Homework answers / question archive / CAUGHT IN THE NET: The Impact of Drug Policies on Women and Families AUTHORS & ACKNOWLEDGMENTS American Civil Liberties Union (Lenora Lapidus, Namita Luthra & Anjuli Verma) Break the Chains: Communities of Color and the War on Drugs (Deborah Small) The Brennan Center at NYU School of Law (Patricia Allard & Kirsten Levingston) Andrea J

CAUGHT IN THE NET: The Impact of Drug Policies on Women and Families AUTHORS & ACKNOWLEDGMENTS American Civil Liberties Union (Lenora Lapidus, Namita Luthra & Anjuli Verma) Break the Chains: Communities of Color and the War on Drugs (Deborah Small) The Brennan Center at NYU School of Law (Patricia Allard & Kirsten Levingston) Andrea J

Sociology

Share With

CAUGHT IN THE NET: The Impact of Drug Policies on Women and Families AUTHORS & ACKNOWLEDGMENTS American Civil Liberties Union (Lenora Lapidus, Namita Luthra & Anjuli Verma) Break the Chains: Communities of Color and the War on Drugs (Deborah Small) The Brennan Center at NYU School of Law (Patricia Allard & Kirsten Levingston) Andrea J. Ritchie also volunteered countless hours to drafting, editing, and giving the report a unified voice and an integrated analysis – all critical to the success and goals of the report. The authors also wish to acknowledge the many individuals who have been instrumental in the process of writing and conceiving of Caught in the Net. The volunteer interns at each of our organizations were absolutely essential; they drafted research memos, checked and double checked citations, and remained throughout dedicated to the core mission and goals of the report – Much Thanks to Anita Khandelwal and Melanie Pinkert (ACLU DLRP), Leah Aden (ACLU WRP), Kimberly Lindsay and Rick Simon (Brennan Center), and Dominique Borges (Break the Chains). Staff at each of our organizations also brought their unique skills and insights to the report, making it a genuine expression of the diversity of our experiences and knowledge – Thank You, Stephanie Etienne, Renee Davis and Regina Eaton (Break the Chains), Graham Boyd and Allen Hopper (ACLU DLRP), Elizabeth Alexander (ACLU National Prison Project), and Chris Muller (Brennan Center). We could not have done it without you! Many others played critical roles in reading drafts and pointing us in the right direction: Ann Jacobs, Tanya Coke, Velmanette Montgomery, and Susan Herman. In the final stages of publication, Tyrone Turner provided us with photographs from his project as a Soros Media Fellow, Daniel Berger designed and proofed the report in record time, Joe Sillechia and Casey Bell of Linklaters law firm in New York volunteered to proofread and bluebook the entire report, and Ulan McKnight at YVOD donated his expertise to build us a fantastic website (www.fairlaws4families.org)! This truly has been a team effort in which so many have donated time and energy they did not even think they had to see the publication of a report that gives voice to the women and families who struggle under current drug policies. To everyone, we are grateful and hope that all of these efforts will make a difference. Executive Summary Who ever heard of a female drug lord? As the terms "kingpin" and "drug lord" denote, men are almost always at the head of major drug operations, and yet the rate of imprisonment of women for drug crimes has far outpaced that of men. Families and children suffer – but why? Either we have turned a blind eye or we simply misunderstand women's experiences with drugs. This report begins a new dialogue and insists on answers to questions about women and drugs, and the laws and policies that should be in place. Federal and state drug laws and policies over the past twenty years have had specific, devastating, and disparate effects on women, and particularly on women of color and low-income women. These effects require further study and careful consideration as state and federal decision-makers evaluate existing and prospective drug laws and policies. Reliance on the criminal justice system to reduce the use, abuse, and sale of illegal drugs has had little effect on the supply and demand for these drugs in the United States. It has, however, led to skyrocketing rates of incarceration of women. ?Nationally, there are now more than eight times as many women incarcerated in state and federal prisons and local jails as there were in 1980, increasing from 12,300 in 1980 to 182,271 by 2002. ?Between 1986 and 1999, the number of women incarcerated in state facilities for drug-related offenses increased by 888%, surpassing the rate of growth in the number of men imprisoned for similar crimes. ?When all forms of correctional supervision – probation, parole, jail, and state and federal prison – are considered, more than one million women are now behind bars or under the control of the criminal justice system. Women of color use drugs at a rate equal to or lower than white women, yet are far more likely to be affected by current drug laws and policies: ?In 1997, 44% of Hispanic women and 39% of African American women incarcerated in state prison were convicted of drug offenses, compared to 23% of white women, and 26% and 24% of Hispanic and African American men, respectively. These racially disparate effects are the result, in significant part, of racially targeted law enforcement practices, prosecutorial decisions, and sentencing policies. Selective testing of pregnant women of color for drug use as well as heightened surveillance of poor mothers of color in the context of policing child abuse and neglect exacerbate these racial disparities. The underlying circumstances contributing to the dramatic increase in women's incarceration for drug offenses, including patterns of women's drug use, barriers to women seeking and obtaining treatment, lack of effective and appropriate treatment for women, the nature of women's involvement in the drug trade, and patterns of prosecution and sentencing of women for drug offenses, have yet to be thoroughly examined and addressed by researchers or policy makers. Available research in these areas indicates a strong connection between women's experiences of violence and economic and social pressures, and women’s drug use or involvement in the drug trade. Existing data also indicate that women, and particularly mothers and survivors of abuse, are less able to access or benefit from current drug treatment models. In the absence of viable drug treatment options, women's drug use and addiction are more likely to be treated as criminal justice issues than as the health problems they truly are. Addressing women's drug use and addiction through incarceration, rather than treatment, contributes to the escalating costs associated with current drug laws and policies. Executive Summary ?In 1997, incarceration cost approximately $26,000 per woman per year. When the often-necessary expense of placing the children of incarcerated mothers in foster care is considered, the cost more than doubles. ?In comparison, the cost of drug treatment ranged between $1,800 for regular outpatient services and $6,800 for long-term residential services per client per year. Even when they have minimal or no involvement in the drug trade, women are increasingly caught in the ever-widening net cast by current drug laws through provisions such as conspiracy, accomplice liability, and constructive possession, which expand criminal liability to reach partners, relatives, and bystanders. Sentencing laws fail to consider the many reasons – including domestic violence, economic dependence, or dependent immigration status – that may compel women to remain silent or not report a partner or family member's drug activity to authorities. Moreover, existing sentencing policies, particularly mandatory minimum sentencing laws, often subject women to equal or harsher sentences than those imposed upon the principals in the drug trade, who are ostensibly the target of those policies. Women's incarceration for drug offenses fails not only to address the issues that likely contributed to their involvement with drugs, it often exacerbates them. ?Sexual and physical violence against women at the hands of correctional officers is widespread in United States prisons. The abuse women experience behind prison walls has devastating consequences, particularly for those who are survivors of violence, suffer from depression, or are working to overcome addiction. ?Incarcerated women's physical and mental health is routinely put at risk by ill-conceived security policies, as well as delays in providing emergency and routine healthcare. ?Incarcerated mothers face emotional trauma due to separation from their children and frequently suffer from depression, loneliness, and despair. Infliction of such trauma on women with substance abuse problems is particularly problematic because these conditions often trigger the urge to use drugs. Communities targeted by current drug laws and policies lose mothers, caregivers, and breadwinners as a result of women's incarceration, leading to serious effects on the well-being of children and families. ?In most cases, when a woman is imprisoned, her child is displaced. Children are three times more likely to live with the other parent when their father, rather than mother, is incarcerated. ?Ten percent of children with mothers incarcerated in state prison are in foster homes or agencies, and 79% live with a grandparent or relative. ?Women's incarceration can result in emotional and financial hardship for their families. Family members often take custodial responsibility for the children of incarcerated mothers because the alternative may be the permanent loss of custody. The loss of incarcerated women's income, combined with the emotional impact on children from losing their mothers, results in increased stress on family and community members. ?An estimated 28 million women (approximately 26% of women 18 years or older living in the United States) provide support and care to chronically ill, disabled, or aged family members or friends. While there is no documentation of the number of women who were caregivers prior to their incarceration, the removal of incarcerated women from their communities clearly has a significant impact on all community members. The ACLU, Break the Chains, and the Brennan Center for Justice advocate for fair drug laws and policies that adequately take into account the needs of women and their families, and address the root causes of women's involvement with illegal drugs. 1 INTRODUCTION I 5 WOMEN & DRUGS: DEFINING THE PROBLEM 7 Patterns of Women’s Drug Involvement 16 Skyrocketing Prison Rates for Women II 21 THE HISTORICAL CONTEXT OF DRUG POLICIES 23 Origins of the Drug War 27 Racial Profiling in Drug Law Enforcement III 33 TODAY’S DRUG LAWS: WIDENING THE NET 35 Guilt by Association 38 Mandatory Minimums and the Federal Sentencing Guidelines 43 The Supreme Court Weighs in: The Debate Over Sentencing Policy 44 The Basis for Congressional Action IV 45 THE IMPACT OF INCARCERATION ON WOMEN, CHILDREN & FAMILIES 47 Impact on Women 49 Impact on Children with Incarcerated Mothers 53 Impact on Family Members 54 Child Welfare System: Current Practices and Policy 57 CONCLUSION & FINAL RECOMMENDATIONS • www.fairlaws4families.org • INTRODUCTION Almost 50 years ago, acclaimed jazz artist Billie Holiday collapsed in her apartment and was rushed to Metropolitan Hospital in New York, where she was diagnosed with cardiac failure and serious liver disease, both the result of a long history of drug and alcohol abuse. As she lay fighting for her life, police raided her hospital room and arrested her on her deathbed for possession of heroin. Billie Holiday died in police custody, another victim of the relentless “war on drugs,” the moniker used to describe the laws, policies and practices that prohibit and harshly punish the use, possession, and sale of drugs deemed illegal or controlled. This “drug war” costs a great deal to wage – approximately $50 billion annually1 – and has led to no measurable decline in illegal drug use or availability since its inception.2 In 1959, as today, drug addiction was treated as a crime. Addicts could not obtain treatment and were subjected to police harassment, arrest, and incarceration. These punitive attitudes toward drug use and abuse have intensified over the last half-century, leading to a drastic increase in the number of