Women are the fastest-growing population of inmates in the United States. And what they're being sentenced for may surprise you.
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In “The System,” a brilliant short story by American writer Judy Budnitz, a small town’s economy relies entirely on its prison. Inspired by the Tom Waits song, “Way Down in the Hole,” everyone in the town either works at the prison or used to work there or lives off someone who works there.
As they execute and parole, elderly inmates die, and crime tapers off, the town has to make more excuses to lock people up. The townspeople invent crimes and take turns being inmates so that the cook can make a meal and the corrections officers can bark some orders. The prison is a sinkhole that sucks in the whole town.
It’s a laugh in the pit of your stomach, calling into question the whole notion of prison; in order to remain relevant, a prison must invent ways to consume bodies. From the 1980s to now, consume bodies it did. And it has a special appetite for mothers and pregnant women.
The intersection of the war on drugs, reproductive rights, and mass incarceration may not appear obvious immediately.
In 1984, the CIA, under Ronald Reagan, facilitated the import of massive amounts of crack cocaine into San Francisco and South Central Los Angeles. The Iran-Contra scandal was a hall of funhouse mirrors: drugs, money, and weapons freely exchanged at the expense of entire low-income communities, while Nancy Reagan implored kids to say no to drugs with her program D.A.R.E.—a program that actually succeeded in increasing drug use among young people. Crack was racialized as a “ghetto” drug despite being chemically indistinguishable from cocaine and used as a bludgeon repeatedly to justify inflated sentences that targeted Black men. President Ronald Reagan signed the Anti-Drug Abuse Act of 1986, President George H.W. Bush signed the 1033 Program, and President Bill Clinton signed the Crime Bill of 1994. The prison goldrush prevailed well into the Obama administration, where it flatlined.
While Black men bore the primary brunt of these punitive policies in the 1980s and ’90s (and continue to serve disproportionate sentences), women are the fastest-growing group in the U.S. prison system. Between 1980 and 2017, the number of women serving time shot up by 700 percent, overwhelmingly for non-violent, drug-related crimes. Eighty percent are mothers with minor children, and many are single.
“Women are low-hanging fruit,” says Susan F. Sharp, a Feminist Criminologist and professor emeritus at Oklahoma University. Feminist criminology developed in the 70s when women scientists realized that all studies conducted on crime focused on men. Sharp is the author of Mean Lives, Mean Laws, a book exploring why Oklahoma has the highest per capita rate of incarcerated women in the country. “What the policies did was target people who had drug problems and then treated them as if they were kingpin drug dealers.”
The children of incarcerated mothers often get shuffled around to multiple homes, struggle or drop out of school, experience conflict with their caregivers, and lose contact with their mothers. The women inmates Sharp interviewed described a constant state of anxiety about the safety of their children. “Women are frequently the only adults in the home, so the children end up being uprooted, they are bounced around between family members.” Only “about 7 percent end up in foster care because everybody is trying to fly below the radar so the mother doesn’t lose her rights. Which means children don’t get the benefits they need, necessarily.”
Mothers are not the only low-hanging fruit in this warped system. Abortion-related, fetal personhood, and fetal-endangerment crimes spiked right along with harsh drug punishments. The federal government does not track reproductive-related crimes, but the ACLU tracked these types of crimes between 1990 and 1992 and cited 160 cases, 75 percent of whom were women of color.
The war on drugs and the war on reproductive rights are both long-game, state-by-state campaigns fueled at least in part by the American Legislative Exchange Council, or ALEC, a conservative non-profit organization that drove thousands of tough-on-crime bills, shaping public policy across all 50 states. Rightwing activist Paul Weyrich founded both ALEC and the Heritage Foundation, the think tank that built anti-abortion rhetoric into a central conservative issue using Ronald Reagan as its poster boy. The organization boasts 2,000 legislative members, and the list of corporate donors includes Pfizer, Exxon Mobil, and Koch Industries.
ALEC claims to steer clear of social issues, but Wisconsin Representative Chris Taylor linked ALEC money funneled through groups like Wisconsin Right to Life into Governor Scott Walker’s campaign in 2014. The group has also been directly linked to parental consent abortion bills in the 80s.
Looked at in this light, one can almost visualize the pernicious female-targeted flow chart written on the whiteboard in the conference room: restrict abortion and prenatal care, flood the market with opioids, impose harsh sentencing on low-level drug crimes, incarcerate mothers. Children are an externality in this scheme. In other words, parent-child separation has been a feature of our justice system long before this recent policy disaster at our southern border.
