From the President: ‘Reversal of Misfortune’

By Nina J. Ginsberg, NACDL President

November Issue of The Champion

In my August column, I explored the well documented increase in the rates of incarceration for women and the unique issues that these women face. From 1980 to 2010, the rate of growth of women in prison rose 646 percent compared to a 419 percent increase for men.¹ This dramatic increase left me wondering more about what fuels the expansion and how we might begin to reverse its growth. To better understand the forces behind the statistics, it is important to look at exactly where women are incarcerated, the changing racial composition in incarceration rates, and the offenses for which women are serving time.

According to the Prison Policy Initiative’s research, local jails play a significant role in women’s incarceration because a much larger proportion of incarcerated women are held in jails compared to the total incarcerated population.² An astonishing number of women who are incarcerated have never been convicted of a crime. “A quarter of women who are behind bars have not yet had a trial. Moreover, 60 percent of women under local control have not been convicted of a crime and are awaiting trial.”³

As we try to achieve the goal of reducing the number of women entering jails, it is important to identify the key decision-makers who marshal women through the “front door”⁴ of the criminal justice system:

• Police who have the power to release, recommend detention, and/or arrest.
• Prosecutors who decide to charge or defer proceedings for arrested individuals.
• Judges who make pretrial decisions to fashion conditions of release.
• “Court actors” who have an impact on delay or efficiently handle cases such as clerks, prosecutors, probation officers, court services officials, defense counsel, and/or judges.
• Community corrections officials and agents who drive the decisions to violate individuals and/or defer on arrest warrants for failures to comply.⁵

All these overlapping points of impact must be explored if we are to develop a playbook for reform. Reportedly, over the last two decades the total number of all arrests has dropped from 15.3 million in 1997 to 10.6 million in 2017.⁶ This drop was largely due to fewer arrests of men. As men’s arrest rates have fallen, women’s arrest rates have remained fairly flat. The result is that women make up an increasingly large share of all arrests. As of 2017, women accounted for 27 percent of all arrests, up from 21 percent in 1997, and just 16 percent in 1980.⁷

There have also been dramatic changes in the racial and ethnic composition among women in prison and in the offenses for which women in prison are serving time. Research by the Sentencing Project on the changing racial dynamics of women’s incarceration reveals that the rate of incarceration in state and federal prisons from 2000 to 2009 declined 9.8 percent for black men and 30.7 percent for black women. Incarceration rates rose 8.5 percent for white men and an unprecedented 47.1 percent for white women. For Hispanics, the men’s rate declined by 2.2 percent while the women’s rate rose by a full 23.3 percent.⁸

From 2000 to 2009, the proportional increases in women’s incarceration for violent and property crimes were also substantially greater than for men.⁹ During the same period, the overall number of African Americans incarcerated for property offenses declined and the increase in violent offenses was substantially less than for whites and Latinos.¹⁰

According to recent data that recorded gender, the crimes that led to jail detention for the majority of women have been drug offenses, public order offenses, or property offenses such as larceny/theft.¹¹ The overall arrest rate for drug possession or use tripled between 1980 and 2009 while the arrest rate doubled for men.¹² Over the past five years, while the nation has watched the wreckage of the opioid crisis take effect, drug arrests have increased six percent among men but nearly 25 percent for women.¹³ “The increase in the number of drug arrests from 2013 to 2017 was also higher for women than for men: There were 54,738 more arrests of women for drug violations in 2017 than in 2013, compared to an increase of 48,887 arrests of men for drug violations over the same time period.”¹⁴

As was the case generally, much of the increase was caused by the proliferation of mandatory minimums and harsher sentencing policies. However, “broken windows” policing is one theory that has been advanced to explain why arrests of women for drug violations have increased.¹⁵ Since women are more likely to be arrested for low-level offenses, then police policies consistent with broken windows policing favor an increase in the number of arrests of women. For these low-level, nonviolent offenses, prosecutors tend to offer quick resolutions and pleas shortly after arrest. A plea that would result in an individual’s quick release for “time-served” is readily accepted by defendants and can be the fastest way to secure release. This is one reason charging practices for low-level offenses disparately affect women.¹⁶ A large number of convictions for stacking low-level convictions can also lead to longer sentences for a repeat low-level offender. With these trends in mind, one can easily see why there is a marked increase in the numbers of women in jails in the last decade.

