The US is the world’s largest jailer, with just 5% of the world population, and 25% of the world’s prison population. The rate of women being incarcerated is nearly twice the number of men. Between 2000-2009, the female prison population jumped 21.6%, while the number of men in prisons jumped 15.3%. Looking at the growing number of prisons and in-mates we are called to think critically about the role of prisons in our society and their impact.
Prisons and the criminal justice system render women’s reproductive rights expendable and mark a contentious relationship between women and the state. Currently, at least 38 states have fetal homicide laws criminalizing acts that cause the death of an unborn fetus. In an article published in the American Journal for Public Health, Lynn Paltrow, a lawyer, who founded the nonprofit National Advocates for Pregnant Women in 2001, argues that fetal homicide laws are frequently used to target women who use drugs and alcohol in general and low-income women whose lifestyles rightly or wrongly could be construed to cause harm to their unborn child.
Jane Crow laws, as Paltrow calls them, are cropping up in several states across the country. In Mississippi, 24 year-old Rennie Gibbs, is facing life in prison because her newborn daughter never breathed. In 2006, when Gibbs was 16, she prematurely gave birth to a stillborn daughter, born with the umbilical cord wrapped around her neck. The baby’s autopsy showed traces of cocaine, and Gibbs was charged with depraved murder “willfully, unlawfully, and feloniously” causing the death.
Recently in South Carolina, a 39-year-old mother, Stephanie Green, was convicted and sentenced to 20 years in prison for killing her 6-week-old daughter by breastfeeding while taking narcotics. An autopsy report of the 46-day-old baby revealed the baby died of respiratory failure and toxic levels of morphine and Klonopin in her blood.
Both of these cases reflect persistent problems in how our nation regards women’s reproductive rights and The War On Drugs. There has been a proliferation of complicated abortion laws restricting how women may have abortions. During the 2013 state legislative sessions, lawmakers introduced more than 300 abortion restriction laws. These laws increased scrutiny and policing of women. Women can even face criminal charges for resorting to illegal abortions. But the larger part of the growing number of incarcerated women is related to the American War On Drugs. During the crack epidemic of the 1980s, prosecutors began targeting pregnant women who used drugs during pregnancy. Women of color and low wealth women – some of the most vulnerable women – were subject to coercive and punitive state actions.
But The War On Drugs masks the multiple risk factors that increase the likelihood of women coming into contact with the criminal justice system and offers few if any alternative solutions. 85-90 percent of women in prisons have had a history of violence prior to their incarceration. These include domestic violence, rape, and child abuse. And besides violence, racial disparities play a role, too. Girls and women of color who are victims of abuse are more likely to be labeled offenders, while white girls and women, who have been abused have a better chance of being seen as victims and are more often referred for mental health care. Disparities also exist for gender non-conforming girls. They are up to three times more likely than their heterosexual peers to receive harsher punishments.
In addition to abuse, as much as 80 percent of women prisoners suffer from substance addiction and mental health issues. Both Gibbs and Greene’s cases reflect this statistic. Yet, instead of providing women with rehabilitative care measures that support healthy integration back to society, they are criminalized, and punished with prison terms.
Prisons and the criminal justice system at large have a range of specific consequences for women’s reproductive health. From a public health perspective, the implications of criminalizing pregnant women and new mothers are huge. If women are afraid of potential prosecution, they will be less likely to seek pre and post-natal care. The consequences can lead to increases in infant deaths, premature and stillbirths.
Women’s incarceration also has negative effects for their other children. Children with an incarcerated parent are at heightened risk to serve prison terms themselves. Two out of every three incarcerated women has had an incarcerated family member. And 65 percent of incarcerated women report having a minor child at home, and of those women 77 percent report they are the primary care givers.
Women are increasingly caught up in the criminal justice system and punitive sentencing for non-violent crimes. We need new community-based solutions that do not focus on a single, alternative system of punishment to play the role of prisons. As a society we need to call into question our analyses of crime to the exclusion of examining it’s relationship to larger gender based, socio-economic and cultural structures of power and oppression. Finally, we need to reassess the value of health and healing for the purpose of promoting healthy and productive lives.