U.S. COMMISSION ON CIVIL RIGHTS WOMEN IN PRISONSEEKING JUSTICE BEHIND BARS BRIEFING REPORT U.S. COMMISSION ON CIVIL RIGHTS FEBRUARY 2020 Washington, DC 20425 Official Business Penalty for Private Use $300 Visit us on the Web: www.usccr.gov U.S. COMMISSION ON CIVIL RIGHTS MEMBERS OF THE COMMISSION The U.S. Commission on Civil Rights is an Catherine E. Lhamon, Chairperson independent, bipartisan agency established Patricia Timmons-Goodson, Vice Chairperson* by Congress in 1957. It is directed to: Debo P. Adegbile Gail L. Heriot • Investigate complaints alleging that citizens are Peter N. Kirsanow being deprived of their right to vote by reason of David Kladney their race, color, religion, sex, age, disability, or Karen Narasaki** national origin, or by reason of fraudulent practices. Michael Yaki • Study and collect information relating to Mauro Morales, Staff Director discrimination or a denial of equal protection of * Term ended 12/05/2019 the laws under the Constitution because of race, **Term ended 11/29/2019 color, religion, sex, age, disability, or national origin, or in the administration of justice. • Appraise federal laws and policies with respect to discrimination or denial of equal protection of the laws U.S. COMMISSION ON CIVIL RIGHTS because of race, color, religion, sex, age, disability, 1331 Pennsylvania Avenue, NW or national origin, or in the administration of justice. Washington, DC 20425 • Serve as a national clearinghouse for information (202) 376-8128 voice in respect to discrimination or denial of equal TTY Relay: 711 protection of the laws because of race, color, www.usccr.gov religion, sex, age, disability, or national origin. • Submit reports, findings, and recommendations to the President and Congress. • Issue public service announcements to discourage discrimination or denial of equal protection of the laws. 142 U.S.C. §1975a. Women in Prison: Seeking Justice Behind Bars Briefing Report Before The United States Commission on Civil Rights Held in Washington, D.C. Briefing Report February 2020 [This page intentionally left blank] UNITED STATES COMMISSION ON CIVIL RIGHTS 1331 Pennsylvania Ave., NW Suite 1150 Washington, DC 20425 www.usccr.gov Letter of Transmittal February 26, 2020 President Donald J. Trump Vice President Mike Pence Speaker of the House Nancy Pelosi On behalf of the United States Commission on Civil Rights (“the Commission”), I am pleased to transmit our briefing report, Women in Prison: Seeking Justice Behind Bars. The report is also available in full on the Commission’s website at www.usccr.gov. This report examines the civil rights of women in United States prisons. The population of women in prison has increased dramatically since the 1980s, and this growth has outpaced that of men in prison, yet there have been few national-level studies of the civil rights issues incarcerated women experience. The Commission studied a range of issues that impact incarcerated women, including deprivations of women’s medical needs that may violate the constitutional requirement to provide adequate medical care for all prisoners; implementation of the Prison Rape Elimination Act (PREA); and the sufficiency of programs to meet women’s needs after release. The Commission also examined disparities in discipline practices for women in prison compared with men, and the impacts of incarcerated women being placed far from home or having their parental rights terminated. The Commission majority approved key findings including the following: Many prison policies and facilities are not designed for women or tailored to their specific needs. Rather, many policies were adopted from men’s prison institutions without evaluating their application to women’s prison institutions. Incarcerated women report extremely high rates, and much higher rates than men, of histories of physical, sexual, and mental trauma. Notwithstanding federal statutory legal protections such as the Civil Rights of Institutionalized Persons Act (CRIPA) and the Prison Rape Elimination Act (PREA), aimed at protecting incarcerated people, many incarcerated women continue to experience physical and psychological safety harms while incarcerated and insufficient satisfaction of their constitutional rights. Department of Justice (DOJ) litigation against prison systems involving sexual abuse among other wrongs has secured important changes to safeguard incarcerated women’s rights. Classification systems that are not calibrated for gender-specific characteristics have been shown to classify incarcerated women at higher security requirement levels than necessary for the safety and security of prisons; women classified at higher security levels may receive fewer vocational and educational, community placement, and reentry opportunities than they would have received had they been classified at lower security levels. Many incarcerated women are placed at facilities far from their families, limiting visitation opportunities. Many prison policies do not prioritize family visits, such as by permitting extremely limited family visitation hours that often do not reflect distances visiting family must travel. Some prisons provide adequate healthcare specific to women, such as gynecological and prenatal care, while others do not. The high rates at which incarcerated women report past trauma results in the need for mental health care and treatment while incarcerated. Sexual abuse and rape remain prevalent against women in prison. Incarcerated women who report sexual assault have experienced retaliation by their institutions and prison personnel in violation of the law. The Commission majority voted for key recommendations, including the following: DOJ should continue to litigate enforcement of the civil rights of incarcerated women in states that violate these mandates and the rights of incarcerated women. Prison officials should adopt validated assessment tools, currently available, to avoid inaccurately classifying incarcerated women to a higher security level than appropriate. Prison officials should give strong preference to placing incarcerated women in as close proximity as possible with location of their family, provide free video and low- cost phone services to incarcerated persons, and not ban in-person visits for non-safety reasons. Prison officials should implement policies to address women’s specific healthcare needs, including gynecological and prenatal care, as is constitutionally required. Prisons should have adequate mental health care staff and treatment programs available to meet the needs of the many incarcerated women with mental health challenges, such as past trauma. Congress should enact stricter penalties for non-compliance with PREA standards focused on inmate safety and consistently appropriate funding sufficient to ensure correctional agencies comply with PREA. Prisons should implement evidence-based, trauma-informed discipline policies to avoid harsh punishments for minor infractions, and recognizing the significant harms that can result from placement in restrictive housing. Prisons should ensure restrictive housing is not used against people of color, LGBT people, and people with mental health challenges in a discriminatory manner. We at the Commission are pleased to share our views, informed by careful research and investigation as well as civil rights expertise, to help ensure that all Americans enjoy civil rights protections to which we are entitled. For the Commission, Catherine E. Lhamon Chair [This page intentionally left blank] TABLE OF CONTENTS i TABLE OF CONTENTS TABLE OF CONTENTS ........................................................................................................... i ACKNOWLEDGEMENTS ...................................................................................................... 1 EXECUTIVE SUMMARY ....................................................................................................... 3 Highlighted Findings ............................................................................................................... 5 Highlighted Recommendations ............................................................................................... 6 CHAPTER 1: INTRODUCTION AND BACKGROUND ...................................................... 9 Women in Prison Across U.S. States ..................................................................................... 12 Do Women in Prison Have Distinct Needs and Experiences from Men in Prison? ................. 18 Gender Differences in Offense Type ................................................................................. 18 Socioeconomic Differences Between Women and Men in Prison ...................................... 20 Gender Differences with Experiences of Trauma, Mental Health, and Substance Abuse .... 23 Prison Policies and Gender Differences Among Inmates ................................................... 24 Race, Ethnicity, and Women in Prison .............................................................................. 26 LGBT Women in Prison .................................................................................................... 29 LGBT Women in Prison, Housing, and Placement ............................................................ 31 Overview of Applicable Federal Legal Protections for Women in Prison .............................. 37 The Eighth Amendment .................................................................................................... 39 The Fourteenth Amendment .............................................................................................