarceration in America is a
failed policy experiment, not a legitimate response to violence
or crime in our communities. Current legislators have a
responsibility to make our criminal legal system fairer, more
effective, and more just, and they have an opportunity to do so
now when public understanding and opinion on these issues has
changed. There is abundant data and evidence proving we have
better responses to addiction, mental illness and even violence
than reliance on prisons and jails.
There is no population of people where reform can more
obviously be implemented than women and girls in the criminal
justice system. Research, case studies, and a host of programs
and organizations that demonstrate the value and efficacy of
gender-responsive policies and programs provide the map to
solutions that do not rely on incarceration. This map is vital
not just to the thousands of women who currently churn through
American prisons and jails each year, but to the families and
communities to which they return. It is long past time for
Congress to lead the way and make common-sense criminal justice
policy that reflects smart and humane ideas and values about
justice and accountability.
Ms. Bass. Ms. Kajstura.
TESTIMONY OF ALEKS KAJSTURA
Ms. Kajstura. Thank you, Chairwoman Bass, and Ranking
Member Ratcliffe and Members of the subcommittee, for providing
me the opportunity to share some data on women's incarceration,
not only because this is an issue that has been overlooked for
far too long, but also because women's experiences in the
criminal justice system serve to highlight the faults of the
entire system.
The U.S. incarcerates women at the highest rate in the
world, so there is a lot of data to dig through, but as I
outline the basics, I would like you all to keep one fact in
mind: One in four women who are incarcerated have not been
convicted. That figure alone demonstrates that we use
incarceration far too much. Since the 1970s, women's State
prison populations have grown faster than their male
counterparts. There are nearly 10 times as many women in State
prisons now as 40 years ago. Despite this dramatic growth,
women's incarceration remains an afterthought. In most States,
women have not benefited from recent efforts to reduce
incarceration as much as men have.
There are many complex and interconnected reasons why the
U.S. is incarcerating women at ever increasing rates. Here are
a couple of examples: States continue to widen the net of
criminal justice involvement by criminalizing women's responses
to gender-based abuse and discrimination. We have heard about
the expansion of drug conspiracy laws that lead to even minor
or peripheral roles of women receiving very harsh sentences,
even more harsh than those in charge of the operation. In terms
of gender abuse, you have policy changes that led to mandatory
dual arrests, just simply for fighting back against domestic
violence. Once caught in the net, there are fewer diversion
programs available to women.
In Wyoming, for example, there was a boot camp that allowed
men to participate in a 6-month program instead of having to
serve a lengthy sentence, but no similar program is available
in the State for women, so they face years of incarceration for
first-time offenses, while their male counterparts can quickly
return to the community. And then once women are incarcerated,
they face more and harsher disciplinary sanctions for similar
behavior when compared to men, and this disciplinary action
harms women's ability to earn time off the sentence and
decreases chances of parole.
The tentacles of mass incarceration have a long reach.
Women incarcerated in jails and prisons account for just a
small percentage of women under some form of correctional
control.
Probation accounts for the majority of women under
correctional control, and is often billed as an alternative to
incarceration, but compliance with restrictive probation terms
is particularly difficult for women, it often sets us up to
fail. For example, probation comes with mandatory monthly fees,
which women are in the worst position to afford. Failing to pay
these fees alone is often a violation of probation. Childcare
duties further complicate compliance, because probation
requirements often include travel to mandatory meetings, or
having to get advanced permission for an emergency school pick-
up, or advanced permission for an emergency doctor's visits.
Ongoing struggles with mental health and substance abuse
disorders, which affect women in jails far more than men,
require additional support rather than being viewed as
punishment--rather than being punished as a failure of
probation. Even as incarceration rates drop, women's
incarceration continues to grow; getting hard data is the
obvious next step for policy change. You would think that
knowing how many women are locked up, and where, and why, would
be easy; after all, this is a population that is literally
counted multiple times a day, but there is an astounding lack
of data on incarceration.
I set out to give a complete picture of women's
incarceration in my report, Women's Mass Incarceration: The
Whole Pie, and I had to weave together data scattered across
incompatible government reports and surveys.
For example, the last time the Bureau of Justice Statistics
published a comprehensive report on incarcerated women, it was
1999, that is 20 years ago. Since then, data on incarcerated
women have been available piecemeal scattered throughout BJS
publications. Even worse, BJS has stopped even collecting some
data on women incarcerated, much less publishing it.
When our statistical agencies are blindfolded, the
policymakers are too. Having, accurate, timely data is an
important part of ending mass incarceration of women. But quite
frankly, there is such vast room for improvement in so many
areas that we can wait for data collections to catch up while
we take commonsense action today.
[The statement of Ms. Kajstura follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Ms. Bass. Thank you. Ms. Onwuka.
TESTIMONY OF PATRICE LEE ONWUKA
Ms. Onwuka. Good morning. Thank you, Chair Bass, thank you
Ranking Member Ratcliffe.
I work with the Independent Women's Forum and we are an
educational organization committed to increasing the number of
women who value free markets and personal liberty. We advance
policies that enhance people's freedoms, and choices, and
opportunities. And so, my focus specifically, my work focuses
on expanding opportunity for women. This subject is something
that is really important to us. So, this is truly a great time
of opportunity for women. We know that we have record low
unemployment rates. Over 1,800 new businesses were started by
women each day from 2017 to 2018. Firm's owned by black, or
women of color, have triple digit growth over the past decade.
Yes, a criminal background lobs too many women out of
opportunity and economic mobility. Work is a critical component
to the successful transition from the criminal justice system
back into society.
So, I am encouraged by the historic, bipartisan First Step
Act that was passed and signed into law last year. It laid it a
foundation, but we know there is more to do for women.
Conversations like today remind us that the left and the right
are committed to helping every American achieve their right to
life, liberty, and the pursuit of happiness.
Organizations across the philosophical spectrum are engaged
in criminal justice efforts, and for different reasons. I think
we can all agree that committing a crime and paying her debt to
society should not preclude a woman from the pursuit of a
better future. It is not just her future, but the future of her
children, her family, her community that depend on her
successful transition back into society. It all starts with so
many women who are in the criminal justice system.
You have heard the statistics, they are staggering. What is
interesting is that we saw the replacement of judicial
discretion with one-size-fits-all sentencing mandates, landing
a lot of low level, nonviolent offenders in Federal prisons for
longer periods of time, than otherwise they might have been
given, and particularly because there are alternatives to
serving time.
Now that not only impacted women, but their families. As a
result, you have more women are likely to have served as a
primary caregiver to children prior to entering prison and have
plans to return upon release. We know that children whose
parents are involved in the justice system, they face a host of
challenges and difficulties. Incarceration also forces families
deeper into poverty and debt. The burden falls on family
Members, society, and yes, us taxpayers.
The family bond, especially with their children, often
becomes a motivating factor for women not to return to crime.
So effective criminal justice requires respect for the dignity
of all people, and the successful means towards rehabilitation.
Now while serving time, women face special challenges some
of the panelists have talked about this, from general health
and wellness to ongoing gynecological care and prenatal care if
they are pregnant. They require separate facilities for
showering and using the toilet. Serving a criminal sentence,
though, should not mean that female inmates serve in
dehumanizing, unsanitary, unsafe, or unhealthy conditions.
Some level of privacy from male guards is a reasonable
expectation and can protect female prisoners, many of whom are
experienced sexual violence. Incarcerated pregnant women are
the most vulnerable.
Unfortunately, the justice system really considers the
special needs of this population. Thankfully, this shackling of
women is a practice has been ended by law because of the risk
it poses to moms and babies. Now as a mother of a 7-month baby
boy, this is especially close to my heart.
Ongoing physical and mental health care should not be
forgotten. When it is time for a woman to return--to be
released from prison, that is not the moment to begin thinking
about what she is going to do afterwards. We know that are
women's recidivism rates are similarly troubling to those of
men, about one-quarter of women released from prison have an
arrest for a new crime within 6 months, one-third within a
year, and two-thirds 5 years out.
So training, technical educational opportunities, including
those tied to the faith community, can be assets in the
rehabilitation reentry process. There is evidence these
programs work. The First Step Act encourage rehabilitation
programs offers and offer significant incentives to inmates to
participate in recidivism reduction programs. A strong economy
is an ally in providing women opportunities. Where government
puts up roadblocks to opportunity, the government needs to
remove them. We have seen that occupational licenses have been
a tremendous hindrance for women who simply want to work. That
is a place we can start, and we are seeing States take some
action there. The criminal justice system is an area where we
all believe that smart reforms can help women who want to be
productive Members of society, so I look forward to today's
discussion.
[The statement of Ms. Onwuka follows:]
STATEMENT OF MS. ONWUKA
Chairman Bass, Ranking Member Ratcliffe, and Members of the
Committee thank you for inviting me to appear today.
My name is Patrice Onwuka, and I am a senior policy analyst
at the Independent Women's Forum. We are a nonprofit
organization, committed to increasing the number of women who
value free markets and personal liberty. We advance policies
that enhance people's freedom, choices, and opportunities. My
work focuses on expanding opportunity for women.
There's no better time to talk about women and opportunity
than today.
As of June, we are at a near record-low unemployment rate
for women of 3.3 percent. There are more than 11 million women-
owned businesses. Over 1,800 new small businesses started each
day on average from 2017 to 2018. Firms owned by women of color
have had triple-digit growth over the past decade. We graduate
more women from college today than men and in scores of
industries, women outearn men.
Because of a strong economy and over 7 million unfilled
positions, employers are considering for employment applicants
whom they would have passed on in the past. That includes
returning citizens and people who have criminal records. This
is good news for this community that struggles with obtaining
steady employment, a key factor determining whether they will
become a productive citizen or return to prison.
Women in the justice system are also benefiting from
greater opportunity, but unfortunately, they have been left out
of the conversation of criminal justice reform. I'm glad
today's hearing will focus on their unique issues and concerns,
The number of women in prison has increased by more than
700 percent since 1980. As a nation, we are home to around 30
percent of the world's incarcerated women.
Lawmakers on the left and the right recognize that in the
past we may have been tough on crime--and needed to be. Today,
the shift to be smart on crime provides a chance to reform laws
that have yielded punishments which were out of whack with the
crime or to create policies that help women prepare for life
after serving time.
Over Incarceration of Women
Judges have enjoyed discretion in weighing the merits of
cases and determining the best punishment for crimes committed
by individuals.
Our justice system changed significantly in the 1970s and
1980s when Congress and State legislatures implemented
mandatory sentencing for drug crimes with the intention of
attacking the drug trade and deterring people from drug use.
Understandably, the spread of drugs warranted a strong
response. Unfortunately, limiting judicial discretion and
imposing inflexible punishments led to skyrocketing
incarceration rates. There were just 13,000 incarcerated women
in 1980 and that swelled to more than 110,000 women in 2016.
The federal female prison population has risen twice as fast as
the male population. Some 1.3 million women are under the
supervision of our criminal justice system.
Women are more likely to commit property crimes and drug
crimes and offenses than men. In State prisons, for example, 25
percent of women in prison have been convicted of a drug
offense, compared to 14 percent of men in prison.
Because of sentencing changes, low-level, non-violent
offenders landed in federal prisons for longer periods of time,
when otherwise, they might have been given parole or sent to
diversion programs.
Conservative and liberal lawmakers are trying to address
the unintended consequences of a heavy-handed approach to
sentencing.
The bipartisan First Step Act passed and signed into law by
President Donald Trump in December 2018, reduced or reformed
several federal mandatory minimum laws that, prospectively,
will reduce unjustly harsh sentences, restore discretion to
judges, and allow for resentencing.
In 2019, over a dozen female inmates (2 percent of 1,050
federal inmates) received reduced sentences as a result of
these changes. Going forward, likely more women will end up
serving fairer sentences or may be given alternatives to
sentencing such as community-based diversion programs,
rehabilitation for addiction, treatment for mental illness,
paying restitution, or community service.
Alternatives to imprisonment can rehabilitate the offender,
reduce prison and jail costs, and prevent additional crimes
from occurring in the future. Victims of crimes are helped,
communities are helped, and individuals are helped.
Americans overwhelmingly support alternatives to
sentencing: 77 percent of adults believe that alternatives to
incarceration should be used often or sometimes.
Criminal justice reforms should not eliminate punishments
for offenders, but they offer a chance to ensure that
punishments fit the crimes. Effective punishments can reduce
the likelihood that a woman recidivates. Over 40 percent of all
people leaving prison will re-offend and be back in prison
within three years of their release.
By addressing underlying causes of crime such as addiction
or mental illness, we may help people from reoffending. That is
good for families, who don't have to lose moms and dads for
years at a time. It also allows women to keep working to earn
income, pay taxes, and support their families. That truly gives
people a chance at a better life.
Dignity for Women in Prison
Women have unique health and wellness needs that men do not
have and ones that do not disappear when they serve time in
prison. Women need on-going gynecological care and prenatal
care if they are pregnant. Women have menstrual cycles that
demand hygiene products such as menstrual pads and tampons.
They require separate facilities for showering and using the
toilet.
Serving a criminal sentence should not mean that female
inmates serve in dehumanizing, unsanitary, unsafe, or unhealthy
conditions. Nor should they have to pay for products that they
cannot afford.
If women are pregnant, it is especially important for both
the health of the mother and the baby that their prenatal care
is provided.
As a mother of a seven-month-old, I can only imagine how
challenging it would be to be restrained while pregnant and
especially during labor and delivery. Although 2,000 births
occur to women in custody, the stories of miscarriages that
follow from shackled inmates falling and hurting themselves
remind us why this practice was important to end.
These are two areas where progress has been achieved on the
federal and State levels. The First Step Act directed the
Federal Bureau of Prisons to make feminine hygiene products
available to prisoners for free. It also prohibits the use of
restraints on pregnant women in federal prisons unless there
are good reasons for her to be restrained, such as being a
flight risk or a healthcare professional determines the use of
restraints is necessary for treatment.