women caught in the net of the war on drugs. Between 1986 and 1999, the number of women incarcerated in state facilities for drug-related offenses increased by 888%, far outpacing the rate of growth in the number of men imprisoned for similar conduct.3 In 1998, a quarter of a million women were arrested for drug offenses. By 2003, 58% of all women in federal prison were convicted of drug offenses, compared to 48% of men.4 Women of color, and particularly African American and Latinai women, have been disproportionately impacted by this trend – African American women’s incarceration rates for all crimes, largely driven by drug convictions, have increased by 800% since 1986, compared to an increase of 400% for women of all races.5 In 1997, 44% of Hispanic women and 39% of African American women incarcerated in state i In this report, we intentionally use the terms ‘Hispanic’ and ‘Latina’ interchangeably according to colloquial use. Most of the statistics available and presented in this report do not distinguish between ‘Hispanic’ and ‘Latina’ unless otherwise noted. prison were convicted of drug offenses, compared to 23% of white women, and 24% and 26% of African American and Hispanic men, respectively.6 Dorothy Gaines, a 42-year-old widow with three children, entered the national spotlight in 2000 when the President granted her clemency from a 19½ year prison sentence imposed upon her conviction for conspiracy to deliver crack cocaine. Dorothy’s journey to that moment began with a relationship with a partner who was addicted to crack cocaine. With her encouragement, he entered treatment, remaining in a program for almost 8 months. Unfortunately, once he left treatment, Dorothy’s boyfriend relapsed and continued using crack. When federal agents raided Dorothy’s home, where she lived with her partner, officers found no drugs or weapons on the premises. Yet both were arrested and charged with conspiracy to deliver cocaine based on her boyfriend’s alleged involvement in a large-scale drug operation as a driver. Charges against Dorothy were initially dismissed, but several defendants in the conspiracy made a deal with the prosecutor to reduce their own sentences by providing information to assist in the prosecution of others. They alleged that Dorothy had delivered small packages of cocaine to local street sellers. On the basis of their testimony Dorothy was charged and convicted of conspiracy to distribute the total quantity of drugs involved in the drug operation, and served six years in prison before she was granted clemency.7 Moreover, the war on drugs now reaches beyond those using or addicted to drugs, targeting individuals unwittingly, unknowingly, or peripherally involved in drug related activity. This widening of the net has had the effect of capturing more women, particularly women in relationships (some of which are abusive) with partners or family members who use or sell drugs, as well as women who turn to the drug trade to supplement their income in order to support their families in the absence of living wage jobs and in 1 the face of cuts to public assistance. Current examples of women serving multi-decade sentences for simple drug possession – often based on the mere presence of drugs in their home or their minimal involvement in drug-related crimes – abound. Two such women, Dorothy Gaines and Kemba Smith, came into the national spotlight in 2000, when President Clinton granted them clemency from long mandatory minimum sentences that many saw as unjustly harsh given their non-violent, minimal, and uninformed involvement conduct. Thousands more continue to languish behind bars, the victims of ill-conceived policies and ineffective practices that fail to consider individual circumstances in determining how to address involvement with illicit drugs. In 1999, Kemba Smith found herself sitting in a cell in the Danbury Correctional Facility for women, spending yet another year away from her family and five-year-old son, born in prison during her first year of incarceration. The only child of professional parents in a suburb of Richmond, Virginia, Kemba lived a sheltered life. When she was a sophomore in college, she met a well-known young man on campus. His self-confidence, nice clothes and fancy cars led young Kemba to believe that she had found a “knight in shining armor,” and she became romantically involved with him. Unfortunately, this man was also a cocaine dealer. As time passed, he exerted more and more control over her, becoming both physically and verbally abusive. Under threat of physical harm to herself and her family, Kemba began to carry money and weapons for him. In 1994, after he was killed by rival dealers Kemba was indicted as a member of his drug trafficking operation because of her failure to cooperate with law enforcement. Although Kemba had no prior criminal record, is a survivor of domestic violence, and was pregnant at the time of her conviction, she was sentenced to 24½ years. Kemba received clemency from President Clinton in 2000, after serving six years in prison.8 2 The war on drugs is having a specific, dramatic, and devastating impact on women that requires further study and attention when evaluating the success of drug policies. It is also clear that certain segments of women are more harshly impacted by the war on drugs than others – for instance, African American and Latina women make up a disproportionate number of women arrested, charged, convicted, and incarcerated for drug-related offenses. Less clear are the underlying circumstances contributing to the skyrocketing rate of incarceration of women for drug offenses, including patterns of women’s drug use, involvement in the drug trade, and prosecution and sentencing for drug offenses. Women begin and continue to use drugs in different ways and for different reasons than men, requiring different forms of prevention and intervention. Often, women’s drug use is triggered by violence – either past or current – in their lives requiring special attention to the systemic issue of violence against women when both addressing individual cases and formulating broader drug policies. Treatment options, where available, are generally modeled on men’s experiences of drug use and addiction, leaving women without programs tailored to their needs. Women, who earn less on average and have a 50% higher rate of poverty than men,9 are less likely to have adequate health insurance or the resources to pay for costly drug treatment programs. Women who are mothers find treatment difficult to access because many residential treatment programs make no provisions for children. Pregnant or parenting women are penalized for the alleged risk to their fetuses or children posed by their drug use or addiction, rather than being given the support necessary to appropriately address their situation. In the absence of viable drug treatment options, women’s drug use and addiction are more likely to be treated as criminal justice issues than as the health problems they truly are. INTRODUCTION Once in the criminal justice sphere, women are unfairly affected by sentencing schemes and laws enacted as part of the escalation of the war on drugs. Whether they are using drugs, involved in the illegal drug trade of their own volition, or coerced into it by an abusive partner or family member, women tend to play minimal, peripheral, or unsuspecting roles in the drug trade. Yet under current laws, women are frequently subjected to harsh mandatory minimum prison terms, regardless of the level or circumstances of their involvement in the underlying drug offense. The effects of increasing punishment for drug-related offenses on women themselves, as well as their children, families, and communities are often hidden. Sexual violence at the hands of correctional officers as well as the severe inadequacy of medical care are but two of the conditions faced by women on the inside. A mother’s prolonged incarceration often leads to the destruction of relationships with her family, financial hardship to the caretakers of children left behind, and, all too often, placement of children in an already overburdened and problematic foster care system, which can result in termination of her parental rights. Elders are left without caregivers, and communities without workers. The report is divided into five main sections. The first section offers an overview of the current state of affairs, summarizing patterns of women’s drug use and involvement in the drug trade, and providing quantitative information about the population of women currently incarcerated for drug offenses. The second section provides historical context for drug laws that illustrates how, beginning with women’s first point of contact with the criminal justice system during police encounters, women of color are, and historically have been, unfairly affected by drug war policies. The third section explains how modern drug laws have expanded liability provisions and toughened sentencing schemes to the detriment of women. The fourth section highlights the qualitative impact of current drug laws on women and their families, examining the ways in which children are impacted by a mother’s incarceration, and how reform of the child welfare system in the late 1990s has affected incarcerated mothers and their families. The final section of the report offers comprehensive recommendations aimed at reducing the war on drugs’ disproportionate effects on lowincome women and women of color and their children, and suggests policy directions that would begin to reduce women’s incarceration and mitigate its negative effects. This report compiles and analyzes existing research with respect to these and other specific impacts of current drug policies on women. The material summarized illustrates the myriad ways in which current drug laws and sentencing schemes have not only failed to achieve what they purportedly aim to do – promote public safety, reduce drug use, stem the growth of the illegal drug market, and deter repeat offenses – but also exacerbated the root causes of addiction and drug-related crime. The report also demonstrates the complete failure of current drug policies to address the experiences and circumstances of women. 3 “When one is incarcerated with 1,200 other inmates, it is hard to be selfish … So many of the women here … will never have the joy and well-being that you and I experience. Many of them have been here for years – devoid of care, devoid of love, devoid of family. I beseech you all to think about these women – to encourage the American people to ask for reforms, both in sentencing guidelines, in length of incarceration for nonviolent first-time offenders, and for those involved in drug-taking. They would be much better served in a true rehabilitation center than in prison where there is no real help, no real programs to rehabilitate, no programs to educate, no way to be prepared for life ‘out there’ where each person will ultimately find herself, many with no skills and no preparation for living.” – Martha Stewart, 200410 WOMEN & DRUGS: DEFINING THE PROBLEM I WOMEN & DRUGS: DEFINING THE PROBLEM To understand how and why women are being incarcerated at unprecedented rates in the war on drugs, it is important to examine their unique relationship to controlled substances in terms of use, addiction, and involvement in the drug trade, as well as the lack of treatment options available to them. Meaningful and effective responses to women’s involvement with drugs will be hard to come by until we fully understand the scope and nature of women’s experiences. PATTERNS OF WOMEN’S DRUG INVOLVEMENT According to the National Institute on Drug Abuse (NIDA), in 2004 more than 9 million women used illegal drugs, and almost 4 million women took prescription medication without authorization.11 Almost half of all women between the ages of 15 and 44 have used illegal drugs at least once in their lifetimes. Of these, more than 6 million have used marijuana and nearly 2 million have used cocaine within the past year.12 NIDA notes that men and women are “equally likely to become addicted to or dependent on cocaine, heroin, hallucinogens, tobacco, and inhalants.”13 However, women are more likely than men to become addicted to or dependent on sedatives and drugs designed to treat anxiety or sleeplessness, and less likely than men to abuse alcohol and