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Why the US criminal justice system locks up so many women

The notoriously high prison population in the US is starting to decline – so why is the number of jailed women rising?

On her daughter’s wedding day in 2003, Anisah Sabur-Mumin was in the third year of a four-year prison sentence for a variety of drug offences. She phoned her partner for news on the wedding and was sobbing down the line when she was summoned to start her shift working in the prison kitchens. As she hung up, a guard asked her what was wrong. After Sabur-Mumin repeatedly insisted she was fine and didn’t want to talk about it, the guard sentenced her to 30 days of solitary confinement. The United Nations considers solitary confinement for more than 15 days torture.

Sabur-Mumin can share many horror stories from her two four-year prison sentences. Harsh and arbitrary punishments were not unusual: research by US media group National Public Radio shows that women in prisons are disciplined between twice and three times as often as men, often for smaller infractions. The 60-year-old campaigner from the Bronx, New York, also described overcrowding, frequent fights, pervasive harassment and sexual abuse from guards, alongside the heartbreak of witnessing traumatised and mentally ill women struggle without help.

Determined that her second prison stay would be her last, she signed up for as many prison programmes as possible and found solace in the faith-based organisations that worked with the prison. In 2000 she converted from Christianity to Islam, taking a name chosen for her by her Islamic sisters: Anisah means “woman” or “friendly and kind” in Arabic, Sabur “patience”, Mumin “believer”.

She joined the Coalition for Women Prisoners, which advocates for criminal justice reform, and soon after her release in 2004 received leadership training from another non-profit, the Correctional Association of New York. She began learning more about the structural injustices she had faced as a black woman caught up in the war on drugs – the huge spike in arrests for drug-related offences that began in the 1980s and mostly targeted individual users and people of colour. She could have been eligible for a non-custodial sentence, but she did not know that at the time – no one bothered to tell her.

“I never woke up one day and said, ‘I want to be an addict’. Or ‘I want to be a criminal’,” Sabur-Mumin told me when we met for coffee in midtown Manhattan. “I had dreams. I dreamed of being a teacher. I dreamed of being a lawyer. But those two fields were not open to me with my felonies.” She wore square-framed glasses, a long coat and a patterned headscarf, and spoke in a low, gravelly voice. She described how she found a new calling as a prison reform advocate and a community organiser, determined to make sure that other women caught up in the criminal legal system would understand their rights better than she had done. She became the person you might go to if you were having trouble finding housing or needed someone to organise a clothes drive or a “housewarming coalition party”, in which guests donate to help you furnish your first home after prison. She stayed clean and did everything she could to stay out of legal trouble. It wasn’t enough.

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The United States locks up more of its population than any other country; there are currently 2.2 million people detained in its vast network of prisons and jails. In recent years, the “land of the free” has started grappling with this contradiction. Having risen 700 per cent in four decades, the US federal prison population peaked in 2009 and has been slowly declining since. The coronavirus crisis has drawn renewed attention to the number of people incarcerated in the US, as the country confronts the prospect of the virus spreading rapidly through crowded and unsanitary jail and prison facilities. At the time of writing,  75 confirmed cases of coronavirus had been detected in New York’s prisons, and the city’s Board of Corrections had called on the mayor to release up to 2,000 people, including those who are over 50, those with underlying health conditions or those held for minor charges, including parole violations. Under pressure, the mayor released a few dozen prisoners.

Activists on the American left have long campaigned against a punitive legal system that disproportionately targets the poor and people of colour, while more recently even tough-on-crime conservatives have become concerned by the tremendous economic cost of mass incarceration. After years of Republican resistance, Congress in 2018 passed the First Step Act, the first criminal justice reform bill in eight years. Among other things, the act aims to shrink the prison population by reducing mandatory minimum sentences for a variety of non-violent offences.

One group not benefiting from this political shift is women, who make up the fastest-growing population in US jails and prisons, being incarcerated at twice the rate of the male population, even though the vast majority of incarcerated women have committed low-level, non-violent offences. Women prisoners are also much more likely than men to be victims of abuse or to suffer serious mental illness or drug addiction. More than six in ten women in prison are mothers, and  often they are the primary caregiver, which means their incarceration has a devastating effect on their children.

For women, the First Step Act seems less a marker of progress than an indictment of the US’s sexist criminal justice system. The act banned the shackling of pregnant women, but it applies only to women in federal prisons. In 23 states, women detained in private or state-run correctional facilities can still legally be shackled, and even during childbirth in a handful of states. It also requires federal facilities to provide women with free menstrual products, but this does not apply in state-run jails and prisons. Last year a Republican state representative in Maine opposed a bill requiring state and county detention centres to provide free sanitary products on the grounds that it would make prison “like a country club”.