There are still areas for more to be done at the federal
level to provide dignity for women inmates. It's reasonable for
women to have privacy from male correctional officers when they
are undressed in showers, bathrooms, and dressing rooms or
being searched. States are adopting such measures like
Louisiana, which passed reforms to preclude male correctional
officers from conducting pat-down searches.
These are expectations that transcend partisanship and
underscore that even behind bars, women should be treated with
dignity.
Removing Barriers to Opportunity
We are living through an impressive time for women in the
labor force. The tight job market today is also encouraging
employers to hire individuals that they would not have
considered before such as those with a criminal record. Some
private employers are proactively removing questions about
criminal pasts from employment applications.
Yet, too many women are locked out of the economic
recovery, the labor force, and the prospect of economic
mobility because of their criminal background. From sentencing
to second chances, women who desire to make amends, better
themselves, and become productive citizens face government-
imposed barriers to achieving opportunity.
Once a woman leaves incarceration, she needs to work.
Former inmates who find steady employment are less likely to
return to crime. However, women with low educational levels and
who lack a steady employment history and vocational skills face
difficulty finding employment.
The government can help women gain the skills, education,
and training that they need to secure work opportunities
beginning while serving their time.
Vocational training and career technical education programs
teach inmates employment skills or job-specific skills with the
goal of reducing the risk of recidivating.
The First Step Act encouraged rehabilitation programs and
offers significant incentives to inmates who participate in
recidivism reduction programs.
Congress and states should explore and assess the
effectiveness of such programs to scale what works and learn
what doesn't work.
Occupational Licensure
Occupational licenses are another barrier of entry for
those with a criminal record. Occupational licenses are
government ``permission slips'' to work in a vocation. Workers
have to satisfy state-level requirements of education and
training at their own expense.
Occupational licensure has expanded significantly over the
last five decades increasing from just 5 percent of the
workforce in 1950 to 20 percent in 2000.
There are hundreds of occupations that require licensure
and many of them are vocations that women work in: Manicurists,
cosmetologists, makeup artists, preschool teachers, shampooers,
interior designers, florists, hair braiders, and tax preparers.
These can be low- and middle-income vocations where individuals
can work for employers or be entrepreneurs.
Occupational licensure creates barriers to work because
they often require higher levels of educational attainment and
skills that can be costly and take a long time to secure. The
qualifications may be unnecessary or unrelated to the actual
vocation. Many occupational licenses are not portable across
State lines. Most concerning, many states have ``good
character'' standards that prohibit ex-offenders from ever
obtaining a license.
A study by an Arizona State University researcher found
that states with the heaviest occupational licensing burdens
saw an average increase of over 9 percent in new-crime
recidivism rates over a three-year period. Conversely, states
with the lowest burdens and no character provisions saw an
average decline of nearly 2.5 percent in the recidivism rate.
Reforming occupational licenses are an important key to
reducing recidivism. This is a bipartisan area of concern; the
Obama Administration released a report calling for occupational
licensing reforms. It's encouraging to see states eliminate
licensing requirements or good character provisions.
Preparing women for life after prison will help them settle
into a productive lifestyle and prevent them from returning to
the behaviors that led to their crimes.
The criminal justice system is an area where we believe
that smart reforms can help women who are breadwinners for
households where someone is serving time or who have themselves
been in the justice system and want to be productive Members of
society.
It's exciting to see criminal justice reforms at the State
and federal level deliver transformational impact for women and
by extension their families and communities.
Thank you for the opportunity to be here this morning to
discuss these issues of importance to women in society. I
welcome any questions you may have.
Ms. Bass. Thank you. I want to thank all the witnesses for
your testimony today. We will now proceed under the 5-minute
Rule with questions. I will begin by recognizing myself for 5
minutes.
Ms. Shank, I did not understand why you were indicted. You
said that you were indicted, it sounded like years after your
partner, who abused you, passed away. You were originally--
could you please go through the sequence again and explain why
you were indicted?
Ms. Shank. Absolutely. It tends to be a little confusing
sometimes. The person that I was dating was murdered, like I
had mentioned, in 2002. I was initially charged with conspiracy
in 2002. I received a letter from my attorney 3 months after
the initial charge stated that my case had been dismissed.
Ms. Bass. Your conspiracy was?
Ms. Shank. Drug-related conspiracy for a drug crime.
Ms. Bass. So, you conspired to sell the drugs, even though
you were locked in the house against your will?
Ms. Shank. I lived in the home. So, I like I said, I moved
on with my life. I had married and had children. Then in 2007,
they knocked on my door with an indictment and charged me with
conspiracy. Not only did I get charged with conspiracy, but I
also received four felonies. I was charged with the possession
with intention to distribute cocaine, crack and marijuana,
along with the conspiracy charges, and a two-point gun
enhancement, based that I lived in the home.
Ms. Bass. So, you were indicted 5 years after the drug
dealer died?
Ms. Shank. Yes.
Ms. Bass. Years after you were originally arrested?
Ms. Shank. Yes.
Ms. Bass. That is crazy. After you were released, I wanted
to know what happened with your children. Who took care of your
children while you were incarcerated?
Ms. Shank. Their father.
Ms. Bass. Their father took care of the children. After you
got out, did you get custody of your children?
Ms. Shank. Absolutely. Three weeks after I got out, I went
down with their dad and I have joint custody of my daughters
now. He is a wonderful man, and father, a wonderful father. He
is never kept the children from me. He was very helpful in
keeping my relationship with them.
Ms. Bass. How much time did you serve?
Ms. Shank. Nine years.
Ms. Bass. So, how old are your children?
Ms. Shank. Autumn is 15, Ava is 13, and Annalise is 11.
Ms. Bass. So, from what years to when, when you went in,
they were how old?
Ms. Shank. 4, 2, and 6 weeks old.
Ms. Bass. When you were released, they were how old?
Ms. Shank. 13, 11, and 9.
Ms. Bass. Were you able to stay in touch with them? Didn't
you say for a while you were close to them, but then you were
transferred away?
Ms. Shank. Yes. Initially, I was in Pekin, Illinois, and I
was able to see them in my first 3 years for about every 6
weeks. I was able to maintain some type of connection with them
being so small. But, the prison had closed for women, and I was
transferred with 40 other women to Coleman, Florida.
Ms. Bass. Did anybody take into consideration the fact that
you would not be able to be in touch with your family if you
moved?
Ms. Shank. There was no consideration for anybody. There
was 240 women that were scattered all across the country. Pekin
was the closest prison for all the women there. So, women ended
up in California, Texas, Florida.
Ms. Bass. I am sorry to interrupt you. I was concerned
about my time. The one thing that is said about women that are
incarcerated different than men is that women don't receive
visits. Women visit men in prison, men don't visit women in
prison. I wanted to know from Ms. Shank and Ms. Kerman, was
that your experience? Is that what you saw when you were in
prison or is that not accurate?
Ms. Shank. Absolutely. Women would get visits, and they
would be very sparse as far as people visiting their families.
I mean, you get a lot of grandmothers bringing kids,
caregivers.
Ms. Bass. How many and how often did you see women whose
children were in foster care while they were--
Ms. Shank. Often. I mean, I would talk to a lot of women, I
was there for 9 years, so I spoke with many women over the
years that would lose their children, custody of their
children.
Ms. Bass. Parental rights would be terminated if they were
incarcerated too long?
Ms. Shank. Yes, absolutely.
Ms. Bass. Ms. Kerman, what was your experience in seeing,
did you see women receive visits? Did you know women who lost
their children? Did you know women who were in foster care?
Ms. Kerman. Thank you, Chair Bass. I feel that the
relationship between mothers and children is the single most
important factor of incarceration of women. I was not a mother
when I was incarcerated. I am now. I think about that all the
time. I thought about it all the time when I was locked up. I
was very, very lucky, I was serving time in Connecticut and a
resident of New York City, so for many people it was easy to
visit me. Since then, the facility in Danbury has been
repurposed, and a huge percentage of women who were
incarcerated there have also been transferred far away from
their families.
What would happen is that you would see women my bunkmate
never received a visit the entire time we bunked together. She
had two children. Then, there were certain families that were
fortunate enough to be able to be up in the visiting room with
some frequency.
Ms. Bass. I am going to run out of time. I just wondered if
anybody can comment on women that they saw who became pregnant
while they were incarcerated?
Ms. Shank. There was a woman in Florida who became pregnant
by an officer while I was incarcerated. That is something that
doesn't get talked enough about, the safety of women with
officers who are there.
Ms. Bass. Thank you. Mr. Ratcliffe.
Mr. Ratcliffe. I thank the chair.
Ms. Onwuka, you highlighted in your testimony the
importance of dignity for women in prison. I agree with you:
This certainly should not be a partisan issue. We should all be
able to address in the spirit of bipartisanship, I think we
can, the needs of women, girls in the criminal justice system.
Some of those issues, as you pointed out, were addressed in
the First Step Act, which President Trump signed into law late
last year, but you mentioned, also, that there are still areas
for more to be done at the Federal level to provide dignity for
women inmates. So, can you elaborate on those additional areas
it for improvement? Specifically, I am interested if you know
any States that have taken action in those specific areas? Then
if time is permitting, I would like to get the perspective of
Ms. Shank and Ms. Kerman, given your experiences.
Ms. Onwuka. Thank you. So actually, the comments of Ms.
Cynthia Shank just now touch on one of those, the male prison
guards area. I mentioned I think it is reasonable for women to
have some expectation of privacy, particularly when they are
changing, they are undressing, they are showering. We know that
female prisoners are vulnerable, and a lot of them have
unfortunately experienced sexual violence in the past.
So, when you have a situation where, perhaps, a male
correctional officer enters into a female cell, and she is
changing, she may protest, and say, Can I have some privacy? A
verbal altercation could ensue. This could be triggering for
that woman behind bars, and it could lead to a place that she
doesn't want to go, and you don't want to have her being.
So, I think the American--there are a couple of
conservative organizations and progressive organizations that
have come together to talk about why during incarceration, it
is reasonable that male guards shouldn't be present when a
woman is strip-searched. They shouldn't be supervising women
who are in showers and other sensitive areas. Even the idea of
forced and inappropriate inspections, these things are
counterproductive to rehabilitating a woman behind bars.
So, I think there is an area there for understanding what
is it? What happens when male guards are present? What are
potential guidelines or guardrails that should be put in place
between men and women in sensitive areas? We understand there
are other places where it makes sense to have that happen.
Another area that I think is concerning for pregnant women,
we did talk about the shackling of women being ended, but I
think the continued care for women who had a baby afterwards is
really important.
Some researchers found that correctional facilities tend to
fail to provide physician-recommended standards of care for
pregnant women, and that places women's health and the health
of the child at risk, even after a woman has had a baby. I know
very many women, who have had children, understand that there
is an emotional toll that is taken. So, when you are denied
medical care, or you don't have adequate medical care, even
mental healthcare that may be needed postpartum. I think those
are areas where you both need some guidance from obstetricians
and gynecological experts on what kind of care is actually
needed, and how Federal prisons can provide that care.
Then in terms of States, I would have to do a deeper dive,
I do know States like Louisiana, a lot of red conservative
States have actually been implementing some of these at the
State level. Texas is another great place that has implemented
some changes in terms of Federal prisons, and so happy to
provide some additional research at another time.
Mr. Ratcliffe. Thank you.
Ms. Shank and Ms. Kerman, do you want to add to that? Any
perspective that you want to provide on those issues of dignity
for women, areas that we could focus on here?
Ms. Shank. Absolutely. The guard-to-female situation is
something I don't speak about often, primarily because my
children are usually in the room when I go and speak, but it is
very prevalent, the guard and inmate relationships that happen
in prisons. I never felt safe changing; guards know your
routines and if they want to single you out, they will. It is
very common for an officer to single somebody out.
Ms. Bass. Would the witness yield for a minute? When you
say guard-to-prisoner relationships, are these consensual, or
are you describing rape?
Ms. Shank. Well, when you put into perspective somebody who
is over you who is in charge of you, they are consensual to the
extent where you ask the inmates are there, but they are also
vulnerable. These are their caregivers, these are people that
are over them, they are authority over them, so while they are
consensual relationships that I am aware of, to me, there is a
level of not being consensual.
Ms. Bass. Power.
Ms. Shank. Power, absolutely. They wield that power. I
never had a relationship with an officer, but I can tell you
that officers would know when I would shower, and they would
walk by my room, they would enter my room when I was getting
dressed frequently. It happened at every prison that I was at.
I was at three different places, and this is just my story. I
mean, you can talk to any one of those women, and they will all
tell you it was very common to know that this officer was in a
relationship with that inmate, or it was just something that
happened all the time.
Ms. Bass. Thank you.
Mr. Ratcliffe. Thank you.
Ms. Bass. Mr. Nadler.
Mr. Nadler. Ms. Kerman, your time in custody, you observed
other women who were pregnant, I assume. You observed women who
were pregnant gave birth while incarcerated? Can you describe
what you observed?
Ms. Kerman. Thank you, Mr. Nadler. I will never forget the
first day in prison for a variety of reasons, but one of the
things that I remember so clearly after being processed in by
correctional officers and transformed into 11187424, it was
February, I was being escorted up to the unit where I would
live, to the building that would house me, and there were a
group of women standing outside the building. There was a woman
who was very visibly pregnant. I learned that she was 8 months
pregnant, and I remember just being so confused when I saw her.
I was literally, like, this must be a mistake. It had never
occurred to me that there would be pregnant women in prison.
I am still deeply confused by that. I am deeply troubled by
the fact that so many women enter prison, and, of course, they
have gone through an entire judicial process prior to
incarceration, and that our choice as a society is to force
them to go through their pregnancy and childbirth while under
custody in a setting, as Ms. Onwuka has pointed out, that is
not appropriate for pregnant
people.
