3.    The Impact of the War on Drugs

'Without any fanfare, the "war on drugs" has become a war on women, and it has clearly contributed to the explosion in women's prison population...While the intent of get tough policies was to rid society of drug dealers and so called king-pins, over a third (35.9%) of the women serving time for drug offenses in the nation's prisons are serving time solely for "possession."'
A study of women in California prisons[ B Bloom, M Chesney Lind, B Owen, Women in California Prisons: Hidden Victims of the War on Drugs, Center on Juvenile and Criminal Justice, San Francisco,1994.].

We need to be more honest with ourselves that the vast majority of women receiving prison sentences are not the business operatives of the drug networks. The glass ceiling seems to operate for women whether we are talking about legitimate or illegitimate business. They (women) are very small cogs in a very large system, not the organizers or backers of illegal drug empires. This, coupled with a growing mood among the American public reportedly concerned about early intervention for troubled kids and more drug treatment in preference to more prisons, should give us the opening we need to look at better and more cost-effective ways of dealing with women offenders.

Elaine Lord, warden of Bedford Hills Correctional Facility, New York State's maximum security prison for women [Cited in M Mauer and T Huling, Young Black Americans and the Criminal Justice System: Five Years Later, The Sentencing Project, Washington DC, 1995, 22.].
 

Since the 1980s, the federal and state government criminal justice authorities have increased efforts to detect and prosecute people who violate drug laws and legislatures required courts to impose harsher penalties. The so-called war on drugs has resulted in a significant increase in the number of people who are incarcerated and the length of incarceration for people convicted of committing drug crimes [The following examples illustrate the severity of penalties for drug crimes. Under federal law, the mandatory minimum penalty for a first-time drug offender convicted of possession of one gram of LSD or five grams of crack cocaine is five years without parole. There is no minimum term of imprisonment prescribed for the offence of "aggravated sexual abuse" i.e. rape. In Michigan, a court must sentence someone convicted of possession of 50 grams of cocaine to 10-20 years in prison; the minimum sentence for possession of 650 grams is 25 years and a sentence of life imprisonment may be imposed. There is no minimum sentence of imprisonment for the offence of "criminal sexual conduct in the first degree." In New York, the penalty for possession of four ounces or more of a narcotic drug, is a mandatory minimum prison sentence of 15 years to life - a higher penalty than the minimum for the crime of rape and the same penalty that can be imposed on people convicted of murder, arson and kidnapping.].

From 1986 to 1996 the number of women sentenced to state prison for drug crimes increased ten fold (from around to 2,370 to 23,700) and, as the above graph illustrates [ Source of data: D. Gilliard and A. Beck, Prisoners in 1997, Bureau of Justice Statistics, Washington DC, for 1990 and 1996; T. Snell, Women in Prison, Bureau of Justice Statistics, Washington DC, for 1986. Amnesty International was not able to obtain federal prison data for 1986.], the imprisonment of women for drug crimes has been the main element in the overall increase in the imprisonment of women.

Women have been described as disproportionately the "victims" or "prisoners" of the war on drugs. The number of women imprisoned for drug offences in state prison systems doubled between 1990 and 1996; in the same period, the number of men imprisoned for drug crimes increased by just over half. Nationally, one in three women in prison and one in four women in jail are incarcerated for violating a drug law; the comparable figures for men are one in five in both prisons and jails. In New York, 61 percent of women in state prisons in 1996 had been convicted of a drug crime, a fifth of them (444 women) having been convicted for possession of an illegal substance. In California, 42 percent of female prisoners and 27 percent of male prisoners in state prisons in 1998 were incarcerated for drug crimes. A study of a sample of California female state prisoners in 1993 found that the most common crime (16% of the women) for which they had been convicted was possession of illegal drugs[ B Owen and B Bloom, Profiling the Needs of California's Female Prisoners - a Needs Assessment, National Institute of Corrections, 1995.].

