Michele Goodwin on the Incarceration of Women in the U.S.

Prof. Goodwin and Prof. Glater in recording booth

Michele Goodwin warns of the serious and inadequately recognized challenges posed by the rising number of women in prison in the U.S.

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  • Michele B. Goodwin

    Chancellor's Professor of Law and Director, Center for Biotechnology and Global Health Policy
    Expertise: Bioethics, constitutional law, family law, human rights, medical law, reproductive rights, torts
  • Jonathan Glater

    Assistant Professor of Law
    Expertise: Higher education law, criminal law, corporate law, white collar crime and securities fraud

Podcast Transcript

[Narrator] Welcome to UCI Law Talks, presenting bold perspectives on law from the University of California, Irvine School of Law. Join the conversation on Twitter @UCILaw, #UCILawTalks.

[Jonathan Glater] Welcome to UCI Law Talks. Today we're talking about mass incarceration, a topic rising higher and higher in national consciousness and specifically about the impact of increasing incarceration of women. I'm talking to Michelle Goodman, Chancellor's Professor of Law here at UCI and director of the Center for Biotechnology and Global Health Policy. She's the author of too many scholarly articles to count, but most relevant to our good discussion today is, “Invisible Women: Mass Incarceration’s Forgotten Casualties,” forthcoming in the Texas Law Review. Welcome, Michelle, and thank you for joining us.

[Michele Goodwin] Thank you so much for having me, Jonathan. It's a pleasure to be with you, being interviewed here by Mr. New York Times, so it's my pleasure.

[JG] So I want to start by asking you what drew you to the topic?

[MG] That's such a great question, Jonathan. I have to say that and it wasn't because I'm a criminal law scholar at all. I've actually come to this field through my work in biotechnology and science. I thought it was very curious 10 years ago or a little bit more as I was researching assisted reproductive technology. It was clear to me that there were very few states legislating in the area and the federal government only had one law related to assisted reproduction. But what I found interesting and began to write about and talk about and I guess this is more like 15 years ago really, gosh, was that there were really high incidences of cognitive delays, hearing impairments, and multiple births, low birth weight babies and I found it to be a very interesting space. Given that there was no legislation, nobody was really talking about those issues and yet, in the shadows, what I saw were many prosecutions of poor women – primarily women of color – because they had had miscarriages or stillbirth. And I thought wow that's interesting considering that within the realm of assisted reproductive technology, the failure rate is about 70 percent. Seventy percent of miscarriages and nobody's sort of claiming that those women did anything wrong or that they shouldn't be doing that and it raised issues about where the state gets involved and where it doesn't. But just seeing that gap made me want to learn more about these prosecutions and why there were women who were beginning to take plea deals of nine years, 12 years, 20 years after having a miscarriage. And it said a lot about the misapplication of science and the politicization of science, and so that's what got me involved.

[JG] Can you say a little bit about what's special, and I think you're already alluding to it already, but that about the situation of women in prison or the context right for women in prison?  

