Analysis Law and Policy

New Paper Series Explores Reproductive Justice Issues, Including What Happens to Pregnant Women in Prison

Rachel Roth

The treatment of pregnant women in prison exposes problems with mass imprisonment in the United States.

The Center for Women Policy Studies has published a series of papers called Reproductive Laws for the 21st Century. The series addresses issues ranging from the exclusion of abortion from health care reform in the United States to the rights of lesbian families in Argentina.

My contribution is called “She Doesn’t Deserve to be Treated Like This”: Prisons as Sites of Reproductive Injustice. The quotation in the title comes from a Pennsylvania grandmother whose 22 year-old granddaughter was left to give birth all alone, locked in a prison cell. No matter how she tried to convince the prison staff that she needed to go to a hospital, they wouldn’t listen.

This is just one of many chilling stories about the inhumane treatment of pregnant women behind prison walls. The United States imprisons more people than any other country, and this pattern is especially pronounced when it comes to women: fully one-third of all the women and girls in prison worldwide are right here in the U.S.

The prison system, and the “war on drugs” and sentencing policies that have fed its expansion over the past few decades, are fitting subjects for a reproductive justice analysis for many reasons: most imprisoned women are in their reproductive years, mothers of young children, or both; imprisoned women are overwhelmingly poor and disproportionately from urban communities of color; and spending on prison outstrips spending on public education in many states, upending reproductive justice priorities.

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Although some elected officials have begun to recognize the untenable costs of mass imprisonment, we still have a long way to go. Exposing the violations of women’s reproductive rights and health brings an important problem to light and also provides a specific entry point into the discussion about the social and fiscal costs of our current policy.

Culture & Conversation Human Rights

What ‘Orange Is the New Black’ Missed About the Obstacles Faced After Prison

Victoria Law

Whether or not they meant to do so, the writers of Orange Is the New Black have sent viewers the message that prison is preferable to life on the outside.

“You’re getting out early.” Those words are music to the ears of anyone behind bars. But on Orange Is the New Black, the women at Litchfield Penitentiary tend to see release as a bogeyman rather than welcome news.

In Season four of the Netflix series, Aleida Diaz (Elizabeth Rodriguez) learns that she’s eligible for early release. At first, this is hopeful news: Being out of prison means that she can start the process of getting her children and newly born granddaughter out of foster care. But then reality sets in: She’s leaving prison without an education or skills that will help her find a job. Even worse, she now has a criminal record. “Sure, people love to hire ex-cons,” she snaps.

This is not the first time that the show has treated release and reentry as something to be feared rather than welcomed. In the first season, Taystee Jefferson (Danielle Brooks) is released on parole. Once out, she’s faced with the realities of no housing, no support system, and no job opportunities. Though the show never specifies what she did, Taystee is sent back to prison, where she tells Poussey Washington (Samira Wiley) that she deliberately violated her parole so that she could return to Litchfield.

Whether or not they meant to do so, the writers of Orange Is the New Black have sent viewers the message that prison is preferable to life on the outside. And in doing so, the show suggests that the very real systemic obstacles that formerly incarcerated people face upon release, especially where employment is concerned, are impossible to overcome—rather than drawing attention to the importance of dismantling those barriers, and the organizing being done around the country to do so.

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Over 650,000 people leave state and federal prisons each year. For many, finding stable employment is one of the first steps to surviving (and hopefully thriving) outside of prison. It’s frequently a prerequisite to finding their own housing and reuniting their families. For those on probation or parole, being gainfully employed is also a condition of staying out of prison. But finding a job isn’t easy, especially with a gap in employment history and a prison record.

Advocates, however, including formerly incarcerated people, have been working to eliminate one of the most obvious barriers: the question about past felony convictions on an initial job application, popularly known as the “Box.” In many cities, they are succeeding. More than 100 cities have passed “Ban the Box” legislation, which ends that practice of asking about previous convictions on initial applications. In 2015, the federal government also jumped on the Ban the Box wagon with Obama ordering federal agencies to delay inquiries into past felonies during the hiring process.

