In 1986 Congress passed mandatory minimum sentencing. Federal mandatory drug sentences take the decision away from the judge and gives sentences based on: 1. The type of drug; 2. The weight or alleged weight of the drug mixture and 3. The number of prior convictions. The rise of women in prison seems to be correlated with US drug laws and policies. Many researchers argue that the war on drugs has directly become a war on women. In 1999, the Bureau of Justice Statistics documented that 1 in 3 women were likely serving time for a drug offense in comparison to 1 in 8 women in 1986. Three reasons often determine the involvement of women in the criminal justice system, the first would be a history of abuse, the second issue is disrupted family and personal relationships and finally the third is drug abuse. Women that end up in prison have usually been abused and/or battered, are economically disadvantaged, have abused drugs, and/or are minorities. Due to the circumstances just mentioned and stricter policies and laws regarding drugs the outcome is a drastic rise in the incarceration of women. If women are seen as victims of circumstance then they are basically adapting to the conditions of their lives and struggling to survive. The status of women in prison reflects their status in society; they are marginalized by racism and sexism. Women in prison have been damaged by the oppression of patriarchy, economic marginalization and the far-reaching effects of such short sighted and detrimental policies as the war on drugs and the over reliance on incarceration, (Owen, 2000).
Women have become the new offender in the criminal justice system. Through the years the amount of women incarcerated has greatly risen. In 2000, there were more than 1 million women in the United States in prison, probation or parole, whereas in 1990 there were 600,000 in the same situation. The rise in the incarceration of women can be greatly attributed to US policies and laws on drugs and drug related crimes. Women are usually minimally involved in drug crimes but are severely punished due to the mandatory minimum laws in place. The war on drugs does not have laws laid out specifically for men and women, the laws are universal and apply equally to both men and women. Drug laws were originally designed for the male criminal and did not take into account the special circumstances in women’s lives. These women that are being punished under the mandatory minimum drug laws are the wives, mothers, daughters, sisters, nieces, granddaughters and girlfriends of many law abiding citizens in society. These women become involved in drug crimes because of their dependence to their significant other, whether it is financially, because of fear or other extenuating circumstance. Women who become victims of mandatory minimum laws are incarcerated and subject to patriarchal sentences because the men in their lives coerced, obliged or scammed them into carrying drugs.
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Women in jails and prisons are often oppressed and even victimized. There are many race and gender inequalities in the criminal justice system when it comes to addressing women and their needs. Women offenders are more likely to be incarcerated now than they were at any other time in the history of the United States. The legal system has become more willing to prosecute and incarcerate women than at any other time in the history of the United States.
Mandatory minimum sentencing policies for drug related offenses have increased the number of women incarcerated. According to the Sentencing Project, between 1986 and 1991 the population in state prisons for drug offenses increased by 828 percent for African-American woman, 328 percent for Latinas, and 241 percent for white women (Mauer & Huling, 1995).
Guilt by Association
Drug laws now in place punish not only the individuals who sell the drugs, but also people who assist the drug dealer as well as people who merely know the drug dealer. Women are apprehended at higher rates in reference to the war on drugs. In many circumstances women are arrested and sentenced merely for remaining with a significant other who is involved in the drug trade industry. Women are more vulnerable than men for prosecution based on their associations rather than on their behavior. Women who are involved in the drug trade are often nominally involved and often only participate in the drug trade in order to be able to financially support their own drug habit. Some women are bullied into the drug trade because of abuse or due to financial instability.
“These mandatory minimum sentences are perhaps a good example of the law of unintended consequences. There is a respectable body of opinion which believes that these mandatory minimums impose unduly harsh punishment for firs-time offenders – particularly for “mules” who played only a minor role in a drug distribution scheme. Be that as it may, the mandatory minimums have also led to an inordinate increase in the federal prison population and will require huge expenditures to build new prison spaceâ€¦
Chief Justice William H. Rehnquist, U.S. Supreme Court
Mandatory minimum sentences remove the discretion of the judge, therefore not allowing a judge to take into account mitigating circumstances that could reduce the harshness of the sentence. Mandatory minimum sentences require that low level offenders receive the required sentence required by statutes. Women can rarely assist in providing prosecutors with information that could assist in lessening their punishment because they are often mules, transporters and low level offenders and do no have access to valuable information needed by the prosecution. Also, many times women choose not to provide what little information they do have because of the safety of their family and children. Due to the mandatory minimum laws and the amount of information that women are able to provide they are often subject to harsher punishments than their male counterparts, who are often “kingpins”.
