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Women Don’t Belong in the Criminal Justice System

(Susan Melkisethian / Creative Commons)

I have spent my entire life arguing for women’s equality.

As a teenager, I stood on the steps of the New York City Public Library shouting for our right to control our bodies. I was one of eight women who made up UC Berkeley’s very first graduating class in Women’s Studies. I was the young public defender who came of age in a trial advocacy world that was dominated by loud, forceful men and who, despite all that, managed to work my way into leadership, eventually founding my own public defender office, The Bronx Defenders—an organization that for over 20 years has been at the vanguard of redefining public defense and now serves over 30,000 low-income residents of the Bronx every year.  

Never have I argued that women should be treated differently because of their gender identity. Until I spent two years in Oklahoma.

Yes, I said Oklahoma. 

In 2015, I was invited by the George Kaiser Family Foundation to visit Tulsa, Oklahoma and provide training on holistic defense for their public defenders. Their context was unique in many ways and particularly alarming in one regard: Oklahoma incarcerates more women per capita than anywhere else in the country – two-and-a-half times the national average and six times the rate of women’s incarceration in New York City. And no one seemed to know why.  

We set out to try to understand what was happening. We met with incarcerated women and other stakeholders, and dove right into all the existing research. A strong partnership emerged from these meetings, and soon after, the Kaiser Foundation offered to support us if we were to open a holistic defense office that specialized on serving women in Tulsa and could serve as a resource for public defenders nationwide seeking to develop better models and strategies to represent women and preserve families.  

Suddenly, after decades of defending mostly men in the system, I had the opportunity to bring together the two most important strands of my life: public defense and feminism.

We set out to create a first-of-its-kind public defender office, one that employed holistic strategies and was dedicated exclusively to the representation of women and mothers in the criminal justice system—an organization uniquely positioned to begin tackling the mass incarceration of women at the front end.  

Women and girls are the fastest growing incarcerated population in America. Over the past 40 years, women’s state prison populations grew more than 834 percent, more than double the pace of the growth among men. 

Oklahoma leads this alarming trend, and the opportunity to do something about it was irresistible. That’s why, after a lifetime in New York City, I packed up my old Volvo station wagon, put my 12 year old Labradoodle, Magic, in the back and began my journey South to the buckle of the bible belt and the ground zero of women’s incarceration—to the place that would change my perspective on everything.

That summer, a pioneering team of women and I began building Still She Rises, named after Dr. Maya Angelou’s incredible poem, “Still I Rise,” a tribute to women’s resilience. We placed the office in North Tulsa, the historic Black community and site of one of the worst race massacres in our nation—the Tulsa Race Massacre of 1921, where thousands of Black Tulsans lost their homes, many lost their lives and what was once the most affluent Black community in America, the “Black Wall Street of America,” was burned to the ground. 

We did so because I believe you always go where the need is greatest and history most egregious. And if being a public defender taught me anything it is that at every single stage of our criminal process—policing, charging, bail setting, sentencing and the experience of incarceration itself—Black and brown women are treated more harshly, a reflection of our undeniable history of institutional and systemic racism.

Our goal was to understand what was happening to women in the system; how it was, if at all, different than the experiences of men; and how Black women and women of color fared when compared to their white counterparts. 

I’ll never forget the first day, when a colleague and I drove to meet our first client, Regina. I remember pulling up in front of a small, weathered home that had bars on all the windows but where flowers still peaked out from the ledges inside. We were walking up the dirt path, through the front yard, when the front door cracked open.

“Can I help you?” a voice said. Quickly, I started to explain that we were lawyers from a new office for women in North Tulsa and had been assigned to represent someone who lived in this address.  

There was a pause and then a woman came out. “You two aren’t from around here, are you?” 

“No,” I admitted. “But how did you know that?” She smiled. “Oh, pretty much everything about you: your car, the way you walk, the clothes you all are wearing, the way you talk. There’s nothing about you two that is like around here.”

“Is that a good thing, or a bad thing?” I asked.

“Oh, that’s a good thing. If you were from here, I wouldn’t trust anything you had to tell me. So come on in…”

And so we did. 

We sat at her small wooden kitchen table as she began to share her story. Two small children ran around the living room, reminding me of all the reasons I was happy that my kids were now adults. I couldn’t help but notice that she was pregnant and asked how she was feeling. “Fine,” she said, “I have to be careful on account of my high blood pressure and diabetes, but I’m fine. Sometimes, it’s hard keeping up with my kids while I’m like this, but I’m doing the best I can.” 

And then without a pause, Regina began to talk about her life—her family and a tumultuous childhood riddled with trauma, violence and abuse. To escape, she ran away at a young age and soon spiraled into drug abuse and sex work just to survive. She had been in and out of the system for a long time, but had recently found some stability. 

And then it happened.  She was facing a serious felony charge this time—attempted murder. It didn’t take long for her to explain what I suspected: that the “victim” in her case was the father-to-be of her unborn child, who in a rage, picked up the television set in the living room and tried to hit her with it. She ran into the kitchen, grabbed a kitchen knife from the counter and fought back, stabbing him once in the chest.

