    [House Hearing, 116 Congress]
    [From the U.S. Government Publishing Office]

                 WOMEN AND GIRLS IN THE CRIMINAL JUSTICE SYSTEM

    =======================================================================

                                    HEARING

                                   BEFORE THE

            SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

                                     OF THE

                           COMMITTEE ON THE JUDICIARY

                            HOUSE OF REPRESENTATIVES

                         ONE HUNDRED SIXTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                 JULY 16, 2019

                                   __________

                               Serial No. 116-37

                                   __________

             Printed for the use of the Committee on the Judiciary

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                   Available via: http://judiciary.house.gov

                                   __________

                        U.S. GOVERNMENT PUBLISHING OFFICE
    44-092                    WASHINGTON : 2021

    -----------------------------------------------------------------------------------

                           COMMITTEE ON THE JUDICIARY

                        JERROLD NADLER, New York, Chair
                   MARY GAY SCANLON, Pennsylvania, Vice-Chair

    ZOE LOFGREN, California              DOUG COLLINS, Georgia, Ranking
    SHEILA JACKSON LEE, Texas                Member
    STEVE COHEN, Tennessee               F. JAMES SENSENBRENNER, Jr.,
    HENRY C. ``HANK'' JOHNSON, Jr.,          Wisconsin
        Georgia                          STEVE CHABOT, Ohio
    THEODORE E. DEUTCH, Florida          LOUIE GOHMERT, Texas
    KAREN BASS, California               JIM JORDAN, Ohio
    CEDRIC L. RICHMOND, Louisiana        KEN BUCK, Colorado
    HAKEEM S. JEFFRIES, New York         JOHN RATCLIFFE, Texas
    DAVID N. CICILLINE, Rhode Island     MARTHA ROBY, Alabama
    ERIC SWALWELL, California            MATT GAETZ, Florida
    TED LIEU, California                 MIKE JOHNSON, Louisiana
    JAMIE RASKIN, Maryland               ANDY BIGGS, Arizona
    PRAMILA JAYAPAL, Washington          TOM McCLINTOCK, California
    VAL BUTLER DEMINGS, Florida          DEBBIE LESKO, Arizona
    J. LUIS CORREA, California           GUY RESCHENTHALER, Pennsylvania
    SYLVIA R. GARCIA, Texas              BEN CLINE, Virginia
    JOE NEGUSE, Colorado                 KELLY ARMSTRONG, North Dakota
    LUCY McBATH, Georgia                 W. GREGORY STEUBE, Florida
    GREG STANTON, Arizona
    MADELEINE DEAN, Pennsylvania
    DEBBIE MUCARSEL-POWELL, Florida
    VERONICA ESCOBAR, Texas

            PERRY APELBAUM, Majority Staff Director & Chief Counsel
                    BRENDAN BELAIR, Minority Staff Director
                                     ------

            SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

                         KAREN BASS, California, Chair
                        VAL DEMINGS, Florida, Vice-Chair

    SHEILA JACKSON LEE, Texas            JOHN RATCLIFFE, Texas, Ranking
    LUCY McBATH, Georgia                     Member
    THEODORE E. DEUTCH, Florida          F. JAMES SENSENBRENNER, Jr.,
    CEDRIC RICHMOND, Louisiana               Wisconsin
    HAKEEM JEFFRIES, New York            STEVE CHABOT, Ohio
    DAVID N. CICILLINE, Rhode Island     LOUIE GOHMERT, Texas
    TED LIEU, California                 TOM MCCLINTOCK, California
    MADELEINE DEAN, Pennsylvania         DEBBIE LESKO, Arizona
    DEBBIE MUCARSEL-POWELL, Florida      GUY RESCHENTHALER, Pennsylvania
    STEVEN COHEN, Tennessee              BEN CLINE, Virgina
                                         W. GREGORY STEUBE, Florida

                       JOE GRAUPENSPERGER, Chief Counsel
                        JASON CERVENAK, Minority Counsel

                                C O N T E N T S

                                 July 16, 2019

                                                                       Page

                               OPENING STATEMENTS

    The Honorable Karen Bass, Chair of the Subcommittee on Crime,
      Terrorism, and Homeland Security from the State of California..     1
    The Honorable John Ratcliffe, Ranking Member of the Subcommittee
      on Crime, Terrorism, and Homeland Security from the State of
      Texas..........................................................     3
    The Honorable Jerrold Nadler, Chairman of the Committee on the
      Judiciary from the State of New York...........................     4

                                   WITNESSES

    Jesselyn McCurdy, Deputy Director, American Civil Liberties
      Union, Washington, DC, Legislative Office
      Oral Testimony.................................................     6
      Prepared Statement.............................................     7
    Cynthia Shank, Featured in HBO Documentary--The Sentence
      Oral Testimony.................................................    20
      Prepared Statement.............................................    21
    Piper Kerman, Author, ``Orange Is the New Black''
      Oral Testimony.................................................    22
      Prepared Statement.............................................    24
    Aleks Kajstura, Legal Director, Prison Policy Initiative
      2Oral Testimony................................................    29
      Prepared Statement.............................................    32
    Patrice Lee Onwuka, Senior Policy Analyst, Independent Women's
      Forum
      Oral Testimony.................................................    39
      Prepared Statement.............................................    40

              LETTER, MATERIAL, ARTICLES SUBMITTED FOR THE RECORD

    Letter submitted by the Honorable Theodore Deutch, a Member of
      the Subcommittee on Crime, Terrorism, and Homeland Security
      from the State of Florida for the record.......................    64
    Letter submitted by the Honorable Madeleine Dean, a Member of the
      Subcommittee on Crime, Terrorism, and Homeland Security from
      the State of Pennsylvania for the record.......................    76

                                    APPENDIX

    Testimony submitted by Prison Fellowship for the record..........    86

                 WOMEN AND GIRLS IN THE CRIMINAL JUSTICE SYSTEM

                                  ----------

                             Tuesday, July 16, 2019

                            House of Representatives

            Subcommittee on Crime, Terrorism, and Homeland Security

                           Committee on the Judiciary

                                 Washington, DC

        The Subcommittee met, pursuant to call, at 10:08 a.m., in
    Room 2141, Rayburn House Office Building, Hon. Karen Bass
    [chair of the subcommittee] presiding.
        Present: Representatives Bass, Nadler, Jackson Lee,
    Demings, McBath, Deutch, Richmond, Jeffries, Cicilline, Lieu,
    Dean, Mucarsel-Powell, Cohen, Ratcliffe, Chabot, Steube, Lesko,
    Reschen-thaler, McClintock, and Cline.
        Staff Present: David Greengrass, Senior Counsel; Joe
    Graupen-Sperger, Chief Counsel; Milagros Cisneros, Detailee;
    Monalisa Dugue, Deputy Chief Counsel; Rachel Rossi, Counsel;
    Veronica Eligan, Professional Staff Member; Anthony Valdez,
    Intern; Michael Nevett, Intern; Jason Cervenak, Minority Senior
    Counsel; Andrea Woodard, Minority Professional Staff Member;
    and Erica Barker, Minority Clerk.
        Ms. Bass. The Committee on Crime, Terrorism, and Homeland
    Security will come to order. Without objection, the chair is
    authorized to declare recesses of the Subcommittee at any time.
        I welcome everyone to today's hearing on Women and Girls in
    the Criminal Justice system. I now recognize myself for an
    opening statement.
        I am very pleased that this Subcommittee is holding this
    hearing today. After decades of policies that led to mass
    incarceration, we are finally at a point of examining the
    policies and the consequences. What has been missing from the
    discussion of criminal justice reform is the special and
    specific impact the tough-on-crime era has had on women and
    children.
        Today's hearing begins a discussion about women in the
    criminal justice system. It is critical that we understand how
    and why women become involved in the system, what happens to
    them when they are incarcerated, and what their trajectory is
    once released. We need to examine the impact of the war on
    drug-related policies, that specifically targeted women in
    hopes of capturing men. What happens to families, and
    especially children, when women are incarcerated? We need to
    examine the special needs women have when they are
    incarcerated, what is different? What are is different? What
    happens to their children while they are in the system, and
    when they are released?
        For example, Federal law can lead to termination of
    parental rights if the child of an incarcerated woman remains
    in foster care beyond 18 months. Some States have even
    shortened the timeline to 6 or 12 months. If a woman receives a
    sentence of 5 years, why should she face losing her children
    forever to adoption? Examining pregnancy while incarcerated is
    the most obvious difference. Specifically, prisons and jails
    are not designed or equipped to deal with the issues are of
    pregnant women in custody.
        I would like to recognize now Charlotte Cook. Wave your
    hand, please. While in prison, she complained that she was
    pregnant. The medical staff at the prison insisted that it was
    just because she was fat and stressed out. After much
    persistence, a blood test ruled that she was, in fact,
    pregnant, although 6 weeks into her pregnancy without prenatal
    care. She had complications, and her son was born a preemie at
    4.5 pounds. Eighteen months later, he was diagnosed with severe
    autism.
        The health needs of women, regardless of pregnancy, is
    different, and all women should have access to appropriate
    medical care. That includes access to gynecological care and
    not just during the child-bearing years. So, what is to be
    done?
        Through this hearing we will learn the common reasons why
    women enter the criminal justice system. This testimony must
    inform our next steps on sentencing reform. The testimony of
    Ms. Kerman and Ms. Shank will help us determine whether it is
    time it to revisit our overly broad drug conspiracy laws, which
    tend to leave low-level offenders, commonly women, laden with
    the responsibility for actions they did not commit, or
    sometimes, didn't even know about.
        We must also consider methods of reviewing extremely long
    sentences, as the number of women serving life sentence is on
    the rise. One out of every 15 women in prison, nearly 7,000, is
    serving a life, or virtual life sentence. While 80 percent of
    women in the criminal justice system are mothers, these life
    sentences do not only affect the person incarcerated, but they
    also affect the children who lose a parent.
        Thus, the conversation of incarcerated women must include a
    conversation about their children. The Urban Institute's
    research shows that staying in touch promotes positive outcomes
    for both the children and their parents, which often reduces
    recidivism.
        Communities must also be part of the conversation. Teachers
    and staff should prioritize knowledge and sensitivity about
    issues children of an incarcerated parent face. Schools should
    spearhead efforts to meet the needs of children with
    incarcerated loved ones, and offer resources or clubs targeted
    towards students who have been affected by incarceration,
    including support groups, counseling, extracurricular
    activities, providing opportunities to process experiences
    through poetry, writing arts and journaling.
        Perhaps if we do this, we can reduce the statistic that 50
    percent of children who have a parent incarcerated wind up
    incarcerated later in life. Connections should be made with
    community programs and local service providers that serve
    families affected by incarceration for additional support.
        Finally, we cannot ignore the conditions of women in prison
    and the difficulties of their reentry back into communities
    after release. I hope to explore how we can improve the
    conditions of women incarcerated to ensure that their most
    basic needs are met, including the needs of incarcerated
    pregnant women. Any facility that incarcerates women must be
    held to minimal standards of care. Today, women will no longer
    be overlooked in the criminal justice conversation. We must
    have an overall approach to criminal justice reform that
    specifically considers women.
        I look forward to hearing the testimony of our panel of
    witnesses and the opportunity to discuss these issues. I now
    recognize the Ranking Member, Hon. Mr. Ratcliffe.
        Mr. Ratcliffe. Thank you, Chair Bass. Thanks to each of our
    witnesses for being here today to discuss the impact of the
    criminal justice system on women and girls. To do that, I think
    it is crucial that we take a step back to first understand the
    importance of the criminal justice system in the first place.
    Law enforcement officers, men and women of all races and all
    backgrounds put their lives on the line everyday all around
    this country to protect our communities. They make these
    extraordinary sacrifices to ensure that children are safe from
    exploitation by sex offenders. They do that to keep women and
    girls safe from domestic abusers. They make these sacrifices to
    defend the weak and the vulnerable among us. Importantly, they
    also do it to uphold the Rule of law.
        We should all agree on these fundamental principles. As
    Members of Congress, our role is to ensure that Lady Justice is
    blind, and that bias has no place in our criminal justice
    system. As my good friend and the former chair of this
    subcommittee, Trey Gowdy, once said, we should strive for
    criminal justice system that is not just respected by the
    American people, but is worthy of their respect.
        As a former prosecutor, my role was to be a zealous
    advocate for the truth. And during that time, I encountered
    crimes committed that were shocking to my conscience and
    sickening to my soul. In those cases, enhanced sentences and
    mandatory minimums were fair and they were just. Crimes
    committed against children, the most innocent and the most
    vulnerable Members of our society, should stick with us, they
    should haunt us, and then they should spur us to take action.
        Much of the debate here in Congress has been about criminal
    justice reforms and the impact of mandatory minimums and how to
    reduce recidivism. We should be vigilant in determining the
    causes of increasing female incarceration rates in this
    country. We should be open to addressing, in a bipartisan
    fashion, the unique needs of women and girls in our criminal
    justice system.
        As Congress has debated criminal justice reform, many
    States have acted as laboratories of democracy, creating
    innovative ways to handle their unique challenges in providing
    Congress with a view of what works and what doesn't work. We
    can and we should learn from that.
        Let us not forget that even some so-called nonviolent
    offenses, there are victims too numerous to mention and
    unfortunately too easy for us to ignore. Drug traffickers that
    profit off the importation of deadly and illicit drugs, like
    heroin, methamphetamines and Fentanyl in our communities leave
    a trail of destruction in their wake. The race or gender of
    drug traffickers does not matter. What matters is that their
    victims come from all backgrounds and from all walks of life.
        I yield back.
        Ms. Bass. It is now my pleasure to recognize Chair of the
    full Judiciary Committee, the gentleman from New York, Mr.
    Nadler.
        Chairman Nadler. I thank the Crime Subcommittee chair, our
    colleague from California, Karen Bass, for holding this
    important hearing on the special issues related to women and
    girls in the criminal justice system. In recent years, there
    has been a growing consensus that our Nation's criminal justice
    system must be substantially reformed. One critical element of
    this national conversation that has been largely absent,
    however, is consideration of the unique experiences and needs
    of women and girls in the system, and our responsibility could
    develop creative ways to address those issues. It is
    particularly urgent that we do so, because women are the
    fastest growing segment of our Nation's incarcerated
    population. While recent efforts at reforming the criminal
    justice system are at least partly responsible the for slight
    reductions in the rate of incarceration overall, the proportion
    of incarcerated women is steadily rising. This disturbing trend
    must be examined.
        In addition, we still must consider whether the reforms
    already instituted across the country are appropriately
    designed to address the issues faced by women and girls in the
    criminal justice system. These issues are numerous and diverse,
    impacting all stages of the criminal justice system.
        One such injustice, for example, is the so-called
    girlfriend problem, where a woman in a relationship is held
    responsible through conspiracy charges for the entirety of a
    criminal scheme orchestrated by her partner, often involving
    drug distribution, in which the woman had minimal involvement.
    In such cases, the women may even receive a harsher sentence
    than her relationship partner who had the real role, because
    the more culpable partner is able to cut a deal for shorter
    sentence based on divulging information to prosecutors. The
    less culpable partner does it not have much of any useful
    information to divulge because she doesn't know any, and thus
    lacks the leverage to obtain a more favorable plea agreement.
        Addressing this unfair situation is important because the
    war on drugs appears to be a large driver of the incarceration
    rates of women, as illustrated by the fact that the proportion
    of women in prison for a drug offense has increased from 12
    percent in 1986, to 25 percent in more recent years.
        Another problem is the impact of pretrial custody on women.
    Over 60 percent of women who are incarcerated have not even
    been convicted of a crime, and yet, they are held in pretrial
    custody in jail. This is particularly disturbing because many
    of these women are the only providers for their children.
        A recent survey revealed that more than 150,000 children
    had a parent in jail, because the parent could not afford bail.
    Not because the parent presented a particular risk to the
    community or risk of not appearing at trial. That means
    children are impacted by pretrial detention in startling
    numbers. This problem is most often caused by pretrial
    incarceration by sole provider mothers. Clearly, we must take
    steps to address this crisis of vastly overused pretrial
    custody.
        We must also focus on unique inequities that women face
    while incarcerated. As a result of Subcommittee Chair Bass'
    leadership, Congress final passed legislation implementing
    reforms at the Federal level, that ban shackling during
    pregnancy and require the provision of feminine hygiene
    products in Federal prison. These provisions were enacted last
    year in the first setback with bipartisan support, including
    the efforts of our current Ranking Member of the committee,
    Doug Collins.
        Much more must be done to improve the conditions for women
    in Federal and State prisons and jails, and I hope this will
    also be a bipartisan priority. As this Committee develop plans
    to further reform our criminal justice system, it is clear that
    our efforts must be informed by the unique issues faced by
    women in that system. I appreciate the chair for holding this
    important hearing, which will assist us in this process. I look
    forward to hearing from our witnesses and I yield back the
    balance of my time.
        Ms. Bass. It is now my pleasure to introduce today's panel:
    Ms. Jesselyn McCurdy is Deputy Director at the Washington
    Legislative Office of the American Civil Liberties Union, where
    she represents the ACLU before Congress and the executive
    branch. She covers various criminal justice issues, including
    Federal sentencing, prison reform, drug policy and capital
    punishment. She previously served as the lead counsel with this
    Subcommittee on the historic Fair Sentencing Act of 2010, which
    lowered the 100-to-1 disparity between crack and powder
    cocaine.
        Ms. Cindy Shank is a mother of three beautiful children,
    turned advocate for criminal justice reform following her time
    in prison. Ms. Shank's 15-year sentence under drug conspiracy
    laws was commuted by President Obama after she served 8 years
    in prison. Ms. Shank was featured in the HBO documentary, ``The
    Sentence.''
        Ms. Piper Kerman, author of ``Orange is the New Black,''
    which about the 13 months Piper served at the Federal
    correction institution in Danbury, Connecticut. She is an
    advocate who teaches writing classes at two State prisons in
    Ohio, as an affiliate instructor with Oberlin University.
        Ms. Aleks Kajstura is the legal director for the Prison
    Policy Initiative and has played a central role in building
    Prison Policy Initiative campaign against prison
    gerrymandering, and led the organization's work on its second
    major issue, sentencing enhancement zones.
        Ms. Patrice Onwuka, a senior policy analyst at Independent
    Women's forum. We welcome our witnesses and thank them for
    participating in today's hearing. Please note that your written
    statement will be entered into the record in its entirety.
    Accordingly, I ask that you summarize your testimony in 5
    minutes. To help you stay within that time, there is a timing
    light on your table. When the light switches from green to
    yellow, you will have 1 minute to conclude your testimony. When
    the light turns red, it signals that your 5 minutes expired.
    Before proceeding with testimony, I hereby remind each witness
    that all your written and oral statements made to the
    Subcommittee in connection with this hearing are subject to
    penalties of perjury.
        Ms. McCurdy.

