Unequal Punishments: Incarcerated women and the need for a criminal policy reform based on gender
Mr Juan Sebastián Hernández
Juan Sebastián Hernández is a lawyer and philosopher from the University of Los Andes (Colombia). He currently works as a researcher in the Judicial System Line at the Center for Studies of Law, Justice and Society (Dejusticia). His research focuses on human rights in the criminal justice system and in prisons in Colombia.
Prisons are but a mirror of the society in which they operate, and as such, they reproduce and magnify the class, race and gender inequalities of everyday life. The generalized prison crisis in Latin America has shown that, even within their walls, we do not suffer equally. Amidst a never-ending crisis in Colombia, women have become the protagonists in the push for criminal policy reform.
During the demonstrations on the last International Women’s Day, the streets of Colombia witnessed a new chant. Among the support for abortion rights and calls for the eradication of gender-based violence, chants of “It is law!” “It is law!” could be heard, as news came that President Gustavo Petro had finally enacted the Public Utility Service Law for Single Mothers. And their joy was not unfounded: after overcoming several obstacles, this law finally enables single mothers and vulnerable women who have committed low-level offences (such as drug-related crimes or theft) to sustain their families by participating in community service as an alternative to prison, becoming the first criminal policy reform with a gender perspective in the country.
Where human dignity cannot endure
In Latin America, much has been said of the excessive use of incarceration and how the “tough on crime” policies have overwhelmed prisons, which have been aptly described in the media throughout the years as hell on earth. The images of people crammed into cells already overflowing with inmates are eerily reminiscent of concentration camps: people sleeping on dirty floors, in bathrooms or hanging over one another from hammocks, surrounded by rotting food, next to non-existent health services, has become the norm in Latin America.
In Colombia, for example, the Constitutional Court has declared not once, but thrice the existence of an unconstitutional state of affairs in prisons – that is, a situation of a generalized and massive violation of human rights. The first, declared in 1998, found a prison system abandoned by the Government, which had neglected investments in infrastructure and personnel for years. But after a decade of massive investments in prison infrastructure – which more than doubled the system’s capacity in a few years – “tough on crime” policies almost tripled the prison population: the system increased its capacity from 33.119 in 1998 to 76.066 in 2013 while the population grew from 44.439 to 120.032 in the same period. This led the Constitutional Court to declare the second prison crisis in 2013 and 2015, recognizing that this time, its main cause was the excessive use of the criminal justice system to deal with social problems – for example, low-level drug offences or street thefts.
However, with no reform in sight, the crisis remained and has worsened ever since. During the Covid-19 Pandemic, the (former) President Ivan Duque refused to adopt measures to reduce overcrowding for fear of a “security crisis”, opting instead to halt all inmate transfers from police stations to prisons and jails in the national system. This, unsurprisingly, halted the influx of inmates and concentrated overcrowding in police stations, which now face even harsher overcrowding levels than prisons – some reaching overcrowding rates of over 3.000%. As police stations lack the health services, infrastructure and other resources needed for long-term imprisonment (they are designed to hold individuals only up to 36 hours), people stuck in police stations have had to endure months without family visits, exercise and even sunlight.
But while the Court declared in 2022 that the prison crisis had extended to police stations, Congress and the General Prosecutor still refuse to understand that structural criminal policy reform is needed, claiming instead that a further expansion of infrastructure would solve overcrowding – ignoring several studies made by the National Department for Planning (DNP), the National Institute of Prison and Jails (INPEC) and NGOs that clearly show it to be ineffective. Simply put, Colombia incarcerates people at a far faster rate than it can build prisons, and as long as it refuses to reform its criminal policy, the human rights crisis is expanding beyond the walls of prisons.
A system built by and for men
In Colombia, prisons – and now police stations – are indeed an inhuman hell, but one that is not suffered equally. In general terms, men commit criminal offences far more often than women (usually, in a proportion smaller than 10 to 1), which has resulted in prison systems being built and designed primarily for the incarceration of male offenders. As such, in March 2020, 93% of the prison population were men, while only 7% were female, summing up to 8.524 women. In a system not built for them, minority groups, especially women, experience an even harsher violation of their human rights.
Although the majority of incarcerated people in Colombia come from vulnerable backgrounds (in general, most come from low-income communities, violent contexts and have little to no education), the conditions faced by women are even harsher. A study by the Red Cross, Center for Economic Research and Teaching (CIDE, Mexico) and the Javeriana University (Colombia) surveyed 536 women in prisons and found that 75% of the women surveyed were the single heads of their families (with children, seniors, disabled people or others under their care), 78,2% reported that their households earned less than 2 minimum wages per month (currently around $288 USD), and 56,6% of women did not finish high school because they had to take care of their children and families – which, in turn, hindered their opportunities for employment.
Moreover, the study showed that 46,1% of the women surveyed abandoned their families before turning 15 years old, while many suffered different kinds of violence prior to their imprisonment – mostly physical (48%), psychological (43%) and sexual violence (22%). Most were convicted of minor drug offences (45,2%) or theft (17,4%), and almost half (43%) had prison sentences of 5 years or less, as women are usually convicted for low-level, non-violent tasks within criminal organizations (such as minor distribution, transportation, or storage). However, as gender prejudices also exist in the criminal justice system, the Civil Society’s Monitoring Commission found that women usually receive higher sentences and more pre-trial detentions than men for the same offences with their vulnerability not taken into account. Thus, judges, prosecutors and even prison officials find that committing crimes is an “unwomanly” or “unmotherly” behaviour, treating them with contempt as “bad mothers”.