[MG] Well for me, this started off with looking at this within the context of mothering and reproduction. And if one looks in those spaces then we have to dig a little bit deeper and think about the fact that reproduction has been a very politicized state and status within the United States dating back to slavery and women being treated as chattel. But not just slave women treated as chattel, within the context of the coverture laws meaning that women were the property of their husbands and then if we fast forwarded from there, early eugenics laws and practices in the United States where states legislated that some women, and men too, could be sterilized so they would never give birth because we didn't want those kinds of people ever being able to reproduce in the United States. And our Supreme Court backing that in Buck v. Bell in 1927 where Justice Oliver Wendell Holmes says that three generations of imbeciles are enough and it's a fascinating case that involves a 16-year-old girl who happens to be white who was raped and becomes pregnant. And the state of Virginia says well, she's unfit. And she's unfit because she has a mother who is poor and she has a mother who is an alcoholic and who is a prostitute. People like this should never be allowed to reproduce and so with that backdrop then combined with what we began to see in the 1980’s and 90's with these prosecutions, then it struck me that this is a really important space for us to pay attention to. But what I found increasingly disturbing is that when we talk about mass incarceration, we generally talk only about men. We don't focus on women. So what we know is the male story, which is quite troubling in its own right, right? Which is that the U.S. incarcerates more people than anywhere else in the world, that 25 percent of the world's population that's imprisoned happen to be imprisoned in the United States. These are Americans that we're putting in jail, that the prison industrial complex is no longer kind of mythmaking or what people might say is just simply conspiracy theory. We understand how real it is, but what's fascinating with all of that, Jonathan, is that the same applies to women and we just don't know. Right, so that the U.S. incarcerates more women than anywhere else in the world. The U.S. incarcerates more women than in Russia, China, India combined and you can toss in Thailand, if you want to. Toss in Brazil, and we still incarcerate by number and by percentage more than in all of those countries combined. We incarcerate so many women that in some states, they think it's a progressive policy to allow children to be born in and grow up in jail with their mothers. We now have more than half a million children who are in foster care and for whom this is not a temporary placement but that they spend the rest of their lives there because their mothers who were their primary caretakers have taken these plea deals that are 10, 15, and 20 years. And so, these kids miss out having their mothers with them for all that period of time. And the one last point that I'll add to this is that two-thirds of these people are nonviolent offenders. So it's not even that we can say, well we've gotten those people off the streets who are going to harm us, who are going to cause us some sort of pain, who are going to injure us. No. Two-thirds of these women, they're in for petty crimes or in jail because they used drugs or maybe gave drugs to somebody else or they're there because they've written bad checks. So you see a lot that's connected with their economic status as a gateway to women being in prison.

[JG] This is fascinating because I thought you were going to suggest before we spoke, that this is a relatively recent phenomenon. But you have situated this in a much larger historical context.

[MG] Yes. Well you know, I think it's really important that we understand the roots of so much of this, right? You know some people, politicians now on the right and left, are saying this is a – I've got a problem today that we have to resolve. But I think that we can track this back in various errors. We can track this back to our nation's failed drug war. It's interesting that the rate of addiction in the United States has basically remained the same through the 1950’s and 60's through today. But the significant difference has been how we incarcerate it off the chart. Literally, I mean it's a very steep incline and not just who we arrest but it is also – and largely people of color there – but also the amount of money that we've spent on this. I mean, I think that the reason why this has become a unifying issue between Republicans and Democrats is that they now realize on both sides of the aisle we can't afford it. Right? We have overcrowding jails, the conditions behind our prison walls are just absolutely horrific. At a summit that we have coming up, a woman by the name of Sue Ellen, she will be our keynote speaker. She's the founder and executive director of an organization called Gina’s Team. Now, Gina’s Team is named for a person who was her cellmate. Sue Ellen was in prison for seven years, but Gina died at 25 nearly in Sue Ellen’s arm and I say nearly in Sue Ellen’s arms because when she finally received care three days before her death, it was Sue Ellen who was literally holding her in her arms begging for medical attention. She had been begging for months for Gina to get medical attention. Gina had complained of headaches, the inability to eat, the inability to chew her food. And not just Sue Ellen had complained about this, so had other inmates but they were threatened with solitary confinement. And finally, on the day in which Gina was taken to get medical care, she lapsed into a coma and then she died three days later. She had undiagnosed leukemia. Gina was only 25-years-old and she was a mother. She was a nonviolent offender and Gina’s story, rather than being isolated, sadly, tragically, is too symbolic of what is actually happening in prisons throughout the United States.

[JG] So a big part of what makes this crisis, it sounds like I'm right to call it a crisis, what makes it different is the collateral consequences. Right? The indirect, if you will, victims of the incarceration of women?