                     TESTIMONY OF JESSELYN McCURDY

        Ms. McCurdy. Thank you, Chairwoman Bass. The American Civil
    Liberties Union would like to thank you and the Ranking Member
    Ratcliffe for the opportunity to testify at today's hearing on
    Women and Girls in the Criminal Justice System. Prison is a
    woman's issue. Lost in the sobering statistics on this
    country's prison population and the narrative surrounding mass
    incarceration is the degree to which women are ensnared in the
    criminal justice system.
        Over the past 30 years, the number of incarcerated women
    has grown exponentially. Again, women are the fastest growing
    segment of the prison population, increasing by 700 percent
    from 1980 to 2017, a rate twice that of men. Today, more than
    200,000 women are incarcerated in jails and prisons across this
    country. The majority of women in prison are incarcerated for
    low-level offenses, most often property and drug-related
    crimes. Even as the rate of incarceration for women has risen
    dramatically in recent years, the percentage of women sentenced
    for crimes involving violence has fallen.
        Much of the growth in the women's prison population over
    the past 30 years can be attributed to the war on drugs. From
    1988 to 1999, the number of women in State facilities for drug
    offenses grew by 888 percent. Drug and property offenses are
    often fueled by conditions of poverty, addiction, and untreated
    mental health issues, which is experienced by many women
    cycling through the criminal justice system.
        In addition to poverty, what often lands women in prison is
    their history of physical and sexual abuse, high rates of HIV,
    and substance abuse problems. When they participate in more
    serious crimes, including serious drug crimes and robbery,
    women are minor accomplices. When women commit homicide, they
    often do so to protect themselves from men who have abused
    them. Women of color are disproportionately represented in the
    population incarcerated women. In 2014, Black women were more
    than twice, and Latino women were 20 percent more likely than
    White women to be incarcerated. Although the racial disparities
    among incarcerated women have narrowed over the past 15 years,
    the legacy of the disparity remains. Girls are more likely than
    boys to be in the juvenile facilities, due to low-level status
    offenses, or technical violations, and are far less likely to
    be detained for violent offenses.
        Women make up approximately 7 percent of the Federal prison
    population. Almost 13,00 women compared to 1980 when there were
    13,000 women in both State and Federal prisons combined. More
    than 70 percent of the women sentenced in 2017 in the Federal
    system were convicted of drug trafficking, fraud, or
    immigration offenses.
        In the same year, 68 percent of females sentenced had
    little or no prior criminal history. Furthermore, women
    frequently end up in Federal prison due to Federal drug
    conspiracy laws. Too often, Federal drug conspiracy laws
    disproportionately punish those who unwittingly and unknowingly
    find themselves caught in the net of drug-related activity,
    even in a peripheral role.
        Women who are minimally involved in drug dealing but who
    have partners or family Members involved in the drug trade can
    be required to serve long sentences as a result of conspiracy.
    Some of these relationships are abusive, or coercive, or leave
    women vulnerable and with few options.
        Women of color often find themselves subject to prosecution
    based on relationships and associations, rather than their own
    personal conduct. Adding to the burden of women behind bars is
    the majority of women in prison are mothers. Since 1991, the
    number of children with a mother in prison has grown 131
    percent. The majority of these women are both custodial parents
    and primary financial providers. Further, mothers behind bars
    are five times more likely than men to report that their
    children are in foster care or cared for by the State.
        The very existence of parental relationships can be
    endangered when a parent is incarcerated. Incarcerated parents
    who have not abused or neglected their children are far
    likelier to lose their parental rights permanently than a
    nonincarcerated parent who has assaulted their child.
        Women are the fastest growing population in the U.S.,
    leaving far too many children and families without a mother,
    despite the fact she is often their primary caregiver. Until we
    recognize the unique circumstances, needs, and consequences
    associated with women who come in contact with the criminal
    legal system, we will never truly address this Nation's mass
    incarceration problem.
        Thank you.
        [The statement of Ms. McCurdy follows:]

                        STATEMENT OF MS. McCURDY

                            Introduction\1\
    ---------------------------------------------------------------------------

        \1\ Special thanks to Lauren Kuhlik Equal Justice Works Fellow,
    Sponsored by Crowell & Moring for drafting portions of this testimony.
    ---------------------------------------------------------------------------
        The American Civil Liberties Union (ACLU) would like to
    thank Crime Subcommittee Chairwoman Karen Bass and Ranking
    Member John Ratcliffe for the opportunity to testify before the
    House Committee on the Judiciary's Subcommittee on Crime,
    Terrorism, and Homeland Security during this hearing on Women
    and Girls in the Criminal Justice System.
        For nearly 100 years, the ACLU has been our nation's
    guardian of liberty, working in courts, legislatures and
    communities to defend and preserve the individual rights and
    liberties that the Constitution and the law of the United
    States guarantee to everyone in the country. With more than
    four million Members, activists, and supporters, the ACLU is a
    nationwide organization that fights tirelessly in all 50
    states, Puerto Rico, and Washington, DC, for the principle that
    every individual's rights must be protected equally under the
    law, regardless of race, religion, gender, sexual orientation,
    gender identity or expression, disability, national origin, or
    record of arrest or conviction. The ACLU advances equality
    through litigation and policy advocacy. The ACLU's priorities
    include defending the rights of immigrants, advocating for
    economic justice, and defending the housing rights of
    vulnerable populations.

                    I. Trends Among Women in Prison

        Prison is a women's issue.\2\ Lost in the sobering
    statistics on the country's prison population and the narrative
    surrounding mass incarceration is the degree to which women are
    ensnared in the criminal justice system. Over the past thirty
    years, the number of incarcerated women has grown
    exponentially. Women are the fastest growing segment of the
    prison population, increasing by 700% from 1980 to 2017--a rate
    twice that of men.\3\ Recent statistics from the Federal Bureau
    of Justice Statistics (BJS) indicate that, of the estimated 6.9
    million persons under the supervision of adult correctional
    systems at year-end 2013, 18%, or 1.2 million, were women.\4\
    Today, more than 200,000 women are incarcerated in jails and
    prisons nationwide.\5\ As of 2013, almost 60% of all women in
    correctional facilities were between the ages of 18 and 39.\6\
    ---------------------------------------------------------------------------
        \2\ Prisoners are nearly always housed according to their sex as
    assigned at birth. See Classification and Housing of Transgender
    Inmates in American Prisons, 127 Harv. L. Rev. 1746, 1748 (2014).
    ``Women in prison'' refers to individuals housed in women's facilities,
    who may include transgender men and other gender non-conforming people;
    transgender women, who are often housed in male facilities, also face
    similar obstacles in prison arising from their own trauma histories and
    are equally entitled to appropriate gender-responsive programming.
        \3\ The Sentencing Project, Incarcerated Women and Girls (updated
    2019), available at https://www.sentencingproject.org/publications/
    incarcerated-women-and-girls/ [hereinafter Incarcerated Women]. https:/
    /www.sentencingproject.org/publications/incarcerated-women-and-girls/.
        \4\ Lauren E. Glaze & Danielle Kaeble, Bureau of Justice
    Statistics, Correctional Populations in the United States, 2013 1, 6
    (2014), available at http://www.bjs.gov/content/pub/pdf/cpus13.pdf
    [hereinafter BJS Statistics].
        \5\ Aleks Kajstura, Prison Policy Initiative, Women's Mass
    Incarceration: The Whole Pie 2018 (2018), available at https://
    www.prisonpolicy.org/reports/pie2018women.html; E. Ann Carson, Bureau
    of Justice Statistics, Prisoners in 2016 4 (2018), available at https:/
    /www.bjs.gov/content/pub/pdf/p16.pdf; Zhen Zeng, Bureau of Justice
    Statistics, Jail Inmates in 2016 9 (2018), available at https://
    www.bjs.gov/content/pub/pdf/ji16.pdf.
        \6\ E. Ann Carson, Bureau of Justice Statistics, Prisoners in 2013
    8 (2014), available athttp://www.bjs.gov/content/pub/pdf/p13.pdf
    [hereinafter Prisoners in 2013].
    ---------------------------------------------------------------------------
        The majority of women are incarcerated for low-level
    offenses, most often property and drug-related crimes.\7\ Even
    as the rate of imprisonment for women has risen dramatically in
    recent years, the percentage of women sentenced for crimes
    involving violence has fallen.\8\ Much of the growth in the
    women's prison population over the past thirty years can be
    attributed to the ``War on Drugs.'' From 1988 to 1999, the
    number of women in State facilities for drug offenses grew by
    888%.\9\ In New York for example, drug offenses accounted for
    91% of the increase in the number of women sentenced to prison
    between 1986 and 1995.\10\ This legacy has continued, and, at
    the end of 2012, a higher percentage of incarcerated women than
    men are serving time for drug offenses.\11\ Drug and property
    offenses are often fueled by conditions of poverty, addiction,
    and untreated mental health issues, which is experienced by
    many of the women cycling through the criminal justice
    system.\12\
    ---------------------------------------------------------------------------
        \7\ Id. at 15. In 2013, approximately 63% of women in prison were
    incarcerated for non-violent offenses. Id.
        \8\ In the late 1970s, the rate of imprisonment for women was 10
    per 100,000 in the State prison system, 49% of whom were sentenced for
    violent crimes. Natasha A. Frost et al., Institute on Women and
    Criminal Justice, Hard Hit: The Growth in the Imprisonment of Women,
    1977-2004 7, 10 (2006), available at http://csdp.org/research/
    HardHitReport4.pdf [hereinafter Hard Hit]. By 2011, the imprisonment
    rate had risen to 65 per 100,000; however, as of 2012, approximately
    37% of women in State prisons were sentenced for violent crimes. See
    Prisoners in 2013, supra note 5, at 6, 15.
        \9\ Leonora Lapidus et al., Caught in the Net: The Impact of Drug
    Policies on Women and Families 16 (2005), available at https://
    www.aclu.org/sites/default/files/field_
    document/asset_upload_file431_23513.pdf.
        \10\ Hard Hit, supra note 6, at 24.
        \11\ BJS Statistics, supra note 3, at 15.
        \12\ ACLU of Pennsylvania, Reproductive Health Locked Up: An
    Examination of Pennsylvania Jail Policies 2 (2012), available at http:/
    /www.aclupa.org/download_file/view_inline/756/484/ [hereinafter
    Reproductive Health Locked Up].
    ---------------------------------------------------------------------------
        Women are more likely than men to commit crimes because of
    poverty. Women represent a disproportionate number of people
    arrested for and convicted of property crimes such as fraud,
    forgery, and embezzlement.\13\ When they participate in more
    serious crimes, including serious drug crimes and robbery,
    women are generally not principals of the crime, but rather are
    minor accomplices.\14\ When women commit homicide, they often
    do so to protect themselves from men who have abused them.\15\
    Thus, a man and a woman convicted of the same crime and given
    the same sentence may have been treated unequally by the
    system. Women's sentences are often disproportionate to their
    crimes and often do not take into consideration these
    mitigating factors.\16\
    ---------------------------------------------------------------------------
        \13\ Federal Bureau of Investigations, Arrests by Sex, 2017 (2018),
    available at https://ucr.fbi.gov/crime-in-the-u.s/2017/crime-in-the-
    u.s.-2017/topic-pages/tables/table-42.
        \14\ Darrell Steffensmeir & Emilie Allan, Gender and Crime-
    Differences Between MAle and Female Offending Patterns (2002),
    available at http://law.jrank.org/pages/1250/Gender-Crime-Differences-
    between-male-female-offending-patterns.html; see also Myrna S. Raeder,
    Gender-Related Issues in a Post-Booker Federal Guidelines World, 37
    McGeorge L. Rev. 691, 726-31 (2006) (explaining the ``girlfriend
    problem,'' which forces female romantic partners of male drug offenders
    to decide between leaving those partners--and the security they
    provide--and participating either actively or passively in their
    crimes).
        \15\ Meda Chesney-Lind, Women and the Criminal Justice System:
    Gender Matters 3, available at https://www.gvsu.edu/cms4/asset/
    903124DF-BD7F-3286-FE3330AA44F994DE/women_
    and_the_criminal_justice_system_gender_matters.pdf#page=3.
        \16\ See generally Raeder, supra note 119 (arguing that defense
    counsel and judges should do more to take women's backgrounds into
    consideration during sentencing).
    ---------------------------------------------------------------------------
        Women of color are disproportionately represented in the
    population of incarcerated women. In 2014, Black women were
    more than twice as likely as White women to be incarcerated and
    Latina women were 20% more likely to be incarcerated than White
    women.\17\ Although the racial disparity among incarcerated
    women has narrowed in the past fifteen years--the rate of
    incarceration for Black women in prison declined by 30% between
    2000 and 2009--the legacy of disparity remains.\18\ Among women
    ages 18-19, the results were particularly pronounced--Black
    women were almost five times more likely than White women of
    the same age to be incarcerated.\19\ Latina women were also
    incarcerated at a disproportionate rate.\20\ Although Black
    children make up only 14% of all youth under age 18, 34% of
    girls incarcerated in youth facilities are Black; similarly,
    Native American youth make up only 1% of all youth but
    represent 3% of girls incarcerated in juvenile facilities.\21\
    Girls are more likely than boys to be in juvenile facilities
    due to low-level status offenses or technical violations and
    are far less likely to be detained for violent offenses.\22\
    ---------------------------------------------------------------------------
        \17\ Incarcerated Women, supra note 2, at 2.
        \18\ See Marc Mauer, The Sentencing Project, The Changing Racial
    Dynamics of Women's Incarceration 1 (2013), available at http://
    sentencingproject.org/doc/publications/
    rd_Changing%20Racial%20Dynamics%202013.pdf.
        \19\ Id.
        \20\ Id.
        \21\ Wendy Sawyer, Prison Policy Initiative, Youth Confinement: The
    Whole Pie (2018), available athttps://www.prisonpolicy.org/reports/
    youth2018.html.
        \22\ Offense Profile of Committed Residents by Sex and Race/
    Ethnicity for United States, 2015, Office of Juvenile Justice and
    Delinquency Protection (2014), https://www.ojjdp.gov/ojstatbb/ezacjrp/
    asp/Offense_Committed.asp.
    ---------------------------------------------------------------------------

                    II. Women in the Federal Prison

                A. Mandatory Minimums and Federal Crimes

        The Sentencing Reform Act of 1984 (SRA) is the framework
    for the current federal sentencing system. In an effort to
    increase uniformity and reduce sentencing disparity, the SRA
    eliminated indeterminate sentencing (i.e., federal parole) and
    established the U.S. Sentencing Commission (Sentencing
    Commission) which led to the creation of the Federal Sentencing
    Guidelines (Guidelines).\23\ In 1986, not long after the SRA
    was enacted, the Anti-Drug Abuse Act (ADAA) established
    mandatory minimum sentences for federal drug crimes.\24\ The
    ADAA and other laws pass after 1986 included long sentences for
    many drug offenses based on the drug type and quantity, not the
    role the person played in a drug conspiracy.\25\
    ---------------------------------------------------------------------------
        \23\ CCTF, Transforming Prisons, Restoring Lives: Final
    Recommendations of the CCTF 5 (Jan. 2016), https://www.urban.org/sites/
    default/files/publication/77101/2000589-Transforming-Prisons-Restoring-
    Lives.pdf.
        \24\ Id.
        \25\ Id.
    ---------------------------------------------------------------------------
        There are only two options judges have to reduce mandatory
    sentences for people convicted of drug crimes. These options
    occur when:

          An individual cooperates or provides substantial
    assistance to prosecutors investigating related offense; or
          A person qualifies for the ``safety valve.'' The five
    part ``safety valve'' criteria is when an individual has: (1) No more
    than one criminal history point; (2) not been involved in violence or
    had a weapon; (3) not committed an offense involving serious bodily
    injury or death; (4) not played a leadership role; and (5) fully and
    truthful disclosed information.\26\
    ---------------------------------------------------------------------------
        \26\ Id.

