Why are women the fastest-growing prison population?

In the last 25 years, women have been the fastest growing prison population in the United States and in California. Between the ‘70s and the 2000s, the number of female inmates in state prisons serving a sentence of over a year has grown by 757%.

Between 1985 and 2007, the number of women in prison increased by nearly double the rate of men. At the height of California’s prison boom, in the late 1990s, Theresa Martinez was shipped to a brand new prison in Chowchilla.

The two prisons in Chowchilla were built to house the ballooning population of women, incarcerated mostly for drug-related crimes.

THERESA MARTINEZ: And as the population grew, they were bringing busloads and busloads of women and we were filling up the rooms. At first we started with four bunks. And then more bunks got put in there, that was six. And then eight. Which is past the fire laws. Which they don’t care about the fire laws, somehow they got past that too. And there’s eight in a room now. And basically you’re told when to eat. Each unit goes at a time to eat. You have to wait in line for canteen. You have to wait in line for medical. Don’t catch the flu and have to put in a co-pay, because you’ll have to wait two days anyway.

Martinez is one of 13 women featured in the new book, Inside This Place, Not of It: Narratives from Women’s Prisons.

The book’s editors Robin Levi and Ayelet Waldman joined KALW’s Holly Kernan for this interview.            

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HOLLY KERNAN: A lot of people, women in particular, are caught up in the system because of drugs. Let’s hear a little bit more of Theresa Martinez’s on how she eventually ended up spending a long, long time behind bars.

THERESA MARTINEZ: By the time I was five, I used to self-inflict pain on myself. I remember hitting the back of my head against walls, or pulling my hair, even biting myself, out of just pure anger because I didn’t know how … I didn’t know why things were the way they were – I was too little to understand. But I wanted to know why my friends had a mother and a father and brothers and sisters, and I didn’t have any of that.

I started running away from my grandparents’ house at the age of 12, and I got into PCP, smoking PCP. At age 15 I got pregnant with my daughter. My daughter was born with 9.8 phencyclidine in her system. I was charged for that – got sent to youth authority. From youth authority I graduated straight into the prison system, adult prison system, and I’ve been on parole for the past 26 years of my life.

So you can pretty much imagine, I’m very much used to institutions; I consider them my home. I had no other way of knowing there was a better life for me. I just knew that’s what I deserved and that’s where I had to be. And I kind of adapted to the prison system to where I would come out for 90 days and it was like a vacation. Coming out to the free world was a vacation and I had to go right back in again to where what I knew, and it became my comfort zone – prison.

KERNAN: Martinez is now 45, and she’s recently gotten off of parole. How common is a story like Theresa’s?

ROBIN LEVI: It’s ubiquitous. The story of incarceration, particularly of incarceration of women in this country, is an artifact of the war on drugs. When we decided to increase the penalties for drug use, for drug sale, so astronomically – we began pouring hundreds of thousands of people in the prison system. We now in this country incarcerate more people than any other country in the world, certainly more than any other western country.

KERNAN: And why is it that women are the fastest growing prison population? That’s really happened over the last two decades.

LEVI: And that is the war on drugs. So women are being caught with mandatory minimums, and judges have less discretion in terms of sentencing. In addition women are often the lowest on the totem pole; they have very little to offer in terms of a deal. So they again end up being caught and being put on a mandatory minimum on a required sentence.

AYELET WALDMAN: Let me give you two scenarios. Let’s say before we had these mandatory minimum sentences – and what a mandatory minimum sentence says is the judge has no discretion, for this weight of drugs, you are sentenced to 10 years – doesn’t matter where you are in the conspiracy, doesn’t matter if you’re the kingpin or the lowest person on the totem pole…

KERNAN: Or if you just lived in the house…

WALDMAN: If you happened to have carried a box from point A to point B, all you have to do is know about the conspiracy and commit one overt act in furtherance of it that doesn’t even have to be an illegal act.