The war on drugs has also had a disproportionate impact on minority women. For example, in New York, drug convictions are far more prevalent among female prisoners who are black (59%) and Hispanic (77%) than among white female prisoners (34%) [State of New York Department of Correctional Services, Female Offenders 1995-96, Albany, New York 1997.].

Pointing to the link between substance abuse and the prevalence of physical and sexual abuse among women, one study concludes that "the war on drugs has succeeded only in criminalizing women already suffering under extreme socio-economic and psychological stress."[ M Mauer and T Huling, Young Black Americans and the Criminal Justice System: Five Years Later, The Sentencing Project, Washington DC, 1995, 22.].

The harsh penalties that are being imposed on so many people convicted of violating drug laws has given rise to a number of concerns among people of various backgrounds, including judges, legislators, people working in welfare and human rights organizations.

One such concern which relates to both men and women, is that the penalties appear excessive for the nature of the crime, particularly where the conduct involves possession of drugs for personal use rather than sale. Courts in the US have overturned some sentences on the grounds that they were so harsh that they violated the constitutional prohibition against the imposition of cruel and unusual punishment. Judges in and outside court have spoken out against the severity of sentences they are required to impose and some federal judges are reported to have refused to sit on drug cases to avoid being put in a position of having to impose what they considered to be excessively severe sentences
[ The organization Families Against Mandatory Minimums Foundation reports that "by May 1993, 50 senior federal judges...had exercised their prerogative and refused to hear drug cases," and cites individual judges critical of severe penalties they have to impose because of laws prescribing mandatory minimum terms of imprisonment: read the report. In 1990, the Judicial Conference of the United States, representing federal judges, voted to urge Congress "to reconsider the wisdom of mandatory minimum sentence statutes," noting that a number of regional groups of judges had passed resolutions in opposition to such sentences: United States Sentencing Commission, Special Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System, United States Sentencing Commission, Washington DC, 1991, chapter 6.]. The principle that punishment should be "proportionate" to prohibited conduct is internationally recognized [ For example, Report of the 8th UN Congress on the Prevention of Crime and Treatment of Offenders, UN Doc. A/Conf.144/28, rev1(91.IV.2), Res 1(a),5(c), 1990. For US law sources see US Sentencing Commission, Special Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System, August 199. Human Rights Watch, an international non-governmental human rights organization, considers that New York State's drug laws violate both international and US prohibitions on cruel punishment - Cruel and Usual: Disproportionate Sentences for New York Drug Offenders, Human Rights Watch, New York, 1997.].

Another concern that has been raised by people who have looked at the impact of the laws is that restrictions on the sentencing discretion of judges with respect to people convicted of violating drug laws (and other crimes) adversely affect many women. For example, women often have a very subordinate role in drug dealing and so may have little information to offer in order to be eligible for the more lenient sentences imposed on people who assist the police and prosecution. As well, women may participate in drug crimes because they are under considerable pressure from a man with whom they are in a relationship, without being able to establish persuasively that they were coerced for the purposes of a reduced sentence.

A study of the "gender-neutral" federal sentencing guidelines by US legal scholar Professor Myrna Raeder concluded that the sentencing model placed women at a distinct disadvantage with respect to gender-specific characteristics, experiences and roles. The policy did not allow the court to consider as mitigating circumstances such factors as the role of single mothers in particular in caring for children; the minor role that women play in many crimes; the abusive/coercive environments in which many women play these roles; and the lower recidivism rates for women
[ M Raeder, "Gender and Sentencing: Single Moms, Battered Women, and Other Sex-Based Anomalies in the Gender-Free World of the Federal Sentencing Guidelines," Pepperdine Law Review, Vol 20, No 3, 1993.].

Research and specific cases provide support for these concerns. For example, a 1994 study by the Department of Justice found that women were over-represented among low-level drug offenders who were non-violent, had minimal or no prior criminal history, and were not principal figures in criminal organizations or activities, but nevertheless received sentences similar to "high level" drug offenders under the mandatory sentencing policies [ Department of Justice, "An Analysis of Non-violent Drug Offenders with Minimal Criminal Histories," February 4, 1994, cited in M Mauer and T Huling, Young Black Americans and the Criminal Justice System: Five Years Later, The Sentencing Project, Washington DC, 1995.].

