Maternal incarceration is but a phase for the people who experience it. It doesn’t define them.

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When I sat down to interview 20-year-old Aaliyah in the small living space at Mother’s Love, a residential home for formerly incarcerated mothers, she was only a few years younger than I was at the time. I wasn’t sure if she, too, made that observation when she inquired about my position at the organization. If I wasn’t a counselor or affiliated with a correctional institution, then why was I interested in speaking with her? I told her that I was a graduate student, pursuing a doctorate in sociology. Specifically, I wanted to learn about her experiences and those of other women at Mother’s Love who were balancing motherhood and the challenges associated with having a criminal record. She went on to tell me that she also aspired to further her education. With confidence, she shared that one day she planned to enroll in one of New York’s top creative writing programs.

While Aaliyah’s sisters were practicing their cheerleading routines, she told me, she was writing poetry. Poetry had become a way for her to escape the reality of living. The carefree laughter of her sisters, their chatter of prom dresses and boys, stood in sharp contrast to her schoolyard fights and the abuse she suffered at home. Through metaphors and rhymes she created a world where she was loved, cherished, and whole. At 13, when she discovered that she was pregnant, Aaliyah’s father told her to lie whenever anyone asked about her unborn child’s father. His response to her pregnancy was hardly surprising. Aaliyah described herself as the “black sheep” of her family and was therefore used to feeling unprotected and unloved. Still, that pregnancy, which served as tangible evidence of years of intra-family abuse, was a chance for her to break her silence.

Her hope was that if she told the truth, someone with power might hear her and value her words.  If, however, she obeyed her father, it meant that the abuse she experienced for years might continue, and that the child she was carrying might one day fall victim to the dysfunction that robbed her of so much. So when a social worker asked her about her child’s father, she told them the truth: Her baby was the product of her older brother’s years of assault.

The weeks and years following that confession brought further upheaval into Aaliyah’s life. Her father disowned her and left her without a home. By the age 15, the burden of caring for a toddler, while living in a facility for mothers and children, simply became too much for her to bear. One day, unsure of where she would go, Aaliyah walked out the door, leaving her young daughter behind. A few years later, after moving to New York, the weight of poverty took its toll. With little money and no social support, Aaliyah walked into a local store and stole the items she needed. Shortly thereafter, she was charged and convicted of petty theft. It was in jail that she discovered she was pregnant.

Considering her past, Aaliyah’s dream of going to college might seem naive, even unrealistic.  However, like other women I interviewed, she was not unaware of the significant hurdles that she would have to overcome in order to attain her goals. What she did know was that her past and the mark of a criminal record was not the sum total of who she was.

Incarceration Begins in the Past

The event of incarceration can make it all too easy for society to label a person as wholly flawed. A person’s life is summarily distilled to the charges, convictions, and court dates contained in files that follow them long after they leave the confines of penal institutions. In my new book, This Is Our Freedom: Motherhood in the Shadow of the American Prison System, I describe incarceration not as an isolated event, but one in a series of life experiences that exacerbates poverty, abuse, and social exclusion. Because most of the women I interviewed were facing various degrees of marginalization prior to imprisonment, the pronouncement of a jury’s verdict or a judge’s sentence weren’t so much a personal nadir as it was a culmination of years of loss and invisibility. To fully capture the impact of incarceration on the lives of marginalized mothers, one must first understand the broader systemic factors that create and sustain a system bent towards punishment and built upon the notion that poor people, particularly those who are Black and Brown, are more deserving of incapacitation rather than care and support.

When Tanesha Bannister stood before a packed audience at the 2019 Second Step Presidential Justice Forum, she bore witness to the experience of marginalized women in the age of mass incarceration. Along with 3,000 individuals who were convicted of drug offenses, Tanesha had recently been released from prison under the provisions of the recently passed First Step Act. As she stood on stage, looking back, it was difficult to imagine that such a day would come. In 2002, along with 15 other defendants, Tanesha was arrested and charged with conspiracy to sell 50 grams of crack cocaine and five kilos of cocaine. After her conviction, she was given a life sentence, which upon appeal, was reduced to 23 years.

