Excluded: Gender and Jim Crow in The U.S. Criminal Justice System
By: Sophie Campbell
Tags: Society, Women, Gender Equality, Politics, Racism

Tracing the historical contributions made by Black, Indigenous, Women of Color inside the prison-industrial complex.

Figure 1. Photo by Marten Bjork on Unsplash

On the eve of the 2020 US presidential election I find myself talking to Kelsey, a young woman from rural Wisconsin. Kelsey is a pseudonym and our conversation is taking place under the proviso that I keep her identity confidential. Kelsey was one of the many formerly incarcerated students from Lac Courte Oreilles Ojibwe Community College, based in Sawyer County, who responded to a call out to aid me with my research. As a former prisoner myself, I was keen to learn more about the iniquities experienced by other Black, Indigenous, Women of Color in the criminal justice system whose stories are often marginalised.

Despite the late timing and the fact that she has only had a short time to decompress following a busy day at work, Kelsey is bright, funny and engaging. Had I not been to prison myself, I would immediately have been taken aback from the moment she turned on her camera during our Zoom call. She is the very antithesis of what you expect a former female prisoner to look and sound like. Both of us are painfully aware of the ‘façade’ that society expects female offenders to conform to: either mentally unstable, prone to anger or just plain needy. The last two habits are easy to pick up when you’re placed in an environment where you have to rely on guards for ordinary items that are treated as luxuries on the inside; this includes everything from sanitary towels, toilet roll to underarm deodorant. I can still remember the first time I met with my college mentor who guessed I would come under the plain needy heading by virtue of being a woman. Unlike male offenders, women who have been to prison are assumed to be emotionally damaged, if not at the start of their sentences then definitely by the time they have finished paying their debt to society. While this presumption makes it easy to win the sympathy vote, especially from the small number of organizations that specialize in helping female offenders cope with trauma, you’re often met with indifference by the same organizations if you present as being well adjusted and resist their attempts at infantilizing you. My college mentor, probably mistaking my happy-go-lucky attitude for a front, grew increasingly frustrated when I proved reluctant to share all that I could about my time inside despite me having left prison a good nine months before. Most female offenders that I know choose to keep quiet about their sentences because often they’re given very little opportunity to do anything more apart from playing up to the stereotype of the former prisoner made good.

Sentenced to under two years, Kelsey made the deliberate decision to treat going to prison as a ‘learning opportunity’, enrolling in in-prison courses such as parenting and criminal justice classes. If she’s aware that she’s the exception — according to a 2016 study the average rate of recidivism among former Wisconsin female inmates stands between 25 and 30 per cent — she doesn’t give it away. While acknowledging that ‘there is a stigma’ against women who have been to prison which affects their ability to find suitable employment or even take out car insurance, when she walked past those prison gates for the final time, she told herself with absolute conviction: ‘I’ve been to prison. I’m done with it.’

Later that night when I’m in the middle of transcribing Kelsey’s interview, I can’t help myself from saying aloud ‘good for you’ every so often whenever I relisten to Kelsey discussing the obstacles she had to overcome to land a good job and resume her studies that, like myself, she accomplished in a relatively short space of time. Stories about incarcerated women of color are rare and when they are featured in the news usually it’s a semi-humorous account of a former prisoner who gets caught shoplifting hours after her release. Or a report of the violence being inflicted on incarcerated women. Before I had experienced prison myself, I remember reading a story of a newly arrived prisoner who had to be held down while officers sliced off her clothes because she refused to take them off herself. Apparently, the officers involved hadn’t bothered to explain why she couldn’t take the clothes she was wearing with her to the housing unit and responded with physical coercion when she resisted. The story made an impression on me for about five minutes before my attention was caught by the article underneath it. However, I probably wasn’t alone in reacting like this. The most powerful advocates for prison reform tend to be those who have been directly affected by it. It’s amazing how indifferent you can be to the suffering of others when they’re portrayed as being irredeemable or hopelessly tragic.

Whenever I tell people that the US has the highest female incarceration rate in the world I’m treated to mostly blank expressions. This is despite the fact that it is a trend that shows no signs of abating, with roughly 213,000 women incarcerated in jails while a further 1.2 million women are under the supervision of the criminal justice system. Unsurprisingly, women of color are disproportionately more likely to be imprisoned, with Black women representing the fastest-growing group of prisoners while Native prisoners are the largest group per capita. In Wisconsin alone the female Native population has more than doubled since 2000.