marijuana.14 Additionally, women are more likely to abuse prescription drugs, accounting for close to 60% of prescription drug related emergency room visits.15 These differences influence women’s initial contact with and consequent treatment within the criminal justice system. A National Institutes of Health (NIH) survey indicates that white women (33%) are more likely to report using drugs illegally at least once in their lifetimes than black women (26%) or Latinas (20%).16 All three groups of women are equally likely to report having used illegal drugs in the past month.17 Nevertheless, as discussed in greater detail in Section II, substantial racial disparities exist in women’s arrest, prosecution, and incarceration for drug-related offenses. I Significant differences do, however, exist in the types of drugs used by women of different racial groups. White women are most likely to report using marijuana at some point in their lifetimes, and, along with Latinas, are more likely than black women to use hallucinogens and inhalants.18 Although white women are more likely than both black women and Latinas to have tried cocaine at least once in their lifetimes, black women “are more likely to be recent and frequent users of crack cocaine.”19 Beyond these initial statistics, relatively little quantitative information is currently available at the national level regarding women’s involvement with drugs, particularly where marginalized populations are concerned. The remainder of this section summarizes existing research on women’s primary modes of consumption of drugs, the causes of drug addiction unique to women, and women’s roles in criminal drug activity, as well as the inadequacy of drug treatment services for women. Further, it identifies areas in which additional research on the experiences and needs of women is necessary to promote more informed, effective drug policies. WOMEN’S DRUG CONSUMPTION Women's modes of drug consumption differ from those of men in at least two important ways. First, as a general rule, women appear less likely to consume drugs in invasive ways, such as intranasally or intravenously. This difference is particularly significant with respect to use of cocaine, where the number of women admitted to treatment for the smokable form of cocaine – crack – increased in the mid-1980s as this version of the drug became more widely available.20 Use of powder cocaine, which is generally consumed intranasally, is less aggressively 7 policed and carries lesser penalties. Conversely, crack cocaine – which can be smoked and is therefore more likely to be used by women – has been the subject of more concerted law enforcement efforts and harsher penalties.21 As a result, women, and particularly black women, are disproportionately harmed by current drug policies.22 Second, research indicates that the stigma associated with drug use is more keenly felt by women, particularly parenting or pregnant women, rendering them more likely to conceal their drug use to avoid public disapproval.23 This pattern appears to result at least in part from society's framing of women's drug use as more deviant and inconsistent with accepted gender roles than drug use by men.24 This is likely even more true for low-income and poor women, who are more often under surveillance by government authorities due to participation in social programs or receipt of public assistance, and therefore risk losing their benefits or even their children if their drug use is discovered. The same can be said for immigrant women, who may fear deportation if their drug use comes to light. The manner in which women use drugs has profound implications under current drug policies. Their solitary and often hidden consumption of illicit substances makes it more difficult to identify their need for treatment, and the stigma associated with women's drug use renders them reluctant to seek treatment on their own. Over-reliance on excessively punitive measures, such as incarceration, deportation, and permanent termination of parental rights, to control women's drug use, rather than on more rehabilitative methods, inhibits many women from taking steps to overcome their addictions. This leads to greater harm to women, as well as their children, families, and communities, than if women's addiction were addressed through a more health-centered and rehabilitative approach. 8 CAUSES OF DRUG USE AND ADDICTION AMONG WOMEN “You get high because you're suffering, because you have a lot of problems, because you are in pain, because things aren't going the way you wish they would and you have no way out. Drugs don't really make it any better, but for the moment, it does.” -Woman who formerly abused drugsii Women use drugs for reasons as complex and varied as women themselves. Existing research indicates that, across the board, women’s drug use is more likely to be triggered by negative experiences and stress, and motivated by anxiety and depression, than by a desire to experiment or to conform to social expectations.25 In other words, women tend to use drugs to simply make it through the day. The risk of drug use by women is therefore heightened by experiences such as sexual harassment, emotional, physical, and sexual abuse, poverty, racial bias, and mental illness.26 Factors such as a woman’s race, socioeconomic status, sexual orientation, and immigration status, among others, can contribute to the degree to which she faces individual and systemic challenges that place her at risk of drug abuse. These factors also impact her ability to obtain appropriate healthcare, treatment, therapy, and social support to address addiction. For instance, the National Association of Lesbian and Gay Addiction Professionals reports that lesbian, bisexual, and transgender women report higher rates of substance abuse, and that their reasons for drug use are connected in part to stress caused by homophobic discrimination and internalized homophobia.27 Social attitudes toward women can also contribute more directly to women’s drug use. For instance, the National Center on Addiction and Substance Abuse reports that some women use cocaine, which, like nicotine and other “legal” drugs, is an appetite suppressant, to control their weight.28 ii KATHRYN A. SOWARDS & MARSHA WEISSMAN, SURVIVING; CONNECTING; FEELING: PSYCHOSOCIAL DIMENSIONS OF RECOVERY FROM DRUG DEPENDENCE AMONG WOMEN IN THE CRIMINAL JUSTICE SYSTEM 10 (JUSTICE STRATEGIES, WORKING PAPER, (FEB. 2005) WOMEN & DRUGS: DEFINING THE PROBLEM While it is difficult to establish a causal relationship between any one condition and an individual’s drug use or addiction, the following sections discuss the factors that appear to be most relevant to women’s drug use and addiction. Violence and Coercive Relationships “I remember my mother always telling me that you had to stick to a marriage no matter what. . . . I tried for fifteen years, I stayed with this man. It was like hell. And I became addicted to drugs because he was on drugs so often that I had to keep up with him. I was really afraid of him.” -Woman who formerly abused drugsiii The prevalence of emotional, physical, and sexual violence against women in our society is a significant contributing factor to women’s use of illegal drugs. Researchers consistently have found high levels of past and current physical and emotional abuse in the lives of women drug abusers.29 Many have suggested a direct relationship, if not absolutely causal, between violence experienced by women and problematic drug use.30 For instance, the 1989 National Women’s Study found a correlation between the number of violent assaults a woman sustains in her lifetime and the severity of her drug or alcohol dependency.31 Similarly, a study of methadone maintenance programs found that 51% of women who sought to overcome heroin addiction reported some form of past or present violence in their lives.32 Psychological trauma from repeated violent episodes drove women to start or continue using heroin to “escape” the abuse or to “self-medicate”33 for depression or physical injuries caused by the abuse. Forty percent of women who experienced abuse reported surviving multiple abuse patterns, such as a combination of child abuse, iii KATHRYN A. SOWARDS & MARSHA WEISSMAN, SURVIVING; CONNECTING; FEELING: PSYCHOSOCIAL DIMENSIONS OF RECOVERY FROM DRUG DEPENDENCE AMONG WOMEN IN THE CRIMINAL JUSTICE SYSTEM 10 (JUSTICE STRATEGIES, WORKING PAPER, (FEB. 2005) rape, and domestic violence. Women’s sense of self-worth, importance, competence, and control was eroded by each violent and abusive experience, thus increasing barriers to treatment.34 The effects of past violence, if not sufficiently addressed in counseling and therapy, can continue to haunt women and undermine treatment and recovery. Current violent relationships can have the same effect. Researchers noted that some violent partners may directly prohibit women from seeking or continuing drug treatment. I For some women, the link between violence and drug use is even more direct. In some cases, abusive partners coerce women into using illegal substances as part of the pattern of violence, in an effort to render women more dependent on them and exert greater control in the relationship.35 According to sociologist Beth Richie, women who are battered by their drug abusing partners report that their partners abuse them less when they themselves begin using drugs.36 In many violent relationships, a woman’s economic status, immigration status, or sexual orientation may further limit her choice to use or sell drugs when an abusive partner directs her to do so. Lack of self-sufficiency resulting from unemployment may hinder a woman’s ability to leave a violent relationship. An immigrant woman may be reluctant to seek assistance from the government in leaving a violent relationship for fear of being deported, particularly if she is undocumented. Social service agencies may be illequipped to assist a non-English speaker. Support services for lesbian, bisexual, or transgender survivors of domestic violence are few and far between, further isolating this already marginalized group. Under such circumstances, a woman may, understandably, determine that complying with her partner’s demands to use or sell drugs is the only option available to her. 9 Untreated Mental Illness Mental illness, and particularly depression, anxiety, and Post-Traumatic Stress Disorder (PTSD), also appear to contribute to women’s use of illicit and controlled substances. At least half of the women in drug treatment will be diagnosed with a mental disorder such as depression.37 For many, depressive symptoms predate the use of drugs and are often related to post-traumatic stress resulting from violence in their lives.38 For women of color, discrimination also contributes to depression – NIH reports that “[r]acial discrimination probably ‘…exacerbates the mental health-damaging effects of poverty status among blacks…Even if poverty in America is reduced, as long as economic, social, and political inequalities persist, the health of black Americans is likely to remain impaired.”39 NIH also reports that “[t]he stress of constantly struggling to make ends meet also translates directly into the finding that blacks living below the poverty level, many of whom work, have the highest rate of depression for any racial/ethnic group.”40 According to NIH, the greatest frequency of depression is found among black women ages 18 to 24 years. NIH also points out that, “the major legacy of the forced relocation of American Indians throughout the United States has been to place them in communities in which they confront racism and hostility from their nonNative neighbors…” and that this reality has had a devastating impact on the physical and mental well-being of Native American/ Alaska Native women.41 Native American women and their families often live in severe poverty – 50% of the households they head are below the poverty line.42 Native American/Alaska Native communities are also plagued by inadequate housing – in many cases with no indoor plumbing, severe electrical problems, and prolonged dysfunctional heating systems during the winter – 10 unemployment, and toxic surroundings.43 The National Household Survey on Drug Abuse found that Native Americans were more likely than any other ethnic or racial group to have used illegal drugs in the past month.44 War and