In response to rising violent crime and the prevalence of cocaine during the 1980s, Congress passed a number of laws and policies that disproportionately impacted poor communities of color. The Anti-Drug Abuse Act of 1986, for example, outlined some of the most draconian sentencing guidelines for drug possession. Judges were mandated to sentence individuals convicted of possessing five grams of crack cocaine to five years in prison, while the same minimum sentence was to be imposed upon those convicted of possessing 500 grams of powdered cocaine. Because crack cocaine was more prevalent in poor, mostly minority communities, the 100:1 sentencing disparity between cocaine and crack cocaine was, for many, another example of the criminalization of Blackness in America. In the years since the passage of that legislation, as the prison population swelled to unfathomable proportions, it became increasingly clear that policies built upon punitiveness, rather than treatment, were both ineffective and untenable.

Because most of the women I interviewed were facing various degrees of marginalization prior to imprisonment, the pronouncement of a jury’s verdict or a judge’s sentence weren’t so much a personal nadir as it was a culmination of years of loss and invisibility.

The dramatic rise in female incarceration rates tells one part of this decades-long story. Worse yet, when trendlines are understood as people and communities and not merely as data points, the cumulative effect of mass incarceration is nothing short of devastating. In the United States, the number of women incarcerated between 1980 to 2019 increased by 700%. The overwhelming source of that increase was drug-related offenses, like those Tanesha and the majority of women I interviewed were charged with. Because approximately 80% of women who are in jail and 60% of women who are incarcerated in prisons are mothers, the dramatic rise in incarceration also means that their children are placed in increasingly vulnerable circumstances. In the absence of available family members to care for them, children of incarcerated mothers may enter the foster care system. Children who enter the foster care system are more likely to engage in law-violating activities and eventually become enmeshed in the criminal legal system themselves. Thus, when considering the 40-year time frame of ever-increasing incarceration rates, we as a society must also reckon with what that means for generations to come.

Structural Injustice

When I began interviewing formerly incarcerated mothers in New York and New England in 2010, I had one key question: How do mothers manage the stigma and labels society places on them as a result of their criminal convictions? Much of what women described during our interviews was supported by existing literature. For example, women detailed the difficulty of securing affordable housing, finding employment, and integrating within their social networks. But women also shared what it meant to recognize the flaws within a system that evaluated, critiqued, and judged them for failing to meet moral benchmarks, while that same system made it difficult for them to succeed. In particular, women highlighted the contradiction of reentry programs that expected them to ascribe to a version of motherhood characterized by attentiveness, provision, and care, when those programs also required women to spend hours away from their children navigating the bureaucratic maze of agencies needed to secure welfare benefits and apartment leases.

Women knew that having a criminal record disadvantaged them on the labor market, but this was a fact that often seemed ignored by the very programs and institutions who criticized them for not securing a job. Furthermore, the trauma of childhood abuse, intimate partner victimization, and racial discrimination factored little into how women were sentenced and their post-incarceration plan of care. As a response to what women viewed as the criminal legal system’s unwillingness to acknowledge their marginalization both at the individual and the structural level, they reframed their criminal identity not as endemic or essential to who they were, but as one factor among many that shaped their experiences in the past and their prospects for the future.

In a number of ways Trisha, a Black 28-year-old mother I met in New York, embodied this view of the criminal legal system. Not once during our interview did she express shame or embarrassment about her criminal record. To her, it wasn’t a reflection of who she was, but rather illustrative of everything that was wrong with the criminal legal system. Relying mostly on a closed-circuit video that captured a heated confrontation, but not a physical attack, she and her friends, all of whom were Black and queer, were convicted of the brutal assault of a stranger. Despite the offer of a plea deal, Trisha pled not guilty. In her words, no matter what she did, the system was rigged against people like her. “The jury was all white,” she told me,” and later added: “You’re getting people from the area that just committed this crime. They don’t want us gay people out there anyway so of course they going to go against us.” She decided to not plead guilty because it went against her “morals and beliefs.”

Not once during our interview did Trisha express shame or embarrassment about her criminal record. To her, it wasn’t a reflection of who she was, but rather illustrative of everything that was wrong with the criminal legal system.