Inside, there were times when I felt as though I was literally being disappeared alongside thousands of other black and brown women, whenever I was told to put my books away because my prisoner status meant that my life was effectively over so why waste everyone’s time by attempting to improve myself. It wasn’t until I was released that I realised that American prisons are actively disappearing human beings, the main victims being women from low-income backgrounds or racially marginalised communities. This deliberate act of disappearing takes two forms: disenfranchisement and discrimination. Presently, one in every fifty Black women is ineligible to vote because of their criminal record. The data for Native and Hispanic women is unknown given the lack of research in this area despite their high rate of incarceration. However, the aggressive targeting of women of color by our criminal justice system also subjects them to legalized discrimination in employment, education, and housing. This ensures female offenders continue to have worse socioeconomic outcomes in comparison to their male counterparts. Women of color are disproportionately more likely to be single mothers, and households led by this group are more likely to be living in deep poverty: 48 per cent for Native women, 42 per cent for Hispanic women and 40 per cent for Black women. However, the discrimination these women will encounter once they’ve finished their sentences allows for the intergenerational transmission of poverty from them to their children, that will affect their access to adequate education, healthcare and even housing. I still remember that sensation of dread when I was applying to different colleges shortly following my release, wondering like Kelsey: ‘What happens if I declare?’ While some of these issues can be addressed before a woman is released, both Kelsey and I found we were on our own as soon as our sentences were served even though most female prisoners cite employment, education and life skills services as being their greatest area of need. In my case, I was told only the day before my release date that I’d be released homeless despite receiving assurances from the prison casework team during the last few months of my sentence that they would arrange for me to go into temporary accommodation. As a black or brown woman, these barriers are still felt years after you’ve served your time. One married student I spoke to, Liseli, who also attends Lac Courte Oreilles Ojibwe Community College, told me that she ‘got denied twice this week for apartments’ due to her criminal history. This deliberate disappearing of women like me was one of the main reasons why I chose to reach out to former prisoners. To find out why, and exactly whose purpose it serves. My search took me back to the beginnings of the American penal system.

Figure 2. Spivak, John. L, Convict Leasing, Children, 1903. Source: Wikimedia Commons, https://commons.wikimedia.org/wiki/File:Convict-leasing_children.jpg. This file is licensed under the Creative Commons Attribution 4.0 International license.

The Thirteenth Amendment to the United States Constitution may have abolished slavery in general terms but made an exception for prisoners who could be legally transformed into ‘slaves of the state’.[i] This led to the rapid expansion of convict leasing, a system of forced penal labor in which the Southern states leased prisoners to commercial entities such as private railways and coal mines. This enabled the state to exert control over the physical bodies of formerly enslaved African American men, women and children whose free labor helped to rebuild the fledging Southern economy. In the case of Alabama, the total revenue derived from convict leasing increased from 10 per cent in 1883 to 73 per cent by 1898. The traditional narrative contends that convict leasing disproportionately targeted Black men who were arrested for criminal acts such as vagrancy or violating the Black Codes that included ‘walking without a purpose’ or ‘walking at night’. However, Mary Church Terrell (1863–1954), an African American civil rights activist and suffragette, once declared Black female prisoners to be the principal victims of the convict lease system.[ii] Throughout the eighteenth and nineteenth centuries, Black women continued to outnumber Black men in prison, 47.5 per cent to 29 per cent. In states such as Virginia, Black women were classified as ‘field laborers with a productive capacity equivalent to that of men’, meaning they were just as likely to be arrested when seen out in public, and once sent to convict lease camps were made to dress in men’s clothes and perform manual labor, such as building railroads, digging ditches and growing cotton. No provision was made for the separation of men and women, which made women vulnerable to sexual abuse from the officers and male inmates. In the convict camps, where the manacled prisoners were housed, the ritual of publicly whipping half-naked Black women, who were made to stand in a sexualised stance with their heads placed between the overseer’s knees, prevailed.[iii] Any children born to them often found themselves trapped performing hard labour alongside their mothers. Those who refused to work, including children under the ages of ten, were punished, or in some cases beaten to death. Death rates among leased convicts were ten times higher than the death rates of prisoners in non-lease states in part due to the inhumane conditions they were forced to work in, and the physical abuses inflicted on them by the authorities that necessitated the creation of secret graves to conceal the high body count. Women in the convict camps endured conditions that were harsher than those they had experienced under slavery, as the private companies had no ownership interest and prisoners could be replaced at low cost. Despite public outrage that stemmed mainly from prominent female members of the African American community, convict leasing was defended on the grounds that it could bring about ‘the rehabilitation of an incarcerated person’, but rehabilitation was strictly reserved for those deemed capable of reform — white prisoners.

