LITMIR.BIZ

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A. The Impact on Women of More Retributive Criminal Justice Policies

      It is ironic that the 1980s and the 1990s, periods of profound economic growth in this country, should also mark the most dramatic increase in imprisonment rates for women. This much-heralded economic boom principally benefited upper- and middle-class Americans with virtually no uplifting effect on economically subordinated communities. In 1993 approximately 16.9 percent of this country’s female population was living below the poverty line.⁶ In addition to the women below the poverty line, children did not fare well during this country’s bull market. Over eleven million children lived in poverty in the year 2000.⁷ The net effect of the boom was a widening gap between the wealthy and poor in this country.

      The progress of women of color, in particular, in moving out of poverty lagged behind that of other population groups. The economic upsurge in America was fueled in part by a dramatic rise in high-tech and skilled work opportunities. Women of color did not typically benefit from increases in this sector of the economy. These women had not been trained for these jobs, so upward mobility was limited. The very nature of the tech boom meant a reduction in available unskilled jobs. Race and gender affect women’s ability to secure one of the limited number of unskilled jobs, resulting in unemployment and underemployment. This leads to loss of earnings, which can exacerbate feelings of insecurity when a woman cannot provide for herself and her family.

      At the same time that women of color were finding less success in the job market, they were more frequently coming to the attention of the criminal justice system. During the ten-year period after the passage of mandatory drug-sentencing laws, the number of women in prison rose by 888 percent.⁸ Previously, women who faced incarceration had been those involved in what were described as “gendered” crimes: assaulting or killing an abusive partner, robbing a client during prostitution, engaging in violent offenses as a “lookout” or other minor player. In contrast, during the 1980s and 1990s, women—and particularly women of color—faced sentences of incarceration for a wide range of drug-related crimes.

      Between 1986 and 1991, this country witnessed an exponential rise in the number of women in prisons for these offenses. The number of African American women incarcerated for drug-related crimes rose 828 percent, far exceeding the increase for White women, which was 241 percent.⁹ The number of Latinas in prison for drug crimes rose 328 percent.¹⁰ Two-thirds of women parolees are now women of color, with close to half having been imprisoned following drug convictions. Prison classification instruments identify the overwhelming majority of female inmates as low-risk inmates, and yet they often endure lengthy prison sentences.

      The principal criminal justice policy that led to unprecedented numbers of women being locked away was the War on Drugs. The strategies used to wage this war represented a fundamental shift in law enforcement policy. The rise of potent forms of cocaine was perceived by many as contributing to increased addiction and corresponding social disorder. Later, the advent of crack cocaine and the violence that often attended the fierce competition for profits in the drug trade sent shock waves through the general public. Increasingly, the public clamored for policies that would restore order and remove the problem from sight. Police departments , armed with this mandate, deployed a wide range of forces to attack and shut down open-air drug markets located principally in inner-city neighborhoods. Massive arrests took place, sweeping large numbers of drug users and low-level drug sellers into the justice system.

      Although much of this activity was confined to poorer neighborhoods in the nation’s central cities, media attention escalated the public’s fear of rampant violence around every corner. When the average White American raised questions about the causes of the rise in crime in the nation, news coverage provided a ready, if not entirely accurate, answer. The violence associated with open-air drug markets involved young Black men, and the media was able to put a face on crime for much of America. More often than not, that face was of a young man of color. The baggy pants, jewelry, and pagers became the trademarks of this younger generation. However, rather than being perceived as manifestations of teenage rebellion, these differently clad young men became the image of danger and intimidation in the minds of many. 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

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