forced relocation may also contribute to PTSD, and consequent drug use, among women. For instance, among Southeast Asian communities, Cambodians are viewed as the social group “most traumatized by turmoil of their home country and immigration to the United States, and as a result have the highest levels of psychological stress of all Southeast Asians.”45 NIH points out that Hmong women who immigrate to the United States “have been found to be particularly susceptible to developing substance abuse problems in the wake of their resettlement…Opium use to cure physiological and psychological problems also has been reported.”46 A common practice in the United States at the turn of the century, opium use is discussed in Section II of this report. NIH further reports that members of Hmong communities will often self-medicate using substances deemed illegal in the United States, reflecting “their distrust of Western medicine.”47 Economic Pressures and Coping Mechanisms In the hit TV show “Desperate Housewives,” the character Lynette, a suburban stay-athome mother of four children, used Ritalin without a prescription so she could stay up all night sewing costumes for a school play. Introduced to the drug by another mother who confessed “that’s how she gets through the day,” Lynette initially refused, joking, “No thank you, I just smoked crack a little while ago and so I better not mix.” When faced with the challenging project, she raided a Ritalin bottle prescribed for her two sons.48 Although middle and upper class women have long been known to cope with social pressures through use and abuse of pre- WOMEN & DRUGS: DEFINING THE PROBLEM scription drugs, the economic pressures and seemingly insurmountable challenges that low-income women face may also drive them to drug use or abuse.49 Women may use drugs to help them work long hours or perform multiple jobs to make ends meet, or to help them survive poor workplace conditions and sexual harassment on the job. Economic pressures also force many women to remain in abusive living situations, which can in turn lead to drug use, as discussed above. In many cases, a combination of all of these factors – everyday demands, violence, mental illness, and economic pressures – play a role in a woman’s involvement with drugs. Until these factors that negatively affect women are confronted and addressed as society-wide problems, there is no doubt that women’s drug use and abuse will persist as they struggle to manage and numb the resulting trauma and pain. Similarly, until universal, appropriate, and targeted mental healthcare is available to all, women will turn to whatever escape is available to them to relieve their pain. WOMEN’S INVOLVEMENT IN THE DRUG TRADE Women tend to be “very small cogs in a very large system, not the organizers or backers of illegal drug empires.” -Amnesty International, Rights for All50 Elaine Bartlett is a mother of four and grandmother of three. She was having difficulty making ends meet, so she agreed, just once, to carry one four-ounce package of cocaine from New York City to Albany in an effort to make some money to support her family. She was sentenced to 20 years. After Bartlett spent 16 years in prison, New York Governor George Pataki granted her clemency.51 In some cases, economic realities may lead not to drug use, but to involvement in the drug trade as a means of supplementing income in the face of unemployment, lowwage and unstable jobs, lack of affordable housing, and cuts to social programs such as childcare, social assistance, and healthcare. Women generally do not play central roles in the drug trade, serving instead primarily as small scale carriers, sellers, couriers, or drivers, as Elaine did.52 In many cases, their roles are limited to answering telephones or living in a home used for drug-related activities.53 Those at the head of major drug operations are almost always men, while most women remain at the periphery, with little knowledge and even less power.54 I Chrissy Taylor was incarcerated at the age of 19 based on her marginal involvement in her boyfriend’s scheme to manufacture methamphetamine. Her boyfriend asked her to go to a store in Mobile, Alabama, to pick up a shipment of chemicals. Based on his assurance that the mere purchase and possession of the chemicals was legal, she went to the store and bought them. As it happened, agents from the Drug Enforcement Administration were working with the chemical store in a reverse-sting operation. The agents sold Chrissy the chemicals and then arrested both her and her boyfriend, not for possession or purchase of the chemicals – neither of which was in and of itself illegal – but for possession with intent to manufacture methamphetamine.55 A 1997 review of over 60,000 federal drug cases by the Minneapolis Star Tribune found that men were more likely than women to offer evidence to prosecutors in exchange for shorter sentences, even if the information placed others, including the women in their lives, in jeopardy.56 The study concluded that women, as minor players in the trade, not only lacked information useful to prosecutors, but also often erroneously believed that they could not be found guilty or be subject to long sentences based on uninformed, inconsequential, or coerced activity.57 Moreover, what limited information women may have about a drug operation might implicate their partner, a family member, or 11 a community member necessary to their long term survival, rendering them understandably reluctant to provide information. Dawn Beverlin was sentenced to a five-year mandatory minimum sentence for conspiracy to distribute methamphetamine. She began using drugs when she was 16, was smoking or snorting methamphetamine on a daily basis by the age of 20, and began selling drugs to support her habit. To ensure that she had a sufficient supply for her own use, she would purchase methamphetamine from her boyfriend, use some herself, and sell the remainder to support her own habit. When Dawn and her boyfriend were caught, charged, and convicted of drug offenses, her boyfriend received a sentence of probation because he had knowledge of the larger operation and assisted the government in making cases against others involved in it. Because her involvement in the drug conspiracy was limited to isolated, small-scale sales to support her own drug habit, Dawn was not able to provide the government with any information to assist in the prosecution of others, and therefore was subject to the five-year mandatory minimum sentence.58 Under current drug policies, peripherally involved women and other low-level participants tend to bear the brunt of enforcement efforts and punitive approaches ostensibly aimed at more significant players. In many cases, they face charges and sentences of the same severity as their male counterparts, despite lesser involvement in the underlying offense. Indeed, the marginal roles women play in drug-dealing operations actually make them more vulnerable to long prison terms for drug crimes. Because their peripheral roles afford little access to information, they are often unable to give prosecutors evidence about others’ crimes and contacts – women have less currency with which to bargain their way out of harsh sen12 tences. Conversely, those with information, almost always men, are more likely to have greater involvement in the drug trade and may be in a better position to reduce their own sentences if they choose to do so. INADEQUATE TREATMENT OPTIONS FOR WOMEN “You know, I was so exhausted living my life the way I’d been living. When I got arrested the third time I was just praying and saying God please just help me, help me find some help. You know? Just help me, I just can’t do this anymore, I can’t live in the street anymore, I can’t use anymore drugs, but I don’t want to stop. And then people from the [treatment] program came into the jail. I said, this is it, this is my out.” -Woman who formerly abused drugsIV Women, who make up 30% of individuals with drug addictions, are largely unable to access effective and appropriately designed drug treatment. Moreover, women tend to come into treatment at a much later point in their addiction than men, frequently as a result of a crisis such as severe illness, domestic assault, the threat of losing their children, or conflict with the law. As a result, they have often developed chronic, deteriorating conditions by the time they reach out for help. Unfortunately, for many women and men the help they need is simply not there. The U.S. Substance Abuse and Mental Health Services Administration (SAMHSA) estimates that the drug treatment gap – the number of individuals who need drug treatment services for whom no services are available – is 3.9 million people.59 This gap appears to be even greater for women with children. In 2003, the National Survey of Substance Abuse Treatment Services reported that women made up less than a third of all treatment admissions nationwide60 and that only 8% of all available programs offered childcare.61 IV KATHRYN A. SOWARDS & MARSHA WEISSMAN, SURVIVING; CONNECTING; FEELING: PSYCHOSOCIAL DIMENSIONS OF RECOVERY FROM DRUG DEPENDENCE AMONG WOMEN IN THE CRIMINAL JUSTICE SYSTEM 6 (JUSTICE STRATEGIES, WORKING PAPER, (FEB. 2005) WOMEN & DRUGS: DEFINING THE PROBLEM Women of color, and particularly Latina women, appear to face even greater barriers to accessing treatment than whites. SAMHSA reports that an individual’s race is one of the main factors in determining whether an individual will be admitted to treatment outside the context of the criminal justice system: whites represented almost 62% of treatment admissions nationwide, while African Americans represented only 24% and Latinos less than 13%.62 Latina women appear to face particular barriers to treatment – according to the Drug and Alcohol Services Information System, “Hispanic admissions [for substance abuse treatment] were 77 percent male and 23 percent female compared with 69 percent male and 31 percent female among non-Hispanic admissions.” According to NIH, racial disparities in access – or lack thereof – to healthcare services, such as drug treatment, is in part based on disparities in health insurance coverage. NIH reports that “[t]hirteen percent of white women were uninsured, compared to 23 percent of black, 25 percent of Asian, and 42 percent of Hispanic women.”63 Even when women are able to access drug treatment, existing treatment options – usually premised on and geared toward male habits and behaviors – are not always appropriate or effective for women. Obstacles to Treatment for Women There are significant obstacles to women’s participation in current drug treatment models. The absence of childcare or family centered treatment presents a particularly difficult barrier to women, who are more often than men the primary caretakers of young children. Many residential treatment programs require stays from one month to a year, making participation in such programs unrealistic for many women with children and/or other obligations, such as eldercare responsibilities.64 Poor and low-income women, who may be under the surveillance of government agencies, are particularly apprehensive about seeking residential treatment. First, many would be forced to leave their children in the care of relatives or friends. Second, obtaining treatment requires them to disclose their drug use. Doing either, they understandably fear, may be viewed by child welfare authorities as evidence of maternal unfitness or abandonment. Additionally, women who work long hours, where schedules are unpredictable and long absences from work can easily result in job loss, find accessing treatment services even more challenging. Other forms of drug treatment, including outpatient services, intensive day programs, or nightly selfhelp group meetings, are also less accessible to women, and particularly poor women, because childcare is rarely provided. I Lack of Treatment Targeted to Women’s Needs Even when women are able to overcome logistical obstacles to obtaining treatment, the type of treatment available may be inappropriate for a number of reasons, and therefore ineffective. As an initial matter, given that women’s drug abuse is often linked to the trauma of past or current emotional, physical and/or sexual abuse, the style of traditional addiction treatment programs, designed with male