Policymakers routinely overlook the needs of women in the criminal justice system. “There is surprisingly little  research on why so many women end up in jail today,” a 2016 report by the Vera  Institute, a criminal justice reform group, observed. Supposedly gender-neutral laws often disproportionately affect women: because women are more likely to commit low-level drug offences, they were hardest hit by “broken windows policing”, in which police crack down on minor offences, and the introduction of mandatory minimum sentences for drug-related crimes. Single mothers, especially black and Hispanic, are among the poorest groups in the US. Every day 54,000 women are held behind bars without a conviction, typically because they can’t afford bail.

We expect women to be caregivers, to support their families and communities, Georgia Lerner, the head of the Women’s Prison Association, suggested to me. “I think that’s why we get so mad at women when they commit crime,” she said. “We’re much angrier when women fail to live up to moral standards because we really rely on women to hold it together.”


Pink is for girls: female prisoners cuffed together at Estrella Jail in Phoenix, Arizona

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New York has been one of the most successful states at reducing its prison population. One way it has achieved this is through the development of its Alternative to Incarceration (ATI) initiatives, which give people charged with certain crimes the option of completing a programme in place of serving a prison sentence. In New York, ATI initiatives are funded by the state but delivered by a network of non-profits that offer programmes aimed at  addressing the root causes of crime. This could include drug treatment, counselling and mental health services, job training, and support with meeting court dates.

The state does not collect data on the proportion of offenders directed to an ATI, but it says it allocates around $18m a year to such programmes (the annual budget for the state’s department of corrections and community services is over $3bn). Of this, just under $1m of funding is distributed to five programmes that exclusively serve women.

One of these is New York City-based JusticeHome, which is run by the Women’s Prison Association (WPA). At any given time, there are around 20-30 women enrolled in the programme – much fewer than might be eligible for it, but the WPA says it is constrained by the amount of funding it receives. Sometimes women contact the WPA directly, at other times it receives referrals from lawyers or district attorneys, and every week its staff visit the notorious Rikers jail, a sprawling low-rise concrete and barbed-wire complex on an island off Queens, to meet potential clients.

Depending on the court order, JusticeHome’s clients spend between three and 12 months on the programme. WPA staff generally meet women in their homes one to three times a week, and work with them to develop a programme that addresses their needs and the reasons they ended up involved in the criminal legal system –  often a history of trauma and sexual  violence, an abusive relationship, addiction, poverty, or a combination of all these.  On the morning I visited WPA’s office in Manhattan’s East Village, Miriam Goodman, the WPA’s head of ATI programmes, told me that one staff member was accompanying a woman to A&E and another was at a government welfare office. Goodman herself had  recently been at the chemist, helping a client buy nappies. Her phone buzzed constantly. The staff work to accommodate women’s needs, rather than the other way around.

JusticeHome is more humane, cheaper and more effective at reducing reoffending than sending a woman to prison. It costs less than $20,000 a year to enrol a woman in the WPA’s project, while the average cost of incarceration in New York is $337,524 per inmate per year. Government figures show that a third of women leaving New York prisons return within three years. Meanwhile, WPA says that 90 per cent of its clients have remained arrest-free since completing the programme. “Most women enter prison with histories of trauma, mental illness, addiction and parental stress. Nothing about prison helps them address those things. Prison only mimics the violence, isolation and lack of control women have experienced before they arrive,” Goodman said. If the prime goal of incarcerating women is to reduce crime, the statistics are clear: it doesn’t work.

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While Goodman outlined the JusticeHome programme, Kamilah Newton, a 24-year-old student and single mother, sat quietly at the far end of the table behind a stack of her college files. She is strikingly attractive, with high cheekbones and large hazel eyes, and dresses with flair: her hair was styled in an exuberant, red-tinted pompadour, she wore theatrical make-up and her nails were long and glittery.

“Technically, the story of how I got arrested begins with my rape at 13,” she told me. “You’re often a victim before you’re an offender.” She is a captivating speaker and has a knack for bringing together diverse ideas – observations on current affairs, quotes that have inspired her, books she has read on psychology or black history – and translating them at high speed into everyday language. Months after we first met, she told me it annoys her when people are surprised by her articulacy because it shows they don’t expect a young black woman to talk like that. People’s reaction to her is shaped by what they first learn about her: her exam grades, or her past criminal justice involvement.

The first time she met Miriam Goodman,  Newton was apprehensive about sharing her story. “I thought: this isn’t going to turn out well. Someone is going to talk about all the things I’ve gone through, make me feel crap about the thing I did, and make things as hard for me as possible,” she said.

