These powerful images of “feral” young men would ultimately fuel a retributive political movement in the criminal justice system. Ironically, the policy decisions that emerged from this period would strike its most severe blow on an unintended target: young women of color.
Prior to 1980, the number of women in state and federal custody was much smaller. Indeed, female offenders often received more favorable sentences than male offenders. A number of studies have attributed this pattern of lighter sentencing based on gender to a combination of chivalrous and/or paternalistic attitudes toward women. Many of the judges were older men who did not see prison as an appropriate place for any woman. These judges were, at times, more receptive to arguments that imprisoning women would have far-reaching consequences—particularly where the woman was the primary caregiver in a family with small children. Because courts had more sentencing discretion, they could differentiate between violent and nonviolent offenders and could, therefore, show some leniency to women.
Research suggests that judges tended not to exercise this discretion as frequently in cases involving women of color. Rather, law enforcement officials and judges reserved this favorable discretion for middle-and upper-class women who tended to conform to their gender stereotypes.11 Although on its face this notion of chivalry or paternalism in sentencing had a positive impact on women, this stereotyping also negatively affected women in a number of ways. Women whose criminal conduct violated the decision makers’ gender-stereotypical assumptions about the “proper” roles for women were often treated more harshly than their male counterparts with similar charges. Some studies have pointed to longer sentences for women in assault or child-abandonment cases, in part because this conduct was deemed to be decidedly unfeminine or nonmaternal.12 In one case, for example, an Alameda County California superior court openly admitted sentencing women convicted of narcotics possession to jail as an alternative to drug treatment because he believed treatment programs did not work. He also claimed that jail was the only place where pregnant women would have no access to drugs and would have access to the prenatal care he thought appropriate.13
As described above, the wide disparities in the sentences issued in criminal cases throughout the 1980s resulted in the Sentencing Reform Act of 1984, which instituted the Federal Sentencing Guidelines. Included in the guidelines submitted to Congress were policy statements that provide that an offender’s age, physical condition, mental or emotional condition, and family and community ties are not “ordinarily relevant” in decisions to depart from the guidelines. The phrase “ordinarily relevant” made it clear that these factors may be relevant only in extraordinary cases. In contrast, gender, like race, national origin, and socioeconomic status, is never relevant. In seeking to balance the scales of justice, the Sentencing Commission and Congress essentially defined the norm as a male norm. Women, who were overwhelmingly single parents (roughly 81 percent of all single parents are women),14 witnessed the elimination of family ties as a relevant component of the sentencing framework. The guidelines ultimately limited judges’ ability to depart downward from a recommended sentence for a single mother. So, the Federal Sentencing Guidelines—and an increasing number of states that chose to adopt similar sentencing schemes—dealt a dramatic blow to women.
The War on Drugs also provided the impetus for more extensive use of prosecutorial tools such as conspiracy statutes. Once reserved for use in unraveling organized crime schemes associated with the Mafia, conspiracy statutes became the favored tool to fight the local drug trade on the state and federal level. The power of the conspiracy statutes was that they eased prosecution of all coconspirators—from the alleged kingpin to the least influential members of the group. Conspiracy, coupled with a relaxation of the rules of evidence in criminal trials, paved the way for megatrials involving allegations of drug sales in which less evidence could lead to a criminal conviction. One consequence of this powerful tool was that women in relationships with men who were charged under conspiracy laws often found themselves caught up in the criminal justice net largely because of a personal relationship.
Adrian Nicole LeBlanc brings this fact to life in the pages of her important book Random Family, which chronicles the life of a number of women, including Jessica, who served a ten-year federal sentence for conspiracy. In the cases she describes, LeBlanc helps us see that these young women were often only marginally involved in the actual drug trade.15 Too often, these women were trapped in abusive relationships in which their criminal activity occurred in the context of a relationship where they had little or no control. These women often had become involved in a relationship with an abusive partner and would experience considerable difficulty escaping that situation. For psychological and often economic reasons, the woman did not see an alternative and simply stayed in the abusive relationship despite the danger. If the abusive partner happened to sell drugs, for example, it was likely that the woman would have been aware of this activity, which technically made her a knowing coconspirator. However, the gap between having knowledge of illegal activity and having control over the choice to engage in this conduct is typically quite wide. Still, if the government charged her partner with drug conspiracy, she often faced charges as a coconspirator. Her knowledge of his illegal activity would often be enough for prosecutors to charge her, for a jury to convict her, and for a judge to sentence her to a mandatory prison term.16 One particular example of this that received considerable attention was the case of Kemba Smith. Before being pardoned by President Clinton, Kemba Smith was sentenced to twenty-four years in prison as a first-time offender.17 The prosecution conceded that Ms. Smith never handled, used, or sold drugs, but she was still subjected to full prosecution simply because of her relationship with an alleged drug dealer.18 Thus, growing numbers of women ended up in prisons across the country. African American women were incarcerated in numbers disproportionate to their representation in the population.19
Much like their male counterparts, women often entered prison with a range of needs. However, the programs, facilities, and services available to women prisoners in this country’s dual prison system were inferior in number and quality to those offered to men. Complicating matters, the needs of women prisoners were, in many ways, unique to women. Unfortunately, prison facilities typically had not been designed with women in mind. Thus, programming in these facilities did not pay particular attention to health or mental health issues as they might affect women, did not specifically seek to address the cluster of legal and emotional issues related to the custody of minor children, and did not focus on helping these women develop or sharpen skills that they might need to become gainfully employed upon release.
Even those features of prisons intended to address the perceived different needs of women ultimately had significant negative consequences. For example, women still tend to be placed in prisons located in rural settings, which are thought to be less harsh and psychically jarring for women than the concrete walls of an urban prison or jail. But placement in remote areas often means that women are housed at considerable distances from their families and friends. Particularly for women of color, whose families most often need to rely on public transportation, these remote locations present insurmountable distances. The lack of proximity increases the difficulty of maintaining ties and often leads to greater social dislocation. Women’s prisons also tend to be smaller in size and population. While in theory smaller prisons may signal greater safety, they also tend to receive less funding and less attention because so few people are housed there. Thus, women tend to have access to a more limited range of programs than are often available to men in larger prison settings.
Further complicating this picture is the lack of attention being paid to the reentry needs of women now being released in record numbers. Policy makers have begun to consider the steps that government should address during the massive release of ex-offenders. But they still have not seriously considered differences for women in their planning. At a minimum, prison officials and reentry planners should consider health issues that women prisoners present as they attempt to gain a better understanding of their needs.
B. Developing a More Complete Picture of Women’s Unique Health Issues
Medical research has only recently focused on women’s health