experiences in mind, can have disastrous consequences when applied to women.65 Researchers report that women are often disturbed by the confrontational approach of group treatment, and when they challenge these methods, women are labeled as “noncompliant” or resistant to treatment.66 Women in coeducational treatment sometimes feel demeaned by not only the style of treatment, but also their male counterparts and facilitators. Women who have participated in such programs have reported sexual harassment, abusive conduct – such as being called prostitutes – and negative comments about their bodies by both participants and facilitators. In some cases, women 13 who are survivors of abuse have been placed in treatment with abusers. Such conduct recalls or replicates the abuse that may have led women to drug use and abuse in the first place, thereby not only harming them, but also increasing the chance of relapse and decreasing the effectiveness of the treatment.67 Such was the case for Imani Walker, Sacred Authority Director at the Rebecca Project for Human Rights, who emphasizes “the importance of feeling safe in group” during her own recovery phase. Imani reports that she and several other women left one drug treatment program after a man in the recovery group privately disclosed that he was abusing his sister’s daughter. Imani and a few women then asked the treatment program supervisor to ask the man to leave the group because of the negative impact his comments were having on their recovery efforts. When they returned for the next treatment session, however, the man was still there. Several women left as a result, including Imani, who later relapsed.68 Imani was able to return to treatment despite this experience and continues in recovery today. However, she does not know if the other women who left the treatment program because of the abuser’s presence have been able to do the same. 14 Twelve-step models and other commonly used drug treatment methods also emphasize disclosure and personal responsibility, and therefore may be less effective for more marginalized groups of women. Immigrant women or lesbians, bisexual or transgender women, for instance, may be reluctant to disclose their immigration status, sexual orientation, or other personal details for fear of deportation or discrimination, and may be deemed “resistant to treatment” as a result. For women of many cultures, the means of communication or degree of disclosure required by traditional drug treatment programs, as well as their overall approach to healing and recovery, is simply inappropriate. For instance, NIH reports that the failure of addiction treatment programs to incorporate healing elements from Native American cultures, such as the medicine wheel, into their service offerings creates an additional barrier for Native American women seeking care.69 In addition to failing to meet women’s needs, in many cases, treatment programs, and particularly residential treatment programs, affirmatively discriminate against women. For instance, women in such programs may be subject to curfews not imposed on men. Women identified by staff as lesbian, bisexual, or transgender may be prohibited from being alone with or displaying affection toward other women, whereas similar surveillance is not imposed on heterosexual women or men. Treatment for Pregnant Women Public health professionals view pregnancy as a unique opportunity for healthcare providers to engage hard-to-reach women drug users and encourage them to access a range of services – from prenatal care to drug abuse treatment. As long as women fear retaliation by law enforcement, there is limited opportunity for pregnant women seek help for their addictions prior to giving birth. Moreover, given that the vast majority of fetal injuries and deaths resulting from chemical dependence on the part of the mother are connected to alcohol abuse,70 laws criminalizing illegal drug use during pregnancy are ineffective and glaringly misplaced. The American Medical Association, the American Academy of Pediatrics, the American Public Health Association, the American Nurses Association, the American Society on Addiction Medicine, and the March of Dimes argue that the intense shame women already feel about their addiction, when coupled with the likelihood of arrest and prosecution should their drug use be discovered, creates significant disincentives for pregnant women to seek out and complete treatment programs.71 No group of drug users is more stigmatized than pregnant or parenting women. At no WOMEN & DRUGS: DEFINING THE PROBLEM time was this clearer than in the 1980s, when the popular media demonized pregnant women using crack cocaine and predicted that their newborns – called “crack babies” – were destined for tormented lives of addiction and stunted development. More than 20 years have passed since “crack baby” hysteria swept the country, yet pregnant women have seen little if any expansion of drug treatment services available to them. The stigmatized newborns of the eighties have since grown up, and many of them have spoken out about the misplaced stereotypes they have had to conquer.72 The same type of popular hysteria, similarly unaccompanied by genuine efforts to provide adequate and readily available drug treatment services for pregnant women, is currently on the rise with respect to pregnant women’s use of methamphetamine. Most recently, as a result of the so-called war on drugs and promotion of “fetal rights,” women’s reproductive rights have been attacked through the criminal prosecution of pregnant women who use drugs. An estimated 200 women in more than 30 states have been prosecuted on charges of “drug delivery,” “drug possession,” or “fetal/child abuse” based on evidence of drug use during pregnancy.73 Healthcare providers have been reported to engage in surveillance of pregnant women through regular drug testing during prenatal visits and prior to delivery, focusing primarily on women who rely on publicly funded healthcare and notifying law enforcement if a drug test comes back positive. hospital in Charleston, South Carolina, serving a predominantly black population, that selectively drug tested pregnant women whom staff deemed “likely” to have a drug abuse problem and reported positive tests to the police, who then arrested the women – sometimes within minutes of giving birth – and took them into custody. Twenty-nine of the 30 women prosecuted under this policy were black. In a landmark decision in 2001, the United States Supreme Court ruled in Ferguson v. City of Charleston that South Carolina’s policy of drug testing women without their consent and reporting the results to local prosecutors was unconstitutional.75 I Considerable work remains to be done in identifying and addressing the causes, contexts, and consequences of women’s drug use, as well as in developing enough accessible drug treatment services tailored to women’s experiences. Rather than focus on these areas, however, the government has instead pursued a much different path, one that criminalizes women’s drug use and leads to dramatic increases in the number of women behind bars. Perceptions, attitudes, and responses to drug use by pregnant women are affected by race. NIDA estimates that the number of white women who use drugs during pregnancy is much higher than the number of African American or Hispanic women who do so.74 Yet women of color are increasingly the focus of drug tests, arrests, prosecution, and incarceration for drug use during pregnancy. One well-known example involved a public 15 SKYROCKETING INCARCERATION RATES FOR WOMEN The United States has the highest incarceration rate in the world.76 The number of people behind bars recently surpassed the 2 million mark,77 at an estimated annual public cost of nearly $24 billion to incarcerate those charged with non-violent offenses.78 Although the vast majority of those currently incarcerated are men, in recent years the number of women in prison has more than doubled, growing at a much faster rate than men. According SAMHSA’s 2003 annual National Household Survey on Drug Abuse Population Estimates, nearly twice as many men (8.1%) reported using drugs as women (4.5%), yet women are being incarcerated on drug charges at a rate outpacing that of men.79 Women are now six times more likely to spend time in prison than they were in 1974.80 There are now more than eight times as many women incarcerated in state and federal prisons and local jails as there were in 1980, increasing in number from 12,300 in 1980 to 182,271 by 2002.81 Additionally, there were 933,100 women on probation (23% of all adults on probation) and 96,900 on parole (13% of all adults released on parole supervision).82 When all forms of correctional supervision – probation, parole, jail, and state and federal prison – are considered, more than one million women are now under the supervision of the criminal justice system in the United States. More women than ever before are being incarcerated for drug crimes, and are serving longer prison sentences as well. Drug offenses are one of the leading causes of criminal convictions and incarceration among women, far outpacing convictions for violent crimes and public order offenses. According to the federal Bureau of Justice Statistics (BJS), 40% of criminal convictions leading to incarceration of women in 2000 were for drug crimes, 34% were for other 16 non-violent crimes such as burglary, larceny, and fraud, while only 18% were for violent crimes and 7% were for public order offenses, such as drunk driving, liquor law violations, and vagrancy.83 Women in prison: The numbers ?129%: the rate of increase between 1986 and 1999 in the number of women in state prison for non-drug offenses84 ?888%: the rate of increase, between 1986 and 1999 in the number of women in state prison for drug offenses alone85 ?400%: the rate of increase since 1986 in the number of women behind bars (state and federal jail and prison)86 ?800%: the rate of increase since 1986 of African American women behind bars (state and federal jail and prison)87 ?Drug offenses accounted for half (49%) of the rise in the number of women incarcerated in state prison from 1986 to 1996, compared to one-third (32%) of the increase for men.88 ?By 1999 drug offenses accounted for 72% of the female population in federal prison; 34% in state prison; 24% in local jail; and 27% on probation.89 1000% Rate of increase of women in state prisons between 1986 and 1999 by offense 888% 500% 129% 0% Non-Drug Offenses Drug Offenses Sources: Marc Mauer, Cathy Potler & Richard Wolf, Gender and Justice, Women, Drugs and Sentencing Policy, THE SENTENCING PROJECT (Nov. 1999); SUSAN BOYD, FROM WITCHES TO CRACK MOMS: WOMEN, DRUG LAW, AND POLICY 208-09 (2004). WOMEN & DRUGS: DEFINING THE PROBLEM 1000% Rate of increase of women behind bars since 1986 800% 500% 400% 0% All Women African American Women Sources: Marc Mauer, Cathy Potler & Richard Wolf, Gender and Justice, Women, Drugs and Sentencing Policy, THE SENTENCING PROJECT (Nov. 1999); SUSAN BOYD, FROM WITCHES TO CRACK MOMS: WOMEN, DRUG LAW, AND POLICY 208-09 (2004). RACIAL DISPARITIES Women of color generally are incarcerated at disproportionately higher rates than white women. For example, the rate of incarceration for African American women for all offenses – many of which are drug-related – has increased by 800% since 1986, compared to an increase of 400% for women of all races.90 These disparities are inconsistent with rates of drug use across racial and gender lines. Women of all races use drugs at approximately the same rate, but women of color are arrested and imprisoned at much higher rates. NIDA reported in 2003 that 51.2% of white women reported drug use in their lifetimes, compared to 36% of black women and 26% of Hispanic women. When asked whether they had used drugs within the past year, 14.2% of white women, 14% of black women, and 10.4% of Hispanic women responded affirmatively. Additionally, 7.6% of white women, 8.1% of black women, and 6.1% of Hispanic women reported drug use in the past month.91 Because the Native American population is quite small and concentrated in particular regions of the country, national statistics fail to capture rates of drug use and disproportionate incarceration for drug offenses for Native American women. However, Professor Luana Ross’s state-specific