Newton was 21 years old, living in a shelter with her toddler son Jeyson and studying nursing at LaGuardia community college. She had been arrested in 2016 while visiting Jeyson’s father on Rikers and was facing a felony charge, which in the US carries a minimum one-year sentence. (She doesn’t want to go into detail about her arrest, but says domestic violence and financial desperation were contributing factors.) She was confronting the horrifying prospect of being separated from her son, and of Jeyson growing up with two parents behind bars. She decided to risk opening up.

She told Goodman about her childhood in the Bronx, the poorest borough of New York City, where she lived with her grandmother, a changing cast of extended relatives and sometimes her mother. Her family had emigrated to the US from the West Indies. They were hard-working, often juggling multiple jobs and unsociable hours, and yet only just making ends meet. When she was 13, an older cousin from St Kitts moved close by. He sexually abused and raped her. Newton did not feel able to tell her relatives. She tried seeing a therapist at school but when she “let slip” that she had been raped the therapist threatened to inform the police and she clammed up. She felt the only thing that could make her life worse was if she was blamed for incriminating a family member, who would likely be deported.

She met Jeyson’s father in school. They were two troubled teenagers and their relationship was volatile and sometimes violent. When she was 18, she learned she was pregnant. She asked her grandfather for advice. A Jamaican who met her grandmother after he dialled the wrong number one day but struck up conversation anyway, he was Newton’s “best friend” and “greatest protector”. “Keep your pickney,” he said. Shortly before Jeyson was born, Newton’s grandfather fell ill suddenly and died.

Despite her grief, she continued studying to become a community nursing assistant, and a few weeks after her emergency C-section she passed her final exams. She found work in a nursing home, and frequently clashed with her bosses because she felt her patients were being neglected.  After one such exchange, she was fired. Newton decided that if she wanted to make a real difference to her patients, she needed more qualifications. In 2015, she enrolled at LaGuardia to become a registered nurse. “Oh, that’s why you like to advocate,” Goodman told Newton when she shared her story. “Because no one ever advocated for you.” For Newton, it was a “light bulb moment”.

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In 2008, Sabur-Mumin was working with the Coalition for Women Prisoners when she was arrested at her home and accused of stealing a woman’s wallet on the subway. She insisted she was innocent, and passed a drugs test, but because of her criminal record she was denied bail and detained at Rikers pending her trial.

She was placed on a jail wing with mostly pregnant women and spent her time reporting back to the Correctional  Association on conditions and trying to educate other women about their rights. The bathrooms were forever flooding, which she repeatedly pointed out to the prison authorities was a hazard. Sometimes, a woman would slip and Sabur-Mumin would advise her not to get up, to insist on medical assistance and then to sue the prison authorities – one way to ensure one’s charges are quickly dismissed, she argued – but the women were too scared to make a fuss. Instead, Sabur-Mumin reached a partial détente with the guards and took charge of mopping the wet floors herself.

Her first attorney referenced her extensive criminal history and advised her to plead guilty. In the past, she might have felt intimidated into doing so. No longer. “I was like, ‘beat it. I’m going to fight it. I know better today.’” A lawyer from the Correctional Association agreed to take on her case, and eight months after she was detained all charges against her were dismissed.

Sabur-Mumin had been vindicated, but she had lost her job, her home, her car and almost all her possessions, because her family could not afford to keep them in storage. She lived in a shelter for a year and a half while she rebuilt her life for a third time. For many women, even short periods of incarceration can result in homelessness or joblessness, and in many states women who are in prison for more than 15 out of 22 months can lose their parental rights (Sabur-Mumin was involved in a successful campaign to change this law in New York).  

Today, she works as a coordinator and a survivor leadership coach for Steps to End Family Violence. The group spent years lobbying state legislators to allow judges to take domestic violence into account when sentencing women. In 2019, New York finally passed legislation to give judges this discretion. In many parts of the US, judges still have no scope for leniency when a woman kills her abusive partner or is coerced into acting as a drug mule. Even in New York, activists have been disappointed by the reluctance of some judges to apply the Domestic Violence Survivors Justice Act. In a high-profile murder case seen as a test of the new act, a judge sentenced Nicole Addimando, a mother of two, to 19 years in prison for shooting her abusive boyfriend.

Criminal reform advocates have faced decades of uphill struggle, but Sabur-Mumin told me her work was spurred by the knowledge that many women never rebuild their lives after prison. She sees herself as one of the lucky ones and wants to share her story on behalf of those who can’t.  “People need to know, right?”