When the convict system was finally eliminated in 1908, it was replaced by the chain gang, where a group of prisoners dressed in white and black striped uniforms were chained together and forced to perform manual labor such as breaking rocks or building railways. When we think of the chain gang, just as we do with convict leasing, we tend to visualise Black men who were portrayed in songs such as Sam Cooke’s Chain Gang as ‘working on the highways and byways’ until ‘the sun is goin’ down … moanin’ their lives away’. However, the painful sounds of women on the chain gang, who up until 1936 were made up entirely of women of colour, could also be heard.[iv] These women were shackled together and made to carry out back-breaking work in public that had the effect of making female deviancy synonymous with ethnic-minority women. On the rare occasion that white women were sent to convict lease camps or chain gangs (between 1908 and 1938 only four white women were sent to Georgia’s chain gangs in comparison with nearly 2000 Black women), they were given light work such as mending uniforms, or they were released early. They were spared from wearing irons that could weigh as much as nine pounds that not only meant falls could prove fatal, often injuring several women at once, but the irons caused some women to suffer from shackle sores, gangrene, and other infections. Despite their gender, punishments continued to be as brutal as those carried out under convict leasing.

Although the chain gang was generally disbanded in the mid-twentieth century, that did not stop the Sheriff Joe Arpaio of Maricopa County from reintroducing it in 1995 to Estrella’s female prison before it was eventually disbanded once more nearly a decade later. The chain gang may have fallen out of vogue but heavy-handed methods continues to persist. Even when I was in prison, I would witness groups of male guards surrounding a sole female prisoner who had either answered back or refused to work. In no time at all she would then be jumped on by multiple men and pinned faced down to the ground while the female guards stood back and watched. Strip searches, though carried out by female guards, were common and often ordered by male guards intent on punishing and intimidating women who either offended them or refused their sexual advances.

The 1908 Parole Act may have allowed prisoners back then the possibility of escape, although under parole, female prisoners were often placed with white families and obligated to perform hard domestic labor. However in most cases the women learned they had swapped one prison for another, with the warden now a white housewife who had the power to send them back to prison for minor transgressions. In some ways, this practice of confining female prisoners of color to the fields or a white household was a reaction to the Great Migration that saw six million African Americans migrate from the rural and urban South to the urban North from 1916–1970. Fears of a labor shortage followed, particularly in relation to Black women, who were needed to perform domestic service, leading to disproportionate rates of arrest and imprisonment among women of color. Convict leasing, the chain gang and parole had the effect of permanently associating Black women and those from other ethnic groups with low pay, hard labor and degradation. This even applied when prisoners achieved positions of responsibility, such as Georgia’s Mattie Crawford, who was made ‘sole blacksmith of the farm’ having been sentenced to life imprisonment for killing her stepfather who was abusing her.[v] Her status as a prisoner meant she would forever be stranded between ‘a free labor market that refused to admit her as a skilled worker’ and the prison labor system ‘that would only allow her to work in chains’.[vi] When women of color attempted to stray beyond these boundaries either they were arrested and ‘made to construct and maintain the very same roads upon which they were policed’ or harassed until they either quit or were fired.[vii] A case in point is the Fulton Bag and Cotton Mills Strike of August 1897, when the white female workers objected to the hiring of twenty Black women despite ‘multiple failed attempts to hire white women for these jobs’.[viii] Despite the fact the Black workers would have been stationed in a separate corner of the factory far away from their white employees, the company’s owner had crossed racial lines by hiring Black women to carry out the same jobs as his white female employees. In the end, the Black workers were dismissed.

