The Criminal Justice System's War On Women

The rate of incarceration for women has been growing nearly twice as fast as that of men since 1985.
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Aaron Bernstein / Reuters

When we talk about the war on women, we often discuss it in terms of health care, reproductive rights and employment. Although these discussions are particularly relevant as the Trump administration and Republican controlled Congress work to repeal the Affordable Care Act and reverse Labor Department protections, they are not the only attacks being used to marginalize, restrict and punish women. They are just the most visible ones. What often goes unreported and frighteningly unnoticed is the war the administration is waging on women through the criminal justice system.

Women are the fastest growing population in prison. More than one million women are currently behind bars or under the control of the criminal justice system, and the rate of incarceration for women has been growing nearly twice as fast as that of men since 1985. The war on drugs is a primary reason for this drastic increase. Many women wind up involved in criminal acts as a result of drugs and their romantic entanglements with abusive partners, and they often pay hefty prices for this activity. Indeed, nearly 60 percent of women in federal prisons are there for drug convictions. These women often play small roles in a criminal enterprise, sometimes under significant duress, and rarely are involved in violence or have extensive prior convictions.

During the Obama administration, one of the Department of Justice’s signature initiatives was Attorney General Eric Holder’s 2013 “Smart on Crime” plan. This initiative directed the Department’s prosecutors to “ensure that our most severe mandatory minimum penalties are reserved for serious, high-level, or violent drug traffickers,” and to avoid unduly harsh sentences where principles of justice demand it. Smart on Crime helped lead to the first consecutive drop in the federal prison population in more than three decades.

Attorney General Jeff Sessions’ May 2017 reversal of the Holder memo takes us back to overcrowded prisons, insufficient programming aimed at making reentry successful and more women unnecessarily incarcerated. Sessions’ memo directs all federal prosecutors to charge and pursue the most serious offenses possible for every defendant and to seek any possible mandatory minimum sentences.

It does not take a fortune teller to predict what damage will result to women from directing more than 5,000 Assistant United States Attorneys to charge defendants with the most serious crimes at their disposal. One only needs to have a memory and hear from women who experienced it.

Take for example Kemba Smith, who in 1994 was 24 years old and then sentenced to over 24 years in federal prison for participating in her abusive boyfriend’s drug enterprise. She had no prior criminal history and was seven months pregnant at the time of her sentence. Smith met her boyfriend five years before that when she was a sophomore at Hampton University and did not have any knowledge that he was the leader of a crack cocaine ring.

Smith later grew aware of her boyfriend’s illegal activities and made several unsuccessful attempts to leave him. Over the course of the relationship, he regularly abused her both physically and emotionally, once choking her so badly that the blood vessels in her cheeks popped. In the end, Smith pleaded guilty to conspiracy, although she never sold or used drugs. However, she did lie and break the law for him. The government held her responsible for the total amount of drugs in the conspiracy charge, and as the result of mandatory minimum sentencing guidelines, the court could not consider that her participation was out of fear for her life and that she had been a first-time, non-violent offender. Smith served over six years in federal prison, and in 2000 received a pardon from President Bill Clinton.

Sadly, many women share Smith’s story. As Amy Povah, another Clinton era clemency recipient has noted, federal female prisoners are far more likely than men to be serving long sentences because of the drugs an intimate partner sold. They are also more likely to receive long sentences because, unlike the men who had more direct access to the criminal enterprise, the women have little to no meaningful information to offer for a plea bargain.

Yet, Smith and Povah, while representative of the many women serving time in prison are also exceptions to it. Most women behind bars have not and will not receive clemency; a fact more certain under the current administration. And unlike during the Obama administration when “smart on crime” prosecutors charged female offenders like Smith with an eye towards justice, the Sessions’ memo puts the focus on severity. His charging and sentencing directive is a one size fits all approach that does not make us safer.

There’s a reason many on both sides of the aisle have come together in recent years to reform the criminal justice system. The Koch brothers and Senators Rand Paul and John Cornyn just last year were working alongside the ACLU and Senators Patrick Leahy, Dick Durbin and Cory Booker because those on the right and those on the left saw the damaging effects mandatory minimums have caused our country. Sessions was never one of those people, not in the Senate, not now. He has ignored the failures of the war on drugs and has doubled down on them. What do we have to lose by re-trying his approach – only more women unnecessarily caught up in the criminal justice system for too long and broken communities and families left in their wake.

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