That particular young woman that I saw went into labor
shortly thereafter, just a few weeks later, she went into
labor. She was the first person I had ever seen in labor. She
labored for about 12 hours there in the prison, occasionally
checked on by staff, but largely assisted by the other women.
Mr. Nadler. In a hospital unit?
Ms. Kerman. Finally, after about 12 hours, they took her
out to the local hospital, which is where she gave birth. She
was then immediately returned to the prison postpartum in
recovery from having given birth, but also incredibly drawn,
sad and devastated, because she had been separated from her
infant, and all the biology that we know tells us that babies
and mothers need to be together for months, for years really.
Certainly, that young lady who was serving an 18-month
sentence for a low-level drug offense, could have stayed in the
community to give birth. She was from rural Maine, and it was
very lucky that her family was able to take the baby, and it
was very lucky that they were occasionally able to make the 8-
hour drive down for her to see the baby.
It was also very lucky that she was going home soon,
because not everyone is that fortunate. The most important
thing from my point of view that we think about pregnancy is
reproductive rights, freedom, and motherhood when we think
about women in the criminal justice system.
Mr. Nadler. Let me ask that the video can clip from the
Orange is the New Black which displays this heart-wrenching
moment.
Ms. Kerman. Let me quickly explain that this depicts the
return of a prisoner immediately after giving birth.
[Video shown.]
Mr. Nadler. How long after giving birth was she returned to
the prison?
Ms. Kerman. The next day. She had a regular and
uncomplicated birth. So, as soon as she could be medically
discharged from the hospital, she was brought to prison.
Mr. Nadler. Let me ask in the few seconds I have left, Ms.
Shank. I believe the mandatory minimum sentencing laws are
unjust for individuals and harmful to our communities and
society. Can you tell us something about sentencing reform, any
particular reforms you think would address issues specific to
women?
Ms. Shank. That is a good question. Alternatives to
sentencing? Is that what you are asking?
Mr. Nadler. Well, alternatives to mandatory sentencing.
Whatever you--
Ms. Shank. I mean, I think we need to give the discretion
back to the judges, they need to be able to do their job. I
think if they are allowed, if we take away mandatory minimum
sentencing and allow them to sentence people on an individual
basis, I think that would be more productive. I think we
wouldn't have such an overload of people in prison, just kind
of cut and dry, saying Okay, this is a category that you fall
in, you go this way, you go right. I think it needs to be
individual. I think you need to base--everybody's story is
different; everybody's circumstances are different. I think the
judge needs to be allowed to make that decision.
Mr. Nadler. Thank you very much, my time has expired.
Ms. Bass. Mr. Chabot.
Mr. Chabot. Thank you very much, Madam Chair. Ms. Onwuka,
if I could, you had mentioned in your testimony programs
connected to the faith community, could you kind of expound
upon that what have been your interactions, or your experience
relative to faith-based programs in prisons, women's prisons,
or men's for that matter?
Ms. Onwuka. Sure. Thank you so much. I think the critical
aspect of rehabilitation for many people behind bars has been
faith, and the ability for those people to be connected to
justice and restoration on a personal sense of their faith and
their guiding beliefs. Part of that as you have seen some
pretty successful programs that are faith-based that have
actually been very helpful in achieving that.
So, prison programs that I have seen very effective, the
first one that comes to mind is PEP. In general, you have seen
prisoners who participate in job training and educational
programs; they are less likely to recidivate, and they are more
likely to avoid reincarceration afterwards. The PEP program,
which is the Prison Entrepreneurship Program, I believe it is
Texas-based, has been a tremendous example of kind of faith-
based, but also just private organization going in there and
providing prisoners with the skills that they need,
particularly around entrepreneurship.
I like entrepreneurship because it is one of those areas
where individuals who have a criminal record, for example, can
actually start their own shop, hang their own shingle. I
mentioned the statistic that 1,821 women, the new businesses
were started each day in 2007 to 2018 because people were able
to start those businesses that they want to do. So, PEP is a
really great example of a program that works in the State
level, and can be scaled nationally.
Ms. Onwuka. When it comes to other faith-based programs
that reduce recidivism, I think there are some other programs
out there. Prison Fellowship is another great one, national
Christian nonprofit serving prisoners. It was launched in,
again, Texas. It is one of those places that has been a great
launching pad for some of these programs.
I will give you some statistics from their success.
According to a study by the Texas Policy Council, only 8
percent of the participants returned to prison within 2 years
who completed the program that they provided compared to 20
percent of offenders who were eligible for the program but
elected not to participate.
So, I think those are two examples of good programs,
entrepreneurship related that could be helpful.
Mr. Chabot. Thank you very much.
The next question I will ask any of the panel Members who
might like to comment until I run out of time. Most prisoners,
men or women, are going to get out some day, and even those
that have some form of homicide often times are going to get
out. Those that have job skills at the Federal level we have
prison industries. I used to work with, in the city of
Cincinnati when I was on city council and as a county
commissioner, programs that encourage people to work, and we
had two-for-one programs. For every day you were out doing
something on a work crew, you got 2 days off your sentence, for
example.
Relative to trying to get a skill that when the person gets
out, that they could put actually into use, also making your
time in prison perhaps pass more quickly, if that is possible,
do you have any examples or programs that you think may have
worked where you were at or an example where it doesn't work?
Ms. Shank?
Ms. Shank. One of the things that is very rarely offered in
the Federal system, in the prisons that I was at, were any kind
of programs whatsoever. There is the lack of program that we
should be talking about. Each place that I was at, there was
one program that would have been like a computer program. I was
able to do that. That was the only program that I was able to
do.
I did in Coleman, Florida, get my CDL. Have I driven a big
rig since? No. It is something oriented towards men. There is a
lack of programs. Also, any kind of programming that you do,
there is a list you have to get on to get into this class.
Now, for me having a 15-year sentence, every class that I
applied for, anybody who comes in after me and has a shorter
sentence will be ahead of me on the list. So, guess how many
programs I was able to do? Hardly any, because I would be moved
back down the list because somebody with 2 years and is about
to get out, would be able to do it. Whether it was a reentry
programs, whether it is any other kind of programs, there is
not enough programming in the system.
Mr. Chabot. Thank you very much.
Ms. Kerman. Cindy is correct. The Federal Bureau of Prisons
is particularly egregious in terms of very limited
rehabilitative programming or restorative programming. She
draws a good comparison or a good point that many of the
programs, the limited programs that are available, are
completely designed for men.
Ms. Onwuka points out a wonderful program, the PEP program
in Texas. Unfortunately, that is only available to men. Women
are not able to participate in Texas.
There is an amazing program called Inmates to
Entrepreneurs, which is based out of North Carolina but
operates in other places, which does work with women, both
incarcerated women and women who have returned to the
community.
Mr. Chabot should know that in our State of Ohio at the
Ohio Reformatory for Women, which is a State facility, there is
a tremendous program called Tapestry, which has been operating
for 25 years, which is a recovery program for women with
substance use disorder, but it does have a faith-based
component.
Ms. Bass. Thank you.
Ms. Kerman. It is remarkably successful and operates a
network of graduates, 800 women who have returned to the
community. Of course, to this point is available to only a tiny
percentage of women.
Ms. Bass. Thank you. We are going to need to move on.
Ms. Bass. Ms. Jackson Lee.
Ms. Jackson Lee. Thank you so very much for holding this
hearing and to you and the Ranking Member.
It is clear that as we look at this set of facts, emotion,
passion, that there is much work to do to build on what we have
done in this committee, prison reform first steps, sentencing
reduction, much work to do as it relates to women. This
testimony has given us sort of the launching pad to be able to
do so.
We hope to introduce soon the End Racial Profiling, which
certainly overlaps some of the reasons why women of color are
in. I know that the idea of conspiracy on drugs is something
that occurs with the man and the woman that is in on the
conspiracy charge. We see that all the time. We must address
that, and I look forward to looking specifically at those
issues.
Let me quickly say that one of my constituents, Dr. Roe,
was not incarcerated but wearing a jumper coming from Jamaica,
West Indies, an African American woman, was forced to put a
blanket on to get on an airplane from the Caribbean, which is
where people come for fun and play. So, we know that it
permeates through LGBTQ and others, and so we look forward to
doing that legislation.
I want to focus, if I could, Ms. McCurdy, on this question.
African American women are twice the rate of imprisonment for
White women, Hispanic 1.4 times. My time is short. Can you just
give a quick reason why you believe--and I want to ask some
other questions to Ms. Shank and others--as quick reasons why
you see that happening?
Ms. McCurdy. Well, I think it is--
Ms. Jackson Lee. Thank you for your work.
Ms. McCurdy. No problem. It is important for this
Subcommittee to focus on the fact and I think through all our
testimony we have talked about it, but I just want to say it
out loud, that some of the major reasons why women are ending
up incarcerated is because they are traumatized and they have
experienced trauma, whether it is physical abuse, sexual abuse,
witnessing a violence in their communities, as well as they are
caught in a cycle of poverty.
So, until we address those concerns and we have real gender
responsive programming that addresses the trauma that women
have experienced--and men, but today we are talking about
women--we are kind of spinning our wheels at this. Studies have
said--
Ms. Jackson Lee. Do you think women of color are caught up
in those elements as well as Anglo women and others?
Ms. McCurdy. Absolutely. Absolutely.
Ms. Jackson Lee. I need to move--I just wanted to get that
basic understanding of the reason. Thank you so very much.
Ms. Shank, I have legislation moving through the Congress,
unfortunately, it is stuck in the United States Senate--that
deals with the birth of babies while incarcerated. You have
given me the, as I say, the launch to add the children aspect,
but it is to allow the mother to keep the baby. In some
instances, they are incarcerated, and to keep the baby while
incarcerated in a separate area and to nurture that child for 6
months.
Now, there are also options in the community for low
offenses. We want to look at that. I want you to comment, if
you will, on how powerful it would be if that scene where the
woman would be coming back with her baby to a certain safe
place, clean, orderly, baby nursery type, where those mothers
could stay while they were incarcerated.
Ms. Shank. I could barely watch that scene because it is
very real. I had to turn away because it made me cry. It means
everything if a mother could stay with her child. I don't know
that to coming back to a nursery type situation without your
child is going to do any good.
Ms. Jackson Lee. Right. That is what I am saying. So, you
come with the baby?
Ms. Shank. You have to come with the baby.
Ms. Jackson Lee. Right. Absolutely.
Ms. Shank. You have to be able to be with the baby.
Ms. Jackson Lee. That is what I was saying.
Ms. Shank. It has to be able to--sorry. That must be able
to happen. That is necessary, not only for the mother's sanity
and well-being, but for the child as well. We have to remember
that I am an adult, and I accepted the consequences of my
sentencing, but my children were the innocent victims in this,
and that is who we have to focus on. There is nothing available
for children, even when I put my daughters in play therapy,
they had to go to grief counseling. That was the therapy that
they went to.
Ms. Jackson Lee. So, may I add that we are now, with your
testimony, believe that we should now look at that piece--
Ms. Shank. Absolutely.
Ms. Jackson Lee. --that helps mothers be together with
their children, frequent visits--we are thinking of how we
actually can do that, and you put a face on it.
Ms. Shank. Frequent visits and also the type of visit. If
you could allow more of a play-type situation instead of having
your children having to sit in a chair and not be able to get
up or something other than playing in a cement slab with no
toys, really very limited things that you are playing with.
I created costumes with my children out of toilet paper
when they came to visit me for Halloween. A mother will do
anything that they can to make their child happy, but if there
is not even anything there for them to be able to do that, I
mean, our resources are very limited. You just must be able to
offer them something to be able to bring that child some form
of happiness and some form of connection with that child.
Thank you.
Ms. Jackson Lee. That should be a part of our reformation
for women.
Ms. Shank. It should be part of the visits. Yeah. It should
be part of rehabilitation, strengthening those family bonds. It
is what keeps them together.
Ms. Jackson Lee. Thank you so very much.
Ms. Bass. Mrs. Lesko.
Mrs. Lesko. Well, I want to thank you, Madam Chair. This
has been a very interesting committee, so thank you for doing a
hearing.
I want to say to Ms. Shank, thank you for sharing your
story. I am glad that you, after 9 years got clemency and you
are getting your life back together.
All of you, thank you for sharing your stories.
I do have a question, and I am not sure who to ask of it,
but in Arizona, I am from Arizona, we worked on sentencing
reform. I think this is a bipartisan issue, quite frankly, both
conservative groups and nonconservative groups, or I don't know
if you call it liberal or whatever, agree on this issue that
there is a problem.
When we tried to do this in Arizona, the prosecutors pushed
back saying, no, this is not first-time drug offenders that are
in the Arizona prisons at least. The prisons actually showed us
the statistics of who was in the prisons, and you had to be
basically a drug dealer, not just a drug user, at least in
Arizona, or it had to be a violent crime.
So, I guess, Ms. McCurdy, you might be the right person to
answer, is this the case also in Federal prison? I mean, do you
have first-time drug offenders? Who is in the prison?
Ms. McCurdy. So, not only do you have a number of first-
time--particularly with women, first-time drug offenders. In
the Federal system, you are charged with trafficking or
possession with the intent to distribute. Again, as we have
talked about what often women fall victim to, is the conspiracy
laws.
So, you don't have to necessarily have dealt drugs. You
must have some role in a conspiracy, and that, quote/unquote,
role is very little. As you have heard Cindy talk about, you
could live with your partner and pick up the phone in your
house that you live with your partner and that is enough to
implicate you in a conspiracy. You can take money to the bank
that your partner gave you. Again, you are not involved in the
trade itself, but you have these peripheral roles, and that is
enough to get you involved in the conspiracy. The problem on
the Federal level is that the focus is not on your role; the
focus is on the weight of the drugs.
