In countries across the world, punitive policies are contributing to serious prison overcrowding issues, with many national prison systems holding more than double their official capacity. And what’s more is that the number of women in prison is growing at a faster rate than men.
Part of the problem is incarceration itself: instead of deterring repeat offenses, prisons act as ‘schools of crime’ that increase the likelihood of women prisoners to re-offend. Prisons function to isolate offenders from their family support networks, reduce job skills, and harm the mental health of offenders. By contrast, non-custodial measures have routinely proven to prevent recidivism and lower the number of women in prison. In 2010, the United Nations issued The Bangkok Rules, which advocates for non-custodial measures for women prisoners partly because of this interrelation between prisons and recidivism : “The failure of imprisonment to address the underlying factors leading to offending behavior by women is reflected in the increasing rate of re-offending among women in some countries.”
Substance abuse and mental health disorders are among the primary factors leading to the incarceration of women. To give just one example, The Greenhope Services for Women, an organization based in New York that provides substance abuse and mental health treatment to women offenders reported that 100% of its service users suffered from substance abuse and 70% from mental health related trauma. In addition to substance abuse and mental illness, other factors that contribute to re-offending and rising rates of women in prison include homelessness, unemployment, and loss of family support structure.
Implementation of Non-Custodial Measures for Women Offenders in US States
With the realization that prisons often serve to reinforce criminality rather than treat it, several states across the US have implemented non-custodial measures to limit the public cost of recidivism by addressing the root causes of female incarceration. Alternatives to custody include jail diversion, work release, electronic monitoring, fines, community service orders, substance abuse and mental health treatment, family reunification, and housing assistance. In general, non-custodial measures can be flexibly administered before an offender is placed in jail, before placement in prison, or after serving some time in prison.
Dui Hua researched the alternatives to custody available to women offenders across different US states. Figure 1 is a non-exhaustive summary of the different non-custodial measures that are implemented at the state level or below in the US:
Figure 1. Selected Non-custodial Measures for Women in Prison in US States
|Type of Non-Custodial measure||What Stage is the Non-Custodial Measure used?||Non-Custodial Programs Can Include the Following Features||States in which measures have been utilized (non-exhaustive)|
|Jail diversion/furlough, including for pregnant women; substance abuse and mental health treatment||Pre-custody||Officials including local police help identify mental illness or substance abuse issues in suspected offenders and provide treatment instead of incarceration.||MA, NY, OK (Tulsa), NC, NY, IL|
|"Intermediate" sanctions||Pre-custody||Substance abuse programs offer "accountability"/harsher sanctions if substance abuse treatment/attendance goals are not met.||MA|
|Home detention/electronic monitoring||Pre-custody||Instead of prison, offenders serve sentences in specific residential locations, but offenders are required to submit to monitoring by electronic or GPS devices.||CA|
|Gender-specific program||Pre-custody||Specific "women’s track" programming aims for a gender and culturally responsive approach to women offenders.||MA|
|Work release||Pre-prison (i.e., in-jail)||Offenders are allowed to leave custody for specified periods of time to work or perform community service.||CA|
|Mental health treatment||Post-prison||Programs offer comprehensive residential treatment, day treatment, or outpatient programs; non-profit organizations can act as service providers.||NY, CA, CO|
|Substance abuse treatment||Post-prison||Programs designed to assist women offenders who have ongoing struggles with addiction.||NY, CA, PA, WI, CO, AL, AZ, MI, NJ|
|Employment coaching/job training||Post-prison||Programs aim to prepare candidates for job interviews and employment; non-profit organizations can act as service providers||NY, WY, PA, KS, IL, WY|
|Early release for prisoners, with family reunification||Post-prison||Residential programs designed to help prisoners serve limited portions of prison sentences in a non-prison residential facility; children of offenders allowed to live with their mothers.||CA, MA|
|Housing assistance||Post-prison||Programs help released offenders find safe and affordable housing; non-profit organizations can act as service providers.||NY, PA, KS, MO, IL, MD|
|Broad re-entry to society||Post-prison||Programs do not specialize in particular areas, instead providing general assistance to women recently released from prison.||MI, MD, IL, MN, TX, NY, PA, VT, CA, NY, FL, NY, AZ, NC, MO, RI|
This analysis, in combination with data on women and girls collected by The Sentencing Project, suggest that non-custodial programs tend to offer greater services, at various stages of women’s conflict with the law, and in states that have done a better job of keeping women out of prison. In states like Massachusetts, for example, the emphasis on non-custodial measures appears to contribute to its low rate of incarceration—only 15 per 100,000 women are imprisoned. For context, the average rate of women in prison across all US states is 58 per 100,000, and the state with the highest rate, Oklahoma, incarcerates 142 out of every 100,000 women. The rate of incarceration for women across US states by The Sentencing Project, as of 2014, is provided in Figure 2:
Figure 2. Highest and Lowest Female State Sentencing Rates (per 100,000), 2014.
In addition to the benefits of applying a gendered perspective to incarceration, a youth perspective also yields a better understanding of the benefits of using non-custodial measures. Similar to the variation in the treatment of women offenders throughout the US, there is large variation among US states regarding the treatment of girls in conflict with the law. The national rate of incarceration for female juvenile delinquents is 50 per 100,000; in Wyoming, 209 girls are incarcerated per 100,000; by contrast, in Massachusetts, only 10 per 100,000 are incarcerated.Figure 3 presents rates of incarceration of women prisoners for the top five and bottom five states, by rates of their confinement of girls.
Figure 3. Highest and Lowest State Rates of Confinement for female juvenile prisoners (per 100,000), 2013.
Policymakers in different countries could do well to examine the reasons why certain US states have been successful in limiting the rate of girls in confinement.  A recent US Department of Justice report recommends that girls in conflict with the law should be kept in the least-restrictive settings possible, mainly because “serving youth in community-based environments can reduce additional justice system involvement, lead to positive outcomes for the youth, and reduce system costs.” This advice might be particularly useful for legal reformers in China, where the juvenile corrections system has yet to create regulations or stable models for community corrections institutions aimed at reducing the number of girls in confinement. Ultimately, the recommendations are similar for both girls and women in conflict with the law: non-restrictive settings should address the underlying factors contributing to criminal activity—especially mental health, substance abuse, family support, and vocational training.
1. The age limit for juvenile residential facilities in the US depends on state laws, however the approximate age range cited by the researchers in Figure 3 is from 12 to 18 years old. Source: The Sentencing Project. Return to Article
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