Tracy Huling studied drug couriers or "mules," women arrested at New York City's John F. Kennedy Airport for smuggling drugs into the USA. In New York, a person who pleads guilty to committing a specified drug crime which has a minimum penalty of three years-to-life imprisonment can be sentenced to lifetime probation if they provide "material assistance" leading to the arrest of a drug dealer. Prosecutors and drug enforcement agents interviewed by Huling noted that "women rarely can offer material assistance of any value because they are involved so marginally, if at all, in the larger drug operation ["T Huling, "Women Drug Couriers - Sentencing Reform Needed for Prisoners of War", 9 WTR Crim. Just. (1995).].

The following are examples of individual cases reported to Amnesty International that raise concern about the capacity of laws and sentencing guidelines to take adequate account of women's circumstances:
 
 

*    Sally Smith, then aged 37, was sentenced to life without parole in 1993 in Michigan after being convicted of the crime of "Conspiracy With Intent to Deliver Over 650 Grams of Cocaine." Her conviction was based on two phone calls she allegedly made to collect money for her boyfriend Robert Darcy and two receipts she signed for a cash exchange. There was considerable evidence that Sally Smith was brutally beaten and verbally abused by Robert Darcy during their 17-year relationship and that he threatened to kill her or one of her family members if she left him. During the trial, the court refused to admit evidence of abuse that occurred prior to 1984-1989, the dates of the conspiracy, because it was considered too remote to impact on her behaviour. An expert on battered women's syndrome who testified on behalf of Sally Smith was not permitted to tell the jury that, in her opinion, the long history of abuse suffered by Sally Smith made her incapable of exercising "free will." [Information provided to Amnesty International by Families Against Mandatory Minimums Foundation, Washington DC.].
 
 

*    Sylvia Foster, then aged 34, was sentenced to 24 years imprisonment in 1997 in Florida for facilitating the drug dealing of her boyfriend. It was her first criminal offence. The judge in the trial remarked that Sylvia Foster had acted "out of character" because "when you're in love you're blind or something, you'll do anything." Before Sylvia Foster was sentenced the prosecutor stated to the court: "Your Honor, this is one of those, not necessarily rare, but probably unique sentencing situations where I have a sense that the defense, the prosecution and the Court wish that there might be greater latitude in discretion for sentencing for women."[ Information and court documents provided to Amnesty International by Families Against Mandatory Minimums Foundation, Washington DC.].
 
 

*    In 1988 Angela Thompson, at age 17, was arrested for selling two ounces of cocaine to an undercover police officer and sentenced to 15 years to life imprisonment. She had no prior criminal record and was acting on the direction of her uncle and legal guardian, a drug dealer with an extensive criminal history. Angela Thompson was pregnant at the time of her arrest and gave birth while in prison. Her son Shamel was placed in the care of his aunts. Justice Jerome Marks, a retired State Supreme Court justice, read an account of Angela Thompson's sentence and considered it unjust: "This is one of the great injustices that I've run across. I was a judge for 22 years and I never had a case where a youngster 17 years of age, with no criminal background at all, ends up doing 15 years to life.' In 1996, he prepared a clemency petition to New York Governor George Pataki which was denied. He resubmitted the petition in 1997 and it was granted. Angela Thompson was released from prison in January 1998 [ New York Times 25 November 1996 and 24 January 1998.].
The essence of the concern raised by such cases, by Professor Raeder, Tracy Huling and others is not that women in general are treated more severely than men and indeed studies that compare the sentencing of women and men suggest the opposite [ For example, see state studies described in National Council on Crime and Delinquency, National Assessment of Structured Sentencing, Bureau of Justice Assistance, US Department of Justice, Washington DC, 1996, and the study conducted by the US Sentencing Commission, Special Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System, Washington DC, 1991. The US Sentencing Commission has commissioned a study of the impact of federal sentencing guidelines on race and gender disparity - US Sentencing Commission, Annual Report 1997, US Sentencing Commission, Washington DC, 1998, 46.]. However such comparisons do not reveal the full picture and nor do they answer the question whether the criminal justice system takes adequate and appropriate account of women's circumstances in assessing culpability and punishment. Professor Raeder has suggested the establishment of a federal task force to "focus on all of the gender issues that affect the sentencing and imprisonment of women," with broadly drawn representation from, among others, the Justice Department, judiciary, Sentencing Commission and criminologists who have studied family based prisoner issues [M Raeder, "Gender and Sentencing: Single Moms, Battered Women, and Other Sex-Based Anomalies n the Gender-Free World of the Federal Sentencing Guidelines," Pepperdine Law Review, Volume 20:905, 1993, 989.]. Amnesty International welcomes this proposal.
 