Even though it was Regina who called the police, it was she who they arrested and charged with attempted murder. She described how they handcuffed her, forced her into the patrol car and brought her to the local jail, euphemistically called the David L. Moss Detention Center. There, bail was set, and she remained locked up until her stepfather paid a bail bondsman with the little money they had. Her arrest led child welfare to open an investigation, and now she feared, more than anything else, that the state would take her children

Regina’s story was hard to listen to. The pain and the shattered dreams were overwhelming and unimaginable. And yet, Regina is far from being the exception. What she shared with us that hot summer afternoon inside her kitchen reflects the reality of not just women’s experiences in the criminal legal system, but the forces that drive them there—and the long-lasting impacts on them and their children.  

What I learned from Regina and the hundr of other women I came to know through this project changed my perspective. And here’s why: Data shows that women in jail are disproportionately from communities of color, overwhelmingly poor and often survivors of violence and trauma. They also suffer high rates of physical and mental illness and substance abuse. 

Among a sample of women in jails across various regions of the country, 82 percent have experienced drug or alcohol dependency during their lifetime. In jails, 50 percent more women than men report having a current medical problem. Nearly a third of women in jails are suffering from serious mental illness, major depression and bipolar disorder—a rate more than double that of men in jail and more than six times that of the general public. A shocking 86 percent of women in jail report having experienced sexual violence in their lifetime. 77 percent report partner violence, and 60 percent report caregiver violence.

While Regina’s experiences were not uncommon, her new charge was unusual for women in the system. The overwhelming majority of women are charged with crimes that have nothing to do with violence. 82 percent are there for non-violent offenses: 32 percent of women are there for property offenses, 29 percent for drug offenses and 21 percent for public order offenses.

Once in jail, women are disciplined at rates two or three times higher than men, and for less serious infractions. Incarcerated women are subjected to standard correctional procedures—such as searches, restraints and the use of solitary confinement—that do not take into account the overwhelming prevalence of trauma and mental illness that incarcerated girls and women have experienced.

Undergoing a full-body search or being supervised by male staff while showering, dressing or using the bathroom, for example, can trigger physical and emotional symptoms of PTSD. Their access to educational and vocational programming is also limited as compared to men, and women are far more likely to be sexually victimized by jail staff. 

But the impact is not just born by women—their children bear the brunt of the system as well. 80 percent of the women jailed each year and mothers. In addition to the trauma of being separated from your mother, children of incarcerated mothers are five times more likely to wind up in foster care than children of incarcerated fathers. They are more likely to have mental health problems and elevated levels of anxiety, fear, depression and loneliness, and they are at higher risk of dropping out of high school. 

This year alone, jail will separate 2.3 million mothers from their children.  That’s a staggering number, but that’s not all. Most of those 2.3 million women locked in jail cells and separated from their children are there before they’ve even had a trial. That means they are presumed innocent under the law, but are forced to be in jail without having been convicted of anything. 

How is that possible? In one simple word: BAIL.

Bail was actually created as a form of release. The theory was that if someone was arrested, and a judge set a specified amount of cash bail that the accused could pay, it would give the person an incentive to come back to court. That’s because at the end of any criminal case, bail money comes back to you, assuming you made your court appearances. 

Sounds reasonable. It might even sound fair. But the theory doesn’t fit the reality of what cash bail has become in this country. 

Why? Because the bail amounts requested by prosecutors, and set by judges are too high for the overwhelming majority of people who are targeted by the criminal legal system—people from low-income neighborhoods, communities of color and marginalized groups. For many families, a $1,000 cash bail may as well be a million. 

We now have a system where people living on the margins, and struggling with daily economic insecurity, are forced to choose between paying for their freedom and the basic ne of their families like food and shelter.  

In a country where 40 percent of Americans don’t have enough money in their savings to address a $400 emergency, it is no surprise that bail is unreachable for so many. Tonight, nearly half-a-million people are sleeping in cold, windowless jail cells because they don’t have enough money for bail. 

Cash bail has created a two-tier system of justice—one for the rich and one for everyone else. Over the past 20 years, bail has driven 99 percent of all jail growth in America. It is the single biggest driver of mass incarceration in this country. 

Regina was actually more fortunate than most in this regard. Her family was able to scrape together enough money to pay a bail bondsman to get her out while her case was pending. She was able to stay out, parent her children, give birth to her son without shackles in a prison cell block and fight her case from a position of freedom, assisting her lawyers at Still She Rises, helping find witnesses and putting the best case forward. And I am happy to say that her case was ultimately dismissed. 

But here is what I know with absolute certainty: Had Regina’s family not been able to bail her out, she would have done what so many people in the system do—plead guilty to a crime she didn’t do just because it would be the only way to go home to her kids. Trust me. When a judge says “just plead guilty and you can go home,” most people will do just that—whether you did it or not. I know I would.

Women are the least likely to be able to pay cash bail when they are arrested, because they are at the bottom of the economic totem pole—and because they are usually the primary caregivers of their children, putting them in an impossible position. Feed your kids or stay in jail. 