        Furthermore, federal drug conspiracy laws result in long,
    harsh sentences for people who are not involved in crimes
    beyond their associations with intimate partners and family
    Members. According to Sec. 21 U.S.C. 841 and 21 U.S.C. 846,
    anyone who attempts or conspires to commit a drug offense will
    be subject to the same penalties as those for the actual
    offense.\27\ Too often, federal drug conspiracy laws
    disproportionately punish those who unwittingly or unknowingly
    find themselves caught in the net of drug-related activity,
    even in a peripheral role. Women who are minimally involved in
    drug dealing, but who have partners or family Members involved
    in the drug trade can be required to serve long sentences as a
    result of conspiracy laws. Some of these relationships are
    abusive or coercive and leave women vulnerable and with few
    options. Women of color often find themselves subject to
    prosecution based on their relationships and associations
    rather than their own personal conduct. Drug conspiracy laws
    have contributed to the recent explosion of drug convictions
    and incarceration rates for women in the federal system.
    ---------------------------------------------------------------------------
        \27\ 21 U.S.C. 841 and 846.
    ---------------------------------------------------------------------------
        One such story is that of Danielle Metz, a mother of two
    who received a triple life plus 20 years sentence for her
    involvement in her husband's cocaine distribution enterprise
    which was her first offense.

              ``Danielle was the youngest of nine children raised in New
            Orleans and became involved with a drug dealer named Glenn when
            she was 18. She recalls that Glenn, then 30, promised to care
            for her and her baby. She says that she knew he was involved in
            drug distribution and that she was not initially involved in
            his activities. They married after they had a daughter
            together, Gleneisha.
              Metz says her husband was very controlling and forbid her
            from getting a job or leaving their home for more than an hour
            at a time. According to Metz, he became physically and mentally
            abusive after they married and made her feel subservient
            because he paid the bills. She recalls that he later asked her
            to ride with her aunt Angela, a petty drug dealer who had
            become involved in Glenn's drug activities, to transport money
            to Houston. Metz says she accompanied her aunt twice and
            brought cocaine back to New Orleans on one of these occasions.
            According to Metz, she also collected money from Western Union,
            also at Glenn's request.
              In 1990, they moved to Las Vegas, separating her from her
            family. According to Metz, Glenn struck her, causing her nose
            to gush with blood, while they were visiting her sister in Los
            Angeles. While returning to Las Vegas, Metz planned her escape.
            The next day, before boarding a flight to New Orleans, where
            her family still lived, Metz says she called Glenn to tell him
            where she had left the car and that she was leaving him. Two
            months later, she was arrested and indicted for participating
            in a drug conspiracy with her estranged husband.
              Metz, then 26, was sentenced to three life without parole
            sentences plus 20 years in 1993. It was her first conviction.
            Metz was convicted largely on the basis of testimony from her
            aunt Angela, who had earlier been arrested for an unrelated
            drug charge and testified against Metz and her husband as part
            of a plea deal. Metz says that she had no useful information
            she could trade, the only way to win a sentence reduction under
            federal mandatory sentencing.'' \28\
    ---------------------------------------------------------------------------
        \28\ ACLU, A Living Death: Life without Parole for Nonviolent
    Offenses 45 (Nov. 2013), https://www.aclu.org/report/living-death-life-
    without-parole-nonviolent-offenses.

        In 2016 after serving 23 years in federal prison, President
    Barack Obama granted Metz clemency. At the age of 50, Metz
    enrolled in school at Southern University of New Orleans and is
    studying to become a social worker. She recently made the
    dean's list with a 3.75 grade point average.
        Women, like Danielle, make up approximately 7% of the
    federal prison population.\29\ More than 70% of the women in
    federal custody in 2017 were sentenced for drug trafficking
    (37.2%), fraud (20.4%), or immigration (15.3%) offenses.\30\
    60-eight percent (68.0%) of females sentenced to federal prison
    had little or no prior criminal history and only 3% had serious
    or significant criminal histories. Latina women made up 44% of
    women convicted for drug trafficking while White women were 35%
    and Black women made up almost 15%.\31\ Black and White women
    each made up 37% of those sentenced for fraud, with Latina
    women making up 20%. In 2017, almost 77% of females in the
    federal system were sentenced to prison, but 15% received a
    mandatory minimum sentence.\32\ However, the difference in the
    length of sentence between those who received mandatory
    sentences and those who did not is drastic. Women who were
    sentenced to mandatory minimum sentences received an average of
    75 months or over six years while those who did not were
    sentenced to an average of 19 months or a little over a year
    and a half.\33\
    ---------------------------------------------------------------------------
        \29\ Inmate Gender, Federal Bureau of Prisons (July 6, 2019),
    https://www.bop.gov/about/statistics/statistics_inmate_gender.jsp.
        \30\ U.S. Sentencing Comm'n., Quick Facts: Women in the Federal
    Offender Population 1 (2018), https://www.ussc.gov/sites/default/files/
    pdf/research-and-publications/quick-facts/Female_Offenders_FY17.pdf.
        \31\ Id.
        \32\ Id.
        \33\ Id.
    ---------------------------------------------------------------------------
        Today, there are almost 13,000 women\34\ in Bureau of
    Prisons (BOP) facilities across the country compared to 1980,
    when there were 13,000 women in both State and federal
    prisons.\35\ Since that time, women in prison have increased by
    twice the rate of men incarcerated.\36\ Unfortunately, in
    addition to poverty, what often lands women in prison are their
    histories of physical and sexual abuse, high rates of HIV, and
    substance abuse problems.\37\ When women are incarcerated,
    their children and families are also impacted. Others, in
    particular, are an integral part of the family structure.
    ---------------------------------------------------------------------------
        \34\ Trends in U.S. Corrections, The Sentencing Project at 4 (last
    updated June 2019).
        \35\ Id. at 4.
        \36\ Id.
        \37\ Id.
    ---------------------------------------------------------------------------

        B. Conditions of Confinement for Women in Federal Prison

        In September of 2018, the U.S. Department of Justice (DOJ)
    Office of Inspector General (OIG) released a report that
    evaluated the Federal Bureau of Prisons (BOP) management of
    women in the agency's custody entitled Review of the Federal
    Bureau of Prisons' Management of Its Female Inmate
    Population.\38\ OIG examined BOP's capacity and efforts to
    address the unique needs of women in federal prisons through
    the agency's policies, programs, and decisions from FY 2012
    through FY 2016. The OIG evaluated how BOP's Women and Special
    Populations Branch and other relevant offices implemented
    pregnancy programs, gender-responsive trauma treatment and
    policies related to physical searches of female inmates as well
    as inmate access to feminine hygiene products. Finally, the OIG
    reviewed BOP's decision to convert its Danbury, Connecticut low
    security facility from a female to a male prison and how that
    affected women who had been housed at Danbury.\39\
    ---------------------------------------------------------------------------
        \38\ Review of the BOPs' Management of its Female Inmate
    Population, Office of the Inspector Gen. (September 2018), https://
    oig.justice.gov/reports/2018/e1805.pdf/.
        \39\ Id. at 45 Appendix 1.
    ---------------------------------------------------------------------------
        The OIG concluded that BOP had not been strategic in its
    management of females in its custody. They remended that BOP
    take supplemental steps to ensure that individual facilities
    are meeting the needs of females. The report found instances
    where BOP's programming and policies did not fully consider the
    needs of women inmates, thus making it hard for women to take
    advantage of important programs and supplies. The OIG concluded
    that BOP was following Prison Rape Elimination Act (PREA)
    standards and regulations, but the policies prohibiting cross
    gender searches were carried out inefficiently. Lastly, they
    determined the BOP's conversion of Danbury to a male prison had
    negatively affected some females who had been housed at the
    facility.

                 III. Burdens of Mothers in Behind Bars

        The majority of women in prison are mothers. Since 1991,
    the number of children with a mother in prison has grown
    131%.\40\ In 2004, approximately 62% of women had minor
    children.\41\ The majority of these women were both custodial
    parents and primary financial providers. Mothers behind bars
    are likely to have lived in single-parent households and the
    overwhelming majority report that they were responsible for the
    daily care of their children. Unlike males, incarcerated women
    report that the other parent is not the caregiver for their
    children while they are incarcerated. Instead, a grandmother or
    other relative is the most likely caregiver for a woman's child
    or children. Further, 11% of mothers behind bars--five times
    more than men--report that their children are in foster care or
    otherwise cared for by the state.\42\
    ---------------------------------------------------------------------------
        \40\ Lauren E. Glaze & Laura M. Maruschak, Bureau of Justice
    Statistics, Parents in Prison and Their Minor Children 2 (2010),
    available at http://www.bjs.gov/content/pub/pdf/pptmc.pdf.
        \41\ Id. at 3.
        \42\ Id. at 5.
    ---------------------------------------------------------------------------
        Since women are more likely than men to be the primary or
    sole caretaker of their children prior to incarceration,\43\
    children and families are profoundly affected by the rising
    numbers of women sent to prison.\44\ Between 1991 and 2007, the
    number of children with a mother in prison more than
    doubled.\45\ About 62% of women in State prisons, and 56% of
    women in federal prison, have minor children.\46\ The very
    existence of the parental relationship can be endangered when a
    parent is incarcerated.\47\ Incarcerated parents who have not
    been accused of neglect or abuse are far likelier to lose their
    parental rights permanently than are non-incarcerated parents
    who have assaulted their children. Thousands of parents in the
    last decade have had their rights terminated solely on the
    basis of their incarceration.\48\ In addition to the
    devastating consequences of parental incarceration on families,
    children's future prospects also dim; children with mothers in
    custody are more likely to develop depression and anxiety, are
    at heightened risk of future substance abuse problems, and are
    more likely to become involved in the criminal justice
    system.\49\
    ---------------------------------------------------------------------------
        \43\ In 2004, 64.2% of mothers in prison reported living with their
    minor children in the month prior to arrest or just prior to
    incarceration, compared to 46.5% of men. Further, 41.7% of mothers
    reported they were single parents in the month prior to arrest or just
    prior to incarceration. Nearly 11% of mothers in custody reported that
    their children were currently in foster care, compared to 2.2% of men.
    While 88.4% of men in prison reported their children were being cared
    for by another parent, only 37% of women in prison reported the same.
    Id. at 2, 4-5.
        \44\ Violence Against Women, supra note 112, at para. 49; Dorothy
    E. Roberts, Prison, Foster Care, and the Systemic Punishment of Black
    Mothers, 59 UCLA L. Rev. 1474, 1479-83 (2012) (describing how the
    increasing number of incarcerated Black mothers is destroying
    ``critical family and community ties'').
        \45\ Glaze & Maruschak, supra note 129, at 2.
        \46\ Id.
        \47\ For an overview of how incarceration can lead to the
    termination of parental rights--especially of mothers--see Eli Hager &
    Anna Flagg, How Incarcerated Parents Are Losing Their Children Forever,
    The Marshall Project (Dec. 2, 2018), https://
    www.themarshallproject.org/2018/12/03/how-incarcerated-parents-are-
    losing-their-children-forever (noting that incarcerated parents who
    have never been accused of child neglect or abuse are more likely to
    have their rights terminated than non-incarcerated parents who have
    physically or sexually assaulted their children). See also Adoption and
    Safe Families Act of 1997 (``ASFA''), Pub. L. No. 105-89, 111 Stat.
    2115 (legislation incentivizing adoption of children in foster care in
    the name of finding a permanent home) (codified in scattered sections
    of title 42 of the United States Code); Deseriee A. Kennedy, Children,
    Parents & the State: The Construction of A New Family Ideology, 26
    Berkeley J. Gender L. & Just. 78, 104-7 (2011) (describing and
    criticizing how ASFA in conjunction with State laws has increased
    terminations of parental rights due to incarceration for more than 15
    months); Violence Against Women, supra note 112, at para. 49 (noting
    the danger of ASFA leading to termination of parental rights of mothers
    who leave their children in foster care due to incarceration).
        \48\ See Hager & Flagg, supra note 136.
        \49\ Roberts, supra note 133, at 1481-2 (noting that ``[s]eparation
    from imprisoned parents has serious psychological consequences for
    children, including depression, anxiety, feelings of rejection, shame,
    anger, guilt, and problems in school''); The Rebecca Project for Human
    Rights & Nat'l. Women's Law Ctr., Mothers Behind Bars: A State-by-State
    Report Card and Analysis of Federal Policies on Conditions of
    Confinement for Pregnant and Parenting Women and the Effect on Their
    Children 9, 12-13 (2010), available at https://www.nwlc.org/sites/
    default/files/pdfs/mothersbehindbars2010.pdf (noting the prevalence of
    ``significant attachment disorders,'' substance abuse, sexual
    promiscuity, and criminal behavior among children affected by maternal
    incarceration).
    ---------------------------------------------------------------------------

                      IV. Needs of Women in Prison

                       A. Differing Health Needs

        Women in prison have medical and mental health histories
    and needs that differ from the nonincarcerated population as
    well as their male counterparts. Women in jails and prisons
    have significantly higher rates of both chronic conditions
    (which include cancer, diabetes, asthma and other conditions)
    and infectious diseases (which include tuberculosis and
    sexually transmitted infections) than do their male
    counterparts.\50\ Prison itself can contribute to health
    concerns; incarceration is directly linked to premature
    mortality for women, but not for men.\51\ Additionally,
    substance abuse issues and mental illness are more prevalent
    among incarcerated women. A staggering proportion of
    incarcerated women suffer from mental health problems. In
    federal facilities, more than 40% more women than men have been
    diagnosed with mental health conditions.\52\ Much higher
    numbers of women in State prisons and local jails are reported
    to suffer from mental health problems than similarly situated
    men.\53\ Women also report past physical or sexual abuse, as
    well as other traumas, at a higher rate than their male
    counterparts.\54\ In one BJS study, for example, 57% of women
    in State prison facilities, as compared with 16% of men,
    reported having been abused prior to admission.\55\ These
    numbers might be significant underestimates; for example, the
    Federal Bureau of Prisons (BOP) relies on estimates that
    upwards of 90% of women entering prison have experienced
    trauma, most often sexual abuse.\56\
    ---------------------------------------------------------------------------
        \50\ Laura M. Maruschak, et al., Bureau of Justice Statistics,
    Medical Problems of State and Federal Prisoners and Jail Inmates, 2011-
    12 5 (2015), available at https://www.bjs.gov/content/pub/pdf/
    mpsfpji1112.pdf#page=5. However, women in prison are no longer more
    likely to be diagnosed with HIV than men in prison. Laura M. Maruschak
    & Jennifer Bronson, Bureau of Justice Statistics, HIV in Prisons,
    2015--Statistical Tables 4 (2017), available at https://www.bjs.gov/
    content/pub/pdf/hivp15st.pdf.
        \51\ Michael Massoglia, et al., The relationship between
    incarceration and premature adult mortality: Gender specific evidence,
    46 Social Science Research 142, 150 (2014), available at https://
    www.ncbi.nlm.nih.gov/pmc/articles/PMC6123019/ (finding that, after
    controlling for all known factors that could impact the outcome,
    incarceration led to increased risk of death for women; for men,
    socioeconomic factors explained the difference in premature mortality
    between those who had and had not been incarcerated).
        \52\ Doris J. James & Lauren E. Glaze, Bureau of Justice
    Statistics, Mental Health Problems of Prison and Jail Inmates 1, 4
    (2006), available at http://www.bjs.gov/content/pub/pdf/mhppji.pdf.
        \53\ Id.
        \54\ Caroline Wolf Harlow, Bureau of Justice Statistics, Prior
    Abuse Reported by Inmates and Probationers 1 (1999), available at
    http://www.bjs.gov/content/pub/pdf/parip.pdf.
        \55\ Id. Additionally, in federal prisons, 39.9% of women reported
    past abuse, compared to 7.2% of men. In jails, 47.6% of women reported
    past abuse, compared to 12.9% of men. More than a third of women in
    State prisons or local jails reported being physically or sexually
    abused before the age of eighteen. Id.
        \56\ Office of the Inspector General, U.S. Department of Justice,
    Review of the Federal Bureau of Prisons' Management of Its Female
    Inmate Population 6 (2018), available at https://oig.justice.gov/
    reports/2018/e1805.pdf [hereinafter OIG Report].
    ---------------------------------------------------------------------------
        Because the great majority of people in prisons have always
    been men, corrections health care policies were created with
    the needs of men at the forefront, without regard for women's
    unique health needs. Despite the constitutional mandates of
    Estelle v. Gamble, which requires prisons to provide adequate
    medical care to the people in their custody,\57\ widespread
    deficiencies in appropriate healthcare standards for females
    continue to exist. These deficiencies are cast in no sharper
    relief than in the context of reproductive health care policies
    and practices for women in prison. Particularly given the
    demographic composition of incarcerated women,\58\ reproductive
    health care is one vital component in the provision of adequate
    access to health care for women in prison. In many core areas,
    the reproductive health services rendered to pregnant women are
    abysmally inadequate. Lawmakers and correctional facilities can
    ill-afford to continue to ignore the reproductive health care
    rights of incarcerated women. The public and our leaders must
    raise our voices to demand these critical rights for all.
    ---------------------------------------------------------------------------
        \57\ Estelle v. Gamble, 429 U.S. 97, 103 (1976).
        \58\ See Prisoners in 2013, supra note 5 and accompanying text.
    ---------------------------------------------------------------------------