Women who are sent to jail are often the primary caregivers for their children and other family members. Children depend on their mothers and when they become incarcerated the children are left improperly attended or in unstable temporary arrangements. Due to a mother’s preoccupation with her children, women often wish to speed up their case by entering a plea of guilt in order to receive a lesser charge and stay out of prison or reduce her sentence.
Mandatory Minimum Laws and Their Effect on Women
Prisons are filled with violence therefore entrapping women in a world of cruelty and abuse that does not succeed in addressing the needs of women, such as their psychological, medical or economic needs. The dynamics that were just referenced are what originally contribute to a woman’s involvement in the criminal justice system; these dynamics are what originally created women’s involvement with drugs. When a woman enters prison she is often times abused and revictimized therefore further damaging a woman.
In prison women are often physically or sexually abused. When a woman is in prison she is unable to receive proper medical treatment. Research has noted that women in prison are subjected to physical, sexual, verbal and emotional abuse by guards and other inmates. Amnesty International’s 1999 report, “Not Part of My Sentence” – Violations of the Human Rights of Women in Custody, indicates that males staff, under the guise of correctional supervision, frequently watch women as they shower, use the bathroom, and dress and undress in their cells. Women are often sexually extorted while in prison for basic everyday necessities such as toothbrushes, soap, etc.
A woman who is abused in prison suffers many consequences especially if she was abused in the past or suffers from any mental illness including but not limited to depression, bipolar disorder or if she is recovering from a drug addiction. Just like any woman who is abused, a woman who is abused in prison is left with severe imbedded psychological scars. Often women who are abused in prison are more severely scared than other women, some of the psychological scars that women who are abused in prison are left with are Post Traumatic Stress Disorder, Rape Trauma Syndrome, prevalent fears, nightmares and flashbacks, these scars can lead to hatred towards self, anxiety, depression, suicide and substance abuse. Women who are sexually assaulted while in prison are subject to sexually transmitted diseases and/or pregnancy which they might not get medical treatment or prenatal care for.
Both male and female prisons provide poor healthcare for its inmates. Women have higher rates of medical issues than men. Women in prison receive poor medical treatment and do not receive needed medications for medical conditions such as heart conditions, depression, other mental health diseases, asthma and other medical conditions. Women often have to receive permission from guards to seek medical attention. Prisons do not have a full medical staff thus contributing to the lack of medical treatment available to women.
Women who enter the prison system on drug charges are often diagnosed with depression as well as drug addiction. Some of these women are also diagnosed with bipolar, schizophrenia and other mental health conditions which are not properly treated in prison. Prisons are not equipped to properly care for women’s mental health conditions and do not have the funds to provide needed counseling services. Women that are prescribed psychotropic drugs are often not given the medications correctly and instead they are given the medications as sedatives. Incarcerated women that are separated from their children suffer a great deal of trauma, these women often become depressed. Women whose mental health conditions are exacerbated due to incarceration and have a past history of drug abuse may turn to drug use while in prison in order to ease the emotional pain.
Many of the women in today’s prison system have minor children. From 1991 through 1999, 98 percent of children in the United States had a mother who was imprisoned, (Bureau of Justice Statistics). It is estimated that most women in prison have two children and prior to incarceration the children resided with their mother. When women are sent to prison, children are often placed with other family members or in foster care. In terms of the War on Drugs, children are removed from the mother due to incarceration or because of a mother’s addiction. If a woman is sent to a residential treatment program rather than to prison she is still separated from her children. Some residential drug treatment programs do not allow children to visit and some have age restrictions. Although each child will react uniquely to extended separation from his or her mother, researchers report that when a mother and child are separated due to incarceration, the child often grieves as if the mother has died, experiencing a grief that is unique to children with incarcerated parents, (Bloom & Steinhardt, 1993). Children with an incarcerated mother tend to suffer from fear, anxiety, grief and sadness and later in life these symptoms can lead to withdrawal as well as verbal or physical aggression. Many of the children whose mothers are in prison are sent to foster homes where they have an increased likelihood of being physically, sexually and emotionally abused.
