Guest post by Lisa Kerr

We are now familiar with the major criticisms of federal Conservative crime policies, especially their introduction of mandatory minimum sentences. Adrienne Smith, a health and drug policy lawyer with Pivot Legal Society, aptly summarized the problem with mandatory minimum sentences for drug crimes as follows: “they are expensive and they don’t work.” Yet apart from the cost and the absence of deterrent effects, there is an additional problem that is worth drawing attention to. The removal of discretion from sentencing judges causes significant growth in female rates of incarceration.

Indeed, in the notorious American imprisonment binge of the last four decades, women have been the fastest growing inmate population. The number of imprisoned women rose from 15,118 to 112,797 between 1980 and 2010. If we include local jails in that figure, more than 205,000 American women are now incarcerated. The female rate of incarceration increased at nearly 1.5 times the rate of men (646% versus 419%).

There are two central explanations for this increase. First, under the mandatory sentencing regimes that arrived in the 1980s, American judges can no longer order a community sanction for the many women who are the sole caretakers of children. There is no ability for courts to avoid the socially destructive effects of removing mothers from families. Second, mandatory sentencing often strips judges of the ability to adjust the punishment of offenders who have low levels of responsibility. Sanctions are most often pinned to drug quantities, rather than to factors that could better interrogate levels of culpability.

There has also been a striking transformation in the profile of the incarcerated American woman.  In the 1980s, most women in prison were convicted of either violent crimes or property offences, and only 12% were incarcerated for a drug offense. By the late 1990s, as University of Toronto scholars Candace Kruttschnitt and Rosemary Gartner have noted, violent offenders made up only 28% of the female prison population, and drug offenders were 35%. In the case of the male prison population, the number of non-violent drug offenders is often exaggerated. In the case of American women, however, it really does seem to be the case that the War on Drugs has constituted the prison population.

Under pressure from the U.S., and induced by promises of trade benefits and economic assistance, Latin America has adopted similar policies in recent years. Between 2006 and 2010, the women’s prison population in Latin America nearly doubled: from 40,000 to 74,000.

Canada stands to see similar trends under the mandatory sentencing provisions that now apply under the Controlled Drugs and Substances Act. While the female rate of incarceration remains low as compared to males, here too it is far more rapidly increasing. Canada’s prison watchdog, the Office of the Correctional Investigator (OCI), reports that between 2003 and 2013, the female inmate population increased by over 60%. Shockingly, that number for Aboriginal women is 83.7%. For men, the rate of increase during that time period is far more modest at 15%. While the causes of increase over this period are complex, Ivan Zinger, executive director of the OCI, has expressed worry that new Conservative laws stripping judicial discretion may “exacerbate already very troubling trends.”

Incarcerating women also has a unique range of negative consequences for the communities that are left behind. In calling for more attention to the gender dimensions of sentencing policy, Kruttschnitt points out that the removal of women from socially disorganized neighbourhoods brings more negative consequences than the removal of men. Far more women than men are primary caretakers of children before being incarcerated, and women in poor communities often perform multiple roles and hold several families together. Kruttschnitt calls for women’s imprisonment to be understood in light of “the sizable repercussions it has on society given the small number of individuals it affects.”

Canadian criminal judges are intimately familiar with those repercussions, namely the disruption and dislocation caused by removing women from families. They have long used their discretion at sentencing to respond to family circumstances and to avoid imposing further instability on marginalized communities.

In the US, the extraordinary rate of female incarceration has forced states to implement certain reforms. In 2009, there were nine states operating prison-based nurseries, with most facilities having been opened in the preceding twenty years. Women accepted into mother-child programs today tend to share a standard profile: they have committed low-level, non-violent offences and there were no other options for housing their child outside of the foster system. These are the women who would have faced far less risk of incarceration prior to the sentencing policy revolution of the 1980s. Rather than reforming sentencing laws, states are attempting to absorb the excesses of mass incarceration by incorporating childcare into the lives of incarcerated women.

In this light, a critical literature has emerged which complicates a vision of mother-baby accommodations as promising alternatives to straight incarceration. As Stanley Cohen warned more generally in 1985, reforms and alternatives can widen the net of social control by imposing correctional programs on individuals who would have otherwise simply been released. We might be extremely concerned about protecting the health and social needs of pregnant prisoners and their babies, but we may also find reasons to resist a move toward “gender responsive prisons.” The caution is against allowing prison expansion in the name of special facilities for women, and against stereotypes that insist that women perform their essential caretaking functions even while incarcerated.