So it used to be – let’s take it back 30 or 40 years – a woman would come before the court whose husband was a drug dealer. She is a mother of three, and was nominally involved – took a phone message. The judge would look at that woman and the judge would say, “There are three children dependent on you. It’s ridiculous to incarcerate you. You have no history of criminal offense. Your husband was the person involved. I’m going to give you probation so you can take care of your children. I’m going to give you some kind of home-monitoring. I’m going to give you drug treatment if you’re addicted to drugs.”

Fast forward post the mandatory minimum sentencing, and what happens is that judge has no choice. One of the things you cannot take into consideration are ordinary family circumstances. We had a case where a woman had five foster children who were dependent on her, and it doesn’t matter if you have five foster children who are going to go back into the system whose lives are going to be ruined. You can’t take that into consideration. Doesn’t matter if your husband was the drug dealer and you weren’t. Nothing matters except one thing: whether you can barter information for a lower sentence.

So who barters? The person higher up on the totem pole. The higher up you are, the more you know, the more people you can rat, and the more likely you are to get a lower sentence. So we have this reverse system now where the drug kingpins are going for very little time if at all and the people who are serving the longest sentence are the lowest on the totem pole. And women are invariably the lowest on the totem pole.

KERNAN: And you touched upon the fact that there are these ripple effects which is that women are often the caretakers of children – what’s happening to all of these children who are left essentially without a mom?

LEVI: More than 66%, more than two-thirds of the women in prison are primary caretakers of children under 18. And so what’s happening is that many of these children are going into the foster care system, which is not supportive in pretty much any way, and certainly not to older children coming in. And so you can try and get your child set up with a guardian, but there’s a lot of restrictions as to who can be a guardian. So if you have any violent felony on your history, whether it’s five years ago or 10, you can’t become a guardian to that child. If you have someone else living in your house who was maybe on parole, you can’t become a guardian of that child. So like I said, these children go into the foster care system.

In addition, what the Adoption and Families Act which was passed in around 1994, they’ve really accelerated the rate at which you can get your parental rights terminated. And so if you’ve got a child under three, in California, within six months your parental rights can be terminated.

WALDMAN: So effectively, your punishment for possessing drugs is losing your child forever.

KERNAN: And what I’ve heard people say is, “Well, then why did that mother make that choice?”

LEVI: Well it’s not a choice in many ways. Many of the stories in our book … we’re talking with people who before they’ve gone to prison have experienced an enormous amount of abuses in terms of a huge level of child sexual abuse, other forms of physical abuse. Their families may have experienced drug use. And they have not been given an opportunity to get over that.

KERNAN: And a lot of women from very low-income backgrounds…

LEVI: …very low-income backgrounds who are self-medicating with drugs.

WALDMAN: We don’t have a healthcare system in this country that allows people to get drug treatment. If you’re depressed, it’s a lot easier to get drugs than it is to get SSRIs. And that’s what they do.

KERNAN: California’s prison system has been under federal receivership, essentially for not providing good enough medical and mental healthcare to inmates. Let’s hear from Theresa Martinez again who really experienced a healthcare debacle when she was in prison.

MARTINEZ: So in 1997 I was diagnosed with HIV. I was tested, I was counseled by public health, I was seeing doctors. I have lab results showing HIV viral load inside my blood. So I was treated for HIV with three different types of therapies … come to find out now, there was no actual HIV virus inside my body for these medications to treat.

So I don’t know how much damage it caused me, me being on nine years of HIV therapy, and having no HIV for a target. I’ve had my gall bladder removed. I have severe liver damage. Now I’m Hepatitis C and I have viral loads sky-high. I have this question in the back of my head that just doesn’t go away: Is it true? Do I really not have it? Do I have this special strain they don’t know about that’s going to pop up later, full-blown?

I have all these doubts and these questions still in my head, and to this day I take mental health medication for paranoia and schizophrenia because I was severely damaged behind this misdiagnosis.

