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Women

The Afterthought in Reentry Planning

LaDonna Cissell is a single mother of three who grew up on the east side of Indianapolis. She became pregnant with her first child at fourteen and never completed school. She was incarcerated after cashing a series of counterfeit checks worth about forty-five hundred dollars. Sometimes she cashed as many as four a day, spending the money on clothing, meals, and cars. Her crimes were nonviolent. Nationally, about 50 percent of the total crimes committed by women are nonviolent. Cissell describes her time in custody as the “worst six months of my life.” She points out that her mother did not want to bring her children to see her while she was locked up and that the separation was hard on both her and her children. Her experience is not unlike that of many women who interact with the criminal justice system.¹

Women have unique experiences arriving in, getting through, and recovering from the criminal justice experience. Women continue to be the fastest-growing segment of the U.S. prison population, and they bring a unique set of problems into the criminal justice system. According to a Rocky Mountain News story on women in recovery:

Women are more likely than men to be addicted to more than one mood altering substance, and many addicted women report that they began using drugs after a specific traumatic event in their lives. Among women problem drug users, 35% report major depressive episodes vs. 9% of other women. Women represent 43% of clients in methamphetamine treatment, 40% of clients in cocaine treatment, 34% of those in heroin treatment and 26% of those in marijuana treatment. Moreover, about 80% of Miracle’s women have some kind of mental illness. Nearly all of them have been victims of abuse, sexual, physical, emotional, much of it in childhood. Many women do not seek treatment for fear of losing custody of their children. Treatment is complicated by the need for child care, transportation and financial assistance.²

LaDonna Cissell’s story, noted at the beginning of this chaper, is not unlike many contemporary stories of women attempting to complete the difficult task of reentry.

Even a cursory examination of the hurdles that women typically encounter—both in prison and upon release—reveals the limitations of a penal system built to house male offenders. To the extent that policy makers have focused on prison programming or reentry planning, they have generally relegated issues faced by women to the margins. Women have entered prison with a wide range of problems and related needs but have been the beneficiaries of few meaningful interventions. At the point of release, it is not uncommon for women leaving prison suffering from disabilities to find out that their condition is often more acute due to a lack of focused attention. When we add to that common foundation a frequent lack of support to ease the transition back into their communities, it is no surprise that reentry for women has been as much a dismal failure as for their male counterparts.

A common misperception may begin to explain this phenomenon. Conventional wisdom suggests that criminal conduct of women constitutes such a small proportion of crimes that it need not garner much attention. Compared to men, women do represent a smaller percentage of individuals reentering communities from prison and jail. However, their numbers are rising at a much higher rate than those of men. This steady climb in the number of women offenders can be attributed to a host of factors. Some have suggested that women are engaging in increasingly more serious criminal conduct that more often exposes them to prison terms.³ Others counter that women have not become more criminally active; instead, they have simply been caught up in the fervor to sweep more people into the criminal justice system.⁴ A range of arrest policies for everything from domestic violence to drugs is one reason why more women are coming to the attention of criminal justice officials. Competing explanations aside, the number of women in U.S. prisons has “quintupled since 1980.”⁵

One phenomenon I have observed in the massive overincarceration of women in the last two decades is the casting of a wider law enforcement net. In my experience and observations, women have been incarcerated more often for nonviolent, drug-related or drug-involved crimes (i.e., crimes committed to obtain resources for drugs or allegedly done in concert with male offenders where the woman is marginally—if at all—involved in criminal conduct). From the law enforcement standpoint, arresting and charging these women offers prosecutors an improved chance to prove the case against other individuals charged in the case. By turning the woman into a cooperating witness, prosecutors strengthen their case against the more serious male offender. In the mind of many in law enforcement, these women deserve no special consideration. Those who have children are perceived as bad parents who should not be raising children. Consequently, there is no hesitation to plunge them into the criminal justice system.

The profile of the average woman in custody is a woman of color in her early thirties with more than one child under the age of eighteen. She is in custody on a drug or property offense and was unemployed or underemployed when she was sentenced. Of course, not all women in custody fit this profile. However, statistically, women are more often incarcerated for nonviolent property or drug crimes. Although some of these trends are beginning to shift, we need only look to some of the policy decisions made in the last two decades of the twentieth century to explore the reasons women are finding themselves in custody in unprecedented numbers.