                            B. Prenatal Care

        Approximately between four and five percent of women
    admitted into prisons and jails are pregnant at intake, though
    data on the actual number of pregnant women in prisons and
    jails remains elusive.\59\ As the number of incarcerated women
    increases, correctional institutions must increasingly face the
    task of caring for pregnant women in jails and prisons. They
    are increasingly responsible for providing prenatal medical
    treatment, caring for women who give birth behind bars, serving
    the needs of mothers and their children, and providing access
    to abortions for those who wish to terminate their pregnancies.
    Corrections facilities have repeatedly shown that they are
    either unable or unwilling to provide the level of care
    necessary to ensure the health and safety of pregnant women who
    are incarcerated.
    ---------------------------------------------------------------------------
        \59\ Bureau of Justice Assistance, Best Practices in the Use of
    Restraints With Pregnant Women and Girls Under Correctional Custody 3
    (2014), available at https://www.nasmhpd.org/sites/default/files/
    Best_Practices_Use_of_Restraints_Pregnant(2).pdf [hereinafter BJA Best
    Practices]; see also Victoria Law, Pregnant and Behind Bars: How the US
    Prison System Abuses Mothers-to-Be, The Guardian (Oct. 20, 2015),
    http://www. theguardian.com/us-news/2015/oct/20/pregnant-women-prison-
    system-abuse-medical-neglect?
    CMP=share_btn_tw.
    ---------------------------------------------------------------------------
        Little formal data exists about the quality of medical care
    provided to pregnant females.\60\ However, what reports do
    exist tend to indicate that prenatal care is lacking or
    completely absent in many cases.\61\ Lack of access to prenatal
    care is especially dangerous because most women have high-risk
    pregnancies and need special care to keep them and their
    children safe during and after pregnancy.\62\
    ---------------------------------------------------------------------------
        \60\ See Law, supra note 27; The Rebecca Project for Human Rights &
    National Women's Law Center, Mother's Behind Bars 8 (2010), available
    at https://www.nwlc.org/sites/
    default/files/pdfs/mothersbehindbars2010.pdf#page=8 (describing lack of
    formal policies related to prenatal care across the country).
        \61\ Barbara A. Hotelling, Perinatal Needs of Pregnant,
    Incarcerated Women, 17 J. of Perinatal Educ. 37, 37-42 (2008),
    available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2409166/pdf/
    JPE170037.pdf.
        \62\ Id.

            One example is a former inmate at Wichita County Jail in
            Wichita Falls, Texas, who brought suit against jail officials
            and staff in May 2014 after she was forced to give birth in a
            prison cell, ultimately resulting in the loss of her baby.\63\
            Nicole Guerrero was eight-and-a-half months pregnant when she
            was admitted to the jail. According to her complaint, several
            days later, Ms. Guerrero began experiencing lower back pain,
            cramping, and vaginal discharge and bleeding. Over the course
            of several hours, Ms. Guerrero experienced excruciating pain
            while her repeated requests for help and medical attention were
            ignored. Ms. Guerrero went into labor while locked in a cell.
            She was aided by detention officers only in the final stages of
            her delivery, and even then, no medical personnel assisted her.
            The baby's umbilical cord was wrapped around her neck, and she
            was dark purple in appearance and unresponsive. The detention
            officer assisting Ms. Guerrero made no attempt to revive the
            baby while awaiting emergency services. Her baby was pronounced
            dead later that morning.\64\ Ms. Guerrero's lawsuit has since
            been settled.\65\
    ---------------------------------------------------------------------------
        \63\ See Complaint at 4-8, Guerrero v. Wichita Cty., No. 14-00058
    (N.D. Tex. May 21, 2014).
        \64\ See id.
        \65\ County Commissioners Approve Settlement in Nicole Guerrero v.
    Wichita County, Texomas (Dec. 7, 2015), https://
    www.texomashomepage.com/news/local-news/county-commissioners-
    approve-settlement-in-nicole-guerrero-vs-wichita-county/290456878.
    ---------------------------------------------------------------------------

                      C. Shackling Pregnant Women

        In addition to failing to provide necessary care, prisons
    may also actively harm pregnant people by shackling them.
    Shackling pregnant women is a dangerous and inhumane practice
    and widely regarded as an assault on human dignity, as well as
    an unsafe medical practice. Although significant progress has
    been made to prohibit this practice in federal prisons, women
    in prisons across the country are still routinely shackled
    during pregnancy and childbirth.
        Shackling poses an unacceptable risk to the health of the
    pregnant woman. Freedom from physical restraints is especially
    critical during labor, delivery, and during postpartum
    recovery. Women often need to move around during labor,
    delivery and recovery, including moving their legs as part of
    the birthing process. Restraints on a pregnant woman can
    interfere with the medical staff's ability to appropriately
    assist in childbirth or to conduct sudden emergency
    procedures.\66\ Because shackling limits the ability of a woman
    to move during labor, she is left unable to adequately shift
    positions to manage the extreme pains of labor and childbirth.
    This limitation of movement during pregnancy and labor can also
    increase the risk of blood clots.\67\ Leg restraints may also
    cause severe cuts on women's ankles because of the strains
    associated with childbirth.\68\ Using restraints after delivery
    may prevent mothers from effectively healing.\69\
    ---------------------------------------------------------------------------
        \66\ American College of Obstetricians and Gynecologists, Health
    Care for Pregnant and Postpartum Incarcerated Women and Adolescent
    Females 2-3 (2011), available at http://www.acog.org/-/media/Committee-
    Opinions/Committee-on-Health-Care-for-Underserved-Women/
    co511.pdf?dmc=1&ts=20151027T1653481414 [hereinafter ACOG, Health Care
    for Incarcerated Women].
        \67\ Id. at 3.
        \68\ Dana L. Sichel, Giving Birth in Shackles: A Constitutional and
    Human Rights Violation, 16 Am. U. J. Gender Soc. Pol'y. & L. 223, 225
    (2007).
        \69\ Dana Sussman, Bound by Injustice: Challenging the Use of
    Shackles on Incarcerated Pregnant Women, 15 Cardozo J.L. & Gender 477,
    487 (2009).
    ---------------------------------------------------------------------------
        Additionally, during all stages of pregnancy, shackling
    poses an unacceptable risk to the health and safety of the
    fetus and the life of a child. Pregnancy can create problems
    with balance that are exacerbated by shackling. Falls can
    injure not only the mother, but also the fetus.\70\ When
    restraints are used during labor, doctors are limited in how
    they can manipulate a mother for the safety of the unborn
    child. During the final stages of labor it is important for the
    physician to Act quickly to avoid potentially life-threatening
    emergencies for both the mother and the unborn child. Shackles
    severely limit such actions and as such pose a threat to the
    survival of the fetus. Doctors may not be able to perform
    emergency caesarean sections in time due to shackles.\71\
    ---------------------------------------------------------------------------
        \70\ Julie B. Ehrlich & Lynn M. Paltrow, Jailing Pregnant Women
    Raises Health Risks, Women's Enews (Sept. 20, 2006), https://
    womensenews.org/2006/09/jailing-pregnant-women-raises-health-risks/.
        \71\ Sussman, supra note 47, at 487.
    ---------------------------------------------------------------------------
        Among the states that have restricted shackling of pregnant
    females, none have documented instances of women in labor
    escaping or causing harm to themselves, the public, security
    guards, or medical staff. In most instances, armed corrections
    officers accompany shackled women into or around the delivery
    room. These officers can ensure the safety of the physicians,
    mothers and the newborn without the use of shackling
    restraints.\72\ Currently, twenty-two states--Arizona,
    California, Colorado, Delaware, Florida, Hawaii, Idaho,
    Illinois, Louisiana, Maine, Maryland, Massachusetts, Minnesota,
    Nevada, New Mexico, New York, Pennsylvania, Rhode Island,
    Texas, Vermont, Washington and West Virginia and the District
    of Columbia, have laws prohibiting or restricting shackling
    pregnant women.\73\ The Federal Government has also codified a
    long-standing ban on shackling pregnant females in federal
    custody with the just enacted First Step Act.\74\
    ---------------------------------------------------------------------------
        \72\ See Chris DiNardo, Pregnancy in Confinement, Anti-Shackling
    Laws and the ``Extraordinary Circumstances'' Loophole, Duke J. L. &
    Gender Pol'y. 271, 281 (2018).
        \73\ See ARiz. Rev. Stat. Sec.  31-601; Cal. Penal Code Sec. Sec.
    3407, 3423; Colo. Rev. Stat. Ann. Sec. Sec.  17-1-113.7, 17-26-1104.7,
    19-2-924.7, 26-1-137; Del. Code Ann. Tit. 11, Sec.  6603; Fla. Stat.
    Sec.  944.241; Haw. Rev. Stat. Sec. 353-122; Idaho Code Ann. Sec.  20-
    902; 55 Ill. Comp. Stat. 5/3-15003.6; 730 Ill. Comp. Stat. Ann. 125/
    17.5; La. Rev. Stat. Ann. Sec. Sec.  15:744.2-744.7; Me. Rev. Stat.
    Ann. tit. 30-a, Sec. Sec.  1581-83; Md. Code Ann., Corr. Servs. Sec.
    9-601; Mass. Gen. Laws Ch. 127, Sec.  118, as amended by 2014 Mass.
    Acts Ch. 103; Minn. Stat. Sec.  241.87-.88; Nev. Rev. Stat. Ann. Sec.
    209.376; N.M. Stat. Ann. Sec.  33-1-4.2; N.Y. Correct. Law Sec.  611;
    61 Pa. Cons. Stat. Ann. Sec.  5905; R.I. Gen. Laws Sec.  42-56.3-3;
    Tex. Gov't. Code Ann. Sec.  501.066; Tex. Loc. Gov't. Code Ann. Sec.
    361.082; Vt. Stat. Ann. Tit. 28, Sec.  801a; Wash. Rev. Code Sec. Sec.
    72.09.651, 70.48.500; W. Va. Code Sec. Sec.  31-20-30a, 25-1-6.
        \74\ First Step Act, H.R. 5682, 115th Cong. Sec.  301 (2018).
    ---------------------------------------------------------------------------

                        D. Solitary Confinement

        Women may also disproportionately be placed in solitary
    confinement, especially pregnant women,\75\ individuals with
    mental illness,\76\ transgender women and other sexual
    minorities,\77\ and--in a particularly disturbing trend--
    victims of sexual assault by prison guards.\78\ Women of color,
    especially Black women, are held in solitary confinement at
    rates far exceeding their White counterparts.\79\ Women are
    also more likely than men to receive disciplinary actions for
    minor, nonviolent infractions like ``disobedience'' and also
    more likely to be placed into solitary confinement as
    punishment for such minor infractions.\80\
    ---------------------------------------------------------------------------
        \75\ See, e.g., Reassessing Solitary Confinement: Hearing Before
    the Senate Judiciary Committee's Subcommittee on the Constitution,
    Civil Rights and Human Rights, 2011-12 Leg. Session 4 (N.Y. 2012)
    (statement of Correctional Association of New York) available at http:/
    /www.correctionalassociation.org/wp-content/uploads/2012/10/testimony-
    solitary-confinement-june-2012.pdf (describing challenges pregnant
    women in isolation can face in trying to access medical care);
    Complaint at 9, Seitz v. Allegheny Cty., No. 16-1879 (W.D. Pa. Dec. 19,
    2016), available at https://www.aclupa.org/download--file/view--inline/
    2943/1055.
        \76\ See, e.g., James Ridgeway & Jean Casella, Locking Down The
    Mentally Ill: Solitary Confinement Cells Have Become America's New
    Asylums, The Crime Rep., Feb. 18, 2010, available at http://
    www.thecrimereport.org/news/inside-criminal-justice/locking-down-the-
    mentally-ill; Mary Beth Pfeiffer, Crazy in America: The Hidden Tragedy
    of Our Criminalized Mentally Ill 42-49 (2007); Jennifer R. Wynn, et
    al., Correctional Ass'n. of New York, Mental Health in the House of
    Corrections: A Study of Mental Health Care in New York State Prisons 48
    (2004). In some places, mentally ill women awaiting trial in jail may
    be transferred to solitary confinement at a State prison indefinitely
    because the cost of treating them at the jail is too high. Allen Arthur
    & Dave Boucher, Too Sick For Jail--But Not for Solitary, The Marshall
    Project (Feb. 15, 2018), https://www.themarshallproject.org/2018/02/15/
    too-sick-for-jail-but-not-for-solitary.
        \77\ Gay and bisexual prisoners, both male and female, are far more
    likely to have experienced solitary confinement than their cisgender
    straight counterparts. Ilan H. Meyer, et al., Incarceration Rates and
    Traits of Sexual Minorities in the United States: National Inmate
    Survey, 2011-2012 4 (2017), available at https://
    williamsinstitute.law.ucla.edu/wp-content/uploads/
    Meyer_Final_Proofs.LGB_.In_.pdf#page=4.
        \78\ Kim Shayo Buchanan, Impunity: Sexual Abuse in Women's Prisons,
    42 Harv. Civ. RTS--Civ. Librs. L. Rev. 45, 66 (2007) (describing sexual
    abuse of women including the variety of forms the abuse takes).
        \79\ Alexandria M. Foster, Unfinished Uniformity in Systematic
    Sentencing: Oppressive Treatment and Disproportionate Punishment
    Outcomes for Black Women in Federal Prisons, 6 Ind. J.L. & Soc. Equity
    267, 276 (2018). The racial disparity of who gets placed into solitary
    confinement is far more pronounced in women's institutions than in
    men's. For example, Black women account for under 24% of the female
    prison population but nearly 40% of women in solitary confinement.
    Black men represent a much higher percentage of the male population at
    42.5% and represent 46.1% of the male population in solitary
    confinement. The Association of State Correctional Administrators & The
    Linman Center for Public Interest Law at Yale Law School, Reforming
    Restrictive Housing: The 2018 ASCA-Liman Nationwide Survey of Time-In-
    Cell 23 (2018), available at https://law.yale.edu/system/files/
    documents/pdf/Liman/
    asca_liman_2018_restrictive_housing_revised_sept_25_201_8_embargoed_unt.
    pdf#
    page=25.
        \80\ Joseph Shapiro, et al., In Prison Discipline Comes Down
    Hardest on Women, NPR (Oct. 15, 2018), https://www.npr.org/2018/10/15/
    647874342/in-prison-discipline-comes-down-hardest-on-women.
    ---------------------------------------------------------------------------
        Solitary confinement can wreak extreme psychological harms
    on people generally, and pregnant women particularly. Even
    without the heightened risks created by solitary confinement,
    pregnancy often carries greater risks of stress and
    depression.\81\ Placing pregnant women in solitary confinement
    only amplifies these risk factors. Stress on a pregnant woman
    may result in grave harms to the pregnant woman and her fetus,
    including preterm labor, low birth weight, and mental health
    problems for the child.\82\
    ---------------------------------------------------------------------------
        \81\ See generally Christine Dunkel Schetter & Lynlee Tanner,
    Anxiety, Depression, and Stress in Pregnancy: Implications for Mothers,
    Children, Research, and Practice, 25 Curr Opin Psychiatry 141, 141-48
    (2012), available at https://www.ncbi.nlm.nih.gov/pmc/articles/
    PMC4447112/pdf/nihms-693331.pdf (describing high rates of depression
    and anxiety among pregnant people, especially the poor and people of
    color, and associated negative birth outcomes).
        \82\ Id.
    ---------------------------------------------------------------------------
        For these reasons, international standards set by the
    United Nations Rules for the Treatment of Women Prisoners and
    Non-Custodial Measures for Women Offenders--known as the
    Bangkok Rules--prohibit the placement of pregnant or nursing
    women in solitary confinement.\83\ States are starting to take
    notice: Pennsylvania,\84\ New York,\85\ Massachusetts,\86\ and
    California \87\ limit the placement of pregnant people in
    solitary confinement under statutes, regulations, or settlement
    agreements. However, most pregnant women in the United States
    remain vulnerable to the threat of solitary confinement and the
    terrible risks this practice creates for both women and their
    pregnancies.
    ---------------------------------------------------------------------------
        \83\ G.A. Res. 65/229, para.7(b), U.N. Doc. A/RES/65/229 (Mar. 16,
    2011).
        \84\ See Settlement at 19, Seitz v. Allegheny Cty., No. 16-1879
    (W.D. Pa. Nov. 9, 2017), available at https://www.aclupa.org/
    download_file/view_nline/3230/1055#page=19.
        \85\ Settlement at 37, Peoples v. Fischer, No. 11-2694 (S.D.N.Y.
    Dec. 16, 2015), available at https://www.nyclu.org/sites/default/files/
    releases/20151216_settlementagreement_filed.pdf#
    page=36.
        \86\ Mass. Gen. Laws ch. 127, Sec.  39A (2018).
        \87\ California Department of Corrections and Rehabilitation
    Operations Manual Sec. 54045.11 (2017), available at https://
    www.cdcr.ca.gov/Regulations/Adult_Operations/docs/DOM/DOM%202017/
    2017_DOM.PDF#page=493.
    ---------------------------------------------------------------------------