IV DISCRIMINATION

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Article 2, Universal Declaration of Human Rights

No State shall...deny to any person within its jurisdiction the equal protection of the laws.
Amendment XIV, Constitution of the United States

"The needs of female inmates are significantly different from those of male prisoners, for whom most of the existing institutional programs and policies were developed and implemented."
Dr Barbara Okun, guide to counselling women in prison, 1998 [ In J Pollock, Counselling Women in Prison, Sage Publications, California, 1998, vii.].

"Custody and health care staff have often gained their experience working with a male
inmate population and have no knowledge of the special needs of a female inmate population."
Female Inmate Health Issues Report, California, 1996 [ Female Health Issues Task Force Report - the Task Force was established under California legislation and reported in 1996. The California Department of Corrections provided a copy of the report to Amnesty International.].
 

In 1980, the US General Accounting Office (GAO) reported to the US Congress that female prisoners were inequitably treated: "women in correctional institutions are not provided with comparable services, educational programs, or facilities as male prisoners." [ US General Accounting Office, Women in Prison: Inequitable Treatment Requires Action, Washington DC, 1980.]. The report discussed various approaches to overcome disparities and made recommendations to improve conditions for women in prison. In May 1998, following a request by Congresswoman Eleanor Holmes Norton, the GAO initiated a study of conditions of confinement for women prisoners and, in particular, parenting and health care issues. In December 1998, the study was extended to include sexual harassment and abuse. The study is restricted to four correctional systems - the Federal Bureau of Prisons, California, Texas and Washington - and is scheduled to be completed at the end of July 1999 [ Letter from N Rabkin, US General Accounting Office, to Congresswoman E Norton, 10 December, 1998.].

There is a dearth of readily available, recent evidence to enable a detailed comparison of services for men and women. A number of court cases and investigations have found that female inmates had access to fewer programs and lived in poorer quality facilities than male inmates [ For example, W Collins and A Collins, Women in Jail: Legal Issues, National Institute of Corrections, Washington DC, 1996; M Morash, T Bynum, and B Koons, "Women Offenders: Programming Needs and Promising Approaches", National Institute of Justice Research in Brief, August 1998 at page 2 cites research published between 1977 and 1994 showing "inadequacies in medical services, education, vocational training, prison industry, law libraries and parenting as well as a lack of objective knowledge about what works."]. Several recent examples are:

New York A US Department of Justice investigation reported that at Orleans County Jail, male inmates received a variety of educational and other programs such as Alcoholics Anonymous but females did not; unlike male inmates, female inmates could not become "trusties", a position which entitled them to greater privileges than other inmates and increased the likelihood of early release [US Department of Justice, letter to S Dudek, Executive Officer of Orleans County, January 7, 1998.].

California A study of state prisons reported that while male prisoners received specialized HIV-related medical services, there was no comparable specialist within the women's prison system [L Acoca, "Defusing the Time Bomb: Understanding and Meeting the Growing Health Care Needs of Incarcerated Women in America," Crime and Delinquency, Vol 44, No. 1 January 1998, 53.].