Throughout the evening when I was speaking to Kelsey, one thing we definitely agreed on was that prison was ‘definitely not rehabilitative’. Whether it was seeing women who threw tantrums being rewarded for their behaviour or having to play the waiting game whenever we identified opportunities that we thought could help us to better ourselves, prison did not seem rehabilitative to us. In the end, Kelsey was only able to identify two prison programs that led to viable routes of employment: the cosmetology program and the construction program. Both ran for two years, but a woman needed to have been in prison for a minimum of two years before she could be placed on the waiting list; this meant prisoners with sentences of four years or less were ineligible to apply. In relation to the jobs women could do around the prison, there was a choice between ‘kitchen work and janitorial work’. Laundry, I’m told, was the highest paid at ’47 cents a day’ and geared towards the lifers who liked the routine.

This practice of restricting women to courses or employment that tie them to low-paid or unskilled labor extends beyond Wisconsin. In Texas there are twenty-one job-certification programs available for male offenders that include technology and advanced industrial design. For women, there are only two programs: office administration and culinary arts. When I was in prison, I was given a stark choice between training to be a hairdresser or becoming a cleaner. Had I not achieved a high level of education prior to my imprisonment, my inability to handle a backcombing brush let alone a blow-dryer would probably have sent me on a downward spiral. Like most women, my background or my hopes for the future were not taken into consideration, and while we could in theory apply to undertake distance learning degrees in subjects such as Business and Accountancy, this very rarely happened. In my experience, women were only encouraged to take up learning activities that prepared them for jobs that were dull and repetitive, or in the case of the beauty industry, badly paid. While there were exceptions, opportunities that allowed for academic advancement that went beyond the basic level were usually handed out to white prisoners. Unfortunately, women of color are still presumed to be illiterate, slow learners or simply unworthy of teaching. I can still recall one episode when a judge who was brought into the prison to chair a disciplinary hearing, immediately began to spell out the name of the month in a long, drawn-out way designed to put me in my place when I asked when the next hearing would take place, despite him having witnessed me taking down detailed notes throughout our session. However, that barely compared to being asked by a visiting solicitor whether I was literate despite informing her that I was employed as a library orderly at the time. Even external employers that worked with the prison exercised different recruitment practices for female prisoners depending on the color of their skin. One semi-luxury hotel that has chains across the country had an unofficial policy of recruiting white female prisoners to work in their more upscale locations while consigning ethnic-minority women to their less exclusive urban centres that tended to have fewer vacancies. They defended their policy on the grounds that ethnic-minority women work better in diverse settings, refusing to even let them work in their more luxurious chain on a trial basis. I cannot help but think that prisons today replicate ‘the racial apartheid social structure’ of our early prisons, consigning women of color to perform jobs that no one else wants or denying them opportunities altogether.

Even when female prisoners are trained like Mattie Crawford to perform skilled work, they are still caught inside the trap of the prison-industrial complex. Nowadays, even training in making circuit boards or lingerie for luxury brand Victoria’s Secret does not earn a female offender equal rights to fair treatment. She is prized when her labor means ‘no strikes. No union organizing. No health benefits’ or ‘unemployment insurance’ and discarded once her chains are lifted and she demands to be treated like an ordinary employee.[ix] It makes returning to prison look like the easy option. Currently, 66 per cent of women released from American jails are rearrested within three years. When women attempt to break the cycle of reoffending, they find the odds stacked against them. Some 93.3 per cent of these women are actively looking for work, however 75 per cent of employers have admitted to legally discriminating against them. Formerly incarcerated Black, Hispanic and White women have an unemployment rate of 40 per cent, 39.42 per cent and 23.20 per cent respectively, compared to 6.4, 6.9 and 4.3 per cent of Black, Hispanic and White women who have no criminal convictions. I am still unable to find data on how unemployment impacts on formerly incarcerated Native women. However, the unemployment rate for other former incarcerated women of color, who are often of prime working age, exceeds that of men from the same ethnic backgrounds. When formerly incarcerated women of color do find work, it is more likely to be part-time and with an income that pays way below the poverty line irrespective of prior experience or educational qualifications. In the prison I went to, some women nearing the middle or end part of their sentences could work outside for companies that had existing relationships with the prison. Of course, they were paid significantly less than their never-been-to-prison colleagues and worked in industries staffed by poor immigrants or ethnic minorities that experienced very high turnovers. Very few of these women managed to secure permanent employment with these companies after their release and it was taken for granted that if we did find jobs, it would be for companies where we would have no bargaining power as we would be expected to be permanently grateful for being hired in the first place.