                          E. Birth Behind Bars

        After giving birth, women who are incarcerated must face
    the additional strain of separating from their newborns.
    Currently, the overwhelming majority of children born to
    incarcerated mothers are immediately separated from their
    mothers after birth and placed with relatives or into foster
    care.\88\ It is estimated that 85% of incarcerated mothers in
    the United States are involuntarily separated from their child
    as a result of their incarceration.\89\ In-prison nurseries and
    community based residential parenting programs are available in
    only a handful of states.\90\ Only 42% of mothers in prison
    reported weekly contact with their children through in-person
    visits, video communications, telephone, mail, or e-mail.\91\
    These options tend to be infrequent, unpredictable, and of poor
    quality. Tragically, more than half of incarcerated mothers
    reported that they had never experienced an in-person visit
    with their child.\92\
    ---------------------------------------------------------------------------
        \88\ Michal Gilad & Tal Gat, United States v. My Mommy: Evaluation
    of Prison Nurseries As A Solution for Children of Incarcerated Women,
    37 N.Y.U. Rev. L. & Soc. Change 371, 372 (2013).
        \89\ Id.
        \90\ Elizabeth Chuck, Prison Nurseries Give Incarcerated Mothers a
    Chance To Raise Their Babies Behind Bars, NBC News (Aug. 4, 2018),
    https://www.nbcnews.com/news/us-news/prison-nurseries-give-
    incarcerated-mothers-chance-raise-their-babies-behind-n894171.
        \91\ Gilad & Gat, supra note 72, at 386.
        \92\ Id.
    ---------------------------------------------------------------------------
        Pregnant women facing imminent separation from their
    newborns experience profound trauma.\93\ The children who
    experience this separation are similarly harmed. The separation
    is considered an adverse childhood experience, which can cause
    long-lasting emotional and behavioral problems, especially
    compounded by other adverse experiences common among children
    with incarcerated parents such as poverty.\94\ Empirical
    evidence shows that the separation of an infant from her mother
    during the first year drastically impairs her ability to
    sympathize or show concern for others.\95\ Additional common
    symptoms of maternal separation include attachment disorders;
    aggression and anger; developmental and behavioral problems;
    sleeping, eating, or attention disorders; delays in educational
    development and achievement; excessive hostile behaviors toward
    peers; problems with social adaptation; greater likelihood to
    develop addiction to drugs or alcohol or engage in criminal
    activity; and unhealthy sexual behavior.\96\
    ---------------------------------------------------------------------------
        \93\ See Robin Levi et al., Creating the ``Bad Mother'': How the
    U.S. Approach to Pregnancy in Prisons Violates the Right To Be a
    Mother, 18 UCLA Women's L. J. 1, 55 (2010).
        \94\ Lindsey Cramer, Urban Institute, Parent-Child Visiting
    Practices in Prisons and Jails 2 (2017), available at https://
    www.urban.org/sites/default/files/publication/89601/
    parent-child_visiting_practices_in_prisons_and_jails.pdf#page=6.
        \95\ Gilad & Gat, supra note 72, at 381.
        \96\ Id.; see also Megan McMillen, I Need To Feel Your Touch:
    Allowing Newborns and Infants Contact Visitation With Jailed Parents,
    2012 U. Ill. L. Rev. 1811, 1823 (2012) (noting that if the ``mother-
    child bond is disrupted between the ages of six months and four years,
    a child's development may be greatly [a]ffected,'' including increased
    anxiety disorders, impairment of the child's ``ability to sympathize or
    show concern for others'' later in life, and--even controlling for
    other factors--increased risk for future criminal behavior).
    ---------------------------------------------------------------------------
        Access to sufficient supplies of menstrual hygiene products
    is a basic health care need that still goes unfulfilled at many
    institutions. Not all states require adequate access to
    menstrual products; even some indigent females are forced to
    purchase some or all of their monthly supply.\97\ Because many
    facilities require women to ask correctional officers for
    menstrual products, the opportunity for abuse is rampant.
    Officers may use basic hygiene needs to coerce them for sexual
    or other favors or to punish them for any reason. They may also
    use the threat of withholding necessary products to keep women
    in line or to prevent them from reporting abuse or other
    harmful conditions. These possibilities are not just abstract;
    many women have had to navigate the difficulty of accessing
    menstrual hygiene products that should have been made freely
    available to them. For example, Maryland legislators heard
    testimony from women who were denied menstrual hygiene products
    by officers to control them and firmly establish a dangerous
    power dynamic; \98\ a formerly incarcerated woman in
    Connecticut also recounted the fear and humiliation of having
    to ask officers for menstrual products knowing that her
    requests might be derided or even denied.\99\
    ---------------------------------------------------------------------------
        \97\ See Lydia O'Connor, Federal Prisons Made Menstrual Products
    Free. Now Some States May Follow Suit, Huffington Post (Feb. 7, 2018),
    https://www.huffingtonpost/entry/state-prison-free-pads-
    tampons_us5a7b427be4b08dfc92ff5231.
        \98\ See Brian Witte, No Tampons in Prison? #MeToo Helps Shine
    Light on Issue, Associated Press (Mar. 27, 2018), https://
    www.apnews.com/6a1805c4e8204e5b84a0c549ff9b7a31.
        \99\ See Chandra Bozelko, Prisons That Withhold Menstrual Pads
    Humiliate Women and Violate Basic Rights, The Guardian (June 12, 2015),
    https://www.theguardian.com/commentisfree/2015/jun/12/prisons-
    menstrual-pads-humiliate-women-violate-rights.
    ---------------------------------------------------------------------------
        In one Michigan jail, women were regularly denied access to
    desperately needed menstrual products.\100\ Females there
    received such products late, after begging for them, or not at
    all. They were therefore forced to use toilet paper to staunch
    the bleeding or else bleed into their prison jumpsuits. Because
    laundry day occurred once a week, women were forced to re-wear
    bloody clothes for up to a full week. In addition, prison staff
    forced women to compete for limited menstrual products, in one
    case ordering 30 women to share a pack of 12 sanitary napkins.
    This behavior was cruel and senseless--except as a method of
    humiliation and control.
    ---------------------------------------------------------------------------
        \100\ Complaint at 13-14, Semelbaucher v. Muskegon Cty., No. 14-
    1245 (W.D. Mich. Dec. 4, 2014), available at https://
    www.clearinghouse.net/chDocs/public/JC-MI-0010-0001.pdf.
    ---------------------------------------------------------------------------

                F. Access to Menstrual Hygiene Products

        Even when policies to provide menstrual hygiene products do
    exist, they are not always fully implemented. For example, BOP
    guidelines require provision of menstrual hygiene products, but
    a review by the OIG determined that women still do not have
    sufficient access.\101\
    ---------------------------------------------------------------------------
        \101\ OIG Report, supra note 24, at 29.
    ---------------------------------------------------------------------------

                    V. Gender Responsive Programming

        Because women entering prison have trauma histories and
    needs different from men, correctional institutions must
    develop and implement gender-responsive programming. Gender-
    responsive programming includes medical and mental healthcare
    that is responsive to women's needs.
        1Pregnancy testing, prenatal care, and access to abortion
    must become standard in all institutions that house women. Some
    facilities have already begun to do this, but not nearly
    enough. For example, one study found that fewer than 40% of
    jails test women for pregnancy upon entrance and fewer than 50%
    utilize appropriate opioid withdrawal protocol for pregnant
    women.\102\
    ---------------------------------------------------------------------------
        \102\ See C.M. Kelsey, et al., An Examination of Care Practices of
    Pregnant Women Incarcerated in Jail Facilities in the United States, 21
    Maternal and Child Health J. 1260 (2017).
    ---------------------------------------------------------------------------
        A number of states and the Federal Government have
    experimented with gender-responsive pregnancy programs. A few
    states have piloted doula programs, in which pregnant women are
    given training and emotional support during pregnancy. Women
    were generally satisfied with these programs and had lower
    caesarean-section rates, although they did not lessen the grief
    the mothers felt at having to part with their infants after
    birth.\103\ A more intensive program in Michigan allows some
    pregnant women to live in a special housing unit during
    pregnancy, receive intensive specialized prenatal care
    including substance-abuse treatment, receive other necessary
    social services, and live and bond with their children for a
    month after birth. This program has a high success rate, with
    positive outcomes for the children and lower recidivism rates
    for the mothers.\104\ A federal program allows some women to
    live and bond with their infants after giving birth.
    Participants spoke positively of the program and the
    opportunity to form a bond with their children, but the program
    is underutilized.\105\ These programs show the benefits of
    pregnancy-focused programming and care, but they have not been
    sufficiently replicated--prisons can do much more.
    ---------------------------------------------------------------------------
        \103\ See Hotelling, supra note 29, at 41.
        \104\ Id.
        \105\ OIG Report, supra note 24, at 26.
    ---------------------------------------------------------------------------
        Similarly, states and facilities must work to ensure that
    women have access to menstrual hygiene products. Maryland now
    leads the way with a law requiring correctional facilities that
    house women to provide sufficient menstrual hygiene products to
    their females and to maintain records on the availability of
    such products.\106\ Reporting and review of policies and actual
    availability is important, as the OIG report showed. Even when
    a policy exists, outside actors, such as legislatures or
    independent agencies, may need to step in when it does not
    translate to true access.\107\
    ---------------------------------------------------------------------------
        \106\ Md. Code, Corr. Servs. Sec. Sec.  4-214, 9-616 (2017).
        \107\ See OIG Report, supra note 24, at 31-32.
    ---------------------------------------------------------------------------
        Trauma victims may suffer when guarded during their most
    private moments by men without a female guard present, in
    addition to the potential for abuse and degradation.\108\ The
    loss of privacy experienced by people in prison is especially
    damaging to the many incarcerated women who are also victims of
    past sexual abuse, since close supervision and discipline by
    male guards can reinforce feelings of vulnerability and can re-
    traumatize women who have experienced violence by men.\109\ The
    presence of male guards in women's facilities also increases
    the danger of staff sexual misconduct,\110\ which remains a
    serious problem in spite of increased awareness of the
    issue.\111\
    ---------------------------------------------------------------------------
        \108\ PREA regulations have prohibited male guards from viewing
    female prisoners while they shower, change clothes or use the toilet
    since 2012. 28 CFR 115.15 (d). However, this still regularly occurs.
    See Letter from Jocelyn Samuels, Acting Assistant U.S. Attorney
    General, to Governor Robert Bentley re Investigation of the Julia
    Tutwiler Prison for Women and Notice of Expanded Investigation 11 (Jan.
    17, 2014) available at https://eji.org/sites/default/files/justice-
    department-findings-letter-tutwiler-prison-investigation.pdf#page=11
    (finding female inmates at Julia Tutwiler Prison for Women in Alabama
    had no privacy in bathroom or showers and male officers routinely
    entered shower and bathroom facilities unannounced); Peter Goonan,
    Strip-Search Videotaping of Female Inmates by Male Guards Ruled
    Unconstitutional by U.S. Judge in Springfield, Masslive (Aug. 27,
    2014), (Massachusetts guards watched videotaped strip searches of
    female inmates). International standards clearly prohibit cross-gender
    supervision. Rule 53 of the UN Standard Minimum Rules for the Treatment
    of Prisoners (SMR) explicitly prohibits all cross-gender surveillance
    and provides for a female guard to accompany any male personnel in a
    women's facility. First U.N. Congress on the Prevent1ion of Crime and
    the Treatment of Offenders, Standard Minimum Rules for the Treatment of
    Prisoners, Rule 53 (1955), available at http://www.unodc.org/pdf/
    criminal_justice/UN_Standard_Minimum_Rules
    _for_the_Treatment_of_Prisoners.pdf [hereinafter SMR 53]; see also
    Interim Report of the Special Rapporteur of the Human Rights Council on
    Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
    at para. 46 (noting the SMRs are ``widely accepted as the universal
    norm for the humane treatment of prisoners'').
        \109\ Elizabeth Swavola, et al., Vera Institute of Justice,
    Overlooked: Women and Jails in an Era of Reform 14 (2016), available at
    http://www.safetyandjusticechallenge.org/wp-
    content/uploads/2016/08/overlooked-women-in-jails-report-
    web.pdf#page=14 (danger of retraumatization/PTSD due to male guards
    viewing them at intimate moments).
        \110\ Allen Beck & Ramona Rantala, Bureau of Justice Statistics,
    Sexual Victimization Reported by Adult Correctional Authorities, 2009-
    11 1, 8 (2014) available at https://www.bjs.gov/content/pub/pdf/
    svraca0911.pdf (despite comprising only 7% of the population, women
    prisoners accounted for 33% of substantiated staff-on-inmate sexual
    victimization; in local jails, male guards perpetrated 80% of such
    incidents).
        \111\ See, e.g., Report of the Special Rapporteur on Violence
    Against Women: Addendum, para. 34, Mission to the United States of
    America, 6 June 2011, United Nations General Assembly A/HRC/17/26/
    Add.5, available at http://www.ohchr.org/english/bodies/hrcouncil/docs/
    17session/A.HRC.17.26.Add.5_en.pdf [hereinafter Violence Against Women]
    (describing continued sexual abuse of women in custody, both physically
    forced and otherwise coerced); Buchanan, supra note 62 at 55-57
    (describing sexual abuse of women including the variety of forms the
    abuse takes); Elizabeth Chuck, ``Frequent and severe'' sexual violence
    alleged at women's prison in Alabama, MSNBC (May 23, 2012), http://
    usnews.nbcnews.com/_news/2012/05/23/11830574-frequent-and-severe-
    sexual-violence-alleged-at-womens-prison-in-alabama?lite.
    ---------------------------------------------------------------------------
        Thus, correctional facilities need to ensure that policies
    and programs are responsive to trauma. This includes not just
    counseling services, but a holistic approach to ensure that
    prison staff do not re-traumatize victims or prevent their
    recovery. Trauma-responsive programming has been instituted in
    some places. For example, the BOP has instituted two gender-
    responsive programs: Resolve and Female-Integrated Treatment
    Program (FIT). Resolve is a national program offered to women
    with trauma-related mental illness that includes education,
    psychological testing, and various types of group therapy
    intended to teach skills for overcoming symptoms.\112\ Women
    who took the whole program have found it helpful in dealing
    with past trauma and preparing for life after prison, but
    staffing is so low that only 3% of women sentenced in BOP can
    be accommodated at a time.\113\ FIT is a more intensive,
    individualized program tailored to each woman's mental health,
    substance abuse, and trauma history. However, this program is
    only offered at one low-security institution and is therefore
    not available to the vast majority of women in BOP
    custody.\114\
    ---------------------------------------------------------------------------
        \112\ OIG Report, at 7-8.
        \113\ Id. at 19.
        \114\ Id. at 8-9.
    ---------------------------------------------------------------------------