WALDMAN: So this prison system was using an incompetent lab that has since gone out of business. They misdiagnosed her, how many times, Robin?

LEVI: They misdiagnosed her at least several times.

WALDMAN: They kept verifying the misdiagnosis over and over and over again. I mean she can’t even sue the lab because the lab is bankrupt and gone out of business.

LEVI: And once she got told that she was not positive, the prison denied responsibility for the diagnosis on any level, even though they had told her that she had been HIV positive.

KERNAN: And that’s another through-line in this book, which is that a lot of the women have sort of barbaric experiences with healthcare, being shackled during pregnancy…

WALDMAN: Governor Jerry Brown – progressive governor, great governor – just refused to sign a law that would have precluded the shackling of pregnant prisoners. Now it’s interesting because there’s no explanation for this beyond the fact that perhaps he’s running for reelection and has to keep on his side the single most powerful political force in the California political system, which is the prison guards’ union. But to shackle a pregnant woman is so utterly barbaric that we are among the only place in the world that does this. And any woman has ever been pregnant, who has ever experienced labor – try to imagine laboring in ankle shackles.

LEVI: And actually the veto is more shocking because they’ve actually passed a law a few years ago in California in which you can’t shackle women in prison going in to give birth. This law was actually to expand it to jails. So we’ve had it in place for a few years without any trouble whatsoever, and they’re asking to expand to jails, and then the sheriffs association, which apparently is not as powerful as the California prison guards, but one notch down, went to oppose it. And Governor Brown vetoed it. And this is the second time it’s been vetoed, and they’re going to try to put it up again.

WALDMAN: It just beggars the imagination to think that a woman who is in an act of labor would what – try to escape? Would try to do physical harm? The explanation given by the organizations that oppose this law are so patently absurd. And let’s be clear: There are many, many states that have wisely and humanely banned the shackling of pregnant women. And California is … we have in the prison system, but in the jails, where most people are, and most people giving birth are, you can’t do it.

KERNAN: Women are the fastest growing prison population in the U.S. and most people listening to this have probably never been inside of a prison. I'd like to have Theresa Martinez give us a snapshot of what it's like inside of the California Women's Prison in Chowchilla.

MARTINEZ: So as you come into the unit, you've got these really big glass windows, right? Each cell has a window in front, the door is made of glass. So you see everything: the big area, the bathroom area, the shower area. The only thing covering the bathroom is the middle of the door. You have an open environment, a big open top. So you can see the person sitting on the toilet near you. It's the same thing in the shower. You can see all of your legs. Some women are short – you might be able to see their whole bodies.

There is absolutely no privacy in prison. There is nowhere you can go to change your top or go in privacy. The male officers do walkthroughs down the halls all day. It's part of their jobs – I understand that. But it's very degrading. Many times I've been sitting on the toilet and I've said, "Excuse me, can you shut the door, I'm using the bathroom please?" and they say, "I'm not trying to look at you!" They'll call you a prostitute or a bitch or say, "I'm not trying to look at your hood street ass, you're in prison, nobody is trying to look at you!" But the whole time they really are.

WALDMAN: And one of the things to understand is that more than two-thirds of these women have experienced some kind of childhood sexual abuse. So they are routinely exposed to these men watching them in the most intimate of circumstances, watching them go to the bathroom, watching them undress, stripping them. And for any woman, that experience is unpleasant. But for these women who have experienced child sexual abuse? It's traumatizing. It's re-traumatizing them every day.

KERNAN: And you're completely vulnerable because you're behind bars, no power whatsoever.

WALDMAN: And you have lots of instances of sexual abuse.

KERNAN: Sexual abuse, by who?

WALDMAN: Well here's the thing: Everyone always assumes that when you go to prison, the other prisoners are going to rape you or do something to you. For women, the truth of the matter is that when sexual abuse occurs, as it does so frequently, it is the guards, the medical officials, the wardens. Those are the people that are abusing women in prison. Not, by and large, the other women.