So, if the conspiracy is large and the weight of the drugs
is large and you don't have information to trade with the
prosecutor to cooperate, you cannot get your sentence reduced
to be on the mandatory minimum. Often women, because they are
not involved in the trade, they end up taking the entire weight
of the drug trade, which in some instances gets them life
without parole sentences.
Mrs. Lesko. Very interesting.
The other thing that was brought up by one of the witnesses
was about childcare. If you do get out and you are on
probation, you must go to mandatory meetings. I know in our
State of Arizona we offer free or reduced childcare to low-
income working women. There is usually a waiting list because
there is a certain amount of funds.
Is this something that I would assume would help in that
situation? Because I imagine it would be difficult, especially
if you are a single parent.
Ms. Kajstura. Yeah. So that is definitely a step in the
right direction. One of the other problems on probation is you
are restricted to the hours you are allowed to leave the house,
for example, if you have to do an emergency pickup of your kid
and you can't reach your parole or probation officer in time,
or the same thing for an emergency hospital visits. You are
torn between your caregiving duties and knowing that you are
going to get sent back to prison if you take your kid to the
emergency room.
Mrs. Lesko. Well, thank you. I only have 32 seconds left,
and I have so many questions, so maybe I will follow up with
all of you.
The one thing that we did in our State too was we reformed
our occupational licensing. I would imagine that if you have a
criminal history, it might be difficult to get a regular job.
So, I would assume a lot of women could be self-employed. So,
what are your thoughts on that--I don't know how to pronounce
your name, Ms. Onwuka? Thank you.
Ms. Bass. Microphone.
Ms. Onwuka. Your State is a great example of States of
leading the charge in occupational licensing reform. For those
who are unfamiliar, an occupational license is simply just a
permission slip from the government for you to get into a
vocation. That could be everything from hair braiding to being
a florist.
There are lots of certifications and hurdles, frankly, that
can be costly, particularly if you are low income, you don't
have a lot of money, you are taking care of children and the
time it takes to get those certifications. A lot of them have
nothing to do with any sort of health or actual trade itself.
It is just a way to limit competition.
So, Arizona is a great State. I think there are a lot of
other States that are reforming, and I would absolutely
encourage other States to look at particularly those industries
where women are trying to get into those vocations. Those are
entry-level jobs, and they can become a primary source of a
very good income.
Mrs. Lesko. Madam Chair, I know my time is up, but I just
wanted to share with the Members that in our Arizona prisons,
at least, we have what is called Correctional Industries, and
there we put women to work. I have toured it.
In fact, if you call a call center, you might be talking to
a woman prisoner in Arizona, because they are actually
contracted out and they are doing call center work for
different companies. So, it is a good way for people to get
trained, and I support that.
I would like to work with you and other Members. I think
there are pieces of this that we can work on in a bipartisan
way.
Ms. Bass. Absolutely.
Mrs. Lesko. As long as we don't put in poison pills and
that type of thing, I think we can work on it together.
Ms. Bass. Thank you.
Mrs. Lesko. Thank you.
Ms. Bass. Thank you.
Representative Demings.
Mrs. Demings. Thank you so much, Madam Chair and thank you,
Ranking Member, both of you, for your opening comments this
morning that I think so adequately set the stage for today's
hearing.
Thank you to each of you. I served as a law enforcement
officer for a lot of years, and our mission was to protect
victims, but our purpose was never to create more victims. I
think that it is so important that we understand the individual
circumstances and victimization and other characteristics that
women who are incarcerated face, like being victims of domestic
violence, substance abuse, mental illness, being poor or low
income. All of those are challenges that if we are going to
improve how we do business, we have got to factor those things
in. Eighty percent of the women who are incarcerated are
parents.
Ms. Shank, you are absolutely correct. I was a daddy's
girl. I love my father, but you can't even put into words what
it means to be with your mother and the special role that a
woman plays, a mother plays in every household. So, thank you
so much for being here today and helping us.
We haven't even talked much about once you are released and
coming back into society and the challenges of that. Ms. Shank,
I would like to start with you. If you could just talk about
the separation from your husband, but eventually, you were able
to remarry and all, and that is great, but could you talk
about, once you were released, some of the challenges that you
faced coming back into society.
Ms. Shank. Yeah. We did not reconcile. We are divorced, but
we have a great relationship. We are coparenting our daughters
and doing that together.
When you are released, one of the challenges that I faced
was to get a job. I was fortunate enough to get a job 29 days
out of prison and just received my sixth promotion last week.
Mrs. Demings. Congratulations.
Ms. Shank. Thank you. That is determination and that is
being a mother, having a lot of catching up to do.
One of the things that was really hard, my halfway house
was in Kalamazoo, which is an hour and a half drive away from
my hometown, and they would have me come three to four times a
week between the hours of 8:00 a.m. and 3:00 p.m., which are my
work hours, to come in for whatever they wanted me to come in
for, just checkups, checking in, meetings, drops, whatever
random thing that they wanted. If I didn't, then that was a
violation of my probation. If I lose my job, which my job just
hired me out, and plus I am a felon which they are looking at
me. I could have easily loose my job and that is a violation of
my probation. They make things very difficult.
Thankfully, I had a vehicle. I asked the person at the
halfway house, what would I do if I didn't have a car? She
said, well, you would just take the bus. That is like 4 hours.
Mrs. Demings. Days.
Ms. Shank. Yeah, but they expect you to follow all these
rules, which I understand, but they make things very difficult.
That was very challenging for me early on. Luckily, I am off
that home confinement and off probation. No, I am still on
probation. I am still on for 5 years, but I don't have to do my
check-ins anymore.
Mrs. Demings. Thank you very much.
Ms. Kerman, do you have anything to add to that? Also, you
talked about that this is about policy. Incarceration of women
is more about policy and not crimes. Could you elaborate a
little bit on that as well, please?
Ms. Kerman. Sure. I woke up on the day of my release. I was
in a Federal jail facility in Chicago, not the prison facility
in Danbury. No one in the facility would confirm that I was, in
fact, going to be released, but I was quite alert. I watched
Martha Stewart get released from Federal prison the same day on
the news.
Finally, hours later, a correctional officer said, come on,
pack out, Kerman. They took me down to receiving and
disbursement and said, we don't have any women's clothes, here
are the smallest set of men's clothes we have. Here is a
windbreaker. It was Chicago in the winter and here is $28, this
is a gratuity. I was like, thank you.
They took me to an alleyway door and opened up the alleyway
door and were like, see ya. I was very, very lucky because my
fiance was waiting at the front door to take me home to New
York, which was 800 miles away. If that had not been true, my
entire life might have been, almost surely, completely
different.
Because I had safe and stable housing, I was able to start
work a week after my release from prison. I can't overstate how
important that work piece is.
I was treated very differently by my Federal supervising
probation office. Both of us were in the Federal system. Of
course, I was subject to drug testing, check-ins, and so on and
so forth, but they did not treat me with a heavy hand like they
did Cindy.
I think we have to look very hard at what drives disparity
in the system. It is race, it is class. It is unacceptable, it
is illegal.
That brings me back to your question about policy and the
fact that criminology experts all over the country will point
out the fact that it is policy decisions that drive
incarceration. Our incarceration rise in this country does not
map to crime rates.
We began to incarcerate people at a very high rate as crime
rates were actually beginning to decline. Crime rates continued
to go up and up and up even as we now enjoy historically low
crime rates, like some of the lowest crime rates ever recorded
since we started recording.
Mrs. Demings. Thank you so much. My 5 or 6 minutes goes
very, very quickly.
Thank you so much, Madam Chair.
Ms. Bass. You are very welcome. Representative Cline.
Mr. Cline. Thank you, Madam Chair.
I want to thank the witnesses for being here today.
I want to talk a little bit about the need for bail reform.
Despite overall decreases in incarceration, pretrial detention
since 2000 has increased by 31 percent to make up about two-
thirds of the overall jail population. Over 60 percent of women
who are incarcerated have not been convicted of a crime and are
held in custody pretrial. This has a unique impact because two-
thirds of the women who could not meet bail conditions, two-
thirds were mothers of minor children.
So, at the time of the survey that I am quoting, over
150,000 children had a parent in jail because they could not
afford their bail bond. That means children are impacted by
pretrial detention in startling numbers, and this problem is
most often caused by the pretrial incarceration of sole
provider mothers. So, we need to take steps to address this
problem.
As a former prosecutor, when you are presented with a
potential bond situation in court, you have certain factors, at
least in Virginia, to consider: Whether the the defendant is a
flight risk, whether they are a risk to the community if
released, or whether the severity of the offense with which
they have been charged is also something to consider.
There are also the issues of a secured bond versus an
unsecured bond. We in Virginia have pretrial services, which
can be administered, not in lieu of bond, but often they are a
great way to help in the process to avoid having to keep
someone incarcerated.
So, let me ask anyone who would like to comment on that,
what steps can we take to help address this problem?
Ms. Kajstura. Well, I think part of the reason--so some of
these problems are very systemic. Some of the impact that fees
and bail bonds and the economic sanctions of the criminal
justice system have on women are greater than men just because
women don't tend to make as much money as men. This hits Black
and Hispanic women even more so than White women.
Mr. Cline. Okay. So, in addition--getting rid of a money-
based bond, I get that. Let's go a little deeper. Secured
versus unsecured, pretrial versus bond, can you speak to those
specifics as to whether one might be more advantageous than
another when it comes to reducing the impact on children in
this situation?
Ms. Kajstura. Yeah. I am not sure about the way those
distinctions would make a difference. Maybe somebody else could
speak to it.
Mr. Cline. Okay. Anybody else? Ms. McCurdy?
Ms. Kerman. I received bail and was able to pay my bail
with the help of my family, and that literally made all the
difference in my life. We know the data shows that people who
are able to afford bail get better outcomes in their cases, for
a variety of reasons, but including the fact that they are not
desperate to plead guilty and take pleas that they should not
take, which, of course, 95 percent of all criminal defendants
take a plea.
I can observe that from my time in that Federal jail, that
women there who were on pretrial status were desperate. They
were desperate about what was going on with their families.
They were desperately uncertain about what was going to happen
to their own lives. They had no idea--there is a woman who had
been incarcerated there for 2 years pretrial.
Mr. Cline. What about encouragement of stay-home
monitoring? I mean, is that something that could enable maybe--
Ms. Kerman. So, during my 6 years spent on pretrial, I
simply reported to probation in New York City. My case was
caught in Chicago, but I was supervised in New York City where
I lived.
Mr. Cline. You were 6 years on pretrial?
Ms. Kerman. I spent 9 years under correctional control
total, though I was fortunate to only spend 1 of it
incarcerated.
Mr. Cline. Wow.
Ms. Kerman. So, 6 years of pretrial. I went through several
probation officers that were supervising, but it was a pretty
straightforward process. I turned up once a month. I was tested
for drugs. All the same things that we require of probation,
basically.
I was not a mother, so I think that a mother is even less
of a flight risk or we have a greater consideration as a
society to make sure that a mother is able to be in the
community. Certainly, the Federal system is set up to do
something other than rely on bail or pretrial incarceration in
the outcome of its sentences.
I must reflect on the fact that, you are a former
prosecutor, the responsibility of this really lies squarely
within the prosecutorial function and its relationship with the
supervision.
Mr. Cline. With a recommendation. Right.
Ms. Kerman. Women are a great example of the best possible
candidates for pretrial treatment that does not involve
incarceration.
Mr. Cline. All right. Thank you. I yield back.
Ms. Bass. Thank you. Representative McBath.
Mrs. McBath. Thank you, Madam Chair.
Thank you to each of you for being here today to share your
expertise and your personal experience. It is critical that we
hear from you.
In recent years, I represent Georgia's 6th Congressional
District, Georgia took on the challenge of criminal justice
reform. Under the leadership of Governor Nathan Deal, a
Republican, Georgia has enacted bipartisan reforms that are
reducing recidivism--easy for me to say--recidivism and saving
Georgia taxpayers billions of dollars.
Unfortunately, these reforms may not be doing enough to
affect the outcomes for women. Women are now the fastest
growing population in Georgia's justice system, sadly to say. I
know that we have to do more to make sure that women are more
than an afterthought as we work to improve our criminal justice
system.
Ms. McCurdy, specialized courts like drug courts and mental
health courts have been a major pillar of Georgia's criminal
justice reform efforts, and they have also helped to reduce the
incarceration of nonviolent individuals. How can we work to
ensure that specialized courts are serving the needs of women?
Ms. McCurdy. So specialized courts are definitely one
answer to some of the problems in the system. The thing that I
want to caution us about specialized courts is that often
people are required to plead guilty before they get access to a
specialized, a drug court, or a mental health court.
Particularly with drug courts, when you are dealing with
people who have substance abuse problems and because of their
problems can fall off the wagon and ultimately have already
pled guilty. We have to really be careful about the way we use
our drug courts so that we are not funneling people in the
system or basically being able to create a system where they
will ultimately fail because they can't adhere to the
conditions of drug court.
So, my recommendation is particularly for drug courts, that
we not require people to plead guilty at the time they enter
and that they are able to at least try to get through the
diversion aspect of the drug court before ultimately a plea or
a decision about their actual charge is resolved.
Mrs. McBath. Would you actually say that the percentages of
women that are actually having to plead guilty has gone up
within recent years?
Ms. McCurdy. Yes.
Mrs. McBath. Thank you for that.
Ms. Kajstura, please forgive me if I mispronounce your
name, do you have anything to add to that? I would love to hear
from you.
Ms. Kajstura. No, nothing to add. I would like to underline
that the guilty plea aspect of diversion courts is the effects
that cannot be understated. Any mistake then leads somebody
back into the kind of mainstream courts with a guilty plea,
whether or not they were, in fact, guilty. Because often, like
any plea bargains, if you are facing a very high sentence
possibility, you are coerced into pleading just to get out of
jail, just to get out of prison.
Mrs. McBath. Thank you.