Ban the Box doesn’t mean that the question of criminal records never comes up. What it does is give job seekers a chance to be considered on their merits and not on their previous actions. If an applicant seems qualified for the job, they will go through the rest of the hiring process like every other applicant does. The question of past convictions may come up at some point during that process, but by then, the person has demonstrated their skills and qualifications for the job before having to explain past mistakes (as well as steps they’ve taken to ensure that they won’t land in a similar situation again).

Ban the Box has been shown to increase employment among formerly incarcerated job seekers. In Minneapolis, Minnesota, between 2004 and 2006, for example, the city hired less than 6 percent of applicants with convictions. Once it passed its version of Ban the Box, however, that percentage jumped to nearly 58 percent. Similarly, in Durham, North Carolina, the number of people hired for municipal jobs increased nearly sevenfold after it passed similar protections in 2011.

However, Ban the Box isn’t enough to ensure that formerly incarcerated job seekers are given a chance. Legislation needs to go hand-in-hand with a cultural shift toward people coming home from prison. Maria C., who returned to New York City in 2011 after a two-year incarceration for drugs, knows this firsthand. In 2015, New York City banned the box. But even before it did so, city law prohibited employers from making decisions based on convictions unrelated to the job being sought.

On paper, that should have meant that Maria should not have encountered discrimination from prospective employers. As Maria explained to Rewire in an interview, in reality, she still struggled to find work, although it is difficult to say how much her prior conviction and imprisonment weighed in prospective employers’ decision-making processes.

She applied for a job at a national wholesale chain. “Their website said they were ex-con friendly,” she recounted. Maria was called in for an interview, tested negative for drugs, and was told that the company would conduct a background check. After the background check, however, she was told that she did not get the job. She applied to other stores and supermarkets; from those, she received no response at all.

Finally, through an employment program of the Fortune Society, a nonprofit which helps people with reintegration after their release from prison, she found a job at a laundromat.

One afternoon, two months into her new job, she told her boss that she had to leave work early to see her parole officer. “After that, they started getting picky with me,” she told Rewire. Shortly after, she was let go.

The Fortune Society helped her find a second job at a warehouse. But a few months after she was hired, she said that the boss told her, “We’ll call you when we need you.” She never received a call.

At both jobs, Maria says she was asked about her record. She explained the circumstances of her arrest and incarceration as well as what she had accomplished since that time. That’s why she’s puzzled as to why she was let go after a few months. Maria spent five years in New York City; with the exception of the handful of months at the laundromat and warehouse, she remained unemployed.

Maria now lives in Lebanon, Pennsylvania, a city that takes up 4.2 square miles and has a population of about 25,000 people. Lebanon and the surrounding county have a median household income of $56,000 and fewer than 3,000 employers. However, Lebanon also has a work release program, through which people in the local jail system are allowed to work in the community during the day before returning to the jail for the night. The presence of the work release program—especially in a comparatively small community—means that employers are almost certainly more accustomed to job seekers and employees who have criminal records. Within a week of arriving, Maria found work through a temp agency at a food factory where she packs croutons, chocolate, and mashed potatoes.

New York state also has a work release program; in 2010, nearly 2,000 people participated. Even so, the same willingness to hire formerly incarcerated people hasn’t seemed to manifest on a wide scale. Maria knows that the only way formerly incarcerated people like her will find jobs is if there’s a shift in culture and perceptions. Employers “should give people a chance to be able to succeed,” she said. “But employers don’t want to give them a chance.”

As Maria’s experience shows, part of this shift involves policies that create incentives to hire formerly incarcerated people. Some of these policies, like the Work Opportunity Tax Credit, already exist. New York City itself has promoted the Fair Chance Act, its version of Ban the Box, even placing ads on the subway informing formerly incarcerated New Yorkers and their potential employers of this new protection. Local and federal agencies should take similar measures to promote existing opportunities.