A. The Impact on Women of More Retributive Criminal Justice Policies

It is ironic that the 1980s and the 1990s, periods of profound economic growth in this country, should also mark the most dramatic increase in imprisonment rates for women. This much-heralded economic boom principally benefited upper- and middle-class Americans with virtually no uplifting effect on economically subordinated communities. In 1993 approximately 16.9 percent of this country’s female population was living below the poverty line.⁶ In addition to the women below the poverty line, children did not fare well during this country’s bull market. Over eleven million children lived in poverty in the year 2000.⁷ The net effect of the boom was a widening gap between the wealthy and poor in this country.

The progress of women of color, in particular, in moving out of poverty lagged behind that of other population groups. The economic upsurge in America was fueled in part by a dramatic rise in high-tech and skilled work opportunities. Women of color did not typically benefit from increases in this sector of the economy. These women had not been trained for these jobs, so upward mobility was limited. The very nature of the tech boom meant a reduction in available unskilled jobs. Race and gender affect women’s ability to secure one of the limited number of unskilled jobs, resulting in unemployment and underemployment. This leads to loss of earnings, which can exacerbate feelings of insecurity when a woman cannot provide for herself and her family.

At the same time that women of color were finding less success in the job market, they were more frequently coming to the attention of the criminal justice system. During the ten-year period after the passage of mandatory drug-sentencing laws, the number of women in prison rose by 888 percent.⁸ Previously, women who faced incarceration had been those involved in what were described as “gendered” crimes: assaulting or killing an abusive partner, robbing a client during prostitution, engaging in violent offenses as a “lookout” or other minor player. In contrast, during the 1980s and 1990s, women—and particularly women of color—faced sentences of incarceration for a wide range of drug-related crimes.

Between 1986 and 1991, this country witnessed an exponential rise in the number of women in prisons for these offenses. The number of African American women incarcerated for drug-related crimes rose 828 percent, far exceeding the increase for White women, which was 241 percent.⁹ The number of Latinas in prison for drug crimes rose 328 percent.¹⁰ Two-thirds of women parolees are now women of color, with close to half having been imprisoned following drug convictions. Prison classification instruments identify the overwhelming majority of female inmates as low-risk inmates, and yet they often endure lengthy prison sentences.

The principal criminal justice policy that led to unprecedented numbers of women being locked away was the War on Drugs. The strategies used to wage this war represented a fundamental shift in law enforcement policy. The rise of potent forms of cocaine was perceived by many as contributing to increased addiction and corresponding social disorder. Later, the advent of crack cocaine and the violence that often attended the fierce competition for profits in the drug trade sent shock waves through the general public. Increasingly, the public clamored for policies that would restore order and remove the problem from sight. Police departments , armed with this mandate, deployed a wide range of forces to attack and shut down open-air drug markets located principally in inner-city neighborhoods. Massive arrests took place, sweeping large numbers of drug users and low-level drug sellers into the justice system.

Although much of this activity was confined to poorer neighborhoods in the nation’s central cities, media attention escalated the public’s fear of rampant violence around every corner. When the average White American raised questions about the causes of the rise in crime in the nation, news coverage provided a ready, if not entirely accurate, answer. The violence associated with open-air drug markets involved young Black men, and the media was able to put a face on crime for much of America. More often than not, that face was of a young man of color. The baggy pants, jewelry, and pagers became the trademarks of this younger generation. However, rather than being perceived as manifestations of teenage rebellion, these differently clad young men became the image of danger and intimidation in the minds of many. These powerful images of “feral” young men would ultimately fuel a retributive political movement in the criminal justice system. Ironically, the policy decisions that emerged from this period would strike its most severe blow on an unintended target: young women of color.

