Mothering as a Reproductive Right

Malika Saada Saar

Where is the reproductive rights community in the over-incarceration of mothers and the almost systematic severance in the mother and child relationship as a result of maternal incarceration?

For the first time in the history of U.S. prisons, there are growing and unprecedented numbers of mothers behind bars. They are not drug kingpins, murderers, arsonists, or violent felons. They are non-violent offenders.

Since 1986, following the introduction of mandatory sentencing to the federal drug laws in the mid-1980s, and its adoption by many states at about the same time, the number of women in prison has risen 400 percent, according to a recent Department of Justice report, "Survey of State Prison Inmates;" for Black women, the figure is 800 percent. Most are mothers to minor children.

Many of these mothers are suffering from untreated addiction, and too many tried to find help but were turned away from the doors of treatment programs because they were pregnant or refused to leave their children behind (most treatment programs do not allow children to be part of the recovery process). Like most mothers struggling with addiction, their addiction to crack, meth, or heroin began with the need to self-medicate from the trauma of being subject to repeated incidents of sexual violence.

What does it mean then that most of our female prison population comprises mothers, and mothers with histories of sexual violence and addiction? How is it that our approach to maternal addiction and the trauma of gendered violence is circumscribed to criminalization and to the removal of children from their mothers? What are the implications for our children of being removed from their mothers, often at birth, because of the criminalization of mothers for untreated addiction? Where is the reproductive rights community in the overincarceration of mothers and the almost systematic severance in the mother and child relationship as a result of maternal incarceration?

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These difficult questions regarding maternal addiction and incarceration are often allayed by constructing the women as unfit to mother, or casting them outside the magic circle of motherhood and the sacred mother-child bond. Nonetheless, generally, mothers suffering from addiction want to be good mothers, and their children want to be with them. Hence, when mothers are afforded access to family-based treatment services where they can heal with their children, their average success rates are 62% and rise as high 98% in model family treatment programs. The family heals, stabilizes, and thrives together as a whole family unit. Alternatively, when children are separated from their mothers, they are vulnerable to attachment disorder, substance abuse, and involvement in the criminal justice system. The child welfare system is laced with painful stories of children running away from their foster care placements to be with their mothers, or police being called by child welfare workers in order to physically remove children, sometimes through handcuffing them, from their mothers.

The difficult realities of mothers and children being torn apart from one another are especially traumatic in the context of maternal incarceration. Children are rarely able to visit their mothers behind bars since most female correctional facilities are located in isolated areas and kinship caregivers are unable to travel the distance, or child welfare workers are unwilling to make the strenuous journey. The children who are able to visit their mothers are often subject to excessive body searches and denied the chance to even touch their mothers during the visit.

The condition of mothers giving birth behind bars is equally difficult. Babies are removed from their mothers within a 24 hour period after their birth and placed into foster care. Babies born to mothers behind bars are often born to mothers who labored and gave birth to them while in shackles. In our federal prisons and most state prisons, restraints are routinely used on pregnant women when they are in labor and when they give birth. Only 2 states have legislation regulating the use of restraints on pregnant women: Illinois and California. In the other 48 other states, the District of Columbia and the Federal Bureau of Prisoners, no such laws exist. This routine use of restraints on pregnant women, particularly on women in labor and giving birth, constitutes a cruel, inhumane and degrading practice that rarely can be justified in terms of security concerns during the delivery process.

It shouldn't be this way.

Mothers and their children should have access to family-based treatment programs; alternative sentencing to therapeutic, family programs should be considered instead of maternal incarceration; and sentencing reform that recognizes the distinct conditions and responsibilities of mothers as the primary caretakers should displace the gender neutral sentencing guidelines that are, in part, responsible for the surge in mothers behind bars.

Our reproductive rights community has yet to be a voice for mothers behind bars, or a voice against the disproportional removal of vulnerable children from the care of their mothers. Whereas our mainstream reproductive movement has addressed women's right to choose what happens to our bodies and our right to choose when to be a mother, low-income women of color are routinely denied the basic right to be mothers. The parameters of reproductive health and rights discourse must be expanded to also include the very right to mother and to raise one's children with dignity and healing. Otherwise, we are in danger of playing out what we correctly criticize the pro-life community for doing — only demonstrating concern for the fetus.

News Human Rights

What’s Driving Women’s Skyrocketing Incarceration Rates?

Michelle D. Anderson

Eighty-two percent of the women in jails nationwide find themselves there for nonviolent offenses, including property, drug, and public order offenses.

Local court and law enforcement systems in small counties throughout the United States are increasingly using jails to warehouse underserved Black and Latina women.

The Vera Institute of Justice, a national policy and research organization, and the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge initiative, released a study last week showing that the number of women in jails based in communities with 250,000 residents or fewer in 2014 had grown 31-fold since 1970, when most county jails lacked a single woman resident.

