Healing-centered justice: ending extreme sentencing of women

Punitive sentencing laws and ‘tough on crime’ policies have resulted in more women serving extreme sentences including life imprisonment in some countries. In the fourth blog of our series marking the tenth anniversary of the UN Bangkok Rules, Laura Ann Douglas examines what is driving the increase, the impact on the women serving these sentences, and how the Cornell Center on the Death Penalty Worldwide and its partners are working with women who have experienced extreme sentencing to advocate for healing-centered justice.

Over a decade ago, the UN adopted the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules) – a set of rules that recognize the unique needs of women in detention and oblige countries to administer their criminal justice systems in a gender-sensitive manner. The rules advanced admirable goals, like providing treatment to survivors of gender-based violence and making sure that countries do not under-resource women’s units in prison because of the relatively small number of incarcerated women. However, the number of women in custody has proliferated while states have inadequately implemented the Bangkok Rules and, in parallel, increased the extreme sentencing of women.

In the United States, for example the number of women serving a life sentence without the possibility of parole has increased by 43% since 2008. And while the number of women sentenced to death in the United States has decreased in the last decade, in 2020 the federal government executed Lisa Montgomery–the first woman executed by the federal government since 1953. Lisa’s genetic disposition for mental illness was exacerbated by the relentless physical, emotional, and sexual abuse that she endured. Her case and execution highlight our society’s failure to intervene early in cycles of abuse. This blog post will focus on the relationship between extreme sentencing and the Bangkok Rules in context of the COVID-19 pandemic, and will draw many of its illustrative examples from the United States.

Countries’ COVID-19 responses give us a new lens through which to understand the gendered harms that women suffer through incarceration. In the same way that the criminal legal systems overlook women’s needs, women in prison are invisible victims of the COVID-19 response. In December 2020, the UN and regional human rights experts articulated how the pandemic exacerbated threats to women’s human rights in detention, and called on UN Member States to fully implement the Bangkok Rules. The experts outlined how particular harms faced by women are compounded during the COVID-19 crisis. COVID-19 has threatened – and taken – the lives of many women in prison. And while many countries have tried to reduce overcrowding in prisons and jails during the pandemic, they have often focused their attention on people who committed less serious offenses. Many jurisdictions who released people from custody made people ineligible for release if they were on death row, sentenced to life, or had been convicted of a violent offense. This blanket treatment of people based on the category of offense is common – and ignores the complexities and contexts of crime.

Mothers facing shorter sentences are more likely to have an opportunity to return to caregiving, while mothers accused of more serious crimes may lose custody of their child or remain in prison through a child’s youth.

The Bangkok Rules discourage custodial sentences in some situations, for example by emphasizing that sentencing decisions should take women’s caregiving responsibilities into account. The commentary to the Bangkok Rules also discourages the use of mandatory minimum prison sentences, which prevent adequate consideration of mitigation. However, countries have failed to implement these provisions, and the Rules do not push hard enough to change punishments for more serious crimes, exposing – perhaps – the Rules’ own biases and stereotypes around women’s behavior. For example, the comments to Rule 61 recognize that women who commit violent offenses often do so in response to a partner’s systematic abuse, but only emphasize the importance of this as a mitigation factor at sentencing. They do not call for second-look sentencing for women who experienced abuse, or legislation that would prevent custodial sentences for people who have only committed violence against someone who abused them. In addition, the Rules’ emphasis on caretaking disproportionately favors women accused of less serious crimes and women with children, unintentionally entrenching gender expectations of women. Mothers facing shorter sentences are more likely to have an opportunity to return to caregiving, while mothers accused of more serious crimes may lose custody of their child or remain in prison through a child’s youth. Under the Rules, mothers accused of less serious crimes would be more likely to have their sentenced reduced.

The Bangkok Rules push for dramatic changes to healthcare for women who are incarcerated, and those Rules could certainly benefit women convicted of serious crimes. Under the Rules, women in prison are supposed to receive at least the quality of healthcare that they would receive in the community. However, the pandemic has highlighted jurisdictions’ failure to implement these Rules. We have seen that jurisdictions like California focused on releasing people who had committed less serious crimes, and yet failed to release or protect many people convicted of serious crimes. One woman, Elizabeth Lozano, had been eligible for parole for over a year when COVID first hit. When the prison restarted her drug treatment meetings with the pandemic in full swing, she was told she had to attend these meetings or lose her release date. She was exposed to COVID and was kept in the same isolation unit as COVID-positive people, even when she tested negative for the virus three times in two weeks. She had many underlying health risks, including asthma, lupus, neuropathy, a heart condition and chronic obstructive pulmonary disease, and an inflammatory lung disease. The prison put her in the position of having to choose between risking death through COVID exposure or disciplinary action and a longer incarceration.

Since a high proportion of women in prison have poor mental health or mental illness, access to mental health care is essential for women, and these often-unmet needs are exacerbated by COVID-19. Kanizan Bibi, for example – a woman who has spent over 29 years awaiting execution in Pakistan – spent most of the pandemic in prison where the risk of COVID-19 was high, despite not being mentally healthy enough to take basic precautions such as washing her hands or social distancing. Her sentence was commuted in February, when Pakistan’s Supreme Court acted to move her to a mental health facility. While this judicial intervention is a positive outcome, her case highlights that bureaucratic and executive actions did not adequately protect at-risk women in prisons from the pandemic.

In every example we have studied, women who commit serious offenses were first failed by a society that did not protect them, empower them, or meet their needs.

The criminal legal system was not built to respond to the complex histories of people who face serious charges. In studies in the United States, incarcerated women are disproportionately likely to have experienced a complex history of childhood trauma and sexual trauma. In every example we have studied, women who commit serious offenses were first failed by a society that did not protect them, empower them, or meet their needs. Our society’s carceral response to crime typically perpetuates the earlier failures of society.  In a number of ways, the Bangkok Rules did respond to gender-based violence–for example by promoting rehabilitation programs that are tailored to a women’s past traumas. However, the Rules did not attempt to change our society’s fundamentally carceral response to serious crimes, and the Bangkok Rules have been inadequately implemented. This has led to the proliferation of women in custody: over the last decade, the number of women in custody has increased by 105,000.

In collaboration with the National Black Women’s Justice Initiative, the Sentencing Project, and Harm Reduction International, the Cornell Center on the Death Penalty Worldwide has been focusing more attention on women facing extreme sentences. We believe in looking critically at the gendered and intersectional forces that lead to extreme sentence. In September of 2020, over 50 leaders in fields related to gender, criminal system reform, and death penalty abolition gathered for a conference about women facing extreme sentences in the United States. The convening observed that death penalty abolitionists often consider a life sentence to be a win, but that life sentences themselves are extreme and violate human rights, too. While women are a relatively small proportion of people in custody, we identified that this is an often-overlooked group with specialized needs. With the #MeToo movement increasing attention on women’s trauma, we hope that women’s stories can help us highlight that harm is rooted in structural violence and challenge the dichotomy of victims v. perpetrators. The convening included a panel of women who had previously been sentenced to extreme sentencings, and highlighted the importance of centering the voices of those most impacted by the criminal legal system.

Overall, the Convening pointed us to one central issue: too often, we focus on the low-hanging fruit of non-serious crimes or innocent defendants. To transform our criminal legal systems, we need to change the narrative around guilty defendants who have committed serious crimes. We must show the public the complex lives of people who cause harm after having been harmed themselves, and place healing justice at the center of our criminal legal system.

Photo credit: Ekaterina Bolovtsova on Pexels.