Prior to 1980, the number of women in state and federal custody was much smaller. Indeed, female offenders often received more favorable sentences than male offenders. A number of studies have attributed this pattern of lighter sentencing based on gender to a combination of chivalrous and/or paternalistic attitudes toward women. Many of the judges were older men who did not see prison as an appropriate place for any woman. These judges were, at times, more receptive to arguments that imprisoning women would have far-reaching consequences—particularly where the woman was the primary caregiver in a family with small children. Because courts had more sentencing discretion, they could differentiate between violent and nonviolent offenders and could, therefore, show some leniency to women.

Research suggests that judges tended not to exercise this discretion as frequently in cases involving women of color. Rather, law enforcement officials and judges reserved this favorable discretion for middle-and upper-class women who tended to conform to their gender stereotypes.¹¹ Although on its face this notion of chivalry or paternalism in sentencing had a positive impact on women, this stereotyping also negatively affected women in a number of ways. Women whose criminal conduct violated the decision makers’ gender-stereotypical assumptions about the “proper” roles for women were often treated more harshly than their male counterparts with similar charges. Some studies have pointed to longer sentences for women in assault or child-abandonment cases, in part because this conduct was deemed to be decidedly unfeminine or nonmaternal.¹² In one case, for example, an Alameda County California superior court openly admitted sentencing women convicted of narcotics possession to jail as an alternative to drug treatment because he believed treatment programs did not work. He also claimed that jail was the only place where pregnant women would have no access to drugs and would have access to the prenatal care he thought appropriate.¹³

As described above, the wide disparities in the sentences issued in criminal cases throughout the 1980s resulted in the Sentencing Reform Act of 1984, which instituted the Federal Sentencing Guidelines. Included in the guidelines submitted to Congress were policy statements that provide that an offender’s age, physical condition, mental or emotional condition, and family and community ties are not “ordinarily relevant” in decisions to depart from the guidelines. The phrase “ordinarily relevant” made it clear that these factors may be relevant only in extraordinary cases. In contrast, gender, like race, national origin, and socioeconomic status, is never relevant. In seeking to balance the scales of justice, the Sentencing Commission and Congress essentially defined the norm as a male norm. Women, who were overwhelmingly single parents (roughly 81 percent of all single parents are women),¹⁴ witnessed the elimination of family ties as a relevant component of the sentencing framework. The guidelines ultimately limited judges’ ability to depart downward from a recommended sentence for a single mother. So, the Federal Sentencing Guidelines—and an increasing number of states that chose to adopt similar sentencing schemes—dealt a dramatic blow to women.

The War on Drugs also provided the impetus for more extensive use of prosecutorial tools such as conspiracy statutes. Once reserved for use in unraveling organized crime schemes associated with the Mafia, conspiracy statutes became the favored tool to fight the local drug trade on the state and federal level. The power of the conspiracy statutes was that they eased prosecution of all coconspirators—from the alleged kingpin to the least influential members of the group. Conspiracy, coupled with a relaxation of the rules of evidence in criminal trials, paved the way for megatrials involving allegations of drug sales in which less evidence could lead to a criminal conviction. One consequence of this powerful tool was that women in relationships with men who were charged under conspiracy laws often found themselves caught up in the criminal justice net largely because of a personal relationship.

Adrian Nicole LeBlanc brings this fact to life in the pages of her important book Random Family, which chronicles the life of a number of women, including Jessica, who served a ten-year federal sentence for conspiracy. In the cases she describes, LeBlanc helps us see that these young women were often only marginally involved in the actual drug trade.¹⁵ Too often, these women were trapped in abusive relationships in which their criminal activity occurred in the context of a relationship where they had little or no control. These women often had become involved in a relationship with an abusive partner and would experience considerable difficulty escaping that situation. For psychological and often economic reasons, the woman did not see an alternative and simply stayed in the abusive relationship despite the danger. If the abusive partner happened to sell drugs, for example, it was likely that the woman would have been aware of this activity, which technically made her a knowing coconspirator. However, the gap between having knowledge of illegal activity and having control over the choice to engage in this conduct is typically quite wide. Still, if the government charged her partner with drug conspiracy, she often faced charges as a coconspirator. Her knowledge of his illegal activity would often be enough for prosecutors to charge her, for a jury to convict her, and for a judge to sentence her to a mandatory prison term.¹⁶ One particular example of this that received considerable attention was the case of Kemba Smith. Before being pardoned by President Clinton, Kemba Smith was sentenced to twenty-four years in prison as a first-time offender.¹⁷ The prosecution conceded that Ms. Smith never handled, used, or sold drugs, but she was still subjected to full prosecution simply because of her relationship with an alleged drug dealer.¹⁸ Thus, growing numbers of women ended up in prisons across the country. African American women were incarcerated in numbers disproportionate to their representation in the population.¹⁹