By comparison, the number of women in jails nationwide had jumped 14-fold since 1970. Historically, jails were designed to hold people not yet convicted of a crime or people serving terms of one year or less, but they are increasingly housing poor women who can’t afford bail.

Eighty-two percent of the women in jails nationwide find themselves there for nonviolent offenses, including property, drug, and public order offenses.

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Overlooked: Women and Jails in an Era of Reform,” calls attention to jail incarceration rates for women in small counties, where rates increased from 79 per 100,000 women to 140 per 100,000 women, compared to large counties, where rates dropped from 76 to 71 per 100,000 women.

The near 50-page report further highlights that families of color, who are already disproportionately affected by economic injustice, poor access to health care, and lack of access to affordable housing, were most negatively affected by the epidemic.

An overwhelming percentage of women in jail, the study showed, were more likely to be survivors of violence and trauma, and have alarming rates of mental illness and substance use problems.

“Overlooked” concluded that jails should be used a last resort to manage women deemed dangerous to others or considered a flight risk.

Elizabeth Swavola, a co-author of “Overlooked” and a senior program associate at the Vera Institute, told Rewire that smaller regions tend to lack resources to address underlying societal factors that often lead women into the jail system.

County officials often draft budgets mainly dedicated to running local jails and law enforcement and can’t or don’t allocate funds for behavioral, employment, and educational programs that could strengthen underserved women and their families.

“Smaller counties become dependent on the jail to deal with the issues,” Swavola said, adding that current trends among women deserves far more inquiry than it has received.

Fred Patrick, director of the Center on Sentencing and Corrections at the Vera Institute, said in “Overlooked” that the study underscored the need for more data that could contribute to “evidence-based analysis and policymaking.”

“Overlooked” relies on several studies and reports, including a previous Vera Institute study on jail misuse, FBI statistics, and Rewire’s investigation on incarcerated women, which examined addiction, parental rights, and reproductive issues.

“Overlooked” authors highlight the “unique” challenges and disadvantages women face in jails.

Women-specific issues include strained access to menstrual hygiene products, abortion care, and contraceptive care, postpartum separation, and shackling, which can harm the pregnant person and fetus by applying “dangerous levels of pressure, and restriction of circulation and fetal movement.”

And while women are more likely to fare better in pre-trail proceedings and receive low bail amounts, the study authors said they are more likely to leave the jail system in worse condition because they are more economically disadvantaged.

The report noted that 60 percent of women housed in jails lacked full-time employment prior to their arrest compared to 40 percent of men. Nearly half of all single Black and Latina women have zero or negative net wealth, “Overlooked” authors said.

This means that costs associated with their arrest and release—such as nonrefundable fees charged by bail bond companies and electronic monitoring fees incurred by women released on pretrial supervision—coupled with cash bail, can devastate women and their families, trapping them in jail or even leading them back to correctional institutions following their release.

For example, the authors noted that 36 percent of women detained in a pretrial unit in Massachusetts in 2012 were there because they could not afford bail amounts of less than $500.

The “Overlooked” report highlighted that women in jails are more likely to be mothers, usually leading single-parent households and ultimately facing serious threats to their parental rights.

“That stress affects the entire family and community,” Swavola said.

Citing a Corrections Today study focused on Cook County, Illinois, the authors said incarcerated women with children in foster care were less likely to be reunited with their children than non-incarcerated women with children in foster care.

The sexual abuse and mental health issues faced by women in jails often contribute to further trauma, the authors noted, because women are subjected to body searches and supervision from male prison employees.

“Their experience hurts their prospects of recovering from that,” Swavola said.

And the way survivors might respond to perceived sexual threats—by fighting or attempting to escape—can lead to punishment, especially when jail leaders cannot detect or properly respond to trauma, Swavola and her peers said.

The authors recommend jurisdictions develop gender-responsive policies and other solutions that can help keep women out of jails.

In New York City, police take people arrested for certain non-felony offenses to a precinct, where they receive a desk appearance ticket, or DAT, along with instructions “to appear in court at a later date rather than remaining in custody.”

Andrea James, founder of Families for Justice As Healing and a leader within the National Council For Incarcerated and Formerly Incarcerated Women and Girls, said in an interview with Rewire that solutions must go beyond allowing women to escape police custody and return home to communities that are often fragmented, unhealthy, and dangerous.

Underserved women, James said, need access to healing, transformative environments. She cited as an example the Brookview House, which helps women overcome addiction, untreated trauma, and homelessness.

James, who has advocated against the criminalization of drug use and prostitution, as well as the injustices faced by those in poverty, said the problem of jail misuse could benefit from the insight of real experts on the issue: women and girls who have been incarcerated.

These women and youth, she said, could help researchers better understand the “experiences that brought them to the bunk.”

News Human Rights

The DOJ Cuts Ties With Private Prisons, But Will ICE Follow Suit?