Other charging practices that specifically impact women center on “complicity” laws.¹⁷ For example, since the advent of mandatory sentencing policies for many drug offenses, women are often drawn into the criminal justice system as minor accomplices. This has been referred to as the “girlfriend problem”¹⁸ Broad readings of conspiracy laws together with mandatory minimums have had a notable impact on women’s incarceration rates. In this context, the lesser involved woman accomplice still faces heavy mandatory penalties since there is no statutory recognition of “minor” accomplices. In addition, once charged, these women have less to offer by way of cooperation and therefore, less means to buy a more lenient sentence with substantial information. As a result, women and other trivial participants can face nearly the same sentences as their more significantly involved co-defendants by “taking a phone message or allowing a partner or family member to keep items in their home.”¹⁹ These same women, if they have a history of low-level, petty offending, can find themselves in a higher criminal history category than their co-defendant principle when it comes time for sentencing. This dynamic has certainly contributed to the overall increase in women’s incarceration as upstream jail populations ultimately flow into and impact the composition of prison populations.

Many possible alternatives are available to offset the disturbing trend in the wrong direction for women’s incarceration levels. From the first contact with law enforcement, there should be a shift away from custodial arrest. While it may be the rare example, the police department in Baltimore, Maryland, adopted a policy in 2007 of not arresting people for low-level, “quality-of-life” crimes such as misdemeanor drug possession and nuisance offenses.²⁰ After the implementation of this policy, in 2010, the number of women in jail declined 15 percent.²¹ The institution of policies requiring citations in lieu of custodial arrest is another, next best, alternative.

In addition, pre-arrest crisis intervention training (CIT) of officers helps redirect people experiencing a mental health crisis from jail to community-based services. For example, in Akron, Ohio, pre-arrest crisis training and intervention strategies have assisted in redirecting the arrests of people experiencing mental health crises. In Akron, over a six-year period, 25 percent of CIT calls resulted in transport to emergency services, 31 percent to a hospital or community treatment facility, and just three percent resulted in arrest.²² In Tulsa, Oklahoma, a 24-hour crisis line offered by Family and Children’s Services is available to people who are experiencing a mental health crisis. In this program, the Community Outreach Psychiatric Emergency Services (COPES) team works alongside law enforcement and others to help community members who are experiencing a crisis. COPES staff gathers information and helps evaluate whether the person can remain safe in the community with a plan or should have a mental health evaluation. “Between July 2014 and June 2016, COPES responded to 10,347 calls, 3,880 of which were for women in crisis.”²³ Of those women, just three percent were taken to jail. Other alternatives include pre-booking diversion programs designed to redirect people who are arrested to a case management process immediately after arrest but before being booked into the jail. This system, called Law Enforcement Assisted Diversion (LEAD), was adopted in King County, Washington. Participants diverted to LEAD, though not specifically designed for women, were 58 percent less likely to be re-arrested than those who were booked for similar offenses.²⁴

Women’s overall incarceration rates are negatively impacted by local jurisdictions that use low-level arrests and prosecutions as a means to provide social services. “Get tough on crime” initiatives resembling “broken windows” policing and pre-arrest jailing for the same have contributed to the widespread growth in women’s incarceration. This damaging pattern emphasizes the need for jurisdictions to look to each other for “successful jail-reduction strategies, deliberate, data-driven policy development and research into outcomes” so that disproportionate impacts on women can be understood and avoided.²⁵

Notes:

1. https://www.sentencingproject.org/publications/the-changing-racial-dynamics-of-womens-incarceration, at 5.
2. https://www.prisonpolicy.org/reports/women_overtime.html#localjails
3. https://www.prisonpolicy.org/reports/pie2018women.html
4. https://www.prisonpolicy.org/blog/2019/05/14/policingwomen
5. This list was summarized in https://storage.googleapis.com/vera-web-assets/downloads/Publications/overlooked-women-and-jails-report/legacy_downloads/overlooked-women-and-jails-report-updated.pdf, at 21.
6. https://www.prisonpolicy.org/blog/2019/05/14/policingwomen
7. https://www.prisonpolicy.org/blog/2019/05/14/policingwomen at 2, footnote 3 (“These percentages were calculated using estimates from the Bureau of Justice Statistics Arrest Data Analysis Tool, which provides estimates by sex from 1980 to 2014 (as of May 2019)”).
8. https://www.sentencingproject.org/publications/the-changing-racial-dynamics-of-womens-incarceration, at 1.
9. Id. at 6–7.
10. Id. at 7.
11. https://storage.googleapis.com/vera-web-assets/downloads/Publications/overlooked-women-and-jails-report/legacy_downloads/overlooked-women-and-jails-report-updated.pdf, at 23.
12. Id. at 23, citing https://www.bjs.gov/content/pub/pdf/aus8009.pdf.
13. https://www.prisonpolicy.org/blog/2019/05/14/policingwomen/#fn:4.
14. Id., and https://ucr.fbi.gov/crime-in-the-u.s/2017/crime-in-the-u.s.-2017/topic-pages/tables/table-35
15. https://storage.googleapis.com/vera-web-assets/downloads/Publications/overlooked-women-and-jails-report/legacy_downloads/overlooked-women-and-jails-report-updated.pdf, footnote 83, citing James Q. Wilson & George L. Kelling, Broken Windows: The Police and Neighborhood Safety, 249(3) The Atlantic Monthly 29–38 (1982). “The authors argued that quality-of-life offenses, such as graffiti or public intoxication, can give residents the impression that crime is on the rise, causing residents to become fearful and lose trust in local law enforcement. The authors also suggested that criminals become emboldened by this decay, which they may perceive as a marker of an ineffective police force, leading to an increase in serious crime. Kelling and Wilson posited “broken windows” as an evocative metaphor of the disarray that may ensue: ‘If a window in a building is broken and is left unrepaired, all the rest of the windows will soon be broken.’”
16. https://storage.googleapis.com/vera-web-assets/downloads/Publications/overlooked-women-and-jails-report/legacy_downloads/overlooked-women-and-jails-report-updated.pdf at 26.
17. Id. at 27.
18. https://www.sentencingproject.org/wp-content/uploads/2015/12/The-Changing-Racial-Dynamics-of-Womens-Incarceration.pdf, at 5.
19. https://storage.googleapis.com/vera-web-assets/downloads/Publications/overlooked-women-and-jails-report/legacy_downloads/overlooked-women-and-jails-report-updated.pdf, at 27.
20. https://storage.googleapis.com/vera-web-assets/downloads/Publications/overlooked-women-and-jails-report/legacy_downloads/overlooked-women-and-jails-report-updated.pdf, at 25.
21. Id.
22. Id. at 25, footnote f.
23. Id., footnote h.
24. Id., footnote k.
25. Id. at 34.

About the Author

Nina J. Ginsberg, a founding partner at DiMuroGinsberg, P.C., in Alexandria, Virginia, has practiced criminal law for more than 35 years. She has represented individuals and corporations in a wide range of matters, with a focus on national security law, white collar investigations and prosecution, financial and securities fraud, computer crime, copyright fraud, and professional ethics.

© 2019, National Association of Criminal Defense Lawyers. All rights reserved. This article originally appeared in The Champion magazine and is reprinted with permission.