Women in Prison: Discriminatory Practices and Some Legal Solutions
![handle is hein.journals/clear8 and id is 3 raw text is: WOMEN IN PRISON: DISCRIMINATORY
PRACTICES AND SOME LEGAL SOLUTIONS
by Marilyn G. Haft*
I. INTRODUCTION
Increasing concerns have recently developed in society
for the problems of women and the problems of prisoners.
Unfortunately, these concerns have rarely coalesced. As a
group, women in prison suffer the mutually reinforcing
problems of both women and prisoners. However, due
perhaps to their relatively small number, their predominantly
non-militant posture, and the apparent infrequency of overt
brutality by their keepers, women prisoners have been
neglected, even by the women's rights and the prisoners'
rights movements.
This article will discuss some of the legal and social
problems faced by women in the criminal justice system.
The emphasis will be on the special problems of adult women
incarcerated in institutions. Some attention, however, will
be paid to the uneven manner in which adult and juvenile
females are sentenced.
The criminal justice system has shown little interest in
the problems peculiar to female offenders. There are
considerably fewer statistics showing where women are incar-
cerated, what crimes they have committed and what sentences
they have incurred. Even the comprehensive study of crime
published in 1967 by the President's Commission on Law
Enforcement and Administration of Justice contains no
statistics on women.I
Women derive one major benefit from being ignored
by the system: proportionately fewer of them are arrested
than men, and an even smaller proportion are convicted and
incarcerated.' While it could be argued that this merely
* Director of the ACLU National Litigation Project on Sexual
Privacy, Co-Coordinator of N.Y.U. Law School Women's Prison
Clinic, ACLU, 22 East 40th St., New York, N.Y. 10016.
[Editor's Note: This article has been adapted by permission from
PRISONERS' RIGHTS SOURCEBOOK, ed. Hermann and Haft
(Clark Boardman Company, Ltd., New York, 1973).]
1. The most recent comprehensive survey of correctional facilities
for women is J. LEKKERKERKER, REFORMATORIES FOR
WOMEN IN THE UNITED STATES (1931). This work has
been updated only by an unpublished dissertation, K. STRICK-
LAND, CORRECTIONAL INSTITUTIONS FOR WOMEN IN
THE UNITED STATES, June 1967 (Ph.D. dissertation, Syracuse
University, available through University Microfilms, Ann Arbor,
Michigafi). See also K. BURKHART, WOMEN IN PRISON
(1973). Other published works on women's prisons have been
limited to sociological descriptions of a single institution. See,
e.g., R. GIALLOMBARDO,' SOCIETY OF WOMEN:
A STUDY OF A WOMEN'S PRISON (1966); D. WARD and
G. KASSEBUM, WOMEN'S PRISON: SEX AND SOCIAL
STRUCTURE (1965).
2. UNIFORM CRIME REPORTS. These indicate that men and
boys are arrested more often as compared to women on a 6-to-1
ratio and are convicted and admitted to federal and state institu-
tions on a 20-to-1 ratio.
reflects the rarity of criminal activities by females, it seems
likely that the reason fewer women are actually subject to the
system is due in part to the fact that most law-enforcers, from
the police to judges, are males, and as such are more lenient
towards adult females.3 They are merely reflecting the
attitudes of men in the larger society who act out what is
euphemistically known as the chivalry factor.' They have
a paternalistic protectiveness towards women and assume
therefore that women need to be sheltered from manly
experiences like jail and formal proceedings in criminal cases.
They more often look the other way, excuse, forgive, and are
thus unwilling to report and detain women.
II. DISCRIMINATION IN SENTENCING
Although it is believed that women generally serve
shorter sentences than men, women may be sentenced to
longer terms than men for the same crimes. In all but five
states where participation in prostitution is illegal for both
males and females, unequal enforcement of the laws results
in prosecution of the women only. This phenomenon,
although common, is a blatant violation of the equal protec-
tion clause and is beginning to be challenged by those accused
of prostitution.' Certain jurisdictions have statutes dictating
indeterminate sentencing for women only. Those sentenced
under indeterminate sentences must receive the maximum
punishment for that crime. For example, if burglary is
punishable by statute by one-and-one-half to three years,
the judge must sentence the prisoner coming under the
3. The UNIFORM CRIME REPORTS indicate that female crime
has doubled in the last decade. Over all, arrests of women for
violent crimes increased 69 per cent from 1960 to 1970, while
the total crime rate for women rose 74.9 per cent during that
decade. The percentage increase for men was 25 per cent. See
Nagel and Weitzman, Women as Litigants, 23 HASTINGS LJ.
171 (1971).
4. See Reckless and Kay, The Female Offender (consultant report
presented to the President's Commission on Enforcement and
Administration of Justice (1967)).
5. See State v. Devall, No. 12-73-7806 (La. Dist. Ct., Feb. 8, 1974),
Louisiana prostitution statute declared unconstitutional as a
denial of equal protection; State v. Fields, No. 72-4788 (Alaska
Dist. Ct., June 27, 1973); U.S. v. Moses, No. 17778-72 (Colo.
Super. Ct., Nov. 3, 1972); Portland v. Sherill, No. M-47623 (Ore.
Cir. Ct., Multnomah County, January 9, 1967), defining prostitu-
tion as an offense that can be committed only by women is a viola-
tion of the equal protection clause. For a discussion of prostitu-
tion and the equal protection clause, see generally, The Equal
Rights Amendment: A Constitutional Basis for Equal Rights for
Women, 80 YALE L.J. 871,962-965. L. KANOWITZ, WOMEN
AND THE LAW, at 16-17 (1969); Rosenbleet and Pariente, The
Prostitution of the Criminal Law, 11 AMER. CRIM. L. REV.
373 (1973); M. Haft, Hustling for Rights. THE CIV. LIB. REV.
(Winter/Spring 1974).](ViewImageLocal?handle=hein.journals/clear8&div=4&collection=&method=preview&ext=.png&size=3)
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Women in Prison: Discriminatory Practices and Some Legal Solutions
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