Reforming the criminal legal system has been a persistent rallying cry among advocates, a growing number of prosecutors, and some lawmakers.
At the height of the pandemic, there was a 37% drop in the jail population of girls and women. Stay-at-home orders and slowdowns to routine court proceedings contributed to the decrease, according to 2021 data analyzed by Prison Policy Initiative in its bi-yearly report, “Women’s Mass Incarceration: The Whole Pie,” that was released on Wednesday. But as the criminal legal system returned to regular operations, the number of incarcerated girls and women climbed 22% and back to pre-pandemic numbers, according to the report.
The report underscores the decades-long repercussions of the war on drugs and the disproportionate impact on Black communities. Harsh sentences for low-level, nonviolent drug offenses sent many Black men and boys to federal and state prison at record-setting rates. Over time, those same laws hit Black girls and women, too.
There are 172,700 women and girls incarcerated in jails and prisons across the country, according to the report. That includes nearly 27% — 46,300 — who haven’t been convicted of a crime and either cannot afford or were denied bail. Of that percentage, 14,000 are waiting to go to trial for a drug-related offense.
Although those figures don’t compare to the number of incarcerated men, more women are being introduced to the criminal legal system, in part, because of the country’s continued war on drugs, according to the report.
Between 2005 and 2019, the number of women incarcerated in local jails climbed from 94,570 to 110,730, while the population of men fell to 623,730 from 652,960, according to the Bureau of Justice Statistics. As of 2020, there were 95,000 men and 18,000 women held in jail for a drug-related offense, according to a separate report from the Prison Policy Initiative.
“During the height of the war on drugs, especially in New York City, whole communities and families were getting swept up into indictments with 50 co-defendants,” said Andrea James, founder and executive director of The National Council for Incarcerated and Formerly Incarcerated Women and Girls. “So when you think about the absolute devastation that the criminal legal system has had in — and the disruption that it has caused — in Black communities, this is it.”
Why are Black women and girls disproportionately impacted?
James recalls that when she was incarcerated in 2010, she was surrounded by other Black women — some from the same family — who received life sentences for a first-time drug offense or the mandatory minimum of 10 years because of the tough-on-crime conspiracy laws associated with drug-related crimes.
“We have never stopped seeing the entanglement of Black women in the criminal legal system because of drugs — drugs being at the root of their purpose for them being arrested, prosecuted, and incarcerated,” said James, a former defense attorney who served time in a Danbury, Connecticut, federal prison for a financial crime.
There are more women incarcerated in federal and state prisons for drug-related offenses than other violent and nonviolent crimes. Of the 72,000 women in state prison, there are more convicted of drug-related crimes than murder and manslaughter convictions combined, the report shows. In the federal prison system, there are 14,000 women — that includes 7,000 convicted of drug-related offenses.
“Black women are also at greater risk of being criminalized not just for our own actions, but also for the alleged drug-related offenses of people around us, as the tragic killing of Breonna Taylor showed us in 2020. Police raided her apartment, not because of her own actions, but to arrest a man they suspected for drug sales, a man with whom they believed she was in a relationship [with],” said Sydney McKinney, executive director of the National Black Women’s Justice Institute.
Louisville, Kentucky, police were investigating Taylor’s ex-boyfriend, Jamarcus Glover, prior to executing a no-knock warrant at her home. Glover was taken into custody at a separate location and later confirmed that Taylor has nothing to do with his drug-trafficking activities.
Getting a full picture of the race, ethnicity, and self-identifying gender classification of the people behind these offenses has been a challenge because “the data do not exist,” the report revealed. However, based on general demographics of incarcerated people who identify as a woman, the report revealed that “overall Black and American Indian/Alaska Native women are markedly overrepresented in prisons and jails.”
“While we are a long way away from having data on intersectional impacts of sexuality and race or ethnicity on women’s likelihood of incarceration, it is clear that Black and lesbian or bisexual women and girls are disproportionately subject to incarceration,” the authors of the report wrote.
A public information request filed by Capital B to the Federal Bureau of Prisons revealed that as of Aug. 20, 2022, nearly 40% of the 1,643 individuals who identify as a Black woman were convicted of drug-related offenses.
Another factor in the jail population of girls and women is that about 10% of the population are convicted of low-level crimes that often result in sentences of less than a year, meaning they are sent to jail rather than prison.
The ripple effects of criminalizing drug use
In recent years, lawmakers have sought to rectify the effects of the 1990s criminal laws that disproportionately affect Black and Hispanic communities. Some states passed laws that ended prosecuting small amounts of marijuana, and President Joe Biden pardoned over 6,500 people with prior federal simple marijuana convictions.
Yet, of the 1,052,101 “drug abuse violation” arrests police made in 2019, more than a quarter were Black people, according to the FBI’s 2019 Crime in the United States report.
U.S. Rep. Hakeem Jeffries, D-N.Y., introduced the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act that aims to end sentencing individuals for a small amount of crack cocaine the same as if it was a larger quantity of powdered cocaine. That bill has lingered in the Senate since September 2021.
Reforming harsh sentencing guidelines and giving incarcerated people the opportunity to reduce their crack cocaine possession sentence through the 2018 First Step Act has benefitted a small portion of the federal prison population.
“The war on drugs has fueled imprisonment rates for women, especially Black women,” McKinney said. “Given that substance use disorders are more prevalent among incarcerated Black women, it stands to reason that they are disparately impacted by drug-related arrests.”
“Women are proportionally more likely to be serving a sentence of incarceration for a property or drug offense and less likely to be incarcerated for a violent offense when compared to men,” the report found. “These differences mean that women are more likely to be sentenced to a term in jail, where people typically serve shorter sentences of up to one year.”
What most of the reform efforts fail to address are that people thrown into the criminal legal system may already struggle with drug addiction. Prisons and jails are not a place for people to go to for recovery or rehabilitation, James said.
“That approach of criminalizing drug use is a colossal failure in this country.” There are drugs in jails and prisons, too, James, noted.
More education and health care resources are needed to pour into the communities mostly affected by drugs in order for the war on drugs to truly end, advocates said.
“When you throw people into prison, there’s no accountability. We have women coming out every day who have sat down for 10 years and go right back into the illness of addiction and go right back into the behaviors that landed them in these very long sentences,” James said.
Through the National Council for Incarcerated and Formerly Incarcerated Women and Girls, James said they provide reentry service for women that includes housing with free rent for a year “so that they can get on their feet, because otherwise they would just become homeless.”
Unfortunately, she says, “There’s no tolerance for people who are still using. … We need to decriminalize drugs in this country, and until we do, we’re just going to have this steady cycle of people being incarcerated for drugs.”
A previous version of this story mischaracterized the increase in women and girls who are incarcerated. Although the numbers had been increasing for a long time, there had been a decline overall before 2020. The numbers dropped even more during the height of the pandemic, but there’s been an increase since 2020.