[MG] Yes, and that is such a brilliant way in which what you've posed this. Yes. There are the collateral consequences that seep out throughout our society and they impact children. One of our colleagues here at UCI, Kristin Turney, has just done amazing work in this regard and she's a sociologist and she focuses on families and children in the impacts of prison and children's lives. And what she has been able to confirm is what families have been saying and trying to bring attention to and that is incarcerations impact on children is actually worse than a child experiencing a parent's death. And that's really quite profound as she studies these children and she says it's not just the physical impact, it happens to be the mental and emotional impact worse than death. Now when you think about the gross disparities in that regard of the children, primarily African-American children and Latino children, who grow up with their parents in prison and that for these children their emotional status is one that's worst than experiencing a parent's death. We have to think about why it is that we have implemented these policies. How they're working and what we do to get out of this rabbit hole.

[JG] You alluded to the coming summit and I want to jump ahead to ask you about that because it sounds like one of your goals there is to develop some concrete policy proposals ways to address these – I don't want to call them side effects, but collateral effects.

[MG] Sure yes, these harms, these injuries that have resulted from failed policy. And I think it's important that we recognize that we're in a space that one, we see consensus on this that our drug war, those policies were inconsistent. They were disparate. The sentencing guidelines that made distinctions between crystallized cocaine and powdered cocaine had such incredibly negative consequences. We have to acknowledge that and we also have to put some other facts on the table too. And that's what will happen at the summit on September 22 with just such wonderful people who are coming in to speak to these issues. One of them is a judge who was one of the first judges in the country to call out the disparate sentencing in our sentencing guidelines as being unconstitutional as having racial impacts and that's Judge Pamela Alexander. And she actually put at risk at the time in which she did that, she was being considered for a federal position and she was the youngest person to ever be on the bench in the State of Minnesota and the first African-American. And she put at risk ascendancy that was almost guaranteed during the Clinton administration. We also have Dr. Claire Coles from Emory University and she was blacklisted during the 1980’s and 90's because her research showing that there was no such thing as a crack baby. That was a very popular mythology that was in the media. It was a way that galvanized forces. These forces that wanted to blame the failures of our economy on women who were on welfare and at the same time to suggest that if black kids weren't doing well in school it was because of their mothers. Well in her research lab, she was able to show fetal impacts associated with alcohol with tobacco and what not and she had been saying it's just not true what's being purported in the media with regard to crack and cocaine and she's going to be coming in joining us. Dr. George Woods, the president of the International Academy of Law and Mental Health and so many others and I'm really grateful that we just have this incredibly strong group of people who are going to be joining us for an afternoon. It's a summit; it's not a full day symposium. They're getting in, diving in and telling us what we need to know and how we need to move forward on these issues.

[JG] And the summit will be available on the web for people who want to but who aren’t unable to attend but want to tune in.

[MG] Absolutely. And that's really important too; we really want to make this accessible to people across the country.

[JG] Are there specific policy changes you have in mind from having studied this issue that you would want adopted?

[MG] Well I'm glad that you raise that because I think it's really important that we look at these issues not concentrated exclusively on women but even the impacts that are happening with regard to girls. So this summer we engaged in a research study that is continuing – it’s a 50 state survey looking at juvenile detention and there too, the findings are just absolutely stunning and problematic. What you find in states where there's very low African-American or Latino population, you find disparately high rates of girls incarcerated in juvenile detention. You also find high rates of suspensions that are based on race and that are disparate and also expulsions as well. And so, as we pay attention to this, I think it's really important that we look at what's happening in terms of school policy. And one other area that we tend not to think about is also the way in which we operationalize trade in the United States as well. Where are the jobs? When we think about mass incarceration and we think about how people are treated behind bars, a few things come to mind that I want to be really succinct about. One happens to be 50 years ago, no one would advocate for a prison to be literally in their backyard or in their neighborhood. Nobody would. Nobody wanted that. Why is it today that, that's one of the chief lobbying areas where people want these prisons in their backyards? They want them in their rural communities; they know that these prisons mean jobs. A second thing that we want to pay attention to happens to be law enforcement. We have incentivized the stopping and the harassing of people as they drive, as they go to work, as they go to school. Is Sandra Bland right? Now why is she stopped right? Police are told issue a certain amount of tickets a day and this means a certain level of confrontation that is built in to escalate. You have to escalate it in order to meet your quota and then what does that mean when the people who are getting these jobs are people who have come back from war, who've been situated to respond to things as a soldier rather than an officer of the peace? And then what do these things mean when we think about women's health conditions behind bars? No one bothers to pay attention to breast cancer behind bars. People are stunned when I mention that. I say, oh yes, I guess women who had breast cancer behind bars or ovarian cancer or cervical cancer or rape or pregnancy. So I think for that day and for conversations to come, there's so much for us to put on the table that's not just simply about the raw numbers but also impact all of these other category. Yes, and of course kids too. And if I could just take one quick moment and that is to say that in foster care, kids who age out of foster care, the statistics are horrific. Incredibly high rates of homelessness over 70 percent, pregnancy, incarceration. We’re not doing a good job at any end of this.