                   VI. Conclusion and Recommendations

        Women are the fastest growing incarcerated population in
    the United States, leaving far too many children and families
    without a mother. Until incarcerating women in this country
    becomes a punishment of last resort, the criminal legal system
    has to determine how to deal with the healthcare, childcare and
    gender programming needs of women in jails and prisons. With
    the unprecedented rise in the number of women behind bars,
    federal and State systems must figure out how best to keep
    women safe and healthy while in custody.
        Once incarcerated, women are subjected to a system that was
    designed by and for men--with glaring voids of resources,
    treatments and conditions required for women. To create a
    smarter, fairer justice system, we must establish policies
    specifically designed with women in mind. Until we recognize
    the unique circumstances, needs and consequences associated
    with women who come into contact with the criminal legal
    system, we will never truly address the nation's mass
    incarceration problem.
        Below are a number of recommendations that encourage the
    criminal legal system to use incarceration as a last option and
    to focus on keeping women home in society, and with their
    children and families.
        1. Develop Alternatives to Incarceration. Compared to men,
    women--and girls--are more often first-time, low level
    offenders. Even women convicted of more serious offenses often
    became involved in criminal activity on behalf of male partners
    or other family Members. Society would be better served if more
    women were provided with opportunities to avoid incarceration
    through diversion programs, probation and other rehabilitative
    alternatives. Ensuring that women can access jobs, education,
    housing and adequate medical and mental health care would
    afford greater public safety without punitive and unnecessary
    incarceration.
        2. Foster Mother-Child Relationships. Correctional
    facilities must develop and implement policies that support the
    bond between a mother and her child, even while the mother
    remains incarcerated. The mother-child relationship must be
    fostered through such measures as broader visitation policies,
    carefully designed in-prison nursery programs, child-friendly
    visitation areas, video visitation to supplement, rather than
    replace, in-person visitation, access to email and keeping
    incarcerated women in close proximity to their home
    communities.
        3. Ban Shackling and the Use of Solitary Confinement on
    Pregnant Women. All states must end the practice of shackling
    women during pregnancy, delivery and postpartum. The practice
    is inhumane and unsafe. Those states that have yet to enact
    anti-shackling laws must do so, and those states with anti-
    shackling laws need to strengthen their laws to ban the
    practice outright, as well as fully enforce their laws.
    Likewise, all states and jurisdictions should enact laws and
    policies to ban the practice of placing pregnant women in
    solitary confinement and ensure that those laws and policies
    are implemented.
        4. Implement Clear Health Policies for Women. All
    correctional facilities housing women and girls must develop
    and implement clear policies regarding their specific health
    care needs, including but not limited to pregnancy care,
    postpartum care, the provision of abortions, routine
    gynecological care, and pre- and post-menopausal care. These
    policies must conform to the community standard of care and the
    law.
        5. Train Corrections Staff. All corrections facilities
    housing women and girls must appropriately train their custody
    and medical care staffs to address women's unique needs,
    including their trauma history, higher rates of mental health
    diagnosis, menstrual needs, general health and reproductive
    health care needs, and their ongoing role as mothers and
    community Members.
        6. Implement Gender-Responsive Programming. Many
    correctional facilities have experimented with various gender-
    responsive programming, including access to pregnancy-care and
    menstrual hygiene products and trauma-informed approaches to
    correctional management. Successful programs must be replicated
    and expanded to provide appropriate programming to all women
    under correctional supervision.

        Ms. Bass. Thank you. Ms. Shank.
        [The statement of Ms. Shank follows:]

                       TESTIMONY OF CYNTHIA SHANK

        Ms. Shank. Hi, thank you for allowing me to come here today
    and share my story. May name is Cynthia Shank, and in 2008, I
    was convicted on drug conspiracy charges from a crime that
    happened when I was 24 years old. I met a man when I was 24
    years old in 1997 and he--in the course of our relationship
    over 5 years, he grew into a drug dealer, and he became a very
    large drug dealer. During my relationship with him, he was very
    abusive to me, keeping me from my family, keeping me from my
    friends, to the extent that there were locks on all the doors,
    double-sided locks and bars on all the windows. In the last
    year I was with him, I wasn't allowed to leave the house at
    all. Over the course of him being such a large drug dealer, his
    paranoia and control took over to the point where I had no
    control over anything that I could even do. He was murdered in
    2002, and I was initially charged with conspiracy to his drug
    operation.
        The charges were actually dropped, and I actually moved on
    with my life. I gave my life to the Lord. I started focusing on
    myself and bettering myself. I met a wonderful man, we got
    married, had two beautiful daughters. I was pregnant with my
    third daughter when I was indicted 5\1/2\ years later, all
    those crimes that were committed 5 or 6 years prior.
        I then went away to prison in 2008 when my daughter,
    Annalise, was just 6 weeks old; Autumn was 4; and Ava was 2
    years old. Needless to say, that prison destroyed my small
    young family. Prison is set up to separate and destroy bonds
    that are there, and as a mother, you need to be there for your
    children.
        I was initially sent to Pekin, Illinois, which I was
    getting regular visits, and I was able to see the girls about
    every 6 to 8 weeks. The prison closed for women and it was
    transferred to a men's R gap, so I was sent to Coleman,
    Florida. So now, I saw my daughters once a year at that point,
    and they were still so young.
        During my time in Florida, my husband filed for divorce,
    which I completely understood, because he was serving the
    sentence, too, with me. I wanted him to have a chance and a
    life. Sorry.
        I spent 8\1/2\ years in Federal prison before I was given
    clemency by President Obama. During my time in Federal prison,
    though, I met many women who were just like me, who were
    serving long sentences for crimes related to their then,
    husbands or boyfriends that they had little knowledge of.
        I had to witness and hear the cries of mothers at night who
    had just signed over custody of their children, because they no
    longer could be there for them, and they were taken away from
    them. To hear mothers cry at night over and over again,
    different mothers every night for something that--to have your
    child taken away from you forever and signed away is something
    that I will never forget, or coming back from a visit, and
    having a mother cry in my arms, because her daughter said, Mom,
    the person that I have been staying with has been touching me.
    These are the realities that when mothers leave, their children
    are put in places where they are not 100 percent protected.
    Nobody is going to care for your child as a mother does. So,
    when a mother is taken away, it is the children who suffer.

                       STATEMENT OF CYNTHIA SHANK

        Thank you for the opportunity to testify today about the
    impact of the federal criminal justice system on my life and
    that of my family. My name is Cynthia Shank and I was released
    from federal prison in March, 2017 after President Barak Obama
    commuted my 15-year sentence for drug related offenses. I
    served nine years in federal prison.
        My story is not uncommon. Prior to my conviction for my
    involvement in a drug conspiracy, I had no criminal record. I
    had been happily married for 4 years, was the mother of two
    young girls--Autumn and Ava--and 8 months pregnant with my
    third daughter, Annalise. My incarceration broke our young
    family apart and left permanent emotional and psychological
    scars on our daughters.
        My offense stemmed from a relationship I began years
    earlier when I was 24-years-old. I was working as a bartender
    and met a young, attractive and attentive man named Alex. We
    started dating and soon began living together. Eight months
    into our relationship I came home from work early one day to
    find him selling a small amount of crack cocaine to a stranger
    in our living room. After my discovery Alex became anxious that
    I would report him and began following me to work and spending
    all day watching me to make sure I said nothing about his drug
    selling. After months of this my boss complained, and Alex
    pressured me to quit my job, which I did.
        A year into our relationship I was completely dependent on
    Alex as he became more deeply involved in the drug trade. He
    was controlling and possessive of me and was both physically
    and verbally abusive. If I tried to visit my family he would
    insist I return home after only a short 30-minute visit. He
    eventually placed locks on all the windows and doors of our
    home and I rarely left the house. Even during periods when Alex
    would leave for extended trips he had me monitored. He called
    regularly to make sure I was at home and he sent his associates
    to knock on the door to make sure I was telling the truth.
        During one of Alex's last trips away I gathered up enough
    nerve to leave and went to my sister's place. Three days later
    he came for me with a gun. To protect her and her young
    children, I left with him without a fight.
        Alex did not love me but he wanted to keep me close because
    he thought I knew too much about his drug operation. I began to
    smoke an ounce of marijuana every day just to numb myself to
    the pain of my existence. My sister suspected I was being
    abused by Alex when she found out I had gone to the hospital
    after I was beaten with a broomstick and had seriously injured
    my eye. There was nothing she could do, however, because I
    would never admit to the abuse and never report him to police.
    Alex told me, ``if you call the cops I am going to shoot you.''
    I believed him. At night he slept next to me with his hand
    under my pillow holding a gun.
        The bigger his drug operation got the more paranoid and
    violent he became. Five years after we met, Alex was murdered
    in a shootout in front of our home. I was awakened by the sound
    of bullets and was called out of my bedroom by Alex's associate
    and was instructed to drive Alex to the hospital where he died.
    I could not believe he was dead when the police told me. To
    this day, I don't know who killed him.
        My relationship with Alex would impact the rest of my life.
    I told police I had known about his drug operation. Months
    after his death my attorney told me that the case against me
    had been dismissed. I moved on with my life. I quit smoking
    marijuana. I reconnected with my faith. I got married and gave
    birth to two daughters. But years after Alex's death
    prosecutors decided to charge me under drug conspiracy laws and
    for intent to distribute large amounts of cocaine, crack and
    marijuana. I never sold drugs but I lived with a dangerous and
    manipulative drug dealer and in the eyes of prosecutors there
    was no difference.
        I fought the charges and went to trial because I was not
    going to admit to something I did not do. I needed to finally
    stand up for myself and show my daughters how to be brave. I
    thought if I could just tell my story, they would understand.
    But all the trauma inflicted upon me by Alex didn't matter.
        Ultimately, I was convicted and because of mandatory
    minimum sentencing requirements I received a 15-year term. My
    youngest daughter, Annalise, was six weeks old when I went to
    prison. My husband, Adam, became a single father. I believe the
    years and miles of separation caused by incarceration are
    designed to break the bonds between families. Phone calls and
    visits are strictly limited both by expense and prison rules.
    There is no support for the aftermath of incarceration,
    especially for the children left behind. The week I left for
    prison my girls started going to therapy, but that is a luxury
    most families cannot afford.
        Most of the women I was incarcerated with were in prison
    because of drugs or money. They were poor and had struggled
    with a substance use disorder and never gotten help. Many were
    like me and had a partner who was primarily responsible for the
    crimes for which they had been convicted. If they had access to
    therapy, education and jobs their circumstances may have turned
    out differently.
        According to The Sentencing Project, between 1980 and 2017,
    the number of incarcerated women increased by more than 750%
    nationwide. The rate of growth for female imprisonment has been
    twice as high as that of men since 1980. Today, the Bureau of
    Prisons incarcerates nearly 13,000 women.
        I finally left prison because nine years after I was
    sentenced President Obama granted my petition for clemency. I
    was lucky but so many deserving women are still incarcerated
    and need relief from their excessive sentences.
        Today, my life is amazing. I work full-time. I have my own
    home. And, I am reunited with my girls and enjoying every
    minute of being with them and raising them. I share my story
    with you today because I want to help other incarcerated women
    and help them achieve their own success story. I hope Congress
    will give them a second chance.

        Ms. Bass. Thank you very much. Ms. Kerman.

                       TESTIMONY OF PIPER KERMAN

        Ms. Kerman. Thank you, Chairman Bass, Ranking Member
    Ratcliffe and Members of the committee. I appreciate you
    inviting me here. In my memoir, ``Orange is the New Black,'' I
    recount the 13 months that I spent incarcerated in the Federal
    prison system with most of my time served at the Federal
    correctional institution in Danbury, Connecticut. I was also
    incarcerated for a first-time drug offense.
        I am grateful to add my voice with other return citizens
    like Cindy Shank and Charlotte, who are here with us today, to
    call for changes to the U.S. criminal justice system. Our
    experiences are essential to understanding the reform that is
    needed in the system, so that it will both provide for public
    safety, but in a way that is legal, humane and sensible, and
    that is why I am here today.
        So, incarceration rates are not driven by crime rates. They
    are driven by policy decisions. For decades, women and girls
    have been the fastest growing part of the prison population in
    the United States. Is this because of an unprecedented crime
    wave perpetrated by American women? No. Rather, the 700 percent
    increase in female incarcerations has been driven by government
    policy, bad policy decisions, like the 1994 Federal crime bill,
    which resulted in inflated incarceration rates at both the
    Federal and the State levels. One of most clear-cut examples of
    the failed policies of mass incarceration is the increased
    imprisonment of women and girls and what happens to them and
    their families, like families like Cindy's.
        There is very little public safety rationale for most
    women's prison sentences which impose a very heavy cost to the
    American public, both socially and economically. Almost all
    women--among all women in prison and jail, it is estimated that
    between 80 and 90 percent have themselves been victims of
    violence, or serious trauma, prior to their incarceration.
        Because our law enforcement system does not target or treat
    all Americans equally, the data shows that women of color are
    over-represented in the criminal justice system, even though
    they are not more likely than White women to commit crimes. One
    of the reasons that my memoir caught the public imagination is
    that it is so unusual for a middle-class White woman to policed
    and to be prosecuted and to be punished with prison.
    Unfortunately, the same cannot be said for women of color.
        American prisons and jails are built by and for men, and
    they are governed by policies and procedures that are developed
    for male prisoners.
        In addition, American prisons and jails are punitive, and
    they rarely rehabilitate or restore the people we send there,
    almost all of whom will return to the community. I was
    incarcerated in a women's prison, and I now teach in a men's
    medium security prison. I can assure you that there is no
    institution more hierarchical, dominance-orientated,
    patriarchal, and operating constantly on the threat and the
    promise of violence than an American prison.
        This is not an accident; it is by design. The failure of
    punitive policy is reflected in our high recidivism rates. So,
    for most incarcerated women, regardless of their background,
    their prison sentence does not only punish them, and that is
    because most mothers in prison have kids under the age of 18.
        Most incarcerated mothers are also the single heads of
    household, and when we lock them up, the effect on their family
    is seismic. On all measures from stable housing, being well-
    fed, to doing well in school, parental incarceration seriously
    harms children. So, we don't have to do things this way.
        Before I conclude my testimony, I want to draw your
    attention to just two policies that could, if replicated across
    the country, help to fix some of the mistakes of the last four
    decades.
        So, one is a program in New York called JusticeHome.
    JusticeHome began in 2013. As part of the program, in
    cooperation with judges and prosecutors, women who are facing
    prison or jail for a felony are given a chance to remain at
    home with their families, to be held accountable in the
    community, and to get the help and support that they need to do
    better.
        That is exactly what happens and 88 percent of JusticeHome
    graduates remain arrest-free after they complete the program.
    JusticeHome also realizes massive fiscal savings. If the total
    cost to taxpayers to incarcerate a woman in New York, if she
    has two children who go into foster care is over $130,000 a
    year. It costs less than $20,000 a year to support a woman to a
    better future via JusticeHome. It gets much better results.
        Again, looking to the States for innovation, we see two new
    primary caretaker legislations adopted in Massachusetts and
    Tennessee. These new measures require judges in those States to
    consider family impact when they are sentencing a person who is
    a primary caregiver of minor children, and to impose
    accountability measures that are appropriate for the offense
    that will not harm those children.
        It is worth pointing out that Massachusetts and Tennessee
    have very different political landscapes. Everybody can see the
    value of this kind of reform, regardless of their political
    party. Primary caretaker policies should be adopted within the
    Federal system, so that Federal judges are required to make the
    same considerations at sentencing.
        Ms. Bass. Thank you.
        Ms. Kerman. So, I look forward to today's important
    testimony on women and girls' pathways into prison, the harsh
    conditions that we must survive there, and the steps that are
    necessary for a safe and successful return to the community. I
    implore the Members of this Committee and all public officials
    to prioritize policy changes that will reduce the number of
    women and girls ever going into a correctional facility because
    those are changes that will make us safer. Thank you.
        Ms. Bass. Thank you.
        [The statement of Ms. Kerman follows:]