Or, for example, consider the model of the Johns Hopkins Health System (JHHS) in Baltimore, Maryland, the state’s largest employer of formerly incarcerated people. In 2014 alone, the hospital hired more than 120 people with past prison records and, between 2009 to 2012, 430 formerly incarcerated people overall. “With 9,000 incarcerated people returning to Baltimore each year, the JHHS wanted to contribute to community re-integration efforts by providing employment opportunities,” Yariela Kerr-Donovan, the director of Johns Hopkins’ Department of Human Resources, stated in an interview with the nonprofit Senate Presidents’ Forum. To do so, they sought a Department of Justice training grant and partnered with community colleges and a training firm specifically to train people for positions inside the health system. This is a model that other large businesses can—and should—emulate.

The real-life job market is already stacked against women of color. As late as 2013, women of all races and ethnicities earned only 78 percent of what men earned. For many women of color, the wage gap widens—Black women were paid 64 percent of their white male counterparts. For Latinas, that wage gap widened to 54 percent and for Native Americans to 59 percent. (Surprisingly, Asian-American women showed the smallest wage gap, earning 90 percent of their white male counterparts. I’d like to know which Asian-American women’s incomes were surveyed and how many were members of underpaid and largely invisible workforces, such as domestic service or beauty industries, across the country.)

Now add in the disproportionate conviction and incarceration of women of color, which often exacerbates a lack of marketable skills, and you can see why efforts like Ban the Box are a necessary first step. Without a shift, however, in the ways that formerly incarcerated people are viewed—as potential workers, neighbors, and members of society—Ban the Box won’t be enough.

One show won’t make the sweeping changes necessary to overcome decades of institutional discrimination. But it can change individual hearts, minds, and hiring practices. Through Aleida’s release, Orange Is the New Black now has a storyline that could address some of the obstacles women face upon release, including employment discrimination and wage inequality. It remains to be seen whether the next season will make good on that opportunity.

Culture & Conversation Human Rights

The Prison Overcrowding Problems on ‘Orange Is the New Black’ Reflect a Real-Life Crisis

Victoria Law

In both the Netflix series and real life, overcrowding has serious ramifications for those behind bars. But the issue isn't limited to privately run institutions; public prisons have been overflowing in many states for years.

“I’ve been in Litchfield for a while now,” says Piper Chapman (actress Taylor Schilling) in the latest season of Orange Is the New Black, “and I’ve started to feel unsafe lately.”

Season four of OITNB has taken on prison overcrowding. Viewers may recall that, in the last season, the fictional Litchfield Penitentiary was taken over by a corporation, transforming it from an already underfunded state prison to a private facility whose sole purpose is the bottom line. That means each woman inside Litchfield has become a commodity—and the more commodities locked inside, the more profit the corporation receives.

In both the Netflix series and real life, overcrowding has serious ramifications for those behind bars. But the issue isn’t limited to privately run institutions; public prisons have been overflowing in many states for years.

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In the latest season of OITNB, viewers see some of the potential consequences of prison overcrowding: It is accompanied by increased threats of violence and abuse, as people, packed like sardines, step on each other, jostle each other, and can’t get away from each other. Supplies, such as soap, sanitary napkins, and toilet paper, are never in abundance in a prison setting; they become even more scarce as the number of people clamoring for them soar. Even food, which prisons are required to provide in the form of regular meals, becomes in short supply.

A scarcity of resources isn’t the only problem in Litchfield. Again and again, we see long lines for the bathrooms and showers. When the prison installs “porta potties” in the yard, there are long lines for those as well. “Too many people in here, everybody getting on each other’s nerves,” remarks Poussey Washington (Samira Wiley), another of the show’s long-term characters. Conflicts emerge as women struggle to navigate daily living in a narrow room with multiple other women. Some of these may seem small, like the nightly snoring of a new bunkmate keeping another one awake all night. But these seemingly inconsequential issues lead to larger ones, such as sleep deprivation. In the show, women resort to comic measures; but these conflicts, especially in a closed and cramped environment, can quickly erupt into violence.

