States Lead - Will the Feds Follow?

In the criminal justice reform arena, states have taken the lead. From rolling back harsh mandatory minimum sentences (at least 29 states have done so since 2000) to decreasing their prisons' populations (New York's declined 26 percent between 1999 and 2012, and violent crime rates fell) states are taking steps to be smart on crime.

Once a leader, the federal government now lags behind the states in criminal justice innovation. Congress has passed some laudable initiatives in recent years, including the Fair Sentencing Act, which reduced the disparity in sentencing for crack and powder cocaine offenses, and the Second Chance Act, which provided funding for reentry services. But the federal prison population nonetheless continues its seemingly inexorable rise, from 25,000 inmates in 1980 to about 219,000 today.

One area in which the feds have fallen particularly far behind is in the treatment of female prisoners. In recent decades, state correctional officials and social scientists have pioneered the concept of "gender responsive" prison programming. These approaches are based on a growing body of knowledge about women in detention. As social scientists have now documented in detail, women are less likely than men to have committed violent crimes and are more likely to have committed property or drug offenses. According to a report from the National Institute of Corrections (NIC), "[w]omen's most common pathways to crime involve survival efforts that result from abuse, poverty, and substance abuse." Incarcerated women have disproportionately high rates of prior physical and sexual abuse; substance abuse; medical problems; and mental health disorders.

Recently constructed state prisons for women -- such as institutions in Iowa and Washington -- aim to build on these insights to develop settings that facilitate women's rehabilitation. The new Mitchellville prison in Iowa, for example, incorporates outdoor classroom space into its design. The idea, which was the result of a collaboration between landscape architecture students at Iowa State University and the officers and inmates who would live and work in the new facility, was that time spent outside could "benefit and improve the mental, physical and emotional wellbeing of the offenders, staff, and visitors." Washington State has put in place a new policy on gender responsiveness, and it has recognized that gender matters in things small and big: the commissaries in Washington State prisons will now sell items that are specifically suited to women's needs.

The Federal Bureau of Prisons (BOP) has moved in the opposite direction. The Liman Program at Yale Law School (where I work) has released a report that describes the hardships faced by women prisoners as a result of the BOP's misguided decision to close the only low security facility for women in the Northeast and convert it to a facility for men. Some women were sent far from their communities and families, while others were transferred to urban jails that are unfit for long-term housing.

The issue of distance from home is a particularly critical one for female prisoners. Of the 1,120 women incarcerated at Danbury in July 2013, the BOP estimated that 59 percent had a child under the age of 21. Because women are more likely than men to have been the primary caregiver before their incarceration, their absence is extremely hard on their children and families.

The question facing the BOP is whether it can reclaim its reputation as a corrections leader. The question facing all of us is whether poor, drug-addicted, traumatized, and mentally ill women should be incarcerated at all. The BOP itself has recognized that "female offenders are less likely to be violent or attempt escape" than their male counterparts, and while the solution to the problem of overincarceration will largely be dependent upon legislative fixes, the BOP is not entirely without power to reduce its prisoner population in ways that benefit families without sacrificing public safety.

Specifically, the BOP ought to use its authority under the Second Chance Act to release eligible women into halfway houses for the final twelve months of their sentences and to home confinement for the final six months. By exercising that authority, the BOP could reduce overcrowding, improve educational opportunities for inmates, and strengthen family relationships. Moreover, as a 2012 report estimated, were the BOP to increase by three months the time that all of its inmates spend in home confinement, it could save at least $111.4 million each year.

As BOP was working to empty Danbury of women, it conducted individual assessments of the prison's female inmates and determined that a number were eligible to be transferred to halfway houses or home confinement. Indeed, the fact that as many as a few hundred women were released as a result of these evaluations is the silver lining of the Danbury closure. But this momentum toward the goal of incarcerating women in the least restrictive setting possible disappeared as soon as Danbury was empty. The BOP should conduct individualized evaluations of all of its inmates, male and female, to determine how many others might be eligible for transfer to halfway houses or home confinement.

As the Liman Program report highlights, the decision to close Danbury to women is just one symptom of the BOP's failure to remain at the forefront of correctional thinking. The states are showing the way; it's time for the feds to follow.

I co-authored the Liman Program report with my colleagues, Judith Resnik and Hope Metcalf, and law students Anna Arons, Katherine Culver, Emma Kaufman, and Jennifer Yun