Another component of criminal justice reform in Georgia is
the rehabilitative programs, including drug and mental health
treatment and programs that improve people's employment
prospects upon their release. Again, these investments in
people save money by keeping people from committing crimes
again.
Ms. McCurdy, what obstacles do women face in assessing
these programs? I am sure there are lots of obstacles they are
having to overcome.
Ms. McCurdy. Well, I think, particularly in the Federal
system, one of the obstacles to even participating in the
programs in the Bureau of Prisons is there is not enough
programming, as I think Cindy has said.
Even when there is programming, staff and women in prison
don't even know about it. Particularly, for example, there is a
trauma program called FIT in the Federal prison system. Only
one facility actually, according to our Office of Inspector
General report, even offers the program. Again, this is around
trauma-responsive programming, and not many people knew about
it.
There is another program, MINT, and that is a program that
is supposed to help mothers stay with their children while they
are incarcerated. Only 37 percent of the people in the Federal
prison participated in it, and many did not know about it and
weren't told about it from the Bureau of Prisons. There were
plenty of slots that were available for women to participate in
it. We must get the information out.
Mrs. McBath. Thank you so much.
Ms. Bass. Thank you.
Representative Steube.
Mr. Steube. Thank you, Madam Chair.
I hail from Florida where I spent some time in the State
legislature, and we did, especially on the senate side,
attempted to do an incredible amount of criminal justice reform
before I left, and they were still working on it while I have
been up here.
One of the things that we never focused on was the female
side of prison reform and criminal justice reform. All the
focus was kind of what you guys are talking about, was just, in
general, mostly on the male side of the equation. So, I
appreciate all of you being here today and kind of bringing
this issue to the forefront.
I just would love to get your recommendations. Ms. Shank,
in your testimony, you talked about women in prison with you
and wanting them to have a second chance. Help me understand
what that would look like. After a certain amount of time of
good behavior, do we then bring them up for like a probation-
type hearing? Like what, in your mind, is that second chance
that we on the Federal side could look at doing in
circumstances like that?
Ms. Shank. Well, like right now with the First Step Act,
their initiative with the programming. That to me is very
important of allowing women to, first, let's get some programs
in there. Let's allow them to get the help that they need.
Let's allow them to get education. Then, putting in the
incentives to give them help with time off or maybe just there
is no parole or anything like that in the Federal system. You
do 87 percent of your time.
Relief. They just need relief of anything that we could do
to help shorten their sentences, whether it would be
programming or whether it would be a bill that we pass that
recalculates the weight and the calculation and what that means
to sentencing. We just need to allow the women a chance to
breathe, to give them that second chance.
There are women that I was incarcerated with who were
serving 20-30-year sentences. For me, the prosecutor asked for
89 years. I received my mandatory minimum sentence. So, let's
get rid of these mandatory minimum sentences. That, to me, is
very important.
Mr. Steube. That was some of the things that we worked on
the floor was getting rid of some of the mandatory minimums
that went in. So, you are talking about rehabilitation,
employment-type programs in the prisons.
Ms. Kerman, you had talked about the Justice Home program
in New York. Is that something that you would like to see at
the Federal level, some type of similar program at the Federal
level? Is that lacking? Do we not have something like that at
the Federal level?
Ms. Kerman. There is nothing remotely like it available in
the Federal system. So, again, that gives discretion to judges
and prosecutors. They evaluate the case in front of them, their
felony cases, and they may elect to allow the woman to stay in
the community, again, go through accountability measures but
also get some wraparound help.
Every woman is different. Some women need job education.
Some women need mental health or access to mental healthcare,
substance use disorder. Every case is different, but the
results are fantastic. It saves the taxpayers money, and it
saves those families the trauma of being torn apart by
incarceration.
I have to return to that question of trauma, because we
know that it actually lies at the heart of most women's
involvement in the criminal justice system. Eighty to ninety
percent of women in the system have been the victims of sexual
assault, other physical assault, or really significant trauma
prior to their incarceration. The overlapping incidences of
substance use disorder and mental health problems are directly
related.
If people in the community get the trauma response that is
necessary in a timely fashion, we would see--and this is true
of men as well, but it is disproportionately true for women--
something very, very different in the criminal justice system.
That experience of trauma, as Cindy's history of being a victim
of domestic abuse, should have been considered at sentencing.
Mr. Steube. Well, and you have previously testified before
the Senate Judiciary Committee. Is that correct?
Ms. Kerman. That is correct, sir.
Mr. Steube. In the Senate Committee on Homeland Security on
issues of prison reform?
Ms. Kerman. That is correct.
Mr. Steube. That was in 2014 and 2015?
Ms. Kerman. Yes.
Mr. Steube. So, since that time, what progress, if any, has
been made in prison reform at the Federal level?
Ms. Kerman. I think that we have seen lots of innovations
at the State level. We have seen very little progress in the
Federal Government, other than the passage of the Federal
legislations recently.
I must make the point that both the Federal Bureau of
Prisons and all correctional systems operate with limited
oversight in many cases and limited accountability when
problems are found within correctional systems or individual
prisons.
Ms. Bass. Thank you.
Ms. Kerman. No prison has ever been closed because it was
badly run.
Ms. Bass. Thank you.
Mr. Steube. Thank you. My time has expired.
Ms. Bass. Representative Deutch. I am sorry.
Mr. Steube. Thank you. Oh, no, you are fine. I just wanted
to say that I would be happy to work on these issues moving
forward with the committee. We did a lot of this in Florida,
and I certainly think that their testimony is very impactful on
the issues. So, thank you.
Ms. Bass. Thank you.
Representative Deutch.
Mr. Deutch. Thank you, Madam Chair.
Thanks to all the witnesses for being here. Thanks for your
helpful and really powerful testimony.
Ms. Kajstura, you drafted an article entitled ``Women's
Mass Incarceration: The Whole Pie 2018'' that dramatically
captures the current State of women and girls in our Nation's
criminal justice system. Some of the statistics in there, some
of the statistics we have heard already today, over 219,000
women and girls incarcerated in the U.S. We talked about the
700 percent increase since 1980.
The growth rate of incarcerated women now outpaces men. 60
percent of women in local jails have not been convicted of a
crime, and 80 percent of the women--80 percent of the women
being held in jails are mothers.
So, in January of this year, the American Journal of Public
Health released a study on pregnancy in prisons, finding that
in 22 States, they studied a total of 1,396 pregnant women who
were held in prison, but accessibility to adequate medical care
is atrocious. This is a devastating impact on women.
I would just flag one incident in my own district. On the
morning of April 10, there was an incident in Pompano Beach,
Florida, that I represent. I would like to submit for the
record a letter from the Broward County Public Defender Howard
Finkelstein to Broward County Sheriff Gregory Tony detailing
the incident.
Ms. Bass. Without objection.
[The information follows:]
MR. DEITSCH FOR THE RECORD
=======================================================================
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Deutch. Thank you, Madam Chair.
Tammy Jackson, a 34-year-old woman, pregnant woman with a
mental illness complained to jail officers at 3 a.m. that she
was experiencing contractions. Jail officials moved the woman
to an empty cell and left her alone for nearly 7 hours.
Finally, after more than 4 hours, at 7:22 a.m., they spoke with
a physician.
The physician stated he would check on her when he arrived.
Then they waited. Finally, a deputy observed the woman
squatting and screaming in pain and then, I quote, heard a baby
crying as he approached the cell. When he saw Ms. Jackson
standing with a baby in her arms, he helped wrap the baby with
a towel.
The nurse described the incident as, and I quote ``a
pregnant female had a spontaneous delivery.'' Well, it
shouldn't have happened like that, obviously. That is not how
anyone should be treated in America.
However shocking as it may be, it is not an isolated
occurrence. In fact, a few days earlier, another woman almost
gave birth alone at a cell in the same facility. Fortunately,
in that instance, jail officials transported the woman in time
to a hospital where she gave birth to the baby.
I would just ask--I think I will ask Ms. McCurdy, you
first, what kind of data should prisons and jails be collecting
on pregnancy for incarcerated women?
Ms. McCurdy. Well, first of all, I find it funny that they
characterized it as a spontaneous birth when they had a 9
months' notice. I think it is important that we know four to
five women enter jails pregnant, 4 to 5 percent of women enter
jails pregnant. So, at the point that their pregnancy is
acknowledged, medical attention should start at that point.
Just as if women were not in jail or prisons, they need the
continuous medical prenatal attention that women need on the
outside as well. So, we can't wait until they get to the point
where they are about to have birth to give them prenatal care.
We must do it from the day they enter jails.
More importantly, we need to stop putting pregnant women in
jail. There are too many alternatives that we could turn to
before the last option is to put a pregnant woman in jail.
Mr. Deutch. I appreciate that. I agree.
Just to put a few things in the record, that study also
points out that there is no Federal agency that is responsible
for collecting incarceration data that also collects pregnancy
data. I assume--let me just confirm--that pregnancy data of
incarcerated women should be collected by the Bureau of Justice
Statistics, correct?
Ms. McCurdy. Correct.
Mr. Deutch. The lack of pregnancy data collected on
incarcerated women is an indication, obviously, that our prison
and jail system has not adapted to the increasing number of
women and girls in the system.
I am concerned, finally, that the quality of medical care
and staff training for pregnant women can differ dramatically.
Should a national standard be developed on the care that
pregnant women receive while incarcerated?
Ms. McCurdy. Absolutely. Again, that national standard
should start with keeping women out of jails and prisons that
are pregnant.
Mr. Deutch. All right. Thank you. Thank you all very much.
I yield back.
Ms. Bass. Representative Richmond.
Mr. Richmond. Thank you, Madam Chairwoman, and thank you
for having this hearing.
As I hear from the witnesses today, it appears a number of
things that I take out of it, one of which is the power and the
amount of abuse that can happen in prosecutorial discretion.
That is a question for, I think, this Committee and
policymakers to determine how much power that prosecutors are
going to have.
It was a prosecutor, Ms. Shank, that made the decision to
come back after 5 years and charge you with a crime. Too often,
prosecutors look at people as leverage to go after something
else or collateral damage towards some other fight. I think
that we need to make sure that we are holding our prosecutors
accountable, so that if you are rich and affluent, you get
different treatment than if you are poor and uneducated. I
think that that is something that have to highlight.
The other point I heard is programming. One of the things
that I find to be the climax of foolishness in our correctional
system in America is the fact that we encourage people when we
lock them up to better themselves, and then when they get out,
we have barriers to them getting licenses in those very
professions we train them in.
So, in many States, you have a catch-all phrase to get a
license called good moral character. Well, we invested money in
people--formerly incarcerated people to train them. What sense
does it make to bar them from entering those professions once
we invested in the training? Do you all agree that is
counterproductive?
I would note that everybody seemed to say yes, so--
Ms. Shank. Absolutely.
Ms. Kerman. Yes.
Mr. Richmond. The other thing is the family connection. You
all said it. I wrote an article a long time ago that said, I
was talking about a father then, that the father may be in jail
but the family is doing the time. Well, certainly when a mother
is in jail, the family is doing the time.
In the First Step Act, we said that we have to incarcerate
people within 500 driving miles of the home. I think that the
conversation today gives real credence to, maybe with women,
that number needs to be reduced in half when you think of the
importance and the difficulty and the fact that women are less
likely to be visited in jail.
The other thing I heard was gender-responsive correctional
approaches that is guided by women-centered research and data.
I think that that is very, very important, and I want to thank
you all for your recommendations.
So, Ms. Kerman, let me ask you a question. You talked about
Justice Home. Does that also apply for violent crimes or just
nonviolent crimes?
Ms. Kerman. I think that is at the discretion of the
prosecutors and the judges. Certainly, the program I served on,
the board of the Women's Prison Association, which is one of
the community agencies that does the ongoing work with
participants, and we would certainly take anybody regardless of
their crime of conviction. That program does give a possibility
at record expungement, depending on what the crime is and
depending on the person's completion of the program and, of
course, depending on the discretion of the judge and the
prosecutor.
I think that it is a very artificial line often that we
make the distinction between crimes we characterize as violent
and crimes that we characterize as nonviolent. Anyone who is
intimate with the courts system and the way that charges are
brought knows--
Mr. Richmond. Well--
Ms. Kerman. --that those terms are not always true
reflections.
Mr. Richmond. Well, let me just cut you off. Because I did
criminal offense, and I am not talking about the nuance between
weight and not weight, whether it is determined as violent. I
am talking about crimes of violence where there is a physical
victim.
Let me move on really quickly to something I don't think I
heard, and that is housing at the end of incarceration is one
of the biggest factors in recidivism. So, the question becomes,
all of these artificial barriers to public housing, to public
educational assistance, once you have been formerly
incarcerated, how do we tackle those barriers?
The last part of that is seeing, especially with crack
cocaine, if a child in public housing was convicted of having
crack or drugs, then the mother gets evicted from public
housing. Now, with opioids, we do not see prosecutors and
housing authorities push to evict opioid parents. So, a note
that we ought to treat them the same way. But, how important is
housing in this whole equation, stable housing when you get
out?
Ms. Kerman. I mean, safe and stable housing is not only
important for women's return to the community. A lack of safe
and stable housing is a determining factor in why many women
end up in the system in the first place. Not having a safe
place to live, women's lack of safety has a contributing factor
to their potential to commit crimes as well.
So as far as those many policy-based barriers to people
gaining access to safe and stable housing, we should drop them.
Those are not things that we have to do. Those are things that
we choose to do. We should choose to tear down each and every
barrier to full citizenship that people like me and Cindy face.
Ms. Bass. Thank you.
Ms. Kerman. We deserve our citizenship in full.
Ms. Bass. Thank you.
Representative Jeffries.
Mr. Jeffries. Thank you, Chairwoman Bass, for convening
this hearing and for your tremendous leadership in this area.
I want to thank all our witnesses for your presence here
today and for the compelling information that you are
providing.
Ms. Shank, I think you said in your testimony that you
believe that the years and miles of separation caused by
incarceration are in part designed to break the bonds between
families. Is that right?
