The Role for State Legislatures and Justice-System Stakeholders
The rapidly growing population of incarcerated women is pushing state and local officials to examine how existing policies can be tailored to meet the needs of justice-involved women.
Innovative Justice System Responses
As noted above, most women involved in the justice system are mothers. The International Association of Chiefs of Police (IACP) have recognized that the arrest of a parent can have significant impact on a child including causing shock, anxiety, fear and anger. They note, “Incarceration of a mother can have the most severe and long-lasting consequences for her child, as she is most often the primary, if not the only, caregiver. Separation from a primary caregiver represents a crisis for children …”
In 2014, the IACP adopted a model policy and measures to safeguard children when a parent is arrested. The overriding policy statement reads,
“It is the policy of this department that officers will be trained to identify and respond effectively to a child, present or not present, whose parent is arrested in order to help minimize potential trauma and support a child’s physical safety and well-being following an arrest.”
In 2021, Louisiana enacted legislation containing guidelines for law enforcement to identify and ensure the safety of children upon the arrest of a parent. Specifically, it requires an officer during an arrest to, when practicable:
- Inquire whether the person is a parent or guardian of a dependent child under the care, custody, or control of the arrested person at the time of the arrest and if they may be at risk as a result of the arrest.
- Ascertain whether a child is present at the time of arrest.
- Give an arrested person a reasonable opportunity, including providing access to telephone numbers stored in a mobile telephone or other location, to make alternate arrangements for the care of a child under his or her care, including a child who is not present at the scene of the arrest.
- Provide an arrested person the opportunity to speak with a child who is present, prior to such caregiver being transported to a police facility.
2. Pretrial Diversion
Pretrial diversion programs reroute people away from traditional criminal justice processing after arrest, but prior to adjudication or final entry of judgment. Pretrial diversion is designed to address factors, called criminogenic needs, that contribute to involvement with the legal system. Laws generally require that participation in diversion is voluntary and that the accused has access to counsel prior to making the decision to participate. Individuals are diverted prior to entry of judgment or conviction and a guilty plea may or may not be required. Successful completion of the program results in a dismissal of charges.
One example of a successful pretrial diversion program is ReMerge of Oklahoma County, which is partially funded by the Oklahoma Department of Corrections and the Oklahoma Department of Mental Health and Substance Abuse Services. This program is for pregnant women assessed as high-risk, high-need and mothers facing non-violent felony charges. Participants are referred by the district attorney’s office to a four-phase program that “provides safe and sober housing, food, clothing, transportation, access to mental and physical health care, and addiction recovery as baseline support.”
ReMerge participants are assigned a team including a case manager, a therapist, a health and wellness manager, an education and employment manager and peer support to help them meet competencies required in each phase. The program takes approximately 19 months to complete; since 2011, ReMerge has graduated 149 women who parent a total of 372 children. Diverting women from formal case processing and keeping families together has saved Oklahoma approximately $32 million dollars by serving women in their communities and breaking the intergenerational cycle of incarceration.
3. Community-Based Sentences for Caregivers
Research shows that strong relationships with family and children has a correlation with decreased arrest rates for women. A few states like Massachusetts, Oregon, Washington and Tennessee have enacted legislation expanding the use of community-based sentences as an alternative to incarceration for parents of dependent children who are convicted of a crime. Other states like Missouri and Louisiana have also considered this type of legislation.
Washington State’s Parenting Sentencing Alternative was created in 2010 under Substitute Senate Bill 6639. Due to this law, judges can waive a term of incarceration and impose 12 months of community supervision that includes conditions for treatment and programming. To be eligible for the sentencing alternative, the parent must have physical custody of the minor children, and they cannot have current or prior convictions for a felony sex or violent offenses.
Initial findings show that these laws do work and Washington found that participants were 71% less likely than those in a control group to be convicted of a new felony in the two years after their discharge.
4. Dignity for Incarcerated Women
The unique needs of women while in confinement is an issue that has especially come to the attention of state and federal policymakers. In its last two sessions, Congress has considered the “Dignity for Incarcerated Women Act,” which would provide certain protections for women in federal facilities. In the last five years, many states like California, Florida, North Carolina, and Mississippi, have enacted legislation that provide unique rights and protections for women in not only prisons, but in jails as well.
Access to Feminine Hygiene
Seventeen states have statutes requiring an adequate amount of feminine hygiene products be made available to incarcerated women. Some of these state laws only apply to state prisons, but a recent push has been to expand requirements to local jails. For example, Kentucky had provisions in statute that required it for prisons, but recently added the requirement for local jails. Most of the states provide clearly in statute that the feminine hygiene products must be available at no cost to the woman, while other states are silent on the issue or provide free hygiene products to only those deemed indigent.
Interaction with Officers who are Men
A few states have enacted legislation limiting the interactions of male officers with incarcerated women. For example, in California, a male correctional officer cannot conduct a physical search on an incarcerated woman or enter an area where women may be undressed, including restrooms or shower areas. There is an exception to this prohibition if a woman presents a risk of immediate harm to herself or others or if there is a medical emergency in the area. In those cases, “circumstances for and details of the exception shall be documented within three days of the incident,” and documentation must be reviewed by the warden and retained by the institution for reporting purposes. Florida and Louisiana have similar provisions.