research on the impacts of the criminal jus- tice system on Native American communities offers a glimpse of the manner in which the war on drugs has impacted Native women. “Although Native Americans in Montana comprise only about 6 percent of the total state population, Native men account for approximately 20 percent of the total male prisoner population, and Native women constitute approximately 25 percent of the total female prisoner population.”92 According to Professor Ross, “[a] partial explanation for the increase in the female prison population is their incarceration for drug offenses.”93 Moreover, Professor Ross explains that, “Native women face overwhelming odds at every stage of the criminal justice system…extralegal factors, such as race and gender, influence not only incarceration rates but treatment of prisoners while incarcerated. Racism and sexism clearly affect the treatment of women and people of color when they encounter the criminal justice system in Montana.”94 I Racial disparities are not limited to prosecution and conviction for drug offenses, but extend to the forms of punishment imposed. Women of color, particularly African American and Latina women, also make up a disproportionate share of those women sentenced to prison versus community supervision for drug offenses. While nearly twothirds of women under probation supervision are white, nearly two-thirds of those conEstimated percentage of women (ages 15-44) using drugs by race 75 50 51.2 36 25 26.2 14.2 0 14 White Lifetime 10.4 8.1 7.6 Black Past Year 6.1 Hispanic Past Month Source: NATIONAL INSTITUTES OF HEALTH, NATIONAL INSTITUTE AMONG RACIAL/ETHNIC MINORITIES, (revised 2003). ON DRUG ABUSE, DRUG USE 17 fined in jails and prisons are women of color.96 Racial disparities in arrest, conviction, and sentencing are explored in greater detail in Section II of the report. Women of color in population vs. prison for drug offenses 38% CA MN 54% 5% 27% 32% NY 91% 0% 20% 40% Percentage of Population 60% 80% 100% Percentage of Drug Offenders Source: Marc Mauer, Cathy Potler & Richard Wolf, Gender and Justice, Women, Drugs and Sentencing Policy, THE SENTENCING PROJECT (Nov. 1999). Racial disparities in convictions for drug offenses at the state level ?In New York, women of color comprise 91% of the prison sentences for women convicted of drug crimes, compared to 32% of the state population. ?In Minnesota, women of color comprise 27% of the prison sentences for women convicted of drug crimes, compared to 5% of the state population. ?In California, women of color comprise 54% of the prison sentences for women convicted of drug crimes, compared to 38% of the state population.95 PROFILE OF WOMEN BEHIND BARS As a general rule, women wind up behind bars for activities they undertake to feed themselves and their families, supplement incomes, sustain a drug addiction, or escape violent situations and relationships. Examination of the behavior of women serving time for offenses other than the sale or possession of drugs reveals that drug use and addiction often play a significant role 18 even in non-drug offenses. Forty percent of women in state prisons and 19% of women in federal prison reported committing the offense for which they are currently incarcerated while under the influence of drugs.97 Not surprisingly, the women’s prison population consists of the most vulnerable and marginalized. The majority of women in prison are between the ages of 25 and 44, are mothers, and have, at most, graduated from high school.98 More than 37% of women in prison earned less than $600 per month prior to their incarceration, and nearly 30% received public assistance.99 According to BJS, more than half (55%) of incarcerated women report physical and/or sexual abuse in their childhoods and immediate past.100 Seventy-nine percent of women in federal and state prison reported past physical abuse, and over 60% reported past sexual abuse.101 As noted in Section I, numerous studies indicate a significant correlation between trauma related to physical and/or sexual abuse and subsequent drug and/or alcohol addiction in women.102 Given the established link between substance abuse and physical and sexual abuse, the war on drugs’ primary targets and casualties are women already suffering under extreme socioeconomic and psychological stress. Studies also indicate that a significant number of women in prison suffer from mental illness coupled with addiction – commonly referred to as a “dual diagnosis” – and may have been “self-medicating”103 with illegal drugs prior to their imprisonment. Among women jail detainees identified with severe mental disorders, 72% also suffer from substance abuse disorders. Conversely, less than 15% of women detainees identified as substance abusers suffer from severe mental disorders. Thus, the use of illegal drugs may be an entry-point into prison for women whose principal problem is actually a severe mental illness. Because prescription medicines to treat severe mental illnesses are often unavailable to low-income populations, WOMEN & DRUGS: DEFINING THE PROBLEM poor women may choose to self-medicate with more affordable, but illegal, drugs – a choice women with access to adequate healthcare and insurance generally do not face. As explored further in Section IV, women’s incarceration can exacerbate the trauma of physical, psychological, and sexual abuse, as well as mental anguish experienced prior to Kimberley McDowell was abandoned by her mother when she was an infant and left with her father, an alcoholic. After being passed around to various family members, Kimberley and her sister ended up living with a destitute aunt. Kimberley dropped out of school in the ninth grade, gave birth to her first child at age 14, and to her second at age 16. In order to support her children, she enrolled in the Job Corps program, earned her G.E.D., and obtained factory and retail jobs. She later married and gave birth to two more children. One of Kimberley’s friends had a relative who was arrested for crack cocaine distribution. In exchange for a shorter sentence, he testified that Kimberley and 18 others were part of a drug conspiracy. Though she admits “knowing [and] seeing” what her friends were doing, Kimberley denies that she actively participated in the conspiracy and maintains that she never helped prepare or distribute crack cocaine. Kimberly accepted a plea bargain not realizing that she would be held accountable for the sale of 80 grams of crack, the amount attributed to the entire conspiracy. She was sentenced to 10½ years in prison for conspiracy to distribute crack cocaine. Kimberley, whose husband is incarcerated for an unrelated offense, could find no family member to care for her children when she went to prison, so they are currently living with a friend. Kimberley sends them the 23 cents per hour she earns from her prison job.104 incarceration. The frequently deficient healthcare services incarcerated women receive can have serious health consequences and, notwithstanding the Prison Rape Elimination Act of 2003, women continue to suffer serious abuse at the hands of prison staff. I COSTS OF INCARCERATING WOMEN Studies of the fiscal impacts of women’s incarceration reveal that taxpayers shoulder an enormous cost for the war on drugs. For instance, the Federal Bureau of Prisons reported in 1997 that incarcerating women cost $25,900 per woman per year.105 The University of Chicago Irving B. Harris Graduate School of Public Policy Studies, in a more recent study conducted in 2000, found that the public pays an estimated $25,000 annually to house a woman in prison and $25,000 annually for each child of an incarcerated mother placed in foster care.106 Therefore, it costs the state over $50,000 a year for each family that enters both the prison and child welfare systems.107 In comparison, in 2000 drug treatment costs ranged between $1,800 for regular outpatient services and $6,800 for long-term residential services per client per year.108 When the costs of incarcerating women and placing their children in foster care are considered together, it costs the state more than seven times as much to imprison a woman than to provide her treatment services.109 Even adjusting for inflation, the 1997 finding of the Department of Health’s National Treatment Evaluation Study that “treatment appears to be cost effective, particularly when compared to incarceration,” continues to hold true, and particularly for women.110 Additionally, a study conducted by the RAND Corporation concluded that treatment is many times more effective in reducing the social costs of drugs than law enforcementbased approaches.111 The study further found that for every dollar allocated to drug treat19 ment, taxpayers save $7.46 in social costs. This and other research suggest that current approaches to drug use, abuse, and involvement do not reflect the most efficient or appropriate use of public funds to control crime and keep communities safe. offenders into drug treatment instead of prison. The results of this initiative have been promising. Over 50,000 drug-offending individuals have participated in treatment programs, the majority of whom are doing so for the first time in their lives.112 The estimated savings in incarceration costs are projected at $1.5 billion over five and a half years.113 Recognizing that incarceration is expensive and does little to deter or rehabilitate nonviolent drug offenders, in 2000, California voters passed Proposition 36, “The Substance Abuse and Crime Prevention Act,” allocating $120 million per year to the redirection of first-time, non-violent drug $35,000 Annual cost of incarceration vs. inpatient treatment 30,000 25,000 20,000 15,000 10,000 5,000 0 CA IL MN NY Cost of Incarceration OK TX VA Cost of Treatment Sources: Compilation of State Data114 Annual cost of incarceration and foster care vs. inpatient treatment $50,000 40,000 30,000 20,000 10,000 0 CA IL MN NY OK Cost of Incarceration and Foster Care 20 Sources: Compilation of State Data115 TX VA Cost of Treatment THE HISTORICAL CONTEXT OF DRUG POLICIES II THE HISTORICAL CONTEXT OF DRUG POLICIES ORIGINS OF THE DRUG WAR A century ago, opiates and cocaine were freely available and used both medicinally and recreationally by people throughout the United States. Scores of patented medicines, elixirs and liquid concoctions contained substantial amounts of opium or cocaine – including potions used to treat conditions particular to women.116 Opiate dependence peaked in the United States near the turn of the century, when the number of addicts was estimated at close to 250,000 in a population of 76 million – representing a drug addiction rate far higher than that of today’s society.117 The prevailing attitude was that drug addiction was a health problem, best treated by physicians and pharmacists; not coincidentally, the typical drug addict in the early 20th century was a middle-aged, middle to upper class white woman living in a rural community.118 Public attitudes about drug use began to change as perceptions about drug users shifted. Even though white Americans consumed their own fair share of opium in liquid, powder, or pill form in concoctions such as laudanum and other widely available tonics and elixirs, societal prejudice against opiates grew with the arrival of large numbers of Chinese in the United States, whose custom of smoking opium was perceived as strange and foreign. In 1875 San Francisco passed the nation’s first drug law, banning only the smoking of opium in opium dens, the form of opium use most commonly associated with the Chinese. The motivations underlying the birth of the nation’s drug policy are clear: in 1902, the Committee on the Acquirement of the Drug Habit of the American Pharmaceutical Association declared: “If the ‘Chinaman’ cannot get along without his ‘dope,’ we can get along without him.” The first state drug prohibition law was passed in 1909, when California outlawed the importation of smoked opium. In 1910, Dr. Hamilton Wright, considered by some to be the progenitor of anti-narcotics laws in the United States, reported that contractors were giving cocaine to their black employees in an effort to get more work out of them.119 A few years later, stories began to proliferate about “cocaine-crazed Negroes” in the South running dangerously amuck. One article in the New York Times went so far as