Where a woman is able to gain access to a mother-baby program within prison, she remains a subject of the penal context and her parenting experience is mediated by her prisoner status. Poor conditions can present women with a dilemma: be separated from their child, or be with their child in poor conditions. A 2007 New York Times article documented deficient health care at one California facility where mothers serve prison terms with their young children. Even good programs have been cited for not supporting bonding with family members beyond the program, and for having a restrictive and punitive environment.

These issues have been brilliantly explored by sociologist Lynne Haney in her multi-year ethnographic study of mother-baby programs in the state of California. Haney brings a profoundly compassionate approach to her inquiry, but concludes that “what began as a promising alternative to punishment morphed into its own form of power and control.” Along with the general cultural contradictions of motherhood – “idealizing the mothering of some, devaluing that of others” – the task of mothering as a prisoner creates unique impediments to caretaking. Mother remains subject to the authority of the prison regime and must, somehow, develop relations of authority and intimacy with her child amidst the larger frame of her own domination.

We now face similar tensions in the Canadian context. In December 2013, the BC Supreme Court handed down its decision in Inglis v. British Columbia (Minister of Public Safety).The case stands as one of the most significant prisoner rights cases in Canadian history. It concerned the abrupt cancellation of a program in BC provincial jails – successfully in operation since 1973 – for women to keep newborn infants with them during incarceration. The case is a rare Canadian instance of well-resourced, complex constitutional litigation pursued on behalf of prisoner claimants. It involved multiple claims and dozens of expert witnesses, and was litigated by leading Vancouver trial counsel, Geoff Cowper on a pro bono basis. A non-profit entity with substantial equality litigation expertise, WestCoast LEAF, intervened at the trial level. The court’s decision effectively requires all jails in the province to facilitate an option for infants to remain with their incarcerated mothers.

The plaintiffs in Inglis were former inmates of Alouette Correctional Centre for Women (Alouette), and their children. Justice Ross of the BC Supreme Court ruled that the provincial government’s decision to close the Program violated the Charter of Rights and Freedoms and specifically the plaintiffs’ equality rights (s. 15), as well as their rights to security of the person (s.7). But the Inglis opinion focuses less on whether mothers have a freestanding right to keep their babies, and more on the utter lack of research and analysis undertaken by prison officials before deciding to rescind the program.

Through the lengthy findings of fact in the opinion, there is a strong sense that the key decision-maker and provincial director of Corrections, Brent Merchant, had simply soured on the program when he decided to cancel it. Rather than conducting research on the costs and benefits of the longstanding program, he seemed to experience, at first, minor irritations regarding program administration, which then seemed to blossom into full-blown resistance and cancellation. This connects to a specific strategy taken by the plaintiffs’ lawyer: to focus on how the jail simply changed its opinion as to the extent of its “mandate” and how babies were not included. Justice Ross rejected the notion of narrow correctional “mandate” and said instead that incarcerated women are to retain all rights except those that are incompatible with incarceration. What the evidence revealed was a record of successful operation of the Program and similar programs in the Canadian federal system and abroad.

A similar approach could mean victory in an upcoming case challenging the refusal of the Correctional Service of Canada to provide clean needles to injection drug users. On September 25, 2012, a former prisoner, community partners and the Canadian HIV/AIDS Legal Network launched a lawsuit against the Government of Canada over its failure to protect prisoners’ right to health and prevent the spread of HIV and HCV in Canadian federal prisons. If the judicial approach taken in Inglis is followed, prisoners might be able to obtain a court order that they should access the same harm reduction measures that are widely available in the community, and the improved public health outcomes that follow from such access.

The question remains as to whether mother-baby prison programming relieves our concerns about the impact of tough sentencing on women. While we should properly praise the articulation and protection of the rights of mothers and babies in Inglis, questions remain about the wider context of mothering in Canadian jails and prisons. Program administration remains subject to the dynamics of power relations within the penal context.

In British Columbia, powerful advocates like Dr. Ruth Martin, director of the Collaborating Centre for Prison Health and Education, are working tirelessly to ensure that the policies designed in response to the Inglis ruling ensure high quality mother-baby programs in that province. But as the material by Haney and others above suggests, the project of prison reform must keep the potential abuses and shortcomings of mother-child programs in mind. There are specific concerns about the terms of these programs that should be articulated to program administrators, and that should enter debates about sentencing policy. Mother-baby programs are not a sufficient answer to concerns about expanding rates of female incarceration. They are, ironically, a necessary measure to ameliorate the destabilizing effects of a turn to incarceration as a cure to social instability.

 

Lisa Kerr is a doctoral candidate in law at New York University and a Trudeau Foundation Scholar.