Ms. Shank. That is absolutely correct. I feel that 1,000
percent. Being we were limited to 300 minutes a month on phone
calls, which we have to pay for ourselves. I had three
daughters. They are fighting over the phone. Imagine a child
when they hear that beep. My kids would panic when they would
hear that beep before the phone is going to hang up, and then
to cry and telling me, don't hang up, Mommy, don't hang up.
Mommy, please, don't hang up. The phone just to drop, it is
devastating. It to happen every single time, I mean, it is set
up to keep you apart.
They try and tell you that you are here and we want you to
strengthen your family ties and they are offering things, but
they don't offer anything. They move you 1,000 miles away,
which I saw my daughters once a year. I had limited phone
calls. They were too little to email and write letters. We
would do the best we could. I would always write them and try
anything I could to keep them to remember me, but it was very
hard and very challenging.
Mr. Jeffries. You were released from prison, I believe, in
March of 2017, after serving 9 years. Is that right?
Ms. Shank. Correct.
Mr. Jeffries. Based on your experiences--and congratulate
you on the success that you have had subsequent to your
release--what is it that you think we as Members of Congress
can think about in terms of how to both address the trauma that
occurs based on the family separation and how to help
facilitate the family unit coming together after one's release?
Ms. Shank. I mean, that is a really good question because
there is just nothing, nothing in play. I guess it would stem
from the time that you are separated, to help during that time
of incarceration, whether it is some type of family day they
would offer at some of the prisons once a year, maybe
encouraging that more. Just the type of visits that you have.
Even the little visits I did have were very cold and the
environment was very cold. It wasn't a very comforting
environment. I think that plays a big part of it.
When you come home, it is up to you ultimately, but if
there were some type of therapy, family therapy that could be
offered, I think that is very helpful, if you offered it to
people. I know for me, I am in therapy. My children are in
therapy. That is something that we had to be proactive about as
individuals. I know that many people don't have the luxury of
that, maybe to offer that would be very helpful.
Mr. Jeffries. Thank you.
Ms. Onwuka, did I pronounce that correctly?
Ms. Onwuka. Yes.
Mr. Jeffries. Okay. No, thank you.
In your testimony, I think you made the important
observation that too many women are locked out of the economic
recovery as a result of their criminal background. And that
obviously has consequences and implications for being able to
put the family unit back together and to robustly pursue the
American Dream after a period of incarceration.
Could you offer some thoughts as to the impact of
incarceration and the way forward in terms of how to make sure
that we are really creating the ability for people, upon paying
their debt to society, to follow the American Dream and succeed
economically?
Ms. Onwuka. Absolutely. Thank you. I spent a lot of time
talking about the amount of opportunity that is available today
in this economy and how because of that criminal record you are
seeing people locked out. What is interesting is we are
starting to see a shift now because of a tight jobs market,
because it is harder to find qualified or employ people to fill
positions, and we have 7.1 million unfilled positions right now
in the economy.
I think employers are starting to look at people they would
not have considered before, and that includes people who have a
criminal background, who have a criminal record. That is, I
think, a great thing for women and great for anyone who is
coming out of the correctional system. Again, that doesn't mean
that everybody is going to do that.
At the State level we have seen the movement towards ban-
the-box. For those who are unfamiliar, it is the idea that
employers do not ask whether you have any sort of criminal
background. It is a way of giving someone a chance based on the
merits of their experience and their background before writing
them off because they have a criminal record.
There are States who have implemented it. I think, it is
interesting. Private companies who do it from Coca-Cola to Koch
Industries, Starbucks, Google, all of these companies have
voluntarily started to do that. I think that is a way of
opening up opportunity for women, for people of color, for
everyone who has a criminal background.
I hesitate to say that it should be a Federal policy or
that it should be mandated because it could have an unintended
consequence, particularly against people of color and
particularly against men of color, but there is an opportunity
there for voluntary private sector companies to say, you know
what, I am going to weigh someone's applications based on the
merit.
I talked a lot about it, and several people have talked
about vocations, and we have seen the Trump Administration
interestingly talking about apprenticeships. It is an idea that
I think people have forgotten or written off just to blue
collar industries.
Recently, the Trump Administration released a new
regulatory change that would actually expand apprenticeships to
White collar opportunities, which I think is an interesting
place because there are going to be people who have a criminal
record who don't go to a 4-year college, who don't have a bunch
of ABCs behind their name but still want to get into an
industry that can be a great middle-class lifestyle.
Ms. Bass. Thank you.
Ms. Onwuka. So, seeing that--oh, sorry.
Ms. Bass. Sorry. We need to move on.
Mr. Jeffries. My time is expired but thank you very much
for your testimony.
Ms. Bass. Representative Cicilline.
Mr. Cicilline. Thank you. I want to thank our Chairwoman
Bass for convening this really important hearing and for your
extraordinary and longstanding leadership on these issues.
Thank you so much to our witnesses for really powerful
testimony.
I want to focus for a moment on this whole idea of family
impact, because I think one of the things that people need to
understand, one of my most haunting memories was doing a school
visit and seeing a fifth-grade boy clearly distracted, kind of
not paying attention, and me kneeling down to ask him if he was
okay, and him in a very quiet voice saying, my mom went to jail
last night.
The notion that he was expected to like study and pay
attention and behave, and so understanding that in many ways
children of incarcerated parents are victims as much as others
and are blameless in the conduct of an adult parent but really
suffer the consequences.
So, I am intrigued by this idea of both pre-sentence and
post-sentence whether or not we ought to require sentencing
judges and judges making determinations with respect to release
to consider the impact on family, not just allow them to, but
saying understand the reality of incarcerating.
This particularly is the case where women are most often
the primary caregiver and the obvious special relationship
between a mother and her children, whether we ought to do that
both in pretrial and in sentencing requiring, sort of
understand, as a sentencing judge or as a judge making a bail
determination the full impact of your decision on, not just the
defendant, but the family who are blameless in this instance.
I wonder whether you agree, Ms. Shank and Ms. Kerman, that
makes sense.
Ms. Shank. It absolutely makes sense, and I think that
should be highly considered.
Ms. Kerman. It absolutely makes sense. Again, Massachusetts
and Tennessee have signed that very requirement into law, and
so judges in those States will be required to do just that.
Mr. Cicilline. That is a requirement. It is not discretion.
They are required to consider it?
Ms. Kerman. The Governor of Tennessee just signed that
legislation, I believe, last week or the week before, and it
was in last year's omnibus crime reform bill in Massachusetts.
So, the nitty-gritty is the transformation of the prosecutorial
function and of the bench in terms of how prosecutors and
judges understand what is expected of them.
Mr. Cicilline. All right. When you make changes like that,
I know you have to also implement training and good education
both of the court and of the prosecutors.
The second thing I want to mention is there has been a lot
of discussion about the separation of family as it relates to
the placement of a defendant--of a person in custody and their
family.
Is there any good policy or reason that you can think of--
and this is for anyone--that we shouldn't simply require the
Bureau of Prisons to place the defendant in the facility
closest to their home, period, obviously consistent with
security needs? But, if there is a facility closest to your
home that meets the security, ought that be the presumption and
they have to argue and if, in fact, they don't follow that,
they have to give some reason?
Mr. Cicilline. It seems to me 200 miles, even 250 miles is
still a very long distance to expect anyone to travel. Why not
just have the presumption, because it is your family.
Ms. Kerman. Yeah. If you are a poor family in New
Hampshire, the Bronx, then, Connecticut might as well be Mars
for some people.
Mr. Cicilline. I only have a little bit of time, so I just
want to--do you agree that makes sense?
Ms. Kerman. I absolutely agree that makes sense, that local
supervision can get complicated and there is very little
oversight. So, the requirement for the Federal Government to
then oversee local law enforcement, which I would support,
would be a necessity.
Mr. Cicilline. The final thing I want to ask you about, Ms.
Kerman and Ms. Shank, in the State of Rhode Island, we have a
very robust reentry initiative in which defendants, before they
are returned to a community, meet with a reentry counsel that
has housing experts and healthcare experts and mental health to
be sure that there is in place a comprehensive plan for their
successful reentry. It has really produced extraordinary
results because we have seen so much evidence about people who
are released without that support system who come back because
they don't have a place to live, they get involved with drugs
again.
So, I am wondering whether your experiences in the Federal
system, whether you had a similar experience that was sort of
well planned before you were released so you would be
successful. If not, do you think some model like that makes
sense?
Ms. Shank. Absolutely a model like that makes sense. There
is really no programming, there is no reentry. There is very
limited--you don't even have access to information to fill out
for your driver's license. They give you zero. There is no
information available to you in the Federal system. They do not
prepare you whatsoever. They just do not. You are released when
they release you, they are done with you.
Mr. Cicilline. Great. Thank you so much.
I yield back.
Ms. Bass. Thank you.
Representative Dean.
Ms. Dean. Thank you, Madam Chair.
I am pleased to be here, and I thank all of you for your
important testimony on all of these issues.
In my limited time, I wanted to try to zero in on a couple
of things. In my background, before I came to Congress this
term, I was a State representative in Pennsylvania. I was on
the judiciary Committee there, constantly fighting new
mandatory minimums. So, I appreciate very much, Ms. Shank, the
way you spoke about the discretion should be with the judges.
So, some of these sentences might be that long under the
discretion of the judge based on the facts and law in front of
her or him.
But if we could, maybe I will start with you Ms. McCurdy. I
am also interested in the notion of addiction, substance abuse
disorder and its impact on this. In Montgomery County, my own
Montgomery County just May of this year, maybe you saw this
case, a woman named Emma was convicted and sentenced to 21
years in prison as a result of distributing heroin, sharing
heroin in a KFC bathroom with her friend who was 20 years old
that day and died. Don't get me wrong, this is an
extraordinarily serious case with victims all around.
The woman, Emma, was sentenced to 21 years in prison as a
result of a mandatory minimum for, leaving the scene, allowing
that woman to go on overdosed and die, not alerting first
responders, but also enhanced because it was within 1,000 feet
of a school.
Can you speak to the notion of addiction, substance abuse
disorder, this is two 20-year-old women, addicts of heroin and
how that translates into incarceration?
Ms. McCurdy. Yes. I mean, that is part of both property and
drug crimes that you see women being incarcerated for. Again,
with women, a lot of times it is because of their addiction.
They are not getting treatment necessarily once they go to jail
or prison, and a lot of times they are self-medicating because
of the trauma that they have experienced before coming into
contact with the criminal justice system. So, then it just
becomes a cycle. If we don't treat the trauma, we don't treat
the substance abuse that is responding to the trauma that is
the self-medication from the trauma, then we just keep going
around and around in circles.
Ms. Dean. I appreciate that. I also had the chance as a
State representative to visit Muncy prison in Pennsylvania, an
all-women's prison. Between addiction, mental health disorders,
and the connection between conspiracy and life sentences is an
extraordinarily powerful and sad place at the same time.
Can we talk about the issue, and maybe you both could tell
me your experience with other women in prison whether they
suffered life sentences, what we could be doing better in terms
of life sentences particularly as it occurs with women?
Ms. Shank. I mean, I think, initially, just sentencing
somebody to life is wrong. I think we need to allow a person--I
mean, I understand punishment in crime, but the punishment
needs to fit the crime. I don't think we should just wash our
hands at people. I think we need to allow somebody to punish
them for their crime, let it fit the crime, but then let's help
them not to let this happen again. What is the actual problem?
Is it psychological? Is it mental health? Is it drugs,
addiction? Do they need education? We need to not just lock
people up, but we need to, as I like to say, bury them alive.
We need to actually help them.
Ms. Dean. So many of the women there describe that they
just don't want to die there. They don't want this to be the
end of their story. It is interesting you use the words wash
our hands of people. I also was in Curran-Fromhold prison with
Pope Francis in Philadelphia, where he used the gospel about
washing the feet of your visitor, washing the feet of those who
have traveled life's dusty, dirty road, because we all go down
bad roads.
So maybe, Ms. Kerman, you could speak to that issue of the
Pope wanted to say this is not your whole story and know that
we are all broken people like you.
Ms. Kerman. When I think about the point that you raise,
Representative, I think about my students in Ohio. I have
lifers in both the men's facility and the women's facility
where I teach. I have a young woman in my women's writing class
who was sentenced when she was 16 years old. The propensity for
us to put children into the adult system in this country is
significant.
We know that the decade between 15 and 25 is a decade where
brain development is not complete; impulsivity, judgment, and
bad decisions are rife. We all make bad decisions during that
time period in our lives, not all of us are held accountable in
the same way.
I look at any--I have three students who were sentenced as
children to adult life sentences, and they each, all three of
them, are remarkably intelligent, thoughtful, humane people,
and very different people now than when they committed their
crimes. I believe passionately that everyone deserves a second
chance and sometimes a third chance, but deserves to be
measured, not only for their worst act, but also for their best
acts and the best things they are capable of.
That does not mean that victims do not deserve a central
role in reforms to our criminal justice system, but what we
have seen in places like California and other places in this
country is that victims and survivors of crime are increasingly
advocating for the very reforms that other parts of the
community are also calling for.
Ms. Dean. I just want to put onto the record, if I may, an
article--
Ms. Bass. Without objection.
Ms. Dean. --that I have of our governor, Governor Wolf,
granting clemency, commuting some sentences of lifers. It is
very important that he do that, but many States and our Federal
Government actually seek greater criminal justice reform.
[The information follows:]
MS. DEAN FOR THE RECORD
=======================================================================
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Ms. Bass. Representative Mucarsel-Powell.
Ms. Mucarsel-Powell. Thank you, Chairwoman Bass, for
holding such an important hearing.
The issue of women that are stuck in an unjust criminal
justice system is becoming a greater issue in this country and
it is rarely part of the conversation. So, I thank you, Ms.
Shank, and other women who may be present here today, Ms.