Much like their male counterparts, women often entered prison with a range of needs. However, the programs, facilities, and services available to women prisoners in this country’s dual prison system were inferior in number and quality to those offered to men. Complicating matters, the needs of women prisoners were, in many ways, unique to women. Unfortunately, prison facilities typically had not been designed with women in mind. Thus, programming in these facilities did not pay particular attention to health or mental health issues as they might affect women, did not specifically seek to address the cluster of legal and emotional issues related to the custody of minor children, and did not focus on helping these women develop or sharpen skills that they might need to become gainfully employed upon release.

Even those features of prisons intended to address the perceived different needs of women ultimately had significant negative consequences. For example, women still tend to be placed in prisons located in rural settings, which are thought to be less harsh and psychically jarring for women than the concrete walls of an urban prison or jail. But placement in remote areas often means that women are housed at considerable distances from their families and friends. Particularly for women of color, whose families most often need to rely on public transportation, these remote locations present insurmountable distances. The lack of proximity increases the difficulty of maintaining ties and often leads to greater social dislocation. Women’s prisons also tend to be smaller in size and population. While in theory smaller prisons may signal greater safety, they also tend to receive less funding and less attention because so few people are housed there. Thus, women tend to have access to a more limited range of programs than are often available to men in larger prison settings.

Further complicating this picture is the lack of attention being paid to the reentry needs of women now being released in record numbers. Policy makers have begun to consider the steps that government should address during the massive release of ex-offenders. But they still have not seriously considered differences for women in their planning. At a minimum, prison officials and reentry planners should consider health issues that women prisoners present as they attempt to gain a better understanding of their needs.

B. Developing a More Complete Picture of Women’s Unique Health Issues

Medical research has only recently focused on women’s health issues as an area of study distinct from men’s medical concerns. So perhaps it is not so surprising that prison and reentry policy makers have barely begun to recognize, let alone meet, the unique health needs of female prisoners and the formerly incarcerated in communities. Given the overwhelming numbers of women with serious health problems in custody, prison and reentry planners can no longer afford to ignore their needs. In fact, the numbers are startling. For example, women in prison are now more likely than men to be infected with HIV: 3.4 percent of female inmates are HIV positive compared to 2.1 percent of male inmates.²⁰ The HIV infection rates among females are predominantly related to injecting drugs, crack use, and prostitution for drugs, which should give prison planners a starting point for counseling. Along with higher rates of HIV infection, women are at greater risk for sexually transmitted diseases that can have long-term implications for their overall health. Many women in prison also suffer from tuberculosis and various strains of hepatitis.

Apart from these chronic illnesses, women often have other health needs that go unattended as well. The Kaiser Family Foundation published information from its comprehensive 2001 Women’s Health Survey.²¹ In that important study, disparities in access to health care and the ability to receive treatment and services for women of color were detailed.²² One conclusion drawn from this literature suggests that if the physical problems women face as they are admitted to prison are not addressed while they are there, the problems are compounded when they are released into poor, urban communities.

According to the Women’s Health Data Book,²³ nonfinancial factors —including the availability of needed health services in communities, transportation, child care, and the lack of culturally specific services—all combine with other factors to deprive low-income women of adequate health services. Lack of education, single-parent status, and access to—as well as utilization of—preventive health care services also play a significant role in the provision of health services to women of color.²⁴ In addition to physical health problems, a number of studies suggest that women in custody also have higher rates of depression and other mental health problems.²⁵ Often these mental health issues have not been diagnosed or treated. Women of color in custody are often victims of sexual and physical abuse. According to the United States Department of Justice, more than 50 percent of women in jail report that they have been the victims of physical or sexual abuse in the past, compared with 10 percent of men.²⁶ Without intervention, these women are likely to return to their abusive relationships upon release.