Washington DC Female prisoners brought legal action to obtain equity with male prisoners in a number of programs. The court ordered the corrections department to provide female prisoners with equal access to educational and vocational programs available to male prisoners, because of federal legislation requiring equality in these areas. It refused to order the department to provide female prisoners with equivalent access to work, recreation and religious programs, holding that because there were far fewer female than male prisoners it was "hardly surprising, let alone evidence of discrimination, that the smaller correctional facility offered fewer programs than the larger one." In June 1998, the women brought further legal action to enforce the order for equal educational and vocational opportunities [At trial, the court held that the women were entitled to remedial measures in relation to all the areas where they had less access to programs: Women Prisoners of the District of Columbia Department of Corrections v District of Columbia, 877 F.Supp 634 (1994). On appeal, only measures relating to educational and vocational programs were upheld; the quoted remark is from the appeal: Women Prisoners of the District of Columbia Department of Corrections v District of Columbia, 93 F.3d 910 (1996).]. At the time of writing, February 1999, the matter had not yet been resolved.

The decision of the court in this case indicates one reason that has been identified for the poorer treatment experienced by incarcerated women - they are far fewer in number than the men, which makes it relatively more expensive to provide the same array of programs and facilities for them. As a study of the mental health of women in jail concluded, "ironically, the relatively small number of women in jail makes the per capita cost too high to provide them with needed services." [ L Teplin, K Abram, G McClelland, "Prevalence of Psychiatric Disorders Among Incarcerated Women - I. Pre-trial Jail Detainees," Archives of General Psychiatry, Volume 53, June 1996, 511.]. Another reason that has been cited is the persistence of traditional or stereotyped notions about the kinds of programs that are appropriate for or of interest to women [ W Collins and A Collins, Women in Jail: Legal Issues, National Institute of Corrections, Washington DC, 1996, 9.].

It is important to note that women's right to equality does not necessarily mean that they should receive the same treatment as men. For example, women's right to adequate health care requires access to services such as pre- and post-natal care, that are different to those required by men. The provision of treatment to women and men for the consequences of physical and sexual abuse must take account of the fact that women are far more likely to have been physically and sexually abused and that the nature and circumstances of the abuse of women and men differs markedly [ In a 1996 survey of jail inmates, 37% of women and 6% of men reported they had been sexually abused before their most recent admission to jail; 27% of the women and 3% of the men reported that they had been raped. Women were far more likely to report sexual or physical abuse both as children (37%) and as adults (27%) than were men (12% of men reported sexual or physical abuse before age 18 and 2% after age 18): C Harlow, Profile of Jail Inmates 1996, Bureau of Justice Statistics Special Report, US Department of Justice, Washington DC, 1998.]. To be effective, treatment for substance abuse must be tailored to the particular needs of women and take account of the reasons for their substance abuse which may be specific to women
[ The National Center on Addiction and Substance Abuse at Columbia University, Behind Bars: Substance Abuse and America's Prison Population, The National Center on Addiction and Substance Abuse at Columbia University, New York, NY, 1998. B Owen and B Bloom noted in a study of programs for women prisoners in California that "the subject of past abuse emerges frequently in (substance abuse) recovery programs, yet is basically overlooked in most curricula." Profiling the Needs of California's Female Prisoners - a Needs Assessment, National Institute of Corrections, Washington DC, 1995.].

In a 1993-94 national survey, researchers found that correctional administrators, staff and participants perceived that "many needs of incarcerated women are different from those of men and require approaches tailored to their specific characteristics and situations." [ M Morash, T Bynum, and B Koons, Women Offenders: Programming Needs and Promising Approaches, National Institute of Justice Research in Brief, Washington DC, 1998, 10.]. This was far more common among prison than jail administrators. The survey found that while progress is being made in developing different management approaches and different programs, many of the people surveyed reported that some needs of incarcerated women were still unmet or were not met satisfactorily and that there were areas where programs existed but needed to be expanded. State-level administrators identified four types of programs needing expansion that they considered of particular importance to women: family-related, mental health (in particular to counteract victimization from abuse and to improve self-esteem); substance abuse and vocational programming.