Kerman, for lifting up your voices, for your courage in sharing
your stories. It is the only way that we are going to bring
attention to the issues, so thank you for being here today.
The fact is that most women are charged with lower-level
offenses and have less extensive criminal histories than their
male counterparts. In 2017, women of color were particularly
impacted by our laws where 40 percent of Federal women
offenders are Hispanic, and 21 percent are Black. Of these
women, upwards of 85 to 90 percent have a history of domestic
or sexual abuse. Sixty percent of the women that are right now
in prison have children 18 years or younger.
I wanted to start with Ms. McCurdy. In the past 40 years,
we have seen that the State prison population of women has
grown up to by 834 percent. Why do you think we have had such a
drastic increase of women who are now in the prison system?
Ms. McCurdy. Because of the war on drugs is one of the
major reasons. Both in the Federal and State system, we have
focused so much of our attention, for example, in the Federal
system, 45 percent of the people that are in Bureau of Prison
custody are there for drug offenses. So, almost half of the
people that are in Federal custody are there for drug offenses.
Some of them are women, but what you are seeing is the result
of the focus on the war on drugs and why so many women and men
are in prison, even though many of them really need treatment
and don't need incarceration.
Our money would be better spent if we really focused on
treating their substance abuse, because a lot of it is
substance abuse, whether they were charged with trafficking or
charged with possession, versus spending on the Federal level
$36,000 a year per person to incarcerate people. We could
spend, I think Piper talked about $20,000 a year for drug
treatment, probably even less than that, though.
Ms. Mucarsel-Powell. Yeah. The economic cost is huge, but
the human cost is devastating for generations.
Ms. McCurdy. Is even more devastating. Absolutely.
Ms. Mucarsel-Powell. In 2016, the imprisonment rate of
African American women was twice the rate of imprisonment for
White women. Hispanic women were imprisoned 1.4 times more than
White women.
Ms. McCurdy, why are women of color more likely to be
imprisoned at twice the rate than White women? What solutions
do you see in solving this gap?
Ms. McCurdy. Well, again, as I talked about before, I think
one is we have to develop alternatives to incarceration. Also,
in terms of women that are in prison, we must be very
responsive to their health needs, their mental health needs,
their physical health needs, their gynecological needs. We also
have to train correction staff, for example, when women end up
in prison, to make sure they are being responsive, gender
responsive to women's needs.
As Piper said earlier, the prison systems were built on the
fact that mostly men would be in them. So, a lot of the
policies reflect that now and they have not caught up to the
fact that we have so many women that are in those prison
systems. Policies have to be responsive to gender needs. Those
are some of the major things that we really need to focus on.
We talked about shackling on the Federal level, that has
been addressed to a certain extent, but we haven't talked about
solitary confinement. Pregnant women are often held in solitary
confinement while they are pregnant and postpartum. We must ban
the policies that allow women that are pregnant to be held in
solitary confinement. That is very dangerous.
Ms. Mucarsel-Powell. Thank you, Ms. McCurdy. As a mother,
it has been tough to hear your testimony this morning. It is
tough enough to see that this Administration is following
family separation policies, and they are doing the same in the
criminal justice system, and it is just heartbreaking.
A question for Ms. Kerman. You testified that policy, not
crimes, drive our incarceration. I have seen that in other
policies that the Administration has taken as well. Can you
explain a little bit what you mean by that?
Ms. Kerman. Sure. So, you are drawing attention to racial
disparities in the system is a reflection of policy. So, I live
in Ohio, you might have two young men committing the exact same
offense, but by policy and procedure, one of those young men
might be heavily policed if he lives in a poor neighborhood,
and one of those young men might not be policed at all if he
lives in a fraternity house at OSU. Those disparities, those
are policy choices, and those things drive disparity and drive
some of those problems.
We have talked a lot about substance use disorder and about
its factor in driving incarceration and the availability or
lack of treatment. I have to draw our attention back to this
policy of mandatory minimum sentencing. If harsh punishment
related to drug offenses worked, then we would not be where we
are with addiction and drug abuse in this country.
Ohio has one of the highest overdose rates in the country.
We incarcerate a huge number of low-level drug offender. It
does not result in less addiction and less substance use.
There is a certain point in time, decades in, when we have
to say regardless of what our punitive instincts are, that the
policies and approach we have used is not working in terms of
the public health and safety concerns which concern us the
most. So that is a good example of that policy driving
incarceration, even as it fails to solve the problems that we
want solved in the community.
Ms. Mucarsel-Powell. Thank you, Ms. Kerman. I think I am
out of time.
Ms. Bass. Representative Cohen.
Mr. Cohen. Thank you, Madam Chairman.
One policy we have in State and Federal both is we have
private prisons. I would like to know your opinions on that as
a factor in driving prison population and if there are any
studies to show jurisdictions without private prisons and with
private prisons and the rate of incarceration and the length of
sentences. Who wants to jump in?
Ms. Kajstura. So, I think private prisons definitely help
keep mass incarceration in play in this country, because they
provide space to hold people and they take often the kind of
easiest cases, you could say, and charge the government the
most to take care of people and do a really poor job of it
because they have absolutely no government oversight.
The private aspect of incarceration extends far past
prisons, and this is important because--particularly important
to women's incarceration because about half of women are
actually incarcerated in jails rather than prisons. Jails use a
lot of private contractors that make it hard and difficult to
talk about family separation. In jails, even though you are
ostensibly closer to home, often it is harder to keep in touch
because the phone call rates are much higher. There are some
county jails in Michigan where it is $1.50 a minute to talk on
the phone.
Jails are more likely to have letter bans, so literally
banning letters from home. Your kids are relegated to a
postcard size that is public, you can't put it in an envelope,
to communicate with your family. Visits are often turned into
video visits. So, a company comes in and charges $20 for a
visit, and your family still has to drive to the jail, but they
can't see you. They are put in a separate room with a video
monitor.
So, yes, there is a lot of private companies benefiting
from mass incarceration and making things worse within the
criminal justice system.
Ms. Shank. If I can just say that privatized prisons are
like a self-fulfilling prophecy of prisons built in the State,
and often if the bed is empty, the State is fined. So, the
State is going to do everything they can to not be fined to
fill these beds. So, it is like a self-fulfilling prophecy, no
one wins except the people making the money.
Mr. Cohen. Tennessee is one of the worst States, I think.
It was the home of Corrections Corporation of America, which is
one of the large private prison people. I was a State senator
for 24 years and thought--being in the Tennessee system because
they would, lobby for longer sentences and lobby against
different ways of release and that they made a lot of money and
done really well. It is unfortunate, and that shouldn't happen.
Has anybody done any studies on the cost to society of
having a mother, particularly maybe as distinguished from a
father, who is removed from a family and what cost that has to
society at large?
Ms. McCurdy?
Ms. McCurdy. I don't know about financial. I haven't seen
any studies on the financial cost, but I know the cost to
children is that they often develop depression, anxiety. In the
end, they end up in the criminal and juvenile justice system.
So, that is the human cost of being separated from their
mothers, because they don't have the guidance that they need in
the early stages and are just, again, traumatized by their
separation from their mother.
Ms. Shank. I can tell you my own personal study, which was
we had two incomes when we were married--a family. We had
actually purchased our first home. We actually bought property
to build our first home. When I was initially indicted and when
I went away to prison, we went to a single-family income where
my then-husband, Adam, had to take a different job because he
couldn't take care of a 6-week-old baby with the hours, so he
had a loss in income there. Then he became dependent on the
State for medical insurance for the children. I mean, you lose.
Mr. Cohen. I have a bill called the Fresh Start Act, which
I have had for some time, and with the Democratic leadership
here, we might have a chance to move it. It would provide a
pathway for expungement in Federal crimes. If you had 7 years
without any penalties and you have a nonviolent crime, you
could get your record expunged.
How would expungement help women, other prisoners, and
family reunification?
Ms. Kerman. Expungement would be a huge benefit and a good
example of a smart policy change. I am much, much more
fortunate than most formerly incarcerated people in this
country, but I still cannot escort my son's field trips under
Ohio State law because I have a felony conviction, despite my
good conduct since my release in 2005. I would say that
expungement, under appropriate guidelines, with whatever you
have considered putting into the legislation, would be a huge
benefit.
There are an estimated 70 million people in this country
who have some kind of a criminal record. So, this is not a
fringe issue; this is something that impacts an enormous number
of Americans.
Mr. Cohen. Thank you very much. I yield back.
Ms. Bass. Thank you very much.
I want to, before we conclude, really thank today's
witnesses. I think this was a very, very powerful hearing. One
of the things that I am so encouraged by from this hearing is
this was a very bipartisan hearing. It was a bipartisan hearing
from the witnesses and from the questions and comments of my
colleagues on both sides of the aisle.
I do want to make a few points in concluding. I think it is
clear, and statistics would back up, that women are arrested,
not 100 percent, but a high percentage of women are arrested
and incarcerated because of their relationships with men.
The conspiracy laws that especially were used a lot during
the war on drugs were used to arrest women, to use women as
leverage as the female partner of a drug dealer to get at the
man, that maybe with the assumption that he would rescue her.
What happens is that he abandons her, he cuts her lose, and she
often takes the wrap and sometimes serves more time than the
man she was being leveraged for.
A small percentage of women are arrested for violent crime,
but even then, a lot of times the violent crimes is related to
abuse. It is related to responding to someone who is abusing
her, especially women who are arrested for murder. So, this
gives us an opportunity to really examine gender-specific
criminal justice reform.
A comment on pregnancy. When a woman delivers and is
separated from her child, like was shown in the clip, it is not
just a matter that she is sad; it is massive physiological
changes that happen during and especially after pregnancy.
There is a massive decrease in hormones that was happening to
that woman. When women go into postpartum depression, it is
physiological as well as psychological. So, we can only imagine
what happens to women who are put in solitary confinement
during pregnancy or after delivery. It puts them at risk for
suicide.
So, I am glad to see that there is interest and support on
the issue from both sides of the aisle. The conversation that
we have had with each other during this hearing, I believe that
this could be the first step toward developing comprehensive
legislation that addresses criminal justice reform that is also
gender specific.
Thank you very much, and the hearing is adjourned.
[Whereupon, at 12:33 p.m., the Subcommittee was adjourned.]
APPENDIX
=======================================================================
Testimony submitted by Prison Fellowship to the House,
Committee on the Judiciary, for the record.
TESTIMONY OF PRISON FELLOWSHIP
Prison Fellowship is the nation's largest Christian
nonprofit serving prisoners, former prisoners, and their
families, and a leading advocate for criminal justice reform.
The organization was founded in 1976 by Charles Colson, a
former aide to President Nixon who served a seven-month
sentence for a Watergate-related crime. For over 40 years, our
ministry has shared the new hope and life purpose available
through Christ to men and women in prison. Those who once broke
the law are transformed and mobilized to serve their community,
replacing the cycle of crime with a cycle of renewal.
Our prison events, classes, and programs reach more than
375,000 prisoners each year. We have over 11,200 Prison
Fellowship volunteers across the United States who make it
possible to serve people in prison and nearly 300,000 children
of incarcerated parents annually.
Located in 90 prisons in 28 states, the Prison Fellowship
Academy is the organization's most intensive in-prison program,
taking men and women through a voluntary, holistic life
transformation spanning months, where they are mentored by
Prison Fellowship staff and volunteers to lead lives of purpose
and productivity inside and outside of prison. The Prison
Fellowship Academy is designed to address criminogenic needs
including anti-social cognition, anti-social companions, anti-
social personality and temperament, family and marital
relationships, substance abuse, employment, education, and
recreation activities. In three State prisons in Texas and
Minnesota, Prison Fellowship Academy participants make up
entire prison units. The Prison Fellowship Academy and other
faith-based classes are currently funded entirely through the
generosity of private donors and foundations.
130 federal prisons participate in our Angel Tree program
and 137 federal prisons have Prison Fellowship connection
classes, which include Bible studies, recovery groups, and
seminars on topics from marriage, anger management, and more.
Prison Fellowship has a pending request to launch an Academy in
the federal system and seeks to be recognized as an educational
program under the Bureau of Prisons' reentry program division
rather than only as a religious service under the chaplaincy
division.
Incarcerated Women and the National Challenge Before Us
We commend the House Judiciary Committee for drawing
attention to the challenges facing female prisoners through the
``Women and Girls in the Criminal Justice System'' hearing. We
are honored to provide our insights drawn from our policy work
and direct ministry to women impacted by crime and
incarceration. Recent trends in corrections make the
committee's dialogue on these matters urgent. The female prison
population has increased by over 750 percent since 1980.\1\
Women now comprise roughly 7% of the total incarcerated
population.\2\ At the end of 2017, there were more than 224,000
women behind bars.\3\ While this increase in incarceration has
impacted women of every background, striking racial disparities
are present, with the imprisonment rate for African-American
females double that of White females.\4\
---------------------------------------------------------------------------
\1\ Sentencing Project, Fact Sheet: Incarcerated Women and Girls,
The Sentencing Project (2016), https://www.sentencingproject.org/wp-
content/uploads/2016/02/Incarcerated-Women-and-Girls.pdf.
\2\ Jennifer Bronson & Ann Carson, Prisoners in 2017, Bureau of
Justice Statistics (April 2019), https://www.bjs.gov/content/pub/pdf/
p17.pdf.
\3\ Id.
\4\ Id. at 15.
---------------------------------------------------------------------------
Just as troubling as these statistics are the histories of
brokenness so many incarcerated women bring with them to their
sentences. Data from a Bureau of Justice Assistance study of
female jails makes clear that women who commit crime have often
been victims of violence themselves. Eighty-six percent of
respondents report sexual violence in their lifetime, 77
percent report partner violence, and 60 percent report violence
by a caregiver or parent.\5\ Over 65 percent of women
incarcerated in prisons and jails identify a history of serious
mental health problems or serious psychological distress--rates
substantially higher than their male peers.\6\ Between 2007 and
2009, 69.2 percent of female State prisoners met the Diagnostic
and Statistical Manual of Mental Disorders criteria for drug
abuse or dependency.\7\ Prison Fellowship does not highlight
these sober realities to downplay personal responsibility for
crime or deny that incarceration can be necessary on grounds of
public safety and just punishment. Rather, these unsettling
facts make the need for a corrections culture centered around
the human dignity of incarcerated women--and their capacity for
personal development and second chances--all the more urgent.