Tina Vasquez

“This is the first time that a federal agency issued a sweeping—and long overdue—rebuke to the private prison industry. It is time to take a hard look at the outsized role of incarceration in American society, which has shattered lives and communities across the country,” said Silky Shah, co-director of Detention Watch Network.

The Department of Justice (DOJ) announced yesterday that it will end its use of for-profit prisons.

The department cited a decline in the prison population and private prisons’ failure to maintain the same level of safety and security as the Federal Bureau of Prisons (BOP).

BOP will amend solicitation for prison contracts of 10,800 beds to no more than 3,600 beds. By May 2017, the total BOP private prison population will be less than 14,200, a 50 percent reduction from its high in 2013 of 220,000. All of the Bureau’s contracts with private prison companies are term-limited and subject to renewal or termination.

The DOJ is recommending the BOP work to reduce and eliminate more private prison facilities as contracts come up for renewal over the next five years.

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The nation’s private prison system has been called a “national disgrace,” synonymous with “violence, abuse, and death.”

In a 2013 ACLU lawsuit against privately-run East Mississippi Correctional Facility (EMCF), for example, the ACLU described the prison as “an extremely dangerous facility operating in a perpetual state of crisis, where prisoners live in barbaric and horrific conditions and their basic human rights are violated daily.”

The DOJ’s Thursday announcement will not affect immigrant detention centers run by ICE and contracted to private prison companies like GEO Group and Corrections Corporation of America (CCA), both of which have long histories of human rights abuses in their detention centers, including dozens of cases of in-custody deaths.

It remains unknown if ICE will continue to contract with private prison companies. Most privately-operated prisons within the BOP are Criminal Alien Requirement (CAR) prisons, which hold noncitizens who have been criminally prosecuted for crossing the border, according to a press release from Grassroots Leadership.

“This announcement will likely mark the end of segregated federal prisons for non-citizens, though it remains to be seen how the BOP will carry out this change,” the organization said in its statement.

Silky Shah, co-director of Detention Watch Network, a coalition challenging the injustices of the U.S. immigration detention and deportation system, said in a statement that the DOJ’s announcement is “a major turning point” in the struggle against mass incarceration.

“This is the first time that a federal agency issued a sweeping—and long overdue—rebuke to the private prison industry. It is time to take a hard look at the outsized role of incarceration in American society, which has shattered lives and communities across the country,” Shah said. “With this news, we call on the Department of Homeland Security to follow suit and break their ties with private prison companies that operate more than half of ICE immigrant detention facilities as a step towards ending detention completely.”

CAR prisons were the focus of a recent Nation investigation about the poor medical care provided in these privately-run, immigrant-only prisons. The CCA-run prison featured in the Nation investigation, New Mexico’s Cibola County Correctional Center, will be shut down as a result of the DOJ announcement. CCA ran Cibola for 16 years and was notified by the BOP of its impending closure in July.

In a book released last month by Grassroots Leadership, the organization revealed that many immigrants incarcerated in CAR prisons are sentenced for one of two federal charges: misdemeanor improper entry or felony improper re-entry.

“These two charges account for half of all federal prosecutions although they are merely status offenses for crossing the border without proper documentation, and do not fall under DOJ priorities,” Grassroots Leadership reported.

“This decision will take the profit motive out of the BOP’s incarceration of non-citizens prosecuted for crossing the border,” Bethany Carson, researcher and organizer at Grassroots Leadership, said in a press release. “We hope that this decision will be a stepping stone for the DOJ to end the use of segregated prisons for non-citizens and de-prioritize improper entry and re-entry prosecutions.”

Policy center In The Public Interest (ITPI) reported in February that private prison companies “collect thousands of tax dollars in profit for every incarcerated person in their facilities.”

CCA, the country’s largest private prison operator, made $3,356 in profit per prisoner in 2015. GEO Group, the second largest private prison operator, made $2,135 in profit per prisoner. ITPI has found that private prison companies encouraged mass incarceration by owning and marketing facilities.

“If our criminal justice system stopped sending people to private jails and prisons, these tax dollars could be spent on programs that prevent incarceration and support prisoner rehabilitation,” ITPI reported.

Private prison companies were already taking a sizable financial hit in the hours after the DOJ’s announcement. MarketWatch reported that “shares of for-profit prison operators plummeted.” CCA’s shares dropped 35 percent and GEO Group’s fell 40 percent.

A report last year revealed that private prisons increased their share of the immigrant detention industry after the detention bed quota was implemented, guaranteeing 34,000 immigrants are detained each day. Grassroots Leadership reports that private prison corporations now operate two-thirds of ICE detention centers, with CCA and GEO operating nine out of ten of the largest detention centers.

“This [the DOJ announcement] is a major victory for those of us who have fought for years to expose the innumerable abuses and indignities in our Criminal Alien Requirement prisons and we’re overjoyed the Department of Justice has finally listened, however belatedly,” Terri Burke, executive director of the ACLU of Texas, said in a press release about the DOJ’s announcement. “Lives have been lost to this broken system. Good riddance.”

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