An astounding 60 percent of jailed mothers are there solely because they do not have enough money to pay bail. And when the median bail in this country is $11,700—and Black women have a median income of $12,735 prior to incarceration, and white women, $15,480—it is easy to understand how bail disproportionately impacts women and mothers. 

Make no mistake about it: The consequences of not being able to pay bail are devastating.

You can lose your job, your home, your children; you can jeopardize your immigration status or be cut off from public benefits. And as your life outside of jail falls apart, your life inside is horrific. Your mental and physical health deteriorate, you may be sexually victimized and exposed to violence and you will be unable to tend to even your most basic reproductive ne because you have no money in your commissary to pay for tampons or pads, so you will make due with rolling up toilet paper. 

The data is clear that when you are locked in on bail, you are more likely to be convicted, more likely to be sentenced to jail time and more likely to get a criminal record that will now follow you for the rest of your life. That disturbing reality and obvious injustice led me to launch The Bail Project last year and open one of our first sites in Tulsa.

The Bail Project is an unprecedented national effort to combat mass incarceration at the front end by providing free bail assistance to thousands of low-income Americans every year while working to transform our country’s pretrial system. We’re creating an organization with the capacity to bail out over 100,000 people in the next five years. And while our immediate objective is to provide an immediate lifeline to people trapped by bail, our ultimate goal is to put ourselves out of business by steering entire jurisdictions away from cash bail and pretrial incarceration as the norm. 

We’re taking a two-pronged approach. First, we are fundraising to grow our national revolving bail fund and continue scaling across the country to provide free bail assistance on an unprecedented scale. Second, we are demonstrating what the alternative to cash bail could look like. 

We call our model Community Release with Support. We are bringing people home and using our data to demonstrate that effective court notifications and connection to social services and community supports are the most effective way to ensure people come back to court while remaining with their families and communities.

Money can’t solve all our problems—but when it comes to addressing the injustices of our criminal legal system, bail is the one area where money can make a big difference, right away. 

Our revolving bail fund provides a direct way for people of conscience to have an immediate impact on the individual human lives affected by this crisis. Not only that: the revolving nature of the fund creates a force multiplier effect. Because bail money comes back at the end of a case, every dollar you contribute to our fund will be used, over and over again—to bail out more people and reunite families.

In Bronx, New York, where we tested this model for more than a decade, we know that you can use one dollar two to three times a year. As an early supporter once told me: “Now that’s a great return on investment.”

The Bail Project does more than bring people home. We restore the presumption of innocence. We address racial and economic disparities in bail setting. We are making a data-driven argument for why the current system ne to go.

Our on-the ground operations allow us to collect a unique data set to understand how bail operates in different parts of the country—tracking everything from what barriers exist for people that might prevent them from returning to court, things like lack of transportation or child care, to what are the positive life and case outcomes that happen when you bail someone out. 

Our success demonstrates that money is not what makes people come back to court—because when we pay bail with philanthropic dollars, our clients come back to the vast majority of their court dates. Not only that, we’re beginning to see in our Bail Project sites what we saw in the Bronx. Once bail was paid, about half the cases are dismissed entirely, demonstrating the incredibly coercive impact of unaffordable cash bail. 

We know that data alone won’t persuade policy makers and elected officials that cash bail should be eliminated. We have to change hearts, as well as minds. So we are gathering human stories about the impacts of bail and sharing those stories with anyone who will listen.

Our hope is to drive long term systemic change forward. Working with partners on the ground—grassroots organizations, public defenders, local elected officials and policy makers—we hope to reshape pre-trial justice in America.

So far, we have 15 sites up and running. Since launching, we have paid over 6,800 bails nationally. Over the next year, we will expand to over two dozen sites with the goal of helping even more people and supporting the movement for bail reform that is sweeping the nation. 

Our criminal legal system is barbaric, inhumane and ineffective. It doesn’t deter crime, it doesn’t make us safer and it doesn’t solve any of the underlying issues that drive people into the system. I find it hard to believe that anyone should be put into such a thoughtless, destructive web of courts and jails and prisons.

When it comes to girls and women, it could not be more clear to me that they, as a group, have no place in our current criminal legal system that was designed by and for men. 

Equality can’t mean that women belong in a system that was built without regard for their unique histories of trauma, or their physical and mental health. Equality can’t mean that women belong in a system that has no regard for their children and the intergenerational effects of jailing mothers. Equality certainly can’t mean that we incarcerate women in a system that is premised on violence, toxic masculinity and physical domination—the very things that are at the root of women’s traumatic experiences.

Women simply do not belong in our current criminal legal system.

I remain as committed today as I was on the steps of that New York City library 50 years ago—that women are equal, but equality doesn’t mean forcing women into the same system as men. What it means is re-conceptualizing criminal justice itself from the ground up through the lens of women’s experience.

Until we achieve that radical transformation, I am here to advocate that women and girls simply have no place in our current criminal legal system. Not because we are not equal, but because it is what true gender equity demands.