In South Carolina, “correctional facilities, local detention facilities, and prison or work camps must limit, when practical, bodily inspections of a female inmate by male officers when the female inmate is naked or only partially clothed.”
Connecticut, Texas and Virginia have broader statutory language limiting interaction with officers of the opposite sex.
Treatment of Incarcerated Pregnant Women
From 2019 to 2021, at least 14 states introduced and passed legislation pertaining to treatment of pregnant persons in jails. In 2021, Mississippi enacted legislation that requires additional food and supplements as ordered by a physician for incarcerated pregnant women. In Virginia, the state created standards for postpartum treatment and requires all facilities under the Virginia Department of Criminal Justice Services to provide training to staff on the care of pregnant women. Colorado has a similar requirement.
At least six states, Arkansas, Colorado, Florida, Georgia, Kentucky, Maryland have also eliminated the use of restrictive housing or solitary confinement for women who are pregnant or post-partum.
A significant legislative trend in the last few years has been to statutorily change the way shackles are used on pregnant women.
During labor, shackles and restrictions can cause cramps and intense pain because women are not able to adjust position during contractions. There is also a risk of falls during labor. Shackling after childbirth can cause undue sanitary issues because of movement restriction. Thirty-seven states now limit or prohibit shackling and restricting, but many of the laws differ in scope.
Oklahoma law directs all correctional facilities to use the least restrictive restraints necessary when the facility has actual or constructive knowledge that an incarcerated person is pregnant. The measure prohibits the use of any kind of restraint when transporting a person who is in labor, while the person is delivering the baby, or while the person is recuperating from the delivery. Nebraska restricts the use of shackling of pregnant women unless there is a determination that there is a substantial flight risk or other substantial security risk. The law dictates that even in extraordinary circumstances the medical professional attending to the patient can request removal of restraints. The Nebraska law also has a provision for redress. It states, “Any prisoner or detainee restrained in violation of the Healthy Pregnancies for Incarcerated Women Act may file a civil action which shall be pursued as a tort claim under the Political Subdivisions Tort Claims Act or the State Tort Claims Act.”
Colorado, Connecticut, Maryland, Massachusetts, North Carolina and Virginia have passed laws allowing for treatment of postpartum-related health issues, as well as allotting time for new mothers to be with their newborns.
Florida, Georgia, Missouri, New Mexico, North Carolina, West Virginia, Pennsylvania, Rhode Island, Washington and the District of Columbia, have limits on the use of restraints of pregnant incarcerated people during the second or third trimester of pregnancy.
Contact with Newborns and Family Runification: Cook County
Cook County Jail in Illinois has programs designed to increase a mother’s time with her newborn and be involved in family reunification.
The American College of Obstetricians and Gynecologists recommends jails give ample time for mothers and newborns to connect and bond. According to the Vera Institute, “the Cook County Sheriff’s Office partners with a community-based organization to run the MOM’s Program, a 24-bed off-site behavioral health treatment program for pregnant and postpartum women and their infants and children up to preschool age.”
Regular visits from children of incarcerated mothers are also important. Cook County’s Women’s Residential Program (WRP) is an inpatient substance use and mental health treatment program within the jail that allows participants to schedule hour-long weekly contact visits after they complete a parenting skills class.
According to the advocacy organization Prison Policy Initiative, women and girls accounted for at least 1.8 million releases from local jails in 2013 (the last year jails were surveyed) and about 81,000 women were released from state prisons nationwide in 2016. Research shows women have a significantly higher need for reentry services and encounter more obstacles upon release than men, whether being released from long- or short-term stays. Other studies have also shown that formerly incarcerated women are more likely to be homeless than formerly incarcerated men.
In one National Institute for Justice survey with pre-release interviews, women reported their greatest needs were education (95%), employment (83%) and job training (83%).
In that vein, occupational licensing policies and criminal record clearing laws can help all people, but especially women, reenter society and find and maintain employment—a critical aspect of reducing recidivism.
The National Inventory of Collateral Consequences of Conviction catalogs over 15,000 provisions of law in both statute and regulatory codes that limit occupational licensing opportunities for individuals with criminal records. State policymakers across the country are actively addressing this issue by enacting legislation that does not categorically exclude individuals with records from obtaining an occupational license. For example, in New Hampshire, a licensing agency cannot deny a license on the basis of a prior conviction, unless the agency has considered the nature of the crime and whether there is a direct relationship to the occupation, and may consider factors such as the time since the conviction and rehabilitation efforts.
State lawmakers are also enacting measures to make it easier to—or even automatically—clear or expunge criminal records. Currently, 20 states have at least one statutory automatic record clearing provision. Connecticut, Michigan, New Jersey, Pennsylvania, and Utah have enacted legislation that automates the automatic record clearing process, sometimes known as “clean slate laws.”