                        STATEMENT OF MS. KERMAN

        I spent 13 months as a prisoner in the Federal Bureau of
    Prisons system from 2004-2005, with most of my time served at
    the Federal Correctional Institution in Danbury, Connecticut.
        If you are familiar with my book, Orange Is the New Black,
    I'm the first to acknowledge that unlike many prisoners, I have
    the resources and support to take my own experiences in prison
    and use them to try to make critical improvements to this
    country's criminal justice system. Since my release, I have
    worked with many criminal justice-involved women who advocate
    for the changes they need to be safe and to get back on their
    feet. I am here today in that capacity.
        Women's incarceration is a growing problem and has been for
    years.\1\ The majority of incarcerated women in this country
    are charged with drug offenses or property crimes; many of
    these are low-level offenses, yet they may be met with prison
    or jail sentences. A sentence means the removal of a woman from
    her community, from her family, from her children if she is a
    mother, and exile into a correctional facility.
    ---------------------------------------------------------------------------
        \1\ Since 1978, women's State prison populations have grown 834%,
    while men's State prison populations have grown 367%. Wendy Sawyer, The
    Gender Divide: Tracking Women's State Prison Growth (2018). Prison
    Policy Initiative. Available at https://www.prisonpolicy.org/
    reports/women_overtime.html.
    ---------------------------------------------------------------------------
        American prisons and jails are built by and for men,
    governed by policies and procedures developed for male
    prisoners. I was incarcerated in a women's prison and I now
    teach in a men's medium-security prison and I can assure you
    there is no institution more hierarchical, dominance-oriented,
    patriarchal and based on the threat and promise of violence
    than an American prison. This is not an accident; it is by
    design.
        Incarceration rates are driven by policy, not by crime
    rates. It's essential that current policymakers fully
    comprehend this crucial fact, as they bear the responsibility
    of reversing decades of bad criminal justice policy decisions
    and repairing their negative consequences for all Americans.
    Specifically, the federal crime bill of 1994 had the effect of
    not only inflating federal incarceration rates but also
    incentivizing the states to incarcerate more people. As a
    Nation we are still struggling with the legacy of this bad
    policymaking; many individuals, corporations and special
    interests draw huge benefit--and in some cases profit--from the
    status quo of mass incarceration.
        While the lack of correlation between crime rates and
    incarceration is widely acknowledged by criminology experts, it
    remains unknown or unacknowledged by many policymakers and the
    public. The conventional wisdom that incarceration is the best
    or only response to crime is dead wrong, and has had corrosive
    consequences for this nation, especially for people of color
    and poor people who are most likely to be incarcerated.
    According to the 2014 report by the National Research Council
    of the National Academies on The Growth of Incarceration in the
    United States:

            Yet over the four decades when incarceration rates steadily
            rose, U.S. crime rates showed no clear trend: The rate of
            violent crime rose, then fell, rose again, then declined
            sharply. The best single proximate explanation of the rise in
            incarceration is not rising crime rates, but the policy choices
            made by legislators to greatly increase the use of imprisonment
            as a response to crime. Mandatory prison sentences, intensified
            enforcement of drug laws, and long sentences contributed not
            only to overall high rates of incarceration, but also
            especially to extraordinary rates of incarceration in Black and
            Latino communities. Intensified enforcement of drug laws
            subjected blacks, more than whites, to new mandatory minimum
            sentences--despite lower levels of drug use and no higher
            demonstrated levels of trafficking among the Black than the
            White population. Blacks had long been more likely than whites
            to be arrested for violence. But three strikes, truth-in-
            sentencing, and related laws have likely increased sentences
            and time served for blacks more than whites. As a consequence,
            the absolute disparities in incarceration increased, and
            imprisonment became common for young minority men, particularly
            those with little schooling.\2\
    ---------------------------------------------------------------------------
        \2\ National Research Council (2014). Summary. In Travis, J.,
    Western, B. & Redburn, S. (Eds.), The Growth of Incarceration in the
    United States: Exploring Causes and Consequences (pp.
    1-12). Washington, DC: The National Academies Press.

        It's important to emphasize this disconnect because we've
    so normalized prison and jail as our only response to problems
    and conflicts in our communities. The United States
    incarcerates far more of its own people than any Nation in the
    world. No society in human history has ever locked up so many
    of its own citizens. And yet: American prisons and jails don't
    fix problems like substance abuse and addiction, mental
    illness, or family or community violence. Quite the opposite,
    most correctional settings in this country unquestionably make
    these problems worse, not better, hidden behind the walls where
    we exile our own people.
        After a person returns from prison or jail, their sentence
    is not over. Probation and parole are problematic systems that
    continue to punish rather than help people, and are
    particularly harmful to the poor, who make up the bulk of
    Americans caught in the maze of the criminal justice system. As
    civil rights lawyer Bryan Stevenson has noted, we have a legal
    system that treats you better if you are rich and guilty than
    if you are poor and innocent. I draw your attention to the
    Jeffrey Epstein case as just one among many very recent
    examples of this truth.
        Among the most vulnerable people caught in the maze of the
    American criminal justice system are women and girls. Women are
    the fastest growing population in the American criminal justice
    system, and their families and communities are also punished by
    what happens when we choose to incarcerate a woman. A
    significant majority of women in prison are there for a
    nonviolent offense.\3\ Many women are incarcerated due to
    substance abuse and mental health problems, which are
    overwhelmingly prevalent issues in prisons and jails. For women
    and girls there is also a staggering, widespread incidence of
    victimization by sexual abuse or other physical violence before
    incarceration.\4\
    ---------------------------------------------------------------------------
        \3\ In 2012, 37.1% of women in State prison were held for a violent
    offense, compared with 55.0% of men. E. Ann Carson, Bureau of Justice
    Statistics, Prisoners in 2013, Tbl. 9, September 30, 2014, available at
    http://www.bjs.gov/content/pub/pdf/p13.pdf.
        \4\ In 2012, 86% of women in jails had experienced sexual violence,
    77% had experienced partner violence, and 60% had experienced caregiver
    violence before their incarceration. Lynch
    et al. Women's Pathways to Jail: Examining Mental Health, Trauma, and
    Substance Use (2013). Bureau of Justice Assistance. Available at
    https://www.bja.gov/Publications/WomensPathways
    ToJail.pdf.
    ---------------------------------------------------------------------------
        Before we even think about where or how women and girls
    should be incarcerated, we should consider if they should be
    incarcerated. There are other ways for them to serve their time
    that result in less damage to them and their families. When we
    look to the states, we see such innovations, such as
    JusticeHome in New York. JusticeHome allows some women who
    plead guilty to felonies to remain in their homes with their
    children. The women report regularly in court and are visited
    weekly by case managers to make sure they receive supervision
    and guidance about jobs, education and management of their
    homes and children. Some must receive treatment for drug
    addiction and mental illness. The cost of JusticeHome is less
    than 20,000 per family, while it costs over $130 K to
    incarcerate a woman in New York City for one year if two of her
    children are sent into foster care.\5\ What is priceless about
    this program is that it is working hard to keep families
    together which we know is an effective way to reduce crime and
    increase safety, and to stop a cycle that can condemn entire
    families to the penal system. 88% of JusticeHome graduates
    remain arrest-free after completion of the program.\6\
    ---------------------------------------------------------------------------
        \5\ McHugh, Diana. ``Re: JusticeHome Success Data Points.'' Message
    to Kamara Jones. July 2, 2019. Email.
        \6\ McHugh, Diana. ``Re: JusticeHome Success Data Points.'' Message
    to Kamara Jones. July 2, 2019. Email.
    ---------------------------------------------------------------------------
        Again, looking to the states for innovation, we see new
    primary caretaker legislation adopted in Massachusetts and
    Tennessee that acknowledges that when a sentence is imposed it
    impacts not only the convicted person but also her children and
    family.\7\ These new measures require judges in Massachusetts
    and Tennessee to consider family impact when sentencing a
    person who is the primary caregiver of minor children, and to
    impose accountability measures appropriate for the offense that
    will not harm those children. This legislative reform was
    conceived of and championed by formerly incarcerated women from
    the National Council of Formerly Incarcerated and Incarcerated
    Women and Girls,\8\ a true example of the power of women's
    wisdom and activism in service of the lives of others; it
    should be adopted within the federal system so that federal
    judges are required to make the same considerations at
    sentencing.
    ---------------------------------------------------------------------------
        \7\ Human Impact Partners. (April, 2019) Keeping Kids and Parents
    Together: A Healthier Approach to Sentencing in MA, TN, LA. Retrieved
    from https://humanimpact.org/hipprojects/
    primary-caretakers/.
        \8\ ``Current Legislation.'' Families for Justice as Healing,
    available at http://justiceashealing .org/current-legislation/.
    ---------------------------------------------------------------------------
        Incarcerated women suffer from disproportionately high
    incidences of mental illness, substance use disorder, and
    survival of serious trauma like sexual assault or domestic
    abuse. However, these issues are not being addressed adequately
    in the federal prison system. With more than 200,000 people in
    its custody, the Federal Bureau of Prisons has grown to become
    the nation's largest prison system.\9\ The federal prison
    population has increased more than eight-fold since 1980,\10\
    reflecting the United States' unique and regrettable reliance
    on incarceration to inappropriately and ineffectively address
    social problems like substance abuse, mental illness and
    poverty. Below I outline some of the ways in which the Bureau
    could and should improve its treatment of women in custody.
    ---------------------------------------------------------------------------
        \9\ Federal Bureau of Prisons, Inmate Statistics, July 30, 2015,
    available at http://www .bop.gov/about/statistics/
    population_statistics.jsp#pop_report_cont.
        \10\ Federal Bureau of Prisons, Past Inmate Population Totals,
    available at http://www .bop.gov/about/statistics/
    population_statistics.jsp#old_pops.
    ---------------------------------------------------------------------------
        The Bureau of Prisons should adopt gender-responsive
    policies and programs along the lines of best practices in
    states such as Washington that reduce recidivism rates and give
    women opportunities to reintegrate into their communities and
    succeed post-incarceration.
        Gender-responsive correctional approaches are guided by
    women-centered research. They are strengths-based, trauma-
    informed, culturally competent, and holistic. These approaches
    recognize the importance of relationships as a target of
    intervention for women. Finally, they account for the different
    characteristics and life experiences of women and men who are
    involved with the criminal justice system, and respond to their
    unique needs, strengths and challenges.\11\
    ---------------------------------------------------------------------------
        \11\ National Resource Center on Justice Involved Women, Gender
    Responsive Discipline and Sanctions Policy Guide for Women's
    Facilities, Key Definitions, n.d., available at http://
    cjinvolvedwomen.org/sites/all/documents/
    DisciplineGuideSection1Overview.pdf.
    ---------------------------------------------------------------------------
        Most research in the correctional field has been conducted
    on men. The research that has been done on women shows that the
    risk factors I mentioned, and others specific to women, require
    different approaches than the BOP takes for men to reduce
    women's recidivism and achieve more successful outcomes. This
    is not unlike findings in other fields such as healthcare,
    where gender-specific research found that women experience
    heart attack symptoms quite differently from men.
        This understanding in turn led to gender-specific responses
    to these symptoms.
        Female prisoners are different from male prisoners in a
    number of obvious and less obvious ways. In addition to having
    a higher percentage of mentally ill people among their ranks,
    incarcerated women are often single moms with young children.
    Very high incidences of sexual and physical assault \12\ are a
    reality for women in prison, jail and immigration detention
    centers, both before and during their incarceration. It is
    essential to consider this trauma to establish rehabilitation
    that works, and to avoid correctional settings that make things
    worse.\13\
    ---------------------------------------------------------------------------
        \12\ In State prison, 57.6% of women reported past physical or
    sexual abuse, compared to 16.1% of men. In federal prisons, 39.9% of
    women reported past abuse, compared to 7.2% of men. In jails, 47.6% of
    women reported past abuse, compared to 12.9% of men. Caroline Wolf
    Harlow, Bureau of Justice Statistics, Prior Abuse Reported By Inmates
    And Probationers 1 (1999), available at http://www.bjs.gov/content/pub/
    pdf/parip.pdf. More than a third of women in State prisons or local
    jails reported being physically or sexually abused before the age of
    eighteen.
        \13\ Human Rights Watch, All Too Familiar: Sexual Abuse of Women in
    U.S. State Prisons (1996), available at http://www.hrw.org/legacy/
    reports/1996/Us1.htm [hereinafter All Too Familiar] (``One of the clear
    contributing factors to sexual misconduct in U.S. prisons for women is
    that the United States, despite authoritative international rules to
    the contrary, allows male correctional employees to hold contact
    positions over prisoners, that is, positions in which they serve in
    constant physical proximity to the prisoners of the opposite sex.'').
    ---------------------------------------------------------------------------
        Instituting gender-responsive policies garners
    significantly improved outcomes including reductions of inmate-
    on-staff assaults and inmate-on-inmate assaults, segregation
    placements, disciplinary reports, one-on-one mental health
    watches, petitions for psychiatric evaluation, crisis contacts,
    self-injury incidents and suicide attempts.\14\
    ---------------------------------------------------------------------------
        \14\ National Resource Center on Justice Involved Women, Gender
    Responsive Discipline and Sanctions Policy Guide for Women's
    Facilities, Exhibit 1: Benefits of Implementing Trauma-Informed
    Approaches at MCI Framingham Frequency of Incidents in 2011 and 2012,
    n.d., available at http://cjinvolvedwomen.org/sites/all/documents/
    DisciplineGuideSection1Overview.pdf.
    ---------------------------------------------------------------------------
        These policies clearly make women's correctional facilities
    safer for prisoners and staff, which is the first step towards
    creating a rehabilitative environment. If we want to reduce
    recidivism for women and help them be more successful when they
    return home, we need to address their specific risk factors and
    needs--gender-responsive policies and programming, such as the
    following, account for these differences.

          Gender-responsive policies, first and foremost, recognize
    that there are gender-specific needs and modify facility operations,
    supervision, management, programs and services to address them.
          They ensure that all staff who work with women are
    trained in trauma-informed care, understand gender-responsive
    principles and how justice-involved women are different from men, and
    at a minimum, have effective communications and intervention skills.
          These policies influence facility culture so that there
    is a physical environment that is conducive to change (positive
    messages on walls, positive images), an attitude of respect among staff
    and inmates, positive encouragement for family visits and interactions,
    and calming environments (reduced noise level, banging, shouting).
          Practices and procedures are implemented that do not
    (re)traumatize or trigger women's trauma, such as letting women know
    ahead of time what is going to happen during a procedure, telling them
    what is happening during the procedure, and checking in with them after
    the procedure is conducted. Other similar examples include limited use
    of solitary confinement or segregation (which may trigger women), more
    limited use of strip searches (which may be reminiscent of rape), and
    limited or no use of restraints during pregnancy and delivery.
          Gender-responsive risk and needs assessments (such as the
    Women's Risk and Needs Assessment developed by Dr. Pat Van Voorhis and
    colleagues at the University of Cincinnati) should be used to identify
    specific risk factors 1such as past trauma, abuse and anger. Treatment
    programs should be available that address the risks and needs
    identified through these assessments.

