Statement and Recommendations to the United States Commission on Civil Rights - Women in Prison: Seeking Justice Behind Bars

How are women treated in prison, and what can be done to ameliorate the problems? Prison systems are not ‘good’ for anyone, even as evidence is mounting that women are underserved in prison. The experiences are not binary: women and men of all colors, classes, and ages experience the problems of prison in different ways. These issues were explored when, in February of 2019, the U.S. Commission on Civil Rights held a briefing, Women in Prison: Seeking Justice Behind Bars. This abstract summarizes the testimony submitted by Judith Resnik, Ali Harrington, and Molly Petchenik on behalf of the Arthur Liman Center for Public Interest Law at Yale Law School. The comments from all twenty-one presenters can be found online. As summarized below, the Liman Center statement focused on the impact on women in federal prisons of the use of solitary confinement, implementation of the 2018 First Step Act legislation, the practice of incarcerating prisoners at great distances from their communities and families, and state statutes aiming to improve the treatment of women in prison. For the last several years, the Federal Bureau of Prisons (BOP) has had a policy of placing prisoners, to the extent practicable, within 500 miles of their homes. The First Step Act echoed this BOP policy. That distance imposes huge burdens on prisoners, and especially on women in confinement. As of 2019, the federal prison system had 133 facilities around the United States. Twenty-nine housed women prisoners. A 2018 report found that 62% of state prisoners and 84% of federal prisoners who were parents were incarcerated 100 miles or more from home. The Liman Center proposed that legislation is needed to limit the placement of federal prisoners, absent extenuating circumstances, to 75 miles from home. The Liman Center also raised concerns about the use of solitary confinement, a subject about which the Center has written a series of reports with the Association of State Correctional Administrators (ASCA), an organization comprised of the leaders of U.S. corrections agencies. As is common in corrections, the reports use the term “restrictive housing” to denote all forms of placement in cell for an average of 22 hours or more, for fifteen days or more. Two new ASCA-Liman 2018 reports are Reforming Restrictive Housing, SSRN ID 3264350, and Working to Limit Restrictive Housing, SSRN ID 3264366. Based on survey responses from 43 jurisdictions providing data on 1.1 million prisoners, we identified 49,197 individuals in restrictive housing as of the fall of 2017. Given those numbers, we estimated that, of the total of 1.5 million people in prisons as of 2017, some 61,000 people were held in solitary confinement across the country. Thirty-two jurisdictions responded to the 2017 survey with information on gender. In those jurisdictions, about 66,000 women were in prison, and some 800 women were in restrictive housing. The Liman Center recommended that the Civil Rights Commission call for the abolition of solitary confinement, and, in the interim, for compliance with the 2015 United Nations Standard Minimum Rules for the Treatment of Prisoners, also known as the Nelson Mandela Rules. These provisions classify “confinement in excess of 15 consecutive days” among the “restrictions or disciplinary sanctions [that] amount to torture or other cruel, inhuman or degrading treatment or punishment,” and that “shall be prohibited.” The Nelson Mandela Rules state that solitary confinement up to 15 days shall “be used only in exceptional cases as a last resort, for as short a time as possible.” The Liman Center urged oversight of the 2018 First Step Act, federal legislation that requires women to receive necessary hygiene products and that prohibits restraints on pregnant women. The statute does not build in means to ensure implementation. Further, while providing for more educational and vocational opportunities, resentencing, and potential release, the First Step Act creates no mechanisms to assess whether prisoners receive equal treatment and obtain the benefits of the legislation. The Liman Center recommended oversight hearings and the creation of a national, government-funded Institute on Women in Prison with the capacity to gather data and report annually on the numbers of women and men of what ages, gender identities, races, and ethnicity in detention. The Liman Center also submitted its survey of state legislation since 2018 to promote what many statutes call “the dignity” of incarcerated women. These laws include bans on shackling pregnant women, provision of hygiene products at no cost, increased programs for parents, improvements in medical care, restrictions on staffing of women’s facilities, and implementation of gender-informed policies and programs.