to state that cocaine made blacks shoot better, and would “increase, rather than interfere with good marksmanship.” Another reported that some southern police departments had switched to .38 caliber revolvers, believing that cocaine made blacks impervious to smaller .32 caliber bullets.120 Evoking highly racially and gender-charged imagery, an article in Literary Digest, a popular magazine of the era, claimed that, “most of the attacks upon white women of the South are the direct result of the cocaine-crazed Negro brain.”121 The impact of these and other racialized representations of drug users were profound – indeed, when Coca-Cola removed cocaine from their popular soft drink, they did so not only out of concern for their customers’ health, but also to appease their southern market, which “feared blacks getting cocaine in any form.”122 It has been suggested that the proliferation of media stories linking cocaine with violence by African Americans was motivated in part by a desire to persuade southern members of Congress to support the proposed Harrison Narcotics Act,123 which greatly expanded the federal government’s regulatory powers with respect to illegal drugs, ostensibly to fight crime.124 The sensationalism, gross distortion, and appeal to racism inherent in these media stories may have been necessary to garner support for these new laws, given that very little crime was actually being committed by drug users.125 II As use of marijuana became popular on the American jazz scene in the 1920s and 30s, blacks and whites increasingly began socializing as equals and smoking the drug together. The anti-marijuana propaganda of the time cited this breach of racial barriers as exemplifying the social degradation 23 caused by marijuana. For instance, officials in New Orleans attributed many of the region’s crimes to marijuana, which they claimed was also a dangerous sexual stimulant. Harry Anslinger, head of the newly formed federal narcotics division, warned political and community leaders about blacks and whites dancing together in “teahouses,” using racial prejudice to sell prohibition.126 The first federal law targeting marijuana possession and use, the Marijuana Tax Act of 1937, was enacted during the Great Depression, and its proponents once again used racist rhetoric as their chief selling point. It was said that Mexican immigrants, who were vying with out-of-work white Americans for the few agricultural jobs available, engaged in marijuana-induced violence against these whites. The American Coalition, an anti-immigrant group, claimed: “Marihuana, perhaps now the most insidious of our narcotics, is a direct by-product of unrestricted Mexican immigration. … Mexican peddlers have been caught distributing sample marihuana cigarettes to school children. Bills for our quota against Mexico have been blocked mysteriously in every Congress since the 1924 Quota Act. Our nation has more than enough laborers.”127 In the early 1960s, college students and “hippies” once again popularized marijuana. At the same time, a growing youth movement questioned the value of the Vietnam War, the sanity of United States foreign policy, and governmental authority in general. This period coincided with growing urban unrest among African Americans impatient with the slow pace of progress in implementation of civil rights gains and angered by a slew of political assassinations of progressive leaders. President Richard Nixon responded by declaring a new “war on crime” targeting, and effectively criminalizing, his most vocal critics – urban minorities and student dissidents. Student dissidents were regularly maligned as draft-dodgers, 24 hedonistic drug users, and unpatriotic opponents of United States foreign policy, while youth of color were portrayed as purveyors of violence, traffickers of drugs, and an overall danger to society. Meanwhile, white suburban women’s increasing use of prescription drugs – memorialized in the Rolling Stones’ famous song “Mother’s Little Helper” – much like white women’s use and abuse of opium at the turn of the century, escaped drug law enforcement efforts. Although both white students and youth of color were demonized for their drug use, police surveillance was focused on communities of color, immigrants, the unemployed, the undereducated, and the homeless, who continue to be the principal targets of law enforcement efforts to fight the war on drugs. For a brief period in the early 1970s, as large numbers of American soldiers were returning from the Vietnam War with severe heroin dependencies, addiction was once again framed as an illness, and the drug policy agenda took a largely medical-rehabilitative tack, focusing primarily on reducing addiction rather than on incarcerating drug users.128 In 1970, Congress even overhauled the federal drug laws, repealing the mandatory minimum sentences for drug offenses that had been established in the early 1950s.129 In so doing, legislators expressed a general concern that “increasingly longer sentences that had been legislated in the past had not shown the expected overall reduction in drug law violations,”130 and instead had hampered the “process of rehabilitation of offenders” and infringed “on the judicial function by not allowing the judge to use his discretion in individual cases.”131 By the mid-1980s the pendulum of drug policy had swung again, as Congress began to question whether rehabilitation was the system’s appropriate objective and whether parole boards could appropriately identify individuals ready for release. At the same time, a vocal group of critics concluded that THE HISTORICAL CONTEXT OF DRUG POLICIES to effectively control drugs, courts must levy sentences that were more certain and sufficiently punitive. Others criticized the discretion of judges to tailor sentences to the facts of the individual case as the source of disparities – including racial and gender based disparities – in sentences imposed on similarly situated defendants. In response to these and other criticisms of the federal judiciary, Congress enacted the Sentencing Reform Act of 1984, abolishing the existing parole system and replacing it with a determinate method of sentencing that would base all federally imposed sentences on mandatory guidelines to be promulgated by the newly created United States Sentencing Commission. The same year, Congress enacted a number of statutes imposing mandatory minimum sentences for drug and weapons offenses. During the same period of time, a new type of cocaine was emerging in cities throughout the country – a solid substance known as crack cocaine that could be smoked, producing an immediate and powerful high. Typically sold in small amounts known as “rocks,” each representing a single dose, crack was cheap, easy to produce, and highly lucrative. Its advent spawned a dramatic increase in the number of street-level dealers and significantly expanded the market of drug users.132 Responding to growing concern over the increasing drug trade, First Lady Nancy Reagan urged all Americans, and especially middle-class youth, to “Just Say No” to drugs. As Congress passed new laws that escalated the war on drugs, state legislators followed suit. At both the federal and state levels, lawmakers adopted expansive definitions of “drug related activities” and harsh sentences aimed at keeping individuals with any connection to drugs “off the streets” and behind bars for longer periods of time. Once again, these new laws would be enforced most vigorously in communities of color. By 1986, drug war hysteria had reached an unprecedented height. The media played a key role in creating a national sense of urgency surrounding drugs generally, and crack cocaine specifically. Whether the media was simply reporting on a perceived national crisis or creating it is open to debate. What is clear, however, is that the media could not get enough of the crack story. In the months leading up to the 1986 Congressional elections, more than 1,000 stories appeared on crack cocaine in the national press, including five cover stories each in Time and Newsweek. NBC news ran 400 separate reports on crack cocaine (15 hours of airtime). Time called crack cocaine the “Issue of the Year” (September 22, 1986). Newsweek called crack the biggest news story since Vietnam and Watergate (June 16, 1986). CBS news aired a documentary entitled “48 Hours on Crack Street.”133 The media reported that crack produced a powerful high, rampant sexuality, and an all-butimpossible-to-break addiction in its users. Almost all of these stories focused on crack cocaine use in inner-city communities by blacks and Hispanics. II An example of media hype over crack cocaine with disastrous results was the coverage following the death of Len Bias in June 1986. A national celebrity, Bias died of cocaine intoxication the day after he was drafted into the NBA. The method of cocaine ingestion that killed him was unknown at the time of his death. Nevertheless, newspapers across the country ran stories quoting Dr. Dennis Smyth, Maryland’s Assistant Medical Examiner, who stated that Bias probably died of “free-basing” cocaine, although other medical examiners reached different conclusions.134 In July 1986 alone, there were 74 evening news segments about crack cocaine, many fueled by the belief that Bias died of a crack overdose.135 A year later, during the trial of the man accused of supplying Bias with the cocaine, another University of Maryland basketball player testified that he, 25 Bias, and two others had actually snorted powder cocaine over a four-hour period prior to Bias’s death. His testimony received limited media coverage.136 A few weeks after Bias’s death, on July 15, 1986, the United States Senate’s Permanent Subcommittee on Investigations held a hearing on crack cocaine. During the debate, Bias’s case was cited 11 times in connection with crack.137 Congress, based largely on media coverage of his death, singled out crack cocaine for much harsher penalties than powder cocaine when it enacted the first federal cocaine possession and distribution laws.138 Crack cocaine use and trafficking remains subject to penalties 100 times more severe than those for powder cocaine: a person convicted of attempting to sell five grams of crack cocaine can be sentenced to five years in prison, whereas it takes 500 grams of powder cocaine to trigger the same mandatory sentence. Moreover, despite studies repeatedly demonstrating that blacks use crack cocaine at only slightly higher rates than whites, black crack users are much more likely to be sentenced under these harsh laws.139 Another example of media excess that fueled the escalation of the drug war was the media coverage of “crack babies.” This coverage was largely sparked by a study conducted by Dr. Ira Chasnoff and published in the New England Journal of Medicine, which suggested that prenatal cocaine exposure could have a devastating effect on infants. What the media failed to mention was that only twenty-three cocaine-using women participated in the study, and that Dr. Chasnoff himself warned in his report that more research was needed.140 Instead, anecdotal stories proliferated – after CBS ran a story featuring a social worker who claimed that an eighteen-month-old crack-exposed baby in her care would grow up to have “an IQ of perhaps fifty” and be “barely able to dress herself,” images of the crack epidemic’s “tiniest victims” – scrawny, trembling infants 26 – flooded television screens. Charles Krauthammer, a columnist for the Washington Post, wrote that crack babies were doomed to “a life of certain suffering, of probable deviance, of permanent inferiority.”141 As Mariah Blake, assistant editor of the Columbia Journalism Review put it, “[t]he public braced for the day when this ‘biological underclass’ would cripple our schools, fill our jails, and drain our social programs. But the day never came. Crack babies, it turns out, were a media myth, not a medical reality.”142 The media frenzy over “crack babies” only further fueled the war on drugs, punitive political agendas, and the racialized and gendered images of the drug users who were to be the primary targets.143 “I don’t know if I was born with drugs in my body or not. But my mom used drugs while she was pregnant with me. So it wasn’t long before kids at school were calling me a “crack baby”… From that day on, just about all the