Dr. Grace Howard, associate professor at San Jose State University, conducted a study of three states—South Carolina, Alabama, and Tennessee—all of which have formally criminalized drug use during pregnancy. In all three instances, she says, the laws lined up with panic over a specific drug, namely crack, meth, or opioids. She and a team of researchers produced a report on behalf of Amnesty International to assess the impact of these “fetal personhood” or “fetal assault” laws. From 2005 to 2017, Howard found approximately 800 women brought up on pregnancy-related crimes in these three states alone. Some of the charges include drinking a beer, smoking marijuana, or taking legal prescription drugs while pregnant.
In her dissertation, Howard tells the story of Heather Capps, who, at 25, was addicted to oxycodone when she became pregnant. The closest treatment facility was one and a half hours away, and with young children to care for, she tried to cut back on her own. When she gave birth, her infant tested positive for oxycodone. Two days later, she was arrested, separated from her baby and her two other children, and served three months in jail.
“Mothers are understood in our culture as more of a function than a person,” Howard says. After interviewing prosecutors, social workers, and law enforcement, she sees it as both a top-down and bottom-up problem. The culture on the ground views these policies as fitting if a baby is at risk even though the notion of the “crack baby” or “meth baby” has been resoundingly debunked.
“Even though the overall shape of the drug problem varies and the ways that those drugs are so racialized varies, the language used to describe these children is so similar every time. It’s this idea of breeding a ‘lost generation,’ these people will have profound developmental disabilities, they’re going to be inherently criminal and disruptive, they are going to cost the system a lot of money. I think of zombie hoards the way they are being described … it’s all the mother’s fault, it’s vile, it’s eugenic language.”
Sometimes it’s unclear what happens after prosecution because states don’t track these types of pregnancy crimes either, and the actual charges vary widely. The law is so inconsistent from county to county that even within these states, it’s a roll of the dice who will get help, who will get jail time, and who gets their newborn or young children stripped away from them.
It’s not just Alabama, South Carolina and Tennessee. “They’re doing it in places where the law explicitly says you cannot prosecute a pregnant woman for crimes against her own pregnancy,” observes Howard. “Like Texas law says you’re not allowed to pursue these kinds of prosecutions, and Texas does it all the time.” In 2014, Jessica De Samito of San Antonio was self-medicating for PTSD from her time in the Navy when she became addicted to opioids. She was arrested and denied methadone treatment, a judgment that was overturned when the National Advocates for Pregnant Women stepped in.
The most common scenario Howard sees is a woman drug tested right after giving birth, the results get reported to law enforcement, and she is arrested. She gets a public defender who is sometimes openly hostile toward her, and she pleads guilty. “A lot of these women are going to jail,” she says.
It’s Budnitzian, this many-tentacled, invisible violence. Underneath it is an animus wracked by a primal terror of the mother. In order for the collective psyche of the system to maintain relevance, it must first drug us, imprison us, take our kids, and scrape the possibility of rehabilitation. How laughably sad. Especially since it won’t work.
Advocacy plays a huge role in reversing the course of these women’s lives. If an organization or an expert swoop in, an acquittal is pretty common in states where the law is still up in the air. National Advocates for Pregnant Women is very successful in intervening in these types of cases.
Society’s opinion on the tough-on-crime approach has certainly soured after decades of literally doing the opposite of solving the problem. But the wheels keep grinding. “It’s a very slow shift and it’s not a straight-line shift, but things are better than they were five or ten years ago,” says Sharp. “Any kind of social change tends to start on the coasts and then the very last places to enact it are in the center of the country.” In Oklahoma, two recent initiatives, State Questions 780 and 781 reduced drug possession and low-level property offenses to misdemeanors, and redirect cost savings to mental health and recovery. Those laws were retroactive, and so the state then commuted drug-related and non-violent crimes for 462 prisoners, a momentous step in the right direction.
AB32, which just passed in California, is another hopeful harbinger. The state will not renew contracts with private, for-profit prisons and commits to phasing out all privately owned prisons by 2028.
Behind every one of these changes from criminalization to compassionate care is an army of women. They are activists, advocates, attorneys, researchers, nurses, social workers, and mothers who lost their children. Around the world, women and men are rising up against this kind of tyranny, pushing back on a system that belongs in the realm of absurdly nightmarish fiction. However, it’s important to note, that while drug treatment is slowly overtaking criminalization as a more effective solution, laws criminalizing pregnant women are still on the rise.
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