In a system built and operated primarily by men, it is not surprising that women not only face the same conditions as everyone else (such as overcrowding, bad quality of food and lack of potable water), but also a lack of attention to their needs. As the Javeriana study showed, 76,5% of women reported an insufficient supply of menstrual products (pads), and less than half received gynaecological medical attention or in other gender-specific areas, often causing long-term health effects. Moreover, while rehabilitation programs for men also present deficiencies, the offers for women follow the stereotypical roles imposed on them by society, such as cleaning, hairdressing, embroidery, or tailoring – activities that, as 67,5% of women reported, were useless and did not provide them with the skills to increase their opportunities in the labour market. Meanwhile, the stigma of being “ex-convicts” makes it almost impossible to find employment and exposes them to abuse and exploitation by employers.
A further – an often ignored - issue is that incarceration not only affects women, but also their families and children. According to the study, 85% of women in prison had children, 73,4% lived with them before being imprisoned, and 46% had children younger than 11. As 54% of them were their primary caretaker (53,4% indicated that acquiring money to sustain their homes was the main motive for committing a crime), incarceration often meant that children lost their main protector and increased their vulnerability: 38,2% of children had to move in with another family member (usually a grandmother), 79% women reported that their children’s performance in school decreased. 38,7% reported that their children between 12 and 18 had to abandon school to start working, and 18,8% did the same to take care of their siblings.
Although it is a problem with far-reaching effects on their families and society in general, the incarceration of women has been on the rise as a direct result of the irrationality and gross inadequacy of criminal policy in the region. In Colombia, from 1991 to 2018, the female prison population increased significantly, surpassing that of men: while the male population increased a worrying 300% during this period, the female population increased 429% - from 1.500 in 1991 to 7.944 in 2018. The main factor behind this is that Colombian criminal policy has been centred on “tough on crime” policies for the last three decades, especially regarding crimes related to drug trafficking.
This not only makes poor and vulnerable women the “easiest” target of law enforcement and prosecutors to achieve conviction results (as their activities in criminal organizations are those with the highest risk of being detected and captured), but also means that their offences are treated as grave crimes, receive disproportionate sanctions and are excluded from alternatives to incarceration. As Dejusticia has shown, prison sentence increases for drug offences have been the rule in Latin America, becoming so “addictive” for politicians that in some countries, like Colombia, their penalties have reached comparable lengths to those of far more heinous crimes, such as rape or murder.
The way to reform
However grim this situation may appear, women have stepped up and are opening the way for reform. Since 2018, the Public Utility Service Law was discussed by Congress and, even after fierce debate, was finally approved in 2020 in Colombia, a country more than accustomed to viewing alternatives to incarceration as a shorthand for impunity. The path was not easy: after being approved by Congress, ex-President Ivan Duque objected to the law, arguing – without much juridical expertise – that offering alternatives to incarceration to women meant legalizing drug trafficking and a violation of international law.
These objections were reviewed by the Constitutional Court and after more than a year, the Court finally declared the law’s constitutionality and that the presidential objections had no legal basis. Now approved and enacted, the current Ministry of Justice and Law expects that, after some administrative regulation is developed, almost 40% of incarcerated women will be able to avail of this alternative, substantially improving the human rights situation in female prisons. But perhaps the deeper impact of this law will be that it orders the Government to adopt an employment policy for women in and outside prisons, thus becoming the first gender policy which strives to reduce the impacts of incarceration of women at its root – that is, the structural vulnerability and gender discrimination that led many women in our societies to crime as a means of their and their family’s survival.
This success would not have been possible without the work and advocacy of civil society, especially of organizations of ex-incarcerated women. During the law’s initial drafts, several NGOs, and especially Mujeres Libres (“Free Women”, an organization created by ex-incarcerated women), participated actively to ensure that community services could become a viable option for incarcerated women and a useful strategy to reduce overcrowding, even in an adverse legal context. On 4 May Mujeres Libres organized the First International Convening of Formerly Incarcerated Women in Bogotá, which began a network of ex-incarcerated women from places as distant as Mexico, New Zealand, the US, and South Africa among others, to work collectively for human rights of incarcerated and formerly incarcerated women – giving a voice, and a measure of hope, for the thousands that are still behind bars.
Although this law is a first step in the good direction, there is still a lot to do to overcome the gender inequalities and the generalized irrationality of criminal policies in Latin America. This requires States to resist the urge of adopting “easy” solutions to complex problems. In the use of punitive power, States ought to adopt a criminal policy which not only reduces crime effectively – a goal which “tough on crime” policies have proved incapable of achieving - but also to ensure that their prison systems are sustainable in terms of both economic costs and human rights. But, if this change comes, it would be without a doubt thanks to the voice of the women that suffered that inhuman hell – those that still carry the repercussions of our unequal punishments, but dared to pave the way for reform for all who still watch their human dignity evaporate between cold iron bars.
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