kids in fourth grade began calling me “slow,” “dirty” and “crack baby.” I started to believe those things about myself and I constantly imagined what the kids were saying to each other about me. I felt stupid and worthless… But I didn’t quit. And it wasn’t long before I was in the top classes in the school. Now, 10 years later, that kid who was called a crack baby is in college... I am not done yet. I have a lot more things to accomplish in my life, and I am not letting no one or no label hold me back from achieving anything… Those two words almost cost me an education. It’s crazy how powerful two words can be. I won by not letting them hold me back.”144 –Antwaun Garcia, They Called Me a “Crack Baby,” REPRESENT MAGAZINE (March/April 2004.) By 2000, 85% of individuals convicted of federal crack cocaine offenses were black, 9% were Latino, and less than 6% were white. Those convicted of federal powder cocaine offenses were 30.5% black, 51% Latino, and THE HISTORICAL CONTEXT OF DRUG POLICIES 18% white.145 In effect, the media and cultural bias that demonized crack as the most dangerous of all illegal drugs and associated it with poor people of color became codified in law and enforcement practices. Drug laws as they evolved over the 20th century have been ineffective in stemming the supply and availability of illegal drugs. They have, however, been quite effective at criminalizing and incarcerating disproportionately large numbers of people of color. State and federal prisons are filled with low-level, nonviolent drug offenders who are serving long sentences at ever increasing costs to taxpayers. Moreover, expansion of criminal liability for drug offenses has succeeded only in capturing an unprecedented number of smalltime users and dealers, often along with innocent family and community members, and has left kingpins and higher-level traffickers largely untouched. The following section of this report describes in greater detail the drug laws and enforcement policies put in place as part of the war on drugs in the mid-1980s and their consequences for women. RACIAL PROFILING IN DRUG LAW ENFORCEMENT Racial profiling is a term used to describe law enforcement agents’ consideration of a person’s race as a factor, or indeed the sole factor, when determining whom to stop, search, or detain based on suspicion of involvement in criminal activity.146 In other words, when engaging in racial profiling, law enforcement officers act based on presumptions that individuals of certain races are more likely than others to be using or selling drugs, rather than on objective evidence justifying further investigation. II While racial profiling has always existed to some extent in the United States,147 the practice has been the subject of considerable public attention in the context of the war on drugs. Racial profiling in drug law enforcement encompasses both increased police presence and aggressive policing in geographic areas with higher percentages of residents of color, as well as intensified policing and monitoring of people of color wherever they are: on highways, in neighborhoods, in airports, and even in hospitals. Although research and discourse surrounding racial profiling in the context of the war on drugs has, with a few exceptions, focused on men of color, women of color have not escaped its effects. As noted in Section I of this report, women of color are arrested for drug related offenses at far higher rates than white women, despite lower or equal rates of drug use. Racial disparities in arrests, convictions, and incarceration of women of color are clearly connected to the considerable discretion exercised by law enforcement agents when deciding whom to stop, search, and arrest. This discretion permits them to act, in whole or in part, based on a presumption that women of color are more likely to be either using or carrying drugs. Whether the subject is more “conventional” forms of racial profiling – such as traffic, street or border stops and searches 27 based solely or primarily on an individual’s race – or gender-specific forms of racial profiling, which receive less attention but are equally problematic – such as selective testing of pregnant women of color for drug use or race-based surveillance of mothers of color in the context of policing child abuse and neglect, women of color are profoundly impacted by race-biased policing practices in the context of the war on drugs.148 This section offers evidence that there is no legitimate nexus between the well-documented use of race in the war on drugs and curtailment of drug activity, and examines how race-based policing practices harm women of color and their families. DECIDING WHOM TO STOP, SEARCH, AND ARREST Dr. Mae Jemison, the first black woman astronaut to go into space, was stopped by a Texas police officer in February 1996 who subsequently cuffed her, pushed her face down into the pavement, and forced her to remove her shoes and walk barefoot from the patrol car to the police station. Also in 1996, Sandra Antor, a nursing student and Sunday school teacher, was pulled over by a South Carolina state trooper as she was driving down Interstate 95 on her way home to Florida, ripped from her car, shoved to the ground on a busy highway, and beaten before being taken into custody. The officer later cited the possibility that Sandra may have been transporting drugs as justification for his actions. Unfortunately, these instances of violent traffic stops were far from isolated: Amnesty International’s 1998 report, Rights for All, suggested a pattern and practice of stopping and assaulting African American women motorists among the all-male, all-white police force in Riverdale, a Chicago suburb that saw a dramatic increase in the number of black residents in the mid-1990s. 28 At times, stereotypes of women of color as drug users and couriers have had deadly consequences. For instance, Frankie Perkins, a black mother of three on her way home in Chicago one evening in 1997, was crossing an empty lot when she was stopped and subsequently choked by police officers who later claimed that they had seen her swallowing drugs and were trying to get her to spit them up. Witnesses maintain that the officers simply strangled her to death. Autopsy photos revealed bruises on her face and rib cage, and show her eyes swollen shut. The hospital listed the cause of death as strangulation. In a similar incident in southern Seattle, Theresa Henderson was choked by police who claimed that she tried to swallow a small amount of cocaine.149 Also in 1997, Danette Daniels, a pregnant black woman arrested by New Jersey police officers for allegedly dealing drugs, was shot to death by the officers as she sat in a police squad car.150 Witnesses deny that Danette was involved in any drug transaction at the time of her death.151 In all three of these cases, women lost their lives as a result of police encounters precipitated by an unsubstantiated race-based presumption that they were carrying or selling drugs. Police wage the war on drugs primarily on sidewalks, highways, airport terminals, and in other public places, seeking to identify and arrest individual drug users and interdict drug traffic. The primary techniques used to enforce the drug laws are surveillance, “random” stops, and the use of informants. As noted below, numerous studies demonstrate that law enforcement officers improperly use race as a proxy for criminal propensity. A woman’s first point of contact with the net cast by the war on drugs is often the result of a law enforcement officer’s discretionary – and racially informed – decision regarding whom to stop and search. A report by the General Accounting Office (GAO), published in 2000, concluded that United States customs agents at the nation’s airports disproportionately singled out women of color for strip searches aimed at discovering concealed contraband, including THE HISTORICAL CONTEXT OF DRUG POLICIES drugs.152 Black women appeared to be most often subject to a presumption that they were acting as drug “mules” or couriers and carrying drugs concealed on or in their person; consequently, they were the group most often strip-searched by customs agents. According to the GAO, among United States citizens, black women were nine times more likely than white women to be x-rayed after being frisked or patted down. However, black women were less than half as likely to be found carrying contraband as white women. Furthermore, the racial profiling documented by the GAO at the nation’s borders was not limited to black women – Asian American and Hispanic women were stripsearched three times more often than men of the same race, and were 20% less likely than white women to be caught with contraband. required to squat and allow visual inspection of their vaginal and anal areas for concealed drugs – are yet another weapon in the war on drugs aimed at women who are the subject of stops and searches based on racial profiling.155 The GAO study, as well as subsequent litigation,153 reveals that women of color – be they African American, African, Latina, or from the Caribbean – are frequently stereotyped by law enforcement agents as couriers in the international drug trade, and as such are disproportionately targeted for strip searches as part of border interdiction activities, even though they are less likely than white women to actually be transporting drugs. Although law enforcement interactions with women of color beyond the customs context have received considerably less attention, such stereotypes extend beyond the border. Women of color also report frequent, and often abusive, strip searches by local and state law enforcement officers in search of drugs. Danni Tyson is one such woman, arrested on a subway train on her way to pick up her daughter from swim practice, and subsequently strip-searched at a Manhattan police station. During the search, she was asked to lift up her breasts to show that she was not hiding drugs, and subjected to racialized ridicule.154 In some cases, women report that such searches take place in full view of officers not necessary to the search, other detainees, or both. “Visual body cavity searches” – in which women are South Carolina offers a stark example of the extent to which law enforcement officials racially profile and arrest pregnant women believed to be drug users. Police there worked with the Medical University of South Carolina to devise a drug-testing program for pregnant women at a public hospital serving a poor, African American community, a program the medical director of the neonatal intensive-care unit at the hospital called “thinly veiled discrimination against . . . poor black women.“158 One doctor at the hospital expressed concern that the policy made healthcare providers an arm of the law and that the hospital was applying the policy only to a selected population of poor black women159 even though, she felt, many more women, not simply those targeted by the policy, would test positive if screened for drugs. The hospital’s general counsel, in a letter to the state attorney general, said “[t]he other weakness in this program is that the main prosecutions have been against black indigent mothers. . . .”160 Racial profiling of women of color in the context of the war on drugs also takes on more gender-specific, less visible forms.156 As discussed in greater detail in Section I, law enforcement also engages in racial profiling of pregnant and mothering women by arresting disproportionate rates of women of color for drug use during pregnancy. Similarly, portrayal of women of color as poor mothers who are more likely to be using and selling drugs in the home leads to racially disproportionate arrests of women of color for child abuse and neglect.157 In 2001 the U.S. Supreme Court, in Ferguson v. City of Charleston,161 found South Carolina’s practice of testing the urine of pregnant women for cocaine violated a patient’s II 29 Fourth Amendment right to be free from search without a warrant. A decade before the Supreme Court ruled in Ferguson, the practice of drug-testing and criminally prosecuting pregnant women of color was well underway. According to a 1990 summary of pending criminal prosecutions against pregnant women in Florida, of 52 defendants, 35 were African American, 14 were white, two were Latina and one was Native American.162 As Professor Dorothy...