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 Thanks to a sympathetic judge and the support of the Women’s Prison Association, Newton was able to enter a conditional plea in court that meant that her felony charge would be reduced to a misdemeanour and sealed (leaving her criminal record clear) should she complete 12 months at JusticeHome and continue her studies. As part of the programme she began seeing a therapist, one she could trust this time. JusticeHome supported her when she was expelled from LaGuardia’s nursing programme because of her legal case. She began studying health and human services in college instead. It gave her an academic framework for thinking about the structural injustices – sexism, racism, poverty, the criminalisation of communities – that she had always implicitly understood, and it fomented her desire to become an activist.

In 2018, she sat her family down and told them about her childhood sexual abuse. “How can I make a career out of advocating for other women when I have yet to speak my own truths?” she reasoned. Many of her relatives responded angrily and defensively. One accused her of always having been so “grown”. “Black girls always get put with the narrative of being grown,” she said to me. “We have nicknames for little girls like ‘hoochie mama you fast,’ but you don’t have a nickname for men who are predators.” Even though the conversation was hostile, having shared her secret she felt unburdened. At a women’s march in DC later that year, she climbed a podium and shared her story with the whole crowd. “If I can say anything that has the power to change one mind or one policy or save one little girl’s life or teach one rape survivor that this shit is not her fault, man, I am obligated to do it,” she told me.

Newton finds it painful to imagine what her life would have been like had she gone to prison – mostly because she would have worried so much for Jeyson. But even in New York, ATI places are so limited that being accepted onto a programme can be a matter of luck. One afternoon I met Jo Anne Page, the CEO of the Fortune Society, which runs several ATI and post-prison programmes. Page was one of the leading figures in developing the state’s first ATI programmes in the early Eighties, trying to persuade judges and lawyers of the benefits of non-custodial sentences through a combination of persistence and charm – being a “pitbull with a smile”, she calls it.

I asked her why it has been hard to find political support for alternatives to incarceration when prison sentences are so much more expensive, and less effective. She observed that tough-on-crime policymakers are rarely held accountable when people reoffend after prison, but even though recidivism rates are lower among people given ATIs, when they do reoffend it’s often blamed on lax sentencing – and that can kill a political career. “The incentives are toward doing more of what is very expensive, in terms of human damage, in terms of community safety, in terms of spending. But it’s politically safe and politically rewarding,” she said.

I asked her if she ever worried one of the Fortune Society’s clients would commit a high-profile, violent crime. “We see 7,000 people a year, some of them are going to do some awful things. But if we weren’t here, more of them would,” she said. “So yeah, periodically it keeps me awake at night but that’s what it takes to do the work.”

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In early 2019, I had lunch with Newton just after she had sat her final exam at LaGuardia. The previous months hadn’t been easy but she was feeling resilient. She was looking forward to taking a short break, to spend some more time with Jeyson and plan her next move.

We caught up in a greasy spoon in Queens and then took the subway to Manhattan together. Newton’s hair was bobbed and dyed red this time, and she had twisted two strands at the front to form tight buns on either side of her forehead. Her long nails were painted pink with hearts, to mark Valentine’s day. A bitterly cold wind battered the train platform. I congratulated her again on graduating, and she dug her hands deep into her red hooded coat and looked down the empty train line towards the city. “Yeah,” she replied, her voice quieter than usual. “I guess this is the first day of the rest of my life.”

I thought of her often after that, and we exchanged occasional messages. And then in early 2020, I was walking down Manhattan’s Second Avenue with my two young daughters when I was distracted by a familiar face on an electronic billboard. It was Newton, featuring in the advertisement for Still Here, an immersive multimedia installation that premiered at the Sundance Film Festival, which she helped write. “Omgggg,” she texted back when I sent her a photo of her portrait. “Thank you!”

She was working as a writer and a producer at Yahoo. One of her early stories, about a black ten-year-old boy charged with aggravated assault over a dodgeball injury sustained by one of his white classmates, had broken national news. In February, she gave a speech to hundreds of people at a women’s empowerment conference convened by Yahoo. She was seven months pregnant with her second child, a girl, and resplendent in a floral jumpsuit. She summed up the case for women’s decarceration with characteristic precision.  “The highest risk factors linked to women’s incarceration are pains that many of us share. Abuse, depression, housing instability, parental stress. People have no control over their formative years. People don’t choose their childhoods. And it’s about time we stopped treating them like they do,” she said. “So today, and every day from now on, I implore you all to challenge your preconceived notions of criminality.” Her voice was resonant and rich with emotion, and it carried. 

Sophie McBain is a special correspondent at the New Statesman. She was previously an assistant editor. 

This article appears in the 03 April 2020 issue of the New Statesman, Spring special