Health problems can have a ripple effect in reentry planning and implementation. For women leaving prison with health problems, managing to engage in the behavior expected of a parolee may be difficult. They may experience difficulty keeping parole appointments. Quite obviously, health and mental health problems that remain unaddressed can interfere with anyone’s ability to obtain and maintain a job. When we add physical and mental health issues to the often overwhelming stress associated with regaining custody of children that they may have lost as a result of incarceration, the picture for women is even more troubling. It is this combination of health needs and the pressures of parental roles that weighs most heavily on the women ex-offenders and often guides their choices upon release—a factor too often ignored in examinations of the problems posed by reentry.

C. The Challenge of Motherhood behind Bars

Perhaps the most significant factor distinguishing women from their male counterparts relates to responsibility for their children. The average woman in prison had physical custody of a child before her incarceration. In the United States, approximately 2.1 percent of all children under the age of eighteen have parents in state or federal prison.²⁷ This means that 1.5 million children are affected by the lack of any coherent reentry policy. The majority of mothers currently incarcerated were the sole caretakers for their children prior to incarceration. Generally, when a father goes to prison the mother keeps the family intact. However, a number of studies show that when a mother enters prison, the father often does not remain involved in the caretaking of the children. One study of state prisoners in the late 1980s found that 67.5 percent of the women had minor children as compared with only 54.4 percent of males.²⁸ In 1986, “76% of women prisoners were mothers and nine out of ten of them had children younger than eighteen.”²⁹ While “some children live with a relative during their mother’s incarceration, many enter the foster care system because no family member is available to care for them.”³⁰ So for many women in custody or returning from incarceration the greatest challenge is reestablishing a relationship with their children. This fact has profound implications for women’s reentry programming.

One of the most punitive and detrimental effects of incarcerating women is the physical separation of mothers from children. There are few women’s prisons throughout the country. States generally have one or two women’s facilities, while the federal government maintains and operates relatively few institutions exclusively for women serving federal sentences.³¹ The limited number of institutions often means that women will be sent far away from their home communities and may often be housed in a separate state. A common side effect of this housing pattern is that women receive fewer visits from their children and family than men. Maintaining parental ties becomes all the more difficult. Children are often left to the care of the mother’s relatives or in the state’s foster care system when women are incarcerated. Consequently, women are often dependent on others to establish contact with their children. Women prisoners often must become accustomed to a lack of contact with their children.

As one would expect, the toll of this separation on mothers can be quite severe. Mothers commonly suffer from overwhelming anxiety and concern for their children. In many instances, the anxiety springs from the uncertainty of their children’s living situation. Mothers in custody have often made only temporary arrangements for their children. This instability of care arrangements becomes a continuing source of stress. Mothers in custody routinely report being overwhelmed by feelings of helplessness and hopelessness, which undoubtedly contribute to the higher incidences of clinical depression among women prisoners. This emotional and mental health toll can adversely affect the physical well-being of these women as well. Whatever the manifestation, the tremendous emotional burden that women carry is only complicated by the realization that they may ultimately lose custody of their children as they struggle to make sense of the legal system.

Physical and emotional separation from their mothers can cause severe emotional damage in children. Constancy and continuity of relationships, especially in the mother-child relationship, is essential for a child’s normal development during different life stages. Interruptions in those relationships can have a lasting impact on the child’s ability to bond with others. To the extent that infants and toddlers change—and must adjust to new—caretakers, they will often experience setbacks in their emotional development. Attachments, particularly at younger ages, are critical, and yet the imprisonment of their mothers often means that they will not have the benefit of constant, uninterrupted presence and attention from a familiar adult. When infants and young children find themselves abandoned by a parent, or shuffled between relatives, they may suffer separation distress and anxiety that will have long-term implications for their mental health.

