There are 14 times more women in jail in this country today than there were in the 1970s. That’s not a typo.
The political sphere is brimming with talk of liberal reform these days, often celebrating a policy shift toward ending mass incarceration, toward a more “humane” criminal justice system focused on rehabilitation. Yet despite recent measures aimed at curbing harsh incarceration policies, the number of women in local jails is only growing.
In a detailed new analysis of the experiences of women in jail—the fastest growing correctional population—the Vera Institute of Justice shows that in many ways the rise in the female jail population over recent years parallels the rising male jail population. Both have largely been driven by harsher sentencing policies, crackdowns on drug use, and “Broken Windows” policing policies that disproportionately criminalize black and Latino youth. But women typically become incarcerated after experiencing gender-based trauma throughout their lives. About eight in ten have experienced domestic partner abuse. A large majority have survived sexual violence.
Most women in jail are detained pre-trial; others are serving shorter sentences, which makes it arguably a less severe form of incarceration than prison. (While jails often house people awaiting trial, state and federal prisons primarily hold those already convicted of crimes.) But at the same time, jail is potentially more destabilizing in a woman’s life.
Women are often ensnared at the jagged edge of Broken Windows policing. Aside from drug offenses, other common charges for women include “minor property crimes, such as shoplifting; and simple assault, such as threats or minor attacks like biting, shoving, hitting, or kicking.”
The Vera report notes that generally women “tend to have less extensive criminal histories than their male counterparts,” even though their arrest rates have grown at a faster rate than that of men. Overall, the share of arrests of women versus men jumped from just 11 percent in 1960 to 26 percent in 2014.
Co-author Elizabeth Swavola says via email:
Women have consistently been charged with lower-level, nonviolent offenses. As criminal justice agencies have come to place greater emphasis on those types of offenses, women have become swept up into the system to a greater extent….While the number of women in prison has begun to decrease, the number of women in jails has continued to increase.
With about a third of women in jail having experienced serious mental illness and over half having suffered medical problems, jail is basically the worst place for them to access the services they need, particularly because many have faced specific forms of gender-related trauma and abuse. Swavola adds that since jail stints tend to be just a few months rather than years:
there is more turnover as people cycle in and out, which means more volatility and fewer programs and services, including health care….Jails are run by the county or municipality and therefore tend to have fewer resources than state or federally run prisons.
Many women are jailed for only tangential involvement with a crime. The Vera report notes that “Complicity law…recognizes no difference between ‘major’ or ‘minor’ accomplices…As a result, women and other lower-level participants can face the same sentences as their more significantly involved counterparts, for instance, by simply taking a phone message.”
This means a young mother who was was forced to serve as a mule for her abusive boyfriend’s meth business may ultimately be pressured to plead guilty in order to obtain a shorter sentence, especially if she’s got a child waiting for her at home. A bout in jail could also interfere with or exacerbate a family’s reliance on public benefits, while a criminal record could foreclose legitimate employment opportunities post-jail.
But by then the damage to the family may already be done. Even a few days in jail could trigger a child welfare agency intervention, sweeping a child into foster care and launching a separate legal quagmire in family court. Trapped in the negative feedback loop between the child welfare and criminal justice systems, a woman just released from prison—often facing joblessness, poverty and perhaps ongoing mental health or substance abuse issues—may end up losing her parental rights in family court if she cannot meet the strict requirements for family reunification.
Still, while women appear to have been disproportionately affected by the mass incarceration drive and the War on Drugs, there’s also real potential to intervene with gender-conscious criminal justice reforms, which are now slowly steering the system toward rehabilitation-based approaches rather than punishment.
Some states and cities have already experimented with jail diversion programs, which sentence people to, for example, drug treatment services instead of jail, or route a homeless person arrested on public nuisance charges away from jail and into supportive housing. Similarly, bail reforms and measures to expand access to legal counsel help keep people in their communities pending trial.
Cities and towns have established a network of 3,000 “problem solving courts” to help those charged with low-level offenses avoid jail and instead get sentenced to, for example, case managers or mental health counselors. In Cook County, Illinois, the Department of Women’s Justice Programs targets its furlough program to accommodate mothers by allowing them to “be released with electronic monitoring to receive outpatient services during the day and care for their families in the evening.”
These interventions are far from perfect; diversion programs for prostitution have been criticized as invasive social engineering. Alternative courts still operate on a tiny scale, compared to a mainstream criminal court system that is rife with corruption and racial inequality. And in many cases, those who face charges should never have been arrested in the first place, as their initial encounter with the police was the result of racial profiling or civil rights violations. Still, the women who are disproportionately victimized and silenced by the country’s incarceration obsession also have that much more to gain from the incipient movements to drive the justice system toward rehabilitation, restorative justice and harm reduction instead of punishment.
The evolving movement for decarceration will only be meaningful for women if their voices are heard from behind bars and beyond, as we rethink how to make communities truly secure.