This is the case in Litchfield as well. Conflicts quickly turn into threats or actual attacks. While prison socializing has always been racially segregated, some of it now becomes racialized and racist. Some of the new white women, noting that they are in the minority among the large numbers of Latina and Black women being shuttled in, are unwittingly pushed by Piper to form a white power group. They hurl racist epithets at the women of color and, when they spot a lone Dominican woman on the stairs, move together to attack her.

Prison staff perpetuate the violence, using their authority to do so. They begin their own version of “stop and frisk” in the prison’s hallways, targeting the growing Latina population. While the body searches in and of themselves are humiliating, the (male) guards also take advantage of the additional security measure to grope and further abuse the women. They even force women into fighting, which they then bet on—a nod to the actual allegations of guard-instigated gladiator fights in California’s prisons and the San Francisco County Jail.

Although not everything in OITNB is realistic, the problems the show portrays in this respect reflect the frequent results of overcrowding—and some of its causes. As OITNB notes repeatedly throughout the season, private prisons receive money per person, so it’s in the company’s interest to lock up as many people as possible.

In 2014, for example, private prison contractor GEO Group contracted with the California Department of Corrections and Rehabilitation (CDCR) to open and operate a women’s prison north of Bakersfield, California. Under the terms of the contract, California pays GEO Group $94.50 per person per day for the first 260 women sent to that prison. The contract also includes an opportunity for the company to expand its prison by another 260 beds—although, if it does that, the state only pays $86.95 per person per day. But even at that lower rate, doubling the occupancy increases the private prison’s overall four-year revenue from roughly $38 million to $66 million. (As of June 8, 2016, that prison held 223 people.)

But prison overcrowding isn’t limited to private prisons. In some states, the “tough on crime” laws passed in the 1980s and 1990s are still leading to crammed public prisons today.

California, for instance, is one of the most egregious examples of such legislation leading to prison overcrowding. Years of extreme overcrowding ultimately led to Brown v. Plata, a class-action lawsuit charging that the state’s severely crowded prisons prevented it from providing adequate medical and mental health care, thus violating the Eighth Amendment’s prohibition on cruel and unusual punishment. In 2011, the U.S. Supreme Court agreed and ordered California to decrease its state prison population from 180 to 137.5 percent capacity.

To do so, the CDCR took several actions: It began shipping thousands of men to private prisons in Arizona, Mississippi, and Oklahoma. In addition, it converted Valley State Prison for Women, one of its three women’s prisons, into a men’s prison, and transferred the approximately 1,000 women there from Valley State Prison for Women to two other prisons—the Central California Women’s Facility (CCWF) and the California Institution for Women (CIW). It also opened the 523-bed Folsom Women’s Facility in January 2013.

Despite these efforts, overcrowding continues to plague California’s prisons. As of June 8, CCWF was at 143.6 percent capacity; while CIW was at 129 percent capacity.

Even before the influx of women from Valley State Prison, though, the numbers of people packed into CIW had led to reports of violence from inside. In 2012, Jane, who has been incarcerated at CIW for several years, wrote in a letter that was later reprinted in Tenacious, “When eight women of widely disparate ages, social backgrounds, ethnicities and interests share a 246-square foot cell, there are bound to be conflicts, and there is little tolerance for any behaviors that are different.” She recounted a woman named Anna who spoke little English and was mentally ill.

“Little Anna has spent the last several weeks being alternately beaten up by her cellmates, who don’t understand her behaviors, or drugged into a drooling stupor in the Specialty Care Unit,” Jane wrote. According to Jane, housing staff ignored the violence. When Anna tried to complain to a higher-ranking staff member, Jane said that correctional officers, “angry at her inability to follow directions, threw her to the floor, cuffed her hands behind her back and twisted her arms until she screamed in pain.”

Two years later, after women from Valley State Prison were moved to CIW, Jane wrote in a second letter published in Tenacious, “What this overcrowding has created in terms of living conditions is continued horrendous health care and failed mental health care.”