Once she was convicted and sentenced, the toll of loss became unbearable. Her mother died while she was in prison and she missed her young son. So when she was given another opportunity to have her trial reheard due to a procedural issue and was yet again presented with a plea deal offer, she accepted it.

I ain’t going to say it worked out but it was a lot better. I had at that point in order for me to get that deal, I had to plead guilty. At first when they came over to me my morals and beliefs was more important to me than anything. The second time I had already lost my mother. I already knew what it felt like to be away from my son and I already knew that the system was just trash. So, I was like right now I need to swallow my pride, my morals, and beliefs and think about my son.

So much of what women are told while in prison and upon release focuses on the importance of taking accountability for their actions. This expectation often lacks the level of nuance needed to capture the complex relationship that women have with the criminal legal system. If, for example, the victim was a boyfriend whose years of domestic abuse went unpunished, then women I met like Kishana felt that they were expected to take full responsibility for retaliating in self-defense. What message does this send to women, whose victimization is rendered invisible but whose offenses are upheld as justification for their exclusion?

It is no longer acceptable for officials within the criminal legal system to emphasize the importance of rehabilitation while concretizing the marginalization of justice-involved women through laws, sentencing, and post-imprisonment policies. For this country to truly address the history of inequity that continues to harm some of our nation’s most historically disadvantaged groups, bold and comprehensive changes are needed.

A Way Forward

In January 2021, just before the presidential inauguration, the National Council for Incarcerated and Formerly Incarcerated Women and Girls issued an open letter to the incoming Biden administration. In the letter, the council called upon the president to grant clemency to 100 incarcerated women during the first 100 days of his administration. Months later, as the administration marked its 100th day in office, only one of the women included on the list submitted by the National Council was no longer in prison. She died while still in custody. One of the most impactful powers of the presidency is the ability to grant clemency to incarcerated persons. While it has been tradition for presidents to wait until the twilight of their administration to exercise that power, the swell of our prisons and the system embedded inequities at the root of mass incarceration calls for more aggressive action. Recently, when President Biden granted clemency to just under 80 individuals, it illustrated both the role of clemency in addressing injustice and the glacial pace at which pardons and commutations are given.

Another way to address the inequities exacerbated by the criminal legal system is to establish policies that prevent mothers from being separated from their children. Because most women are the custodial parent at the time of their imprisonment, carceral institutions play a significant role in disrupting the bonds between mother and child. And thus, first and foremost, those in charge of carceral policymaking and enforcement should focus their efforts on not incarcerating mothers. Short of that ideal, at present, there are less than a dozen prisons that provide nursery programs enabling infants and young children to remain with their mothers during her sentence. Even in the programs that do exist, young children can only remain in nurseries for a few years, meaning that women serving lengthy sentences will inevitably be separated from their children. When children are separated from their mothers, the consequences are far-reaching. For example, children separated from their mothers are more likely to struggle in school, engage in risky activity during adolescence, and are at an increased risk for incarceration. Thus, maternal incarceration and the resulting repercussions on children reproduces the very vulnerabilities that have long plagued marginalized communities nationwide.

Not a single woman I interviewed described herself as flawless. In fact, most women repeatedly acknowledged their role in the acts for which they were charged and convicted. And they universally noted that the courts and correctional institutions that acted as arbiters of their moral worth did not recognize the underlying factors that shaped their actions.

Women I interviewed universally noted that the courts and correctional institutions that acted as arbiters of their moral worth did not recognize the underlying factors that shaped their actions.

The stated goals of penal institutions and reentry programs include rehabilitation and reintegration. Yet laws and policies at the state and federal level do not consider the trauma so many women experience prior to incarceration, let alone the fact that jails and prisons can re-traumatize women. They do not consider the journey of pain and loss, along which involvement in the penal system is one horrible part. And so they also do not realize that the penal system is not in a position to truly rehabilitate. To overcome the persistence of entrenched inequity facing presently and formerly incarcerated mothers — and the seduction of institutional feigned innocence — past and present injustices must be addressed at this structural level. One way to start is to seek out, listen to, and then speak with honesty about the experiences of the women ensnared in the penal system, and about the system’s role in creating new harm for them and those they nurture.

Image: Larry Crayton/Unsplash