Prison authorities around the USA differ considerably in their responsiveness to developing programs specifically for women. According to a 1997 survey of 52 departments of corrections [ The survey received responses from 49 state departments of corrections, the New York City and District of Columbia department of corrections and the Federal Bureau of Prisons: US Department of Justice, National Institute of Corrections Information Center, Current Issues in the Operation of Women's Prisons, National Institute of Corrections, Colorado, 1998.]:
 
 

*    only 27 departments reported that they provide substance abuse programs developed specifically for women;
 
 

*    only 19 departments provided domestic violence programs developed specifically for women;
 
 

*    only nine departments offered programs addressing for victims of sexual assault;
 
 

*    only nine departments provided special programs to address women's health education.
Among the positive developments, the study reported that the US Bureau of Prisons, which operates federal prisons, has a national policy requiring that any new or revised policy or programs must address gender. The Vermont Department of Corrections reported a major new initiative focussing on female offenders including hiring a Director for Women Offenders, developing specific policies on women and two community-based residential programs for women and children.

It is important to note that providing equal treatment for women and men is not enough if the standard of treatment of men constitutes a violation of human rights. For example, in its investigation of conditions at the Globe Jail in Gila County, Arizona, the US Justice Department found that while female inmates had less opportunity than males for out-of-cell time, inmates generally had almost no opportunity for outdoor exercise, in violation of their constitutionally recognized right [ US Department of Justice, "Investigation of Gila County Jails", letter to Ms D Meissner, Commissioner, Immigration and Naturalization Service, January 7, 1998.]. The Justice Department found a similar situation at the Coffee County Jail in Douglas, Georgia. At most, inmates were allowed outdoors twice per week for an inadequate total of two hours. There was no scheduled outdoor exercise time for female inmates, who were allowed to exercise only when a female jailor was assigned to the female area of the jail and was willing to allow the inmates outdoors. The jail provided no exercise equipment for inmates. On the day the Justice Department inspected the jail, about 50 male inmates had only a child's small tattered football provided to them. Female inmates had no equipment at all [ U.S. Department of Justice, "Notice of Findings from Investigation of Coffee County Jail," 23 April, 1996.].

It is also important to note that a woman's right to be free of discrimination applies not only to her identity as a woman in relation to men. In her study of a California women's prison, Barbara Owen received reports of discrimination against women on the basis of both race and sexual orientation, though overall staff-prisoner relations were "fairly cooperative." B.Owen, In the Mix - Struggle and Survival in a Woman's Prison, State University of New York Press, Albany, 1998, page 160. For race, see page 154; for sexual orientation, see page 165. Human Rights Watch has reported that lesbian and transgendered prisoners have been targeted for sexual abuse [ All Too Familiar: Sexual Abuse of Women in US State
Prisons, Human Rights Watch, New York, 1996, page 2.].

Providers of programs and services must also take account of differences between women which may be significant, such as race, ethnicity, language and sexual identity. For example, a 1996 study of women's prisons in Florida, California and Connecticut found that language and cultural barriers exacerbated the health and mental health problems experienced by female prisoners generally. For example, few correctional staff were bilingual and "women with medical problems who did not speak English were often unable to access the services they needed even when their problems were severe." [L Acoca, "Defusing the Time Bomb: Understanding and Meeting the Growing Health Care Needs of Incarcerated Women in America," Crime and Delinquency, Vol. 44 No. 1, January 1998, 49-69, 59 ]. In her guide to counselling women in prison, Professor Joycelyn Pollock emphasizes that "to be successful counselling must understand the social realities that female prisoners come from and will return to." Professor Pollock notes that:
 

...the offender is affected by systemic factors, such as racial discrimination and gender bias. There are very real and serious effects of being an African American woman in this society, or a Hispanic woman, or a Native American woman. Life experiences and system barriers have to be recognized and taken into account during the helping process [ J Pollock, Counselling Women in Prison, Sage Publications, California, 1998, 199 and 185-186.].