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When a mother is incarcerated her day to day interactions with her children are altered and significantly changed. Correctional facilities do not aid women in having relationships with their children and often due to the distance of the prison it is often times impossible for children to visit their mothers. Visiting a parent in prison is very difficult for children and visiting a mother in prison can be emotionally detrimental to children. Telephone calls from mothers to children while in prison can be very costly thus reducing the likelihood that a child will be able to speak to the parent via telephone.
Few prisons offer family reunification programs for children. Incarcerated mothers and their children are not provided with counseling, parenting classes, skills training, overnight programs for mothers and children and other essential services, therefore hindering the relationship between a mother and her children. Establishing these programs in prisons would give women the opportunity to fulfill their roles as mothers and learn how to properly care for and raise their children.
As more women are incarcerated due to Drug Laws the fate of children lies in the hands of the welfare system. The child welfare system is not equipped to deal with the rising number of children left without a mother due to the increasing amount of women incarcerated because of mandatory minimum laws. Mothers convicted of drug crimes are dually punished, they are punished by the judicial system and they are also punished by the welfare system who removes their children from their care and custody.
The Outcome of the War on Drugs
Minimum mandatory drug laws are destroying the lives of women. These laws are destroying families and children’s lives. Harsh punishment does not address the issues causing women to use drugs, to become addicted to drugs, to sell drugs, or to remain in abusive relationships with drug dealers. Many of the women arrested for drug charges are black women or poor women. Many of the drug related crimes that women are arrested for could be dealt with outside of the judicial system. The judicial system does not address the reasons why a woman becomes involved with drugs or why she risks her family in doing such. Drug dependant women should be treated rather than incarcerated. Incarcerating a woman who is dependant on drugs increases her chances of relapsing thus at the same time increasing the likelihood for mental health conditions such as depression and anxiety. Women that become involved in the drug trade industry because of coercion or abuse are punished for not turning in their partner, the individual who is physically or emotionally abusing them. The judicial system does not address the needs of children who lose their mother’s to prison nor does it assist women in building a relationship with their children. A woman’s incarceration can lead to permanent loss of her children and can prevent her from getting any government assistance upon her release.
Instead of incarcerating women because of the mandatory minimum drug laws, we should provide them with the necessary tools they need to assist them. Within a woman’s community there are many resources that can aid her in leaving an abusive relationship. A community also has resources to assist women in with drug dependency issues. Women need to be empowered to become successful and productive members of society. These women rather than being punished need to be provided with opportunities to better their lives and with the proper tools to be better parents.
As a society rather than investing money in prisons, we need to invest money in community resources that will assist women with drug treatment and resolving the underlying reasons that led them to drug dependence. Women involved in drug crimes because of abusive relationships need to be provided with the appropriate resources to assist them in leaving that relationship and achieving financial independence as well as emotional stability. Women need to be provided with the skills and training necessary to live productive lives in society.
Rather than dealing with women in the criminal justice system as a nation we need to provide alternative resources. We have an obligation to save these women for themselves and their children. The underlying causes for women’s involvement in drug crimes need to be addressed. Women need to be provided with services for drug addiction, health issues, mental health issues and abuse. Rather than placing women in prisons that were designed for men for committing a crime that they were forced into through coercion or abuse, we should place them in treatment programs designed to meet with their unique needs. Treatment programs designed for women should incorporate mothers and their children allowing for mothers to receive necessary counseling and parenting classes while actively caring for their children.
Mandatory minimum laws need to be reevaluated. Women need to be punished for their part in the drug crime, not for the overall crime that they did not play part in. A woman should not be punished because of association; a woman should be punished and held accountable for her actions. A judge should be allowed to ultimately decide a woman’s punishment and her involvement in the drug offense being charged.
Women that must be incarcerated because of their role in a drug crime should be granted the opportunity to visit with their children. Children should not be punished; they are not the ones who committed the offense. To elaborate, a woman with repeated drug charges should not be allowed reunification with her children because after the first or second charge it should be noted that this woman does not wish to learn from her original mistake. Women who are punished under mandatory minimum laws unfairly should be granted ample opportunity for reunification with their children.
There is no reason to why women need to be punished for drug crimes that they did not willingly participate in. Mandatory minimum laws were designed for kingpins and drug traffickers but obviously it is not serving its purpose. The people being affected most by these mandatory minimum laws are the people with the least involvement in the crime. Mandatory minimum laws need to be reevaluated and applied accordingly. The ultimate decision on punishment should be taken away from the prosecution and should lie solely in the hands of the judge.
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