Most of the women I spoke to from Lac Courte Oreilles Ojibwe Community College left prison feeling positive. Kelsey cited the education she’s receiving as keeping her on track: ‘Without education I would not be as stable nor as successful as I am today. Education has given me opportunities, especially when staying busy was essential.’ Even Liseli, who’s had difficulties finding a home to rent for her family, confided in me that she wouldn’t ‘change that prison time for the world. I used that time to learn, change, grow’. However, I’m painfully conscious that I and the women I spoke to are a minority within a minority. As women of color who have been to prison, the lives we’re living now should not be so positive, at least not according to the statistics. When I left prison there were many officers who believed I would end up right back where I started — in a cell. At the time of leaving I had no home and no identifiable employment prospects. While having a positive mindset helps, perhaps the fact that Kelsey, Liseli and I were all old enough to know who we were when we went to prison and what we were capable of, meant we paid no attention to the low expectations other people had of us.

However, sometimes when I walk around my local neighbourhood and see groups of young girls, I wonder what life may have in store for them. Girls of color are becoming increasingly more vulnerable to criminalisation. Black girls in the US are three and a half times more likely to be incarcerated than white girls, while Native girls are four times more likely to be incarcerated, and Latina girls 38 per cent more likely. Often these girls will be incarcerated for low-level offences such as truancy and running away. However, a criminal record even at a young age often locks them out of the labor market, making them more susceptible to falling into a life of crime and poverty as they grow older. Most of the young girls I spoke to in prison, who were barely eighteen, seemed resigned to living life on the margins once they finished their sentences. Locked out of learning anything that could prove useful to them on the outside and taunted by guards and even members of their family who told them no decent employer would ever hire them, it was hardly surprising that many of them fell under the influence of older prisoners and believed the only way they could make decent money would be through selling drugs or their bodies. Prison represented a decent recruiting field to many career criminals who took advantage of girls’ fears about their future, bragging openly about the luxury lifestyle a life of crime had netted them, though as Kelsey summed up perfectly, ‘Nobody knows who anybody is outside of the prison.’

When the Black Lives Matter protest erupted during the summer, like most people, I thought we were entering a new era of race relations, where society would be held accountable for the discrimination experienced by people of color, especially within the criminal justice system. However, the lack of testimony from women trapped in the prison-industrial complex whose sufferings continue to be ignored by society, has made me aware of the disregard we’ve always shown to incarcerated women of color who became the silent victims of the racial apartheid that emerged following the abolition of slavery. To embrace women of color in debates surrounding Black Men and mass incarceration does not dilute the issue but rather strengthens it. We cannot right the wrongs of a discriminatory criminal justice system and achieve racial equality if women continue to be left out of the conversation just as they have been for centuries.

References

[i] LeFlouria, Talitha, Chained in Silence: Black Women and Convict Labor in the New South (Chapel Hill: University of North Carolina Press, 2015), 8.

[ii] Haley, Sarah, No Mercy Here: Gender, Punishment, and the Making of Jim Crow Modernity (Chapel Hill: University of North Carolina Press, 2016), 134.

[iii] Ibid., 92.

[iv] Ibid., 4.

[v] LeFlouria, Talitha, Chained in Silence: Black Women and Convict Labor in the New South (Chapel Hill: University of North Carolina Press, 2015), 4.

[vi] Ibid.,

[vii] Haley, Sarah, No Mercy Here: Gender, Punishment, and the Making of Jim Crow Modernity (Chapel Hill: University of North Carolina Press, 2016), 35.

[viii] Ibid., 63.

[ix] Davis, Angela. “Masked Racism: Reflections on the Prison Industrial Complex,” History Is A Weapon. Accessed Nov 4, 2020, https://www.historyisaweapon.com/defcon1/davisprison.html.