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Will the FIRST STEP Act benefit incarcerated women?

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Photo by Joel Carillet/Getty Images

While the overall incarceration rate in the United States is falling, the rate for women remains at historic highs; this country accounts for 4 percent of the world’s female population but over 30 percent of incarcerated women. “The rapid growth of women’s incarceration, coupled with the longstanding focus on men, means that recent criminal justice reforms have not kept up with the number and needs of incarcerated women,” stated a recent report, States of Women’s Incarceration: The Global Context 2018 by the Prison Policy Initiative.

The FIRST STEP Act, the criminal justice reform bill signed into law on December 21 by President Trump, received broad bipartisan support and was hailed by advocates as a crucial starting point in the movement to end mass incarceration. The law includes sentencing reforms and measures intended to improve conditions inside correctional and detention facilities for the 225,000 people who are in federal prisons and jails in the U.S.

“The FIRST STEP Act has several key provisions that will help make prisons safer, especially women’s prisons,” said Jesse Lerner-Kinglake, communications director of Just Detention International, a health and human rights organization that seeks to end sexual abuse in all forms of detention. The law bans the shackling of pregnant women, and calls for free sanitary products in women’s facilities and for incarcerated people to be held closer to home, “which is crucial for survivors’ healing,” said Lerner-Kinglake.

But the law covers federal facilities alone; of the more than 219,000 incarcerated women, only 16,000 are in federal prison. However, “the fact that women are mentioned is positive,” said Erika Kates, senior research scholar at the Wellesley Centers for Women at Wellesley College. “Many state reform bills, Massachusetts included, omit mention of gender, even if they address racial inequities. This is a toe in the water, testing political will. Fifty states have 50 different policies.”

For example, only 24 states and the District of Columbia have some form of anti-shackling legislation. And those laws vary, with some states banning shackling during transport to medical facilities, during childbirth, and in the immediate post-partum period, while other states restrict shackles only during labor and delivery. “It is amazing that anti-shackling bills have to be followed up with legislation clarifying shackling during active labor,” said Kates. “But it happened in Massachusetts after the initial 2014 bill, when people still thought it was OK to shackle ‘only one limb.’ We had to file another bill in 2016. In my testimony, I asked a question why stopping the practice was so problematic — had a woman ever escaped during labor?”

Restraints on pregnant women can lead to muscle tears, bone separation, blocked blood circulation, and even miscarriage. Shackles limit the ability to move around as well as making it more difficult for health care providers to care for the women and their babies. But implementation of the shackling bans has been problematic. “Even states where the practice is restricted have loopholes,” said Anjana Samant, senior staff attorney at the Women’s Rights Project of the American Civil Liberties Union. “But [the FIRST STEP Act] clarifies that from the time a woman has her pregnancy confirmed by a health care professional through the post-partum period (which has been understood to be at least around three months), she can't be shackled. It also requires that women be informed of their right not to be shackled and that health care workers have the right to require that shackles be removed.” These provisions increase the odds of enforcement and compliance, said Samant. 

The lack of adequate amounts of sanitary napkins, tampons, and even toilet paper places women in fraught situations. “Besides ensuring inmates’ basic dignity, providing free hygiene products will help prevent sexual abuse,” said Lerner-Kinglake. “We hear from many women prisoners who were forced to ‘trade’ sex for basic items.”

The FIRST STEP Act “includes a provision that women must be provided an ‘appropriate’ amount of feminine hygiene products, which, while vague, permits individuals to obtain more than some arbitrarily set limit by prison officials,” said Samant. 

 “However, the problem remains that, when women aren't given enough basic products, it exacerbates the power dynamic in a place where sexual abuse is already rampant,” said Samant. “This is particularly harmful to the large percentage of women in jails who have either witnessed or survived intimate violence. One of the challenges and priorities of criminal justice reform must be addressing how, within the parameters of a correctional facility, do you set up a dynamic where women don't feel violated during ordinary interactions and where ordinary daily tasks are structured so that they do not replicate abusive power relationships that these women witnessed or experienced and which connected them with the criminal justice in the first place.”

While the provisions of the FIRST STEP Act apply only to incarcerated women at the federal level, they could have repercussions at the state level. For one thing, the Bureau of Prisons could make recommendations that states at the minimum follow the FIRST STEP Act. "The FIRST STEP Act sets an example for state and local reform based on the idea behind the bill rather than the specifics of it, which are limited,” said Maritza Perez, senior policy analyst for Criminal Justice Reform at the Center for American Progress. “The Bureau of Prisons has an anti-shackling policy, but putting this into federal law makes people more accountable and from an advocacy standpoint means that if it’s violated, we can call for consequences.”

Perez pointed out that the proposed Pregnant Women in Custody Act, sponsored by Sen. Kirsten Gillibrand, D-N.Y., and Sen. Rand Paul, R-Ky., which has bipartisan support, has a more holistic approach to addressing the issues facing incarcerated pregnant women, including a data component in which state and local facilities would be mandated to report every pregnancy and the outcome. “The FIRST STEP Act only requires the bare minimum in terms of gynecological care and doesn't provide for free menstrual pain medication or guaranteed access to a gynecologist, for example,” said Perez. “It’s a shame that this bill did not include more provisions addressing women’s health, because at the end of the day, it’s the women in prison who have to live with the bill’s shortcomings.”

Advocates point to other shortcomings in the law. “We would have liked to have seen restrictions on male guards in shower/dressing areas and conducting strip searches, prohibition of ‘squat and cough’ searches of pregnant women, the elimination of solitary confinement for pregnant women, and improvements to child visitation policies,” said Marissa McCall Dodson, public policy director at the Southern Center for Human Rights, which, with a coalition of organizations in Georgia, is pursuing legislation that would expand on the provisions in the FIRST STEP Act.

Questions remain about the law’s effectiveness to protect the more at-risk segments of the prison population. “Its immediate impact on transgender people in prison is not immediately clear,” said Harper Jean Tobin, director of policy at the National Center for Transgender Equality. “Transgender people are among the most vulnerable people in our nation’s prisons, subjected as they are to routine abuse, isolation, and sexual violence.” The law also doesn’t address the current immigration crisis. “It’s disappointing that this won't be expanded towards people held in immigration detention, especially since there are so many women with children,” said Samant. “Our hope is that this will be something that is built upon."

Advocates point to the bipartisan aspect of the law’s passage as a positive sign for the future of criminal justice reform. “The FIRST STEP Act is just that, a first step,” said Tunisia Owens, policy manager at the Ella Baker Center for Human Rights. “We know that the architecture of the criminal justice system was not built overnight and we will not be able to dismantle it overnight.”

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