KERNAN: Do you think it's common? I'm worried there is a tendency to demonize the correctional officers.

LEVI: I have two things to say to that. In my experience of doing this work in the California prison system for more than 14 years, I've maybe, at most, heard of one case of a woman inside the prison sexually abusing another female prisoner. And I'm saying that to leave that open to possibility – I can't think of a specific case. I have stumbled upon dozens and dozens and dozens of situations of staff abusing women, because of the power differential in a variety of ways. Sometimes you'll hear of a basic forced rape situation. You'll have the privacy violations.

Very often you'll have sexual exchanges for favors. And these are favors like an extra phone call, or hairbrush, or shampoo. Or favors to maintain visits with your child, because guards can restrict visits with your children. And that's what you hear so, so often. I don't think we are demonizing the prison officials because that's the reality of what we've seen.

KERNAN: And you're both lawyers so you've dealt with this issue for a long time and have access and understanding of the judicial system that most people don't. What's being done to correct some of this? Is realignment the system whereby we’re going to start putting non-violent offenders in county programs or jails? What is being done to address some of this?

WALDMAN: So first of all, I want to make you understand that realignment isn't happening because there has been a realization on behalf of the government that the system we have is unfair and abusive. Realignment is not a solution to this terrible problem. Realignment is financial imperative.

But the one positive outcome of the economic disaster this country finds itself in is that this prison system that we have ourselves in is terribly inefficient financially. We spent $20,000-30,000 a year to imprison someone who committed no violent offense. And the collateral damage of having to send their kids through the foster system, and the effects of the foster system on their children. All these cascading economic consequences.

Now, with governments so strapped for cash, there's this realization like, "You know what? Now we might have an improved system that improves public safety that actually saves us money.”

LEVI: This is an opportunity to encourage governments to put their money in more effective ways. And realignment can hopefully be that. It's important to keep our eye on that to make sure that realignment doesn't send people from the California prison system to the county jail system.

WALDMAN: And that's also an overcrowded, underfunded and terrible system, collapsing under the weight of its own overpopulation.

LEVI: Also, there's far less oversight in county jail than the California prison system. And it's way more difficult to try to address abuse in the county jail system.

What we want to do is send people back into their communities, and to do it in a way that's much more cost effective, that allows them to reunite and rebuild their families. That's something that Justice Now is working on, and the ACLU of Northern California has been very active in saying that it's a great first step. And that's something that we, too, as citizens here need to make sure that we are having our voice heard at county levels. We don't want to expand the jail system; we want to put people into alternative living arrangements that allows them to be closer to their families, get the parenting skill sets they need, the drug rehabilitation they need, the therapy to deal with the sexual abuse and domestic violence they have experienced. If we don't address any of those things we aren't going to have any long-term change.

KERNAN: This is a really hard book to read. It's hard to see this stuff, to know what's happening, to hear the voices of these women. What do you want listeners to know?

LEVI: I think the most important thing to realize is that people in prison, mean and women, are not a kind of "other" that need to terrify you. I think every time I leave the prison from visiting someone, I have this overwhelming sensation of, “There but for the grace of good fortune and economic security, go I.”

The people in prison are just people. They aren't terrifying. The majority of them are not dangerous.

I think it's almost a truism to say that you can judge a society by the way it treats the most powerless. We as a society have chosen to abuse so profoundly the people who have the least power. A woman who was sexually abused as a child, who committed a non-violent offense, who lost her children, who's incarcerated now for decades, like Theresa. Theresa entered the prison system in her late teens and she's now getting out in her 40's and she never, ever committed a violent crime. She committed property offenses and prostitution offenses, but this is someone we've chosen to incarcerate under horribly abusive circumstances for over 20 years.

I don't recommend reading the book in one night. I recommend reading the stories one by one. I think that if your compassion is not awakened by it, there is something deeply wrong with you.