The stress experienced by single mothers may be the most acute. They often risk termination of their parental rights simply due to the fact of their incarceration. A significant number of state prisoners find that following their admission to prison a court will place their children in the legal custody of others—often through the foster care system. In many instances these children enter the foster care system because no family member is available to care for them. When children are placed in the foster care system, the chances for permanent separation of mother and child become greater because it is more likely that a court will terminate the mother’s parental rights. Typically, once this has occurred, the mother will lose all rights related to her children and her children will be eligible for adoption—often without her knowledge or consent. Not only is there no guarantee that all the children awaiting adoption will be placed in adoptive homes, “but adoption does nothing to address the needs of poor families who are most at risk of involvement in the child welfare system.”³² This policy has a two-fold effect: it burdens the biological parents and simultaneously puts the children at risk of being cast into the system of child welfare. This happens with the greatest frequency to children of color.³³

There are a number of reasons why an incarcerated mother has an increased chance of losing permanent custody once the state places her children in the foster care system. First, the state may have specific laws aimed at terminating the rights of parents who “voluntarily abandon their children.” These laws do not adequately differentiate between physical abandonment in the traditional sense and involuntary “abandonment” as a result of incarceration. Second, despite language in many state statutes that mandates efforts toward reunifying families, incarcerated mothers rarely reap the benefits of such services. Child welfare workers and foster parents are often reluctant to facilitate visitation between children and incarcerated parents because they believe parental contact is harmful to the children, or they blame the parents for the children’s problems. Third, foster care is the first step in most jurisdictions toward a permanent termination of parental rights. “Twenty-five states have ‘termination of parental rights’ or adoptive statutes specifically for incarcerated parents, which makes the permanent loss of a child a stark reality.”³⁴ Although the language of most statutes indicates that a state cannot terminate a parent’s right to custody of her child solely on the basis of incarceration, this prohibition tends to be honored in the breach. Some states have demonstrated a willingness to speed up termination proceedings in situations involving an incarcerated parent.

Of course, certain offenses might themselves render the offenders unfit parents. A conviction for extreme acts of domestic violence against the child or the other parent, for example, might provide sufficient grounds for terminating parental rights. But in most cases, both incarcerated parents and children have an interest in preserving their bond. In Santosky v. Kramer, the U.S. Supreme Court acknowledged this, finding that parents’ liberty interest in maintaining a relationship with their children applies equally to incarcerated mothers and fathers. The Court reasoned,

The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family life.³⁵

The Court further explained that, to terminate a parental right, courts should adhere to a standard of proof requiring a showing of “clear and convincing” evidence that the parent is unfit. In choosing this standard of proof, the Court may have been concerned about the conscious and unconscious influence of cultural or class bias in these decisions. The parents most likely to be subject to removal of their children and termination of all parental rights are often the poor, the uneducated, or members of minority groups. So, the Court may have intended the heightened standard to serve as a check against such biases.

However, the standard of proof may not be up to this considerable task. As indicated earlier, many of the women serving prison terms have been incarcerated after drug convictions. Drug dependency among this population has often contributed to involvement in the criminal justice system. Rather than seeing drug usage as a medical or public health problem, American society tends to regard it as a criminal problem. And Americans tend to reserve their most severe criticism for female drug users.³⁶ They label drug-dependent women as, at best, neglectful parents and, at worst, abusive. While drug dependency can lead to both neglect and abuse, it does not inexorably lead to such problems. However, the perception that drug usage and abuse go hand in hand may influence decision makers in custody cases. So, many incarcerated mothers lose custody of their children for unstated assumptions that may have little bearing on whether they are actually capable or can become capable parents.

In addition to establishing the standard of proof, the Supreme Court has also broadened the factors that courts should assess in determining whether a parent is to be stripped of her parental rights. The Court directed lower courts to consider the nature of the relationship between parent and child as well as the degree to which the incarcerated parent has benefited from rehabilitation in prison. However, because many state statutes and an abundance of cases allow physical separation to serve as grounds for termination, the incarcerated mother often cannot overcome this burden since separation is likely during the period of incarceration. Although incarceration typically cannot be the sole reason for terminating parental rights, it is still more likely that a court will find that an imprisoned parent, as opposed to the average parent, meets the statutory criteria leading to the termination of her rights.