---------------------------------------------------------------------------
\5\ Shannon Lynch et al., Women's Pathways to Jail: The Roles and
Intersections of Serious Mental Illness and Trauma, Bureau of Justice
Assistance (September 2012), https://www.bja.gov/Publications/
Women_Pathways_to_Jail.pdf.
\6\ Jennifer Bronson and Marcus Berzofsky, Indicators of Mental
Health Problems Reported by Prisoners and Jail Inmates, 2011-12, Bureau
of Justice Statistics (June 2017), https://www.bjs.gov/content/pub/pdf/
imhprpji1112.pdf.
\7\ Jennifer Bronson, et. al, Drug Abuse, Dependence, and Abuse
among State Prisoners and Jail Inmates, 2007-2009, Bureau of Justice
Statistics (June 2017), https://www.bjs.gov/content/pub/pdf/
dudaspji0709.pdf.
---------------------------------------------------------------------------
Our Direct Ministry and Policy Vision
Prison Fellowship's direct programming serves incarcerated
women as they navigate a corrections system primarily designed
with men in mind. Our evidence-based Academy program is now
active in over 19 women's prisons in 14 states, with the
strategic goal of ensuring a presence in at least one women's
prison in every State by 2026. At a Southern California jail,
Prison Fellowship is piloting the Create New Beginnings
curriculum, using art as a restorative vehicle to help women in
prison navigate topics like shame, empathy, and forgiveness.
Throughout our history, Prison Fellowship has also been
blessed by the contributions of formerly incarcerated women on
our staff. We would be remiss not to mention here in particular
Mary Kay Beard, a former federal prisoner sentenced to a 21-
year sentence who would go on to encounter the Christian faith
and found Angel Tree, now one of the American church's most
crucial expressions of the Gospel's love for children impacted
by incarceration.\8\ In 2017, Prison Fellowship acquired
Daughters of Destiny, a Florida-based ministry to incarcerated
women co-founded by Annie Goebel, who was formerly incarcerated
and continues to serve on Prison Fellowship's staff.
---------------------------------------------------------------------------
\8\ Steve Rempe, The Origins of Angel Tree, Prison Fellowship
(December 2, 2014), https://www.prisonfellowship.org/2014/12/the-
origins-of-angel-tree/.
---------------------------------------------------------------------------
These direct encounters remind Prison Fellowship of the
urgency for policies that make our justice system more
restorative, evidence-based, and constructive. At the same
time, we know the specific challenges of women in our prison
system require specific policy remedies. Restrictive housing
and physical restraints should not be used for pregnant
incarcerated women, whether during term, in labor, or recovery,
unless required to address clear and present danger to the
woman, her child, or others.\9\ An estimated three to five
percent of women in prison and jail are pregnant.\10\ As a
ministry that values the sanctity of human life, Prison
Fellowship urges full access to quality prenatal care for
incarcerated women and their unborn children. Sixty-one percent
of female State prisoners have children under the age of
18.\11\ Access to parenting classes, regular contact with loved
ones, and placement in facilities within reasonable proximity
to family Members can allow incarcerated women to grow as
responsible, engaged mothers. Moreover, the scale of prior
abuse experienced by incarcerated women demands far more
expansive trauma-informed care and greater training for
corrections and programming staff. Finally, we urge
policymakers to be cognizant of how ``collateral consequences''
with limited rationale in public safety, including bans on
access to nutrition, housing, and other safety net benefits
placed on individuals with a criminal record, pose particular
risks to formerly incarcerated women and their children.\12\
---------------------------------------------------------------------------
\9\ Emily Greene and Kate Trammell, Will Corrections Meet the
Growing Needs of Its Growing Female Prison Population, Prison
Fellowship (March 19, 2018), https://www.prisonfellow
ship.org/2018/03/will-corrections-meet-needs-growing-female-prison-
population/.
\10\ Naomi Schaefer Riley, On Prison Nurseries, American Enterprise
Institute (March 2019), http://www.aei.org/publication/on-prison-
nurseries/.
\11\ Lauren Glaze and Laura Marushack, Parents in Prison and Their
Minor Children, Bureau of Justice Statistics (March 2010), https://
www.bjs.gov/content/pub/pdf/pptmc.pdf.
\12\ USCCR, Collateral Consequences: The Crossroads of Punishment,
Redemption, and the Effects on Communities, U.S. Commission on Civil
Rights (June 2019), https://www.usccr.gov/pubs/2019/0-13-Collateral-
Consequences.pdf.
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State Reforms
Prison Fellowship has been privileged to advance common
sense State reforms that recognize the dignity of incarcerated
women. In December 2018, we supported the American Legislative
Exchange Council's model policy, ``Dignity for Incarcerated
Women.'' \13\ In the 2019 Texas legislative session, Prison
Fellowship supported the passage of House Bill 650, which
featured several key protections for incarcerated women.\14\ In
2009, our ministry helped to pass Senate Bill 1290 in New York,
which allows women who are pregnant to be removed from a prison
for purposes of receiving proper medical care during childbirth
and prohibits the shackling of anincarcerated woman during
delivery of her child.\15\ Moreover, given that one in four
female State prisoners are sentenced for drug crimes--a rate
substantially higher than that of their male counterparts--
incarcerated women have particularly benefited from Prison
Fellowship's successful advocacy for appropriate sentence
reductions and alternatives to incarceration for certain drug
offenses.\16\
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\13\ ALEC, Dignity for Incarcerated Women, American Legislative
Exchange Council (November 2018), https://www.alec.org/model-policy/
dignity-for-incarcerated-women/.
\14\ H.B. 650, 86th Reg. Sess. (T.X. 2019).
\15\ S.B. 1290, 200-2010 Reg. Sess. (N.Y. 2009).
\16\ Bronson, supra note 2 at 15. (For a summary of Prison
Fellowship's approach to state-level criminal justice reform, see
Prison Fellowship, Faith & Justice Legislative Playbook 2018-2019,
Prison Fellowship (2019), https://www. prisonfellowship.org/wp-content/
uploads/2019/06/J_ FLegislativePlaybook2019.pdf.).
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The First Step Act Implementation
Prison Fellowship likewise had the opportunity to play a
role alongside many Members of this Committee in the passage of
the bipartisan First Step Act in December 2018. Key features of
this legislation have already impacted women in our federal
prison system. The bill codified certain Bureau of Prisons'
policies to provide female hygiene items free of charge and
limit the use of restraints on pregnant women.\17\ Seventeen
women have received sentencing reductions for certain drug
crimes under the legislation's retroactive application of the
Fair Sentencing Act.\18\
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\17\ Nathan James, The First Step Act of 2018: An Overview,
Congressional Research Service (March 2019), https://fas.org/sgp/crs/
misc/R45558.pdf; Office of Public Affairs, Department of Justice
Announces First Step Act Implementation Progress, United States
Department of Justice (April 2019), https://www.justice.gov/opa/pr/
department-justice-announces-first-step-act-implementation-progress.
\18\ USSC, First Step Act of 2018 Resentencing Provisions
Retroactivity Data Report, United States Sentencing Commission (June
2019), https://www.ussc.gov/sites/default/files/pdf/research-and-
publications/retroactivity-analyses/first-step-act/201900607-First-
Step-Act-Retro.pdf.
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Key provisions of the First Step Act nevertheless remain to
be implemented, making congressional oversight crucial for the
restoration of incarcerated women. Roughly half of all female
federal prisoners are sentenced for drug crimes, and the First
Step Act's provisions for reforming punishment for these
offenses await further implementation.\19\ The absence of a
United States Sentencing Commission with a quorum means the
sentencing guidelines have yet to reflect the First Step Act's
sentencing reforms for certain drug offenses. The Department of
Justice and Independent Review Committee have put consideration
and effort into developing the new Risk and Needs Assessment
for federal prisons. These systems are used by numerous State
and local justice systems to identify the criminogenic risks
and corresponding recidivism-reducing programs for each
incarcerated person.\20\ Prison Fellowship urges further
refinement and timely implementation of the assessment, and the
corresponding expansion of quality prison programming. The
establishment of this system will not only allow incarcerated
women to have a more constructive experience in prison, but
also allow them to earn certain opportunities, such as expanded
contact with family Members or, based on their risk level and
sentence type, earned-time credits to complete more of their
sentence at a residential reentry center or in home
confinement.\21\
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\19\ Bronson, supra note 2 at 16; James, supra note 17 at 8-9.
\20\ Public Safety Performance Project, Risk/Needs Assessment 101:
Science Reveals New Tools To Manage Offenders, Pew Center on the States
(September 2011), https://www. pewtrusts.org//media/legacy/
uploadedfiles/pcs_ assets/2011/pewrisk assessmentbriefpdf.pdf.
\21\ James, supra note 17 at 5.
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We call on Congress to cement this shift to a more
constructive federal prison culture through explicit, full
funding of the First Step Act in FY2020 appropriations and in
future appropriations cycles.
Geographic distance between federal prisoners and their
home communities continues to weaken the family engagement and
social support crucial for successful reentry.\22\ Research
from the Chuck Colson Task Force on Federal Corrections found
in 2014 that 27 percent and 25 percent of federal prisons lived
more than 500 miles or between 250 and 500 miles from their
primary residence.\23\ The First Step Act codified an
established BOP policy to house all prisoners, subject to other
considerations, within 500 miles of their primary residence.
Prison Fellowship recognizes how the BOP must carefully weigh
this goal alongside numerous logistical, fiscal, and security
priorities, including the very limited number of female BOP
facilities. Nevertheless, we believe greater proximity between
incarcerated women and their families will strengthen family
relationships, including for those with children, and allow
women to draw on the social networks needed to break the habits
and mindsets that first brought them to prison. We therefore
urge BOP to consciously pursue creative solutions to continue
to reduce the geographic distance between incarcerated women
and their home communities, so that as many women as possible
can live within 500--and preferably 250--miles of their primary
residence.
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\22\ The Chuck Colson Task Force on Federal Corrections, Final
Recommendations of the Chuck Colson Task Force on Federal Corrections,
Urban Institute (January 2016), https://www
.urban.org/research/publication/transforming-prisons-restoring-lives/
view/full_report.
\23\ Id. at 40.
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As the BOP continues to expand quality correctional
programming under the First Step Act, it must be cognizant of
crucial programmatic gaps for incarcerated women. A September
2016 Boston Consulting Group highlighted several ``unmet
population needs'' among federal female prisoners for
``intensive, residential mental health treatment'' and
``relationships management and self-management and control
programming.'' \24\ We urge the BOP to revisit these needs
among incarcerated women in the federal system.
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\24\ Boston Consulting Group, Reducing Recidivism Through
Programming in the Federal Prison Population, Department of Justice
(September 2016), https://www.justice.gov/archives/dag/page/file/
914031/download.
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Additional Recommendations
Addressing the unique needs of incarcerated women should
rank as a key next step for both the Administration and
Congress in building on the momentum of the First Step Act. In
particular, we urge both Congress and the BOP to revisit some
of the key recommendations of the Chuck Colson Task Force, on
which Prison Fellowship's Senior Vice President of Advocacy and
Public Policy Craig DeRoche had the privilege to serve. The
Task Force's promotion on greater family engagement is
particularly salient for incarcerated women. While commending
serious BOP progress on this issue, the Task Force did
emphasize lingering barriers, such as ``visitation hours that
were modified or restricted without adequate notice or
explanation; visitation guidelines that varied across
facilities, and even within facilities over time; and
visitation privileges that were perceived to be restricted as a
disciplinary measure.'' \25\ Specifically, the Task Force
called for the establishment of a BOP ``central family affairs
and visitation office to oversee prison visitation procedures
in the interests of facilitating family visits while ensuring
security is not compromised, expand video conferencing and
programs designed to enhance the bonds between incarcerated
parents and their children, and increase other forms of support
for families of those in prison.'' \26\ Given some of the
extreme geographic distances between certain federal prisoners
and their families, the Task Force also recommended greater
contracting ``with State facilities when no appropriate federal
facility is located within reasonable proximity [of home.]''
\27\ We encourage this Committee and the BOP to revisit these
recommendations and evaluate paths for implementation.
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\25\ The Chuck Colson Task Force, supra note 22 at 40.
\26\ Id.
\27\ Id. at 41.
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Second, the scale of abuse and past victimization
experienced by incarcerated women demands a robust scaling up
of trauma-informed care. An Office of Inspector General report
from September 2018 highlighted how ``due to current staffing
BOP may not be able to ensure that all [female] inmates who are
eligible for [the trauma treatment] program can participate in
it before their release from BOP custody.'' \28\ The report
further noted how the current model for BOP trauma-informed
care could only reach ``3% of BOP's sentenced female inmate
population'' at a given time.\29\ At an average BOP female
institution, 17 percent of prisoners are on a waiting list for
trauma care.\30\ The painful psychological wounds experienced
by too many incarcerated women in federal prisons are not being
met with robust, easily accessible trauma-informed care, and we
urge greater BOP attention and funding and corresponding
congressional oversight and action.
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\28\ Id. at 19.
\29\ Id. at 21.
\30\ Office of the Inspector General, Review of the Federal Bureau
of Prisons' Management of its Female Inmate Population, Department of
Justice (September 2018), https://oig.justice.gov/reports/2018/
e1805.pdf.
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Thank you for this opportunity to present Prison
Fellowship's policy recommendations to honor the dignity of
incarcerated women to the Committee.
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