The situation seems to have persisted. As noted earlier, women have also reported a pervading sense of hopelessness, exacerbated in part by the inability to access mental health care. CIW has a suicide rate that reportedly is eight times the national rate for women behind bars. In 2015, it had two suicides and 35 attempts. As of June 16, 2016, there have been two successful suicides and nine attempts. “A lot of us are only hanging on by hope alone. In a hopeless place, most don’t make it,” one woman told Rewire one month before her friend’s suicide this past April.

In many men’s prisons, overcrowding is even more severe. Valley State Prison, now a men’s prison, is currently at 172 percent capacity. The vast majority of the state’s other male prisons operate at over 100 percent capacity.

But it’s not just California that suffers from prison overcrowding. Oklahoma, which has especially harsh sentencing laws—particularly for drug offenses—has the country’s highest rate of incarceration for women. And the number of those behind bars continues to rise: In 2014, the state imprisoned 2,979 women, a 9.3 percent increase from the 2,702 women imprisoned the year before.

Mary Fish has been incarcerated at Oklahoma’s Mabel Bassett Correctional Center (MBCC) for the past 15 years. She told Rewire that prison administrators recently added 40 more beds to each unit, increasing its capacity from 1,055 to 1,291. (As of June 13, 1,250 women were incarcerated at MBCC.) This has led to competition, even for state-guaranteed items like cafeteria food (especially fresh fruit, which is infrequent in many prisons). “This overcrowding is all about who can get up there and bull dog [sic] their way to the front of the line,” she wrote in a letter to Rewire. She said that two days earlier, the prison’s cafeteria was serving bananas with lunch. But, even though each woman only received one banana, by the time she reached the window, all of the bananas were gone.

“It really gives new meaning to overcrowded,” Fish reflected. “Bodies rubbing in passing, kind of space-less, boundary-less environment. I’ve never had so much human contact in the 15 years I’ve been incarcerated.”

The state’s medium-security women’s prison, the Eddie Warrior Correctional Center (capacity 988) currently holds 1,010 women. “There are huge overcrowded dorms crammed with bunk beds and steel lockers,” wrote “Gillian” in a letter to Rewire, later printed in Tenacious, shortly after being transferred from MBCC to Eddie Warrior. “The population is young, transient and the majority are disrespectful. They have no clue how to live successfully in a crowded communal environment. The dorms are filthy, loud and chaotic for the most part. There is no peace.”

The situations in Oklahoma and California are only two examples of how state prison overcrowding affects those locked up inside. Institutions in other states, including Alabama, North Dakota, and Nebraska, have also long been overcrowded.

On OITNB, the private corporation in charge plans to bring even more women to Litchfield to increase revenue. But in real life, as state budgets grow leaner and prison justice advocates continue to press for change, local legislators are beginning to rethink their incarceration policies. In California, a recently proposed ballot measure would change parole requirements and allow for early release for those with nonviolent convictions if they enroll in prison education programs or earn good behavior credits. If the ballot garners at least 585,407 voter signatures, it will be added to the state’s November ballot.

In Oklahoma, meanwhile, where the state now spends $500 million a year on incarceration, former Republican house speaker and leader of the coalition Oklahomans for Criminal Justice Reform Kris Steele is pushing for two ballot measures—one that allows reclassifying offenses like drug possession from felonies to misdemeanors, and another that sets up a new fund that would redirect the money spent on incarceration for low-level offenses back to community programs focused on rehabilitation and treating the root causes of crime.

Still, these changes have been slow in coming. In the meantime, individuals continue to be sent to prison, even if it means more bunk beds and less space to move (not to mention the devastation caused by breaking up families). “Last week, Oklahoma County brought a whole big RV-looking bus to deliver a bunch of women here to [Assessment and Reception],” Fish, at MBCC, noted in a May 2016 letter to Rewire.

The following week, she told Rewire, “They keep crowding us. There’s no room to even walk on the sidewalks.” Fish regularly reads the local newspapers in the hopes of learning about pending legislation to ease overcrowding and allow for early release. Though the senate recently passed four bills that may reduce the number of people being sent to prison, she feels that the new laws won’t help those currently trapped inside. “It’s getting pretty awful, and it looks like no bills passed to help us so there’s NO END IN SIGHT.”