A better option is for the court to examine parenting and reentry as two sides of the same coin. Parents and parental rights as a legal matter should be viewed in light of the reentry plan for the parent. Parenting classes, treatment regimens for the parent, and educational and vocational training should all be a part of the equation when courts are determining the status of parental rights. This is, of course, assuming that the crime for which the parent is in custody is not a crime committed against the child. In that circumstance, one might use a different equation.

Adoption is another concern for incarcerated mothers. This scenario typically arises when the father has custody of the child and marries or remarries. It is common for the new spouse to adopt the child. In addition, a foster parent may wish to adopt the child currently within her custody. All states have statutes outlining the procedures and circumstances of the type of adoption that can take place without the consent of one parent. Furthermore, the 1981 Federal Adoption Assistance and Child Welfare Act allows a child to be adopted by a foster parent if the child does not live with his or her mother for a year. As is the case with termination of parental rights proceedings, adoption will completely sever the relationship between the incarcerated mother and her child. Many critics of this adoption policy argue that because the law so heavily emphasizes adoption, adequate resources are not directed to support services for biological families who want to maintain their parental rights. Therefore, “these families are not given a sufficient opportunity to be reunified.”³⁷

If the mother manages to retain parental rights during her incarceration, her first priority upon release is likely to be the fight for custody of her children. Given the obstacles, the fight can be overwhelming. In making the custody determination, family courts will consider whether the mother is able to provide financial support and housing for children upon release. Because vocational and educational training in women’s prisons tends to be severely limited, women ex-offenders often lack the marketable skills that might enable them to obtain the sort of employment that a court would be likely to approve. Then, federal welfare laws reduce their access to benefits that might provide transitional support as they seek employment. Complicating all of this is the fact that adoption laws have begun to reduce the amount of time that parents have to reunite with their children before permanently losing custody.³⁸ One year after Congress passed the welfare reform law, it enacted the Adoption and Safe Families Act of 1997 (ASFA).³⁹ This act allows states to begin termination of parental rights if a child has been in foster care fifteen of the last twenty-two months. So women ex-offenders find themselves in a race against time to overcome significant obstacles as they attempt to regain custody of their children.

To the extent that government and the courts are serious about easing the burden of women exiting jail and prison, dispensation must be made for custodial parents reentering communities, looking for work, and attempting to provide for their children. The added burden of simultaneously trying to reestablish themselves after incarceration and having to fight for custody significantly hampers reentry and imposes incredible stresses on the parent.

D. Welfare

In addition to restrictions on housing, some formerly incarcerated individuals are barred from receiving federal and state welfare benefits. These are especially devastating collateral consequences for some populations, such as offenders who are parents. The denial of welfare benefits, including Temporary Assistance for Needy Families (TANF),⁴⁰ presents particular problems for formerly incarcerated parents. For many women, their inability to gain access to food stamps and public housing either makes it impossible to reunite with their children or prevents them from creating a suitable living environment. These benefits—often in the form of food stamps, Social Security Insurance, or Medicaid benefits—are barred in certain circumstances under the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996. Section 115 of PRWORA denies both TANF and federally funded food stamps to any individual convicted of a felony involving “the possession, use or distribution of a controlled substance.” The federal welfare statute not only requires states to deny TANF benefits and food stamps to anyone who has been convicted of a drug felony, but it also requires state welfare systems to review state and federal penal records systems.

Congress passed the lifetime ban on benefits for individuals with felony drug convictions after a total of two minutes of debate in the Senate, and no debate at all in the House of Representatives. States may opt out of the ban, but to do so the state legislature must vote affirmatively, in state legislation passed after the effective date of the federal bill, to provide benefits to those individuals. Although thirty-six states⁴¹ have eliminated or modified the ban in order to reduce recidivism, ensure that drug and alcohol treatment services remain available, encourage family reunification, and support individuals in recovery, the ban remains in full effect in fifteen states. The deprivation of social and welfare rights has further marginalized some ex-offenders.