[JG] Hearing you talk about this, I find myself wondering why hasn't this issue gotten more attention in recent years. And I just want to throw out a statistic that you used in I think, was the Huffington Post article, that the number of women in prison has increased by 800 percent between 1997 and 2007 and that's double the rate for men. Why hasn't this been on the radar screen before?

[MG] That’s a great question. I mean and I think part of it is because we're overwhelmed about male incarceration. I think that there is something to be said about the narrative of bad mothers and bad girls. Right? They must have done something to put themselves there. I think it also says something about where we've devoted energy within women's movements; much of the energy has been put in smart places about protecting reproductive rights. But, we have to realize even within those spaces that there are many different forces that are encountering women's lives and we have to be nimble and mindful about all of those different kinds of spaces. For example, when I talk about pregnancy as being one of the spaces in which women are actually policed, organizations that work on reproductive rights have long ignored that. It's only recently that they're beginning to pay attention to this. But these issues date back in this most recent wave to the 1980’s. So for the last 30-40 years we've missed the opportunity to say hey why is that? Why is it that a woman like Regina McKnight after simply having a miscarriage ends up having to take a plea deal? Why is it that Rennie Gibbs in Mississippi who's 15-years-old was just charged with aggravated murder for having a still birth? If organizations were bothering to spend time saying we care about those issues too and we care about those women too and that our concerns are not just about protecting and preserving a right to terminate a pregnancy, but it's also a concern about women and every stage of their reproduction, I think that we might not have seen so much that we have been seeing. But now that we know this, I say let's move forward in proactive ways because none of this is good for our society, what we've been doing.

[JG] It's a great moment in the sense that there's all this attention to mass incarceration effects in other contexts and it sounds as though this is an intersectional moment to bring attention to this issue.

[MG] Yes and you're so brilliant for bringing it up in that way. Yes, absolutely it is an intersectional moment where we can begin to see how interest can converge and collide along the spaces of race of sex and even sexual orientation. I suppose a very important point to include here as we begin to wrap up is that for those who are transgender and those who are gay these two are spaces where there is very intensive policing and the kind of policing there is incredibly pernicious because a lot of it leads to solitary confinement under the guise of somehow protecting those populations. And that's no protection whatsoever.

[JG] Michele there is so much to cover in this topic. I had not even realized until we started, but I'm afraid we have to wrap up. My general wrap up question is always: is there anything else I should be asking?

[MG] Well I would just say that, I'm so grateful to be on with you. It's such an honor to be with you, particularly given your journalistic record, so I'm just grateful and I hope that that people will tune in to my writings about this issue. If they have the opportunity to either come to our summit or else tune in on the web and I'm just really grateful to be able to talk about this issue.

[JG] Thank you so much for joining us, Michele, you are truly too kind.

[Narrator] Thank you for joining us for UCI Law Talks produced by the University of California Irvine, School of Law.