E. A Gendered Approach to Reentry

Much of what recently released individuals encounter upon returning to their communities can be anticipated and addressed. The standard approach has been to make ex-offenders fend for themselves with little or no support or guidance. Critical to unraveling the tangle of issues facing those being released is open acknowledgment that there are common difficulties. A logical second step involves mapping a reentry path for ex-offenders to follow, given those difficulties. Issues of gender and geography also bear consideration in developing strategies to address the morass of reentry problems. Planning reintegration for women, especially in communities of color, should involve consideration of some of the profound cultural barriers placed in the path of these women. Given the large number of incarcerated women of color, particularly African American women, one of the central issues of reentry is how these women are accepted back into their communities. Because African American men have, for generations, been overincarcerated, there is a basic acceptance that Black men will have some interaction with law enforcement. But prior to the current cycle of increased female incarceration, Black women simply were not imprisoned as often as men. Those who were incarcerated were viewed as outside the norm or the mainstream. As these incarceration rates changed, that information did not make its way into Black communities. The result has been that women are less readily accepted back into their communities. Regina Austin describes the aggressive or antisocial behavior of Black male lawbreakers as functioning within accepted mainstream gender roles.⁴² Women, on the other hand, do not enjoy this cultural acceptance. Indeed, women who return home from prison are often viewed as acting outside of accepted gender and racial roles.

F. Programming for Women and Reentry

Although women’s needs are different in very central ways, the majority of corrections and pre-release programming still reflects an absence of the information and the policy direction that a truly gendered approach might take. Some long-time, well-informed commentators, such as Myrna Raeder, Judith Resnick, and Judge Patricia Wald have all suggested that corrections officials can and should rethink the approach to providing programming for women. Obviously this programming should acknowledge that women bring a different set of needs and programming challenges in preparing for reentry and should research those needs and challenges. Programming should reflect those instances of success that have been supported by evidence. Evidence-based programming provides the most certainty and optimism for the future of reentry planning.

Programming for women has traditionally provided fewer opportunities for women than for men. In the 1970s, first men and then women in prison responded by launching a wave of litigation targeted at state correctional systems. In a series of class action suits, women prisoners claimed that their rights had been violated under the Fifth, Eighth, and especially the Fourteenth Amendments to the U.S. Constitution. A number of these suits focused on incarcerated women’s access to basic education, vocational training, work, medical care, and legal assistance. A series of favorable court rulings led to an initial expansion in the range of programming available to women in prison; subsequent cutbacks in spending on prison programs and services, however, have reversed many of these changes. For example, a larger proportion of women than men participated in all levels of educational programming (adult basic, secondary, and college) and had work assignments. However, the nature of prison work remained gender typed. Women were disproportionately involved in janitorial work, kitchen work, and cosmetology, whereas men were overrepresented in farm, forestry, maintenance, and repair. Pay levels also varied by gender, with men being paid more often than women for their prison work.

The most pressing needs for women preparing for reentry are lack of vocational training, history of drug abuse, and tenuous family situations. While studies show that vocational training is an important aspect of reducing recidivism rates for all offenders, female offenders are more likely than their male counterparts to be lacking in such training. Most women beginning a prison sentence have little job experience and few marketable skills. Inside the prison walls, the same woman is far less likely than a male inmate to receive training that will improve her former situation. Much of the relevant case law arising from female inmates relates to claims of disparate treatment in educational programming and vocational training. The number of cases in this area reflects the need for those women who commit crimes to be equipped to function productively outside the prison walls.

Kentucky and Virginia are two excellent cases in point. In Kentucky, female prisoners were denied access to many vocational, educational, and training programs that were available to male prisoners.⁴³ The programs that were made available to the female prisoners were inferior in quality to the corresponding programs at the male institutions.⁴⁴ In the Kentucky case the court held that the differential treatment between male and female prisoners was unrelated to any important government objective, and therefore violated fundamental notions of fairness embedded in the Constitution and expressed in the Equal Protection Clause.⁴⁵ The court went on to hold that the Equal Protection Clause requires parity, not identical treatment, for female prisoners in the area of jobs, vocational education, and training.⁴⁶