        It is critical for the Bureau of Prisons to address the
    unique situation of women in prison when making choices about
    policies and programming for institutions that hold them. In
    addition to the roadmap to system-?wide implementation that
    Washington State offers, the National Resource Center on
    Justice Involved Women--funded by the U.S. Department of
    Justice Bureau of Justice Assistance in partnership with the
    National Institute of Corrections--is an organization that the
    BOP can collaborate with to work for rapid adoption of gender-
    responsive policies and programs. Additionally, the Adult and
    Juvenile Female Offenders Network \15\--a national network of
    corrections workers, academics and community practitioners--has
    been working for decades to establish gender-responsive
    policies and programs in American prisons and jails, and its
    Members should prove valuable advisors to the BOP if it wishes
    to fulfill its responsibilities to the women in its custody.
    ---------------------------------------------------------------------------
        \15\ Association on Programs for Female Offenders (APFO), an
    American Correctional Association, available at http://www.ajfo.org/.
    ---------------------------------------------------------------------------
        One of the biggest needs is to keep these women, many of
    whom are single moms, close to their kids. When I was
    incarcerated at Danbury FPC, I met women who were raising their
    children in the visitors' room during brief visits, fending off
    sexual harassment, and struggling to get a high school
    education so when they got out they stood a chance at
    surviving. I saw women denied necessary medical care, and I saw
    women with mental health issues wait for months to see the one
    psychiatrist who was available for 1,400 women.
        During my time in prison, I was transferred from Danbury to
    the federal Metropolitan Correctional Center in Chicago (MCC)
    to serve as a witness in a federal trial there. The Chicago MCC
    is 26 stories high and houses approximately 700 men. There were
    approximately 35 women in the female unit there and the
    conditions were abysmal. Federal jails are not intended for
    long-term housing, and thus lack programming, physical plant
    and other acknowledged essentials for a person serving a prison
    sentence, which are intended to hold them accountable and
    rehabilitate them so they can return safely to the community.
    Despite this, people often spend long periods of time locked up
    in federal jails. When I was in the MCC, there was a woman who
    had been held there for two years.
        At the Chicago MCC, women were kept locked on the 12th-
    floor unit for many days at a time; access to the library and
    to physical recreation and the outdoor area was sporadic at
    best; no women were allowed to participate in GED programs or
    any educational opportunities; female prisoners were not
    allowed to work and earn money; we had no direct access to any
    medical staff, or in fact any administrative staff; and we were
    largely reliant on a single correctional officer to get any
    concerns addressed. Many women on the unit were severely
    mentally ill. The last two months of my incarceration were
    exponentially more difficult than the first 11 because of the
    conditions in the Chicago MCC, and I have many more resources
    and opportunities than most women incarcerated in federal
    prisons.
        Women in federal custody have less access compared to male
    federal prisoners to important rehabilitative programs like
    UNICOR (vocational training in prison industry programs that
    provide the highest compensation among federal prisoner jobs)
    and the Residential Drug & Alcohol Program (an intensive
    program that cuts a year from a prisoner's sentence).
        Many women have been sent far from their families and
    communities, much further than the BOP's stated parameter of
    500 miles from a prisoner's home.\16\ For a family that lives
    in poverty in New Hampshire, the Bronx or Pennsylvania, a place
    like Aliceville, Alabama, Dublin, California or Waseca,
    Minnesota might as well be the moon in terms of children and
    other family Members being able to visit. The majority of women
    in prison were their children's primary or sole caregiver prior
    to incarceration.\17\ When these women are incarcerated,
    maintaining any semblance of a relationship with their children
    largely depends on regular visitation.\18\ A child's need to
    see and hold his or her mother is one of the most basic human
    needs.
    ---------------------------------------------------------------------------
        \16\ Federal Bureau of Prisons, Custody and Care: Designations,
    July 30, 2015, available at http://www.bop.gov/inmates/
    custody_and_care/designations.jsp.
        \17\ Lauren E. Glaze & Laura M. Maruschak, Parents in Prison and
    Their Minor Children, U.S. Dep't. of Justice, Of Justice Statistics
    Special Report, 4, (2008), available at http://bjs.ojp.usdoj.gov/
    content/pub/pdf/pptmc.pdf.
        \18\ Susan D. Phillips, The Sentencing Project, Video Visits For
    Children Whose Parents Are incarcerated: In Whose Best Interests? 1-2
    (2012), available at http://sentencingproject.org/doc/publications/
    cc_Video_Visitation_White_Paper.pdf (describing the importance of and
    barriers to visitation of incarcerated parents).
    ---------------------------------------------------------------------------
        Important things to consider about women in federal custody
    are disconnection from young children and family who rely
    heavily on these mothers prior to incarceration; vastly and
    disproportionately inadequate living conditions compared with
    male prisoners; and, a marked lack of rehabilitative
    programming or work opportunity that is tailored to address
    women's pathways into prison, which is the best way to ensure
    their safe and permanent return home. These realities are
    emblematic of the BOP's indifference to the situation and
    outcomes of female prisoners. The BOP is currently seeking to
    appoint a new Director; a commitment and ability to implement
    gender-responsive policies and programming should be a
    requirement for the job. To fulfill its public safety mission
    and to avoid discriminatory practices, the BOP must adopt
    gender-responsive policies, programs and facility design,
    following the best practices of corrections departments in
    states like Washington and Iowa. At the Washington Corrections
    Center for Women for instance, the Gender Responsiveness Action
    Plan allows female prisoners to attend seminars focusing on
    healthy relationships, safety awareness, health, nutrition,
    handling anger and stress, and goal setting.\19\
    ---------------------------------------------------------------------------
        \19\ Jennifer Sullivan, Female Inmates Treatment is Evolving, The
    Bulletin, November 7, 2013, available at http://www.bendbulletin.com/
    news/1262705-151/female-inmates-treatment-is-evolving.
    ---------------------------------------------------------------------------
        The BOP has a legal and moral obligation to ensure that
    time in custody is equitable, safe, and rehabilitative for
    women. In addition, Congress should use all measures available
    to facilitate the BOP's early release of currently incarcerated
    people who are eligible to return to their communities.
        The BOP could exercise greater discretion, granted in the
    Second Chance Act and the First Step Act, to move thousands out
    of federal prison facilities to complete their sentences in
    their communities. In addition to reducing overcrowding,
    utilizing the Second Chance Act and the First Step Act would
    keep incarcerated people closer to their homes, creating
    benefits for prisoners and their communities. They would be
    following the precedent of the U.S. Sentencing Commission's
    2014 decision to reduce the length of time that certain federal
    prisoners are spending in incarceration.\20\
    ---------------------------------------------------------------------------
        \20\ Hearing before the Senate Judiciary Committee, Oversight of
    the Bureau of Prisons Hearing, Liman Statement for the Record,
    November, 12, 2013, available at http://www.lawyale .edu/documents/pdf/
    Liman/Senate_Judiciary_Committee_BOP_Oversight_Hearing_ Liman_
    Statement_for_the_ Record_Nov_ 12_2013.pdf_website.pdf.
    ---------------------------------------------------------------------------
        The bottom line is that mass incarceration in America is a
    failed policy experiment, not a legitimate response to violence
    or crime in our communities. Current legislators have a
    responsibility to make our criminal legal system fairer, more
    effective, and more just, and they have an opportunity to do so
    now when public understanding and opinion on these issues has
    changed. There is abundant data and evidence proving we have
    better responses to addiction, mental illness and even violence
    than reliance on prisons and jails.
        There is no population of people where reform can more
    obviously be implemented than women and girls in the criminal
    justice system. Research, case studies, and a host of programs
    and organizations that demonstrate the value and efficacy of
    gender-responsive policies and programs provide the map to
    solutions that do not rely on incarceration. This map is vital
    not just to the thousands of women who currently churn through
    American prisons and jails each year, but to the families and
    communities to which they return. It is long past time for
    Congress to lead the way and make common-sense criminal justice
    policy that reflects smart and humane ideas and values about
    justice and accountability.

        Ms. Bass. Ms. Kajstura.

                      TESTIMONY OF ALEKS KAJSTURA

        Ms. Kajstura. Thank you, Chairwoman Bass, and Ranking
    Member Ratcliffe and Members of the subcommittee, for providing
    me the opportunity to share some data on women's incarceration,
    not only because this is an issue that has been overlooked for
    far too long, but also because women's experiences in the
    criminal justice system serve to highlight the faults of the
    entire system.
        The U.S. incarcerates women at the highest rate in the
    world, so there is a lot of data to dig through, but as I
    outline the basics, I would like you all to keep one fact in
    mind: One in four women who are incarcerated have not been
    convicted. That figure alone demonstrates that we use
    incarceration far too much. Since the 1970s, women's State
    prison populations have grown faster than their male
    counterparts. There are nearly 10 times as many women in State
    prisons now as 40 years ago. Despite this dramatic growth,
    women's incarceration remains an afterthought. In most States,
    women have not benefited from recent efforts to reduce
    incarceration as much as men have.
        There are many complex and interconnected reasons why the
    U.S. is incarcerating women at ever increasing rates. Here are
    a couple of examples: States continue to widen the net of
    criminal justice involvement by criminalizing women's responses
    to gender-based abuse and discrimination. We have heard about
    the expansion of drug conspiracy laws that lead to even minor
    or peripheral roles of women receiving very harsh sentences,
    even more harsh than those in charge of the operation. In terms
    of gender abuse, you have policy changes that led to mandatory
    dual arrests, just simply for fighting back against domestic
    violence. Once caught in the net, there are fewer diversion
    programs available to women.
        In Wyoming, for example, there was a boot camp that allowed
    men to participate in a 6-month program instead of having to
    serve a lengthy sentence, but no similar program is available
    in the State for women, so they face years of incarceration for
    first-time offenses, while their male counterparts can quickly
    return to the community. And then once women are incarcerated,
    they face more and harsher disciplinary sanctions for similar
    behavior when compared to men, and this disciplinary action
    harms women's ability to earn time off the sentence and
    decreases chances of parole.
        The tentacles of mass incarceration have a long reach.
    Women incarcerated in jails and prisons account for just a
    small percentage of women under some form of correctional
    control.
        Probation accounts for the majority of women under
    correctional control, and is often billed as an alternative to
    incarceration, but compliance with restrictive probation terms
    is particularly difficult for women, it often sets us up to
    fail. For example, probation comes with mandatory monthly fees,
    which women are in the worst position to afford. Failing to pay
    these fees alone is often a violation of probation. Childcare
    duties further complicate compliance, because probation
    requirements often include travel to mandatory meetings, or
    having to get advanced permission for an emergency school pick-
    up, or advanced permission for an emergency doctor's visits.
        Ongoing struggles with mental health and substance abuse
    disorders, which affect women in jails far more than men,
    require additional support rather than being viewed as
    punishment--rather than being punished as a failure of
    probation. Even as incarceration rates drop, women's
    incarceration continues to grow; getting hard data is the
    obvious next step for policy change. You would think that
    knowing how many women are locked up, and where, and why, would
    be easy; after all, this is a population that is literally
    counted multiple times a day, but there is an astounding lack
    of data on incarceration.
        I set out to give a complete picture of women's
    incarceration in my report, Women's Mass Incarceration: The
    Whole Pie, and I had to weave together data scattered across
    incompatible government reports and surveys.
        For example, the last time the Bureau of Justice Statistics
    published a comprehensive report on incarcerated women, it was
    1999, that is 20 years ago. Since then, data on incarcerated
    women have been available piecemeal scattered throughout BJS
    publications. Even worse, BJS has stopped even collecting some
    data on women incarcerated, much less publishing it.
        When our statistical agencies are blindfolded, the
    policymakers are too. Having, accurate, timely data is an
    important part of ending mass incarceration of women. But quite
    frankly, there is such vast room for improvement in so many
    areas that we can wait for data collections to catch up while
    we take commonsense action today.
        [The statement of Ms. Kajstura follows:]

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Ms. Bass. Thank you. Ms. Onwuka.

                    TESTIMONY OF PATRICE LEE ONWUKA

        Ms. Onwuka. Good morning. Thank you, Chair Bass, thank you
    Ranking Member Ratcliffe.
        I work with the Independent Women's Forum and we are an
    educational organization committed to increasing the number of
    women who value free markets and personal liberty. We advance
    policies that enhance people's freedoms, and choices, and
    opportunities. And so, my focus specifically, my work focuses
    on expanding opportunity for women. This subject is something
    that is really important to us. So, this is truly a great time
    of opportunity for women. We know that we have record low
    unemployment rates. Over 1,800 new businesses were started by
    women each day from 2017 to 2018. Firm's owned by black, or
    women of color, have triple digit growth over the past decade.
    Yes, a criminal background lobs too many women out of
    opportunity and economic mobility. Work is a critical component
    to the successful transition from the criminal justice system
    back into society.
        So, I am encouraged by the historic, bipartisan First Step
    Act that was passed and signed into law last year. It laid it a
    foundation, but we know there is more to do for women.
    Conversations like today remind us that the left and the right
    are committed to helping every American achieve their right to
    life, liberty, and the pursuit of happiness.
        Organizations across the philosophical spectrum are engaged
    in criminal justice efforts, and for different reasons. I think
    we can all agree that committing a crime and paying her debt to
    society should not preclude a woman from the pursuit of a
    better future. It is not just her future, but the future of her
    children, her family, her community that depend on her
    successful transition back into society. It all starts with so
    many women who are in the criminal justice system.
        You have heard the statistics, they are staggering. What is
    interesting is that we saw the replacement of judicial
    discretion with one-size-fits-all sentencing mandates, landing
    a lot of low level, nonviolent offenders in Federal prisons for
    longer periods of time, than otherwise they might have been
    given, and particularly because there are alternatives to
    serving time.
        Now that not only impacted women, but their families. As a
    result, you have more women are likely to have served as a
    primary caregiver to children prior to entering prison and have
    plans to return upon release. We know that children whose
    parents are involved in the justice system, they face a host of
    challenges and difficulties. Incarceration also forces families
    deeper into poverty and debt. The burden falls on family
    Members, society, and yes, us taxpayers.
        The family bond, especially with their children, often
    becomes a motivating factor for women not to return to crime.
    So effective criminal justice requires respect for the dignity
    of all people, and the successful means towards rehabilitation.
        Now while serving time, women face special challenges some
    of the panelists have talked about this, from general health
    and wellness to ongoing gynecological care and prenatal care if
    they are pregnant. They require separate facilities for
    showering and using the toilet. Serving a criminal sentence,
    though, should not mean that female inmates serve in
    dehumanizing, unsanitary, unsafe, or unhealthy conditions.
        Some level of privacy from male guards is a reasonable
    expectation and can protect female prisoners, many of whom are
    experienced sexual violence. Incarcerated pregnant women are
    the most vulnerable.
        Unfortunately, the justice system really considers the
    special needs of this population. Thankfully, this shackling of
    women is a practice has been ended by law because of the risk
    it poses to moms and babies. Now as a mother of a 7-month baby
    boy, this is especially close to my heart.
        Ongoing physical and mental health care should not be
    forgotten. When it is time for a woman to return--to be
    released from prison, that is not the moment to begin thinking
    about what she is going to do afterwards. We know that are
    women's recidivism rates are similarly troubling to those of
    men, about one-quarter of women released from prison have an
    arrest for a new crime within 6 months, one-third within a
    year, and two-thirds 5 years out.
        So training, technical educational opportunities, including
    those tied to the faith community, can be assets in the
    rehabilitation reentry process. There is evidence these
    programs work. The First Step Act encourage rehabilitation
    programs offers and offer significant incentives to inmates to
    participate in recidivism reduction programs. A strong economy
    is an ally in providing women opportunities. Where government
    puts up roadblocks to opportunity, the government needs to
    remove them. We have seen that occupational licenses have been
    a tremendous hindrance for women who simply want to work. That
    is a place we can start, and we are seeing States take some
    action there. The criminal justice system is an area where we
    all believe that smart reforms can help women who want to be
    productive Members of society, so I look forward to today's
    discussion.
        [The statement of Ms. Onwuka follows:]

                        STATEMENT OF MS. ONWUKA

        Chairman Bass, Ranking Member Ratcliffe, and Members of the
    Committee thank you for inviting me to appear today.
        My name is Patrice Onwuka, and I am a senior policy analyst
    at the Independent Women's Forum. We are a nonprofit
    organization, committed to increasing the number of women who
    value free markets and personal liberty. We advance policies
    that enhance people's freedom, choices, and opportunities. My
    work focuses on expanding opportunity for women.
        There's no better time to talk about women and opportunity
    than today.
        As of June, we are at a near record-low unemployment rate
    for women of 3.3 percent. There are more than 11 million women-
    owned businesses. Over 1,800 new small businesses started each
    day on average from 2017 to 2018. Firms owned by women of color
    have had triple-digit growth over the past decade. We graduate
    more women from college today than men and in scores of
    industries, women outearn men.
        Because of a strong economy and over 7 million unfilled
    positions, employers are considering for employment applicants
    whom they would have passed on in the past. That includes
    returning citizens and people who have criminal records. This
    is good news for this community that struggles with obtaining
    steady employment, a key factor determining whether they will
    become a productive citizen or return to prison.
        Women in the justice system are also benefiting from
    greater opportunity, but unfortunately, they have been left out
    of the conversation of criminal justice reform. I'm glad
    today's hearing will focus on their unique issues and concerns,
        The number of women in prison has increased by more than
    700 percent since 1980. As a nation, we are home to around 30
    percent of the world's incarcerated women.
        Lawmakers on the left and the right recognize that in the
    past we may have been tough on crime--and needed to be. Today,
    the shift to be smart on crime provides a chance to reform laws
    that have yielded punishments which were out of whack with the
    crime or to create policies that help women prepare for life
    after serving time.

                      Over Incarceration of Women

        Judges have enjoyed discretion in weighing the merits of
    cases and determining the best punishment for crimes committed
    by individuals.
        Our justice system changed significantly in the 1970s and
    1980s when Congress and State legislatures implemented
    mandatory sentencing for drug crimes with the intention of
    attacking the drug trade and deterring people from drug use.
    Understandably, the spread of drugs warranted a strong
    response. Unfortunately, limiting judicial discretion and
    imposing inflexible punishments led to skyrocketing
    incarceration rates. There were just 13,000 incarcerated women
    in 1980 and that swelled to more than 110,000 women in 2016.
    The federal female prison population has risen twice as fast as
    the male population. Some 1.3 million women are under the
    supervision of our criminal justice system.
        Women are more likely to commit property crimes and drug
    crimes and offenses than men. In State prisons, for example, 25
    percent of women in prison have been convicted of a drug
    offense, compared to 14 percent of men in prison.
        Because of sentencing changes, low-level, non-violent
    offenders landed in federal prisons for longer periods of time,
    when otherwise, they might have been given parole or sent to
    diversion programs.
        Conservative and liberal lawmakers are trying to address
    the unintended consequences of a heavy-handed approach to
    sentencing.
        The bipartisan First Step Act passed and signed into law by
    President Donald Trump in December 2018, reduced or reformed
    several federal mandatory minimum laws that, prospectively,
    will reduce unjustly harsh sentences, restore discretion to
    judges, and allow for resentencing.
        In 2019, over a dozen female inmates (2 percent of 1,050
    federal inmates) received reduced sentences as a result of
    these changes. Going forward, likely more women will end up
    serving fairer sentences or may be given alternatives to
    sentencing such as community-based diversion programs,
    rehabilitation for addiction, treatment for mental illness,
    paying restitution, or community service.
        Alternatives to imprisonment can rehabilitate the offender,
    reduce prison and jail costs, and prevent additional crimes
    from occurring in the future. Victims of crimes are helped,
    communities are helped, and individuals are helped.
        Americans overwhelmingly support alternatives to
    sentencing: 77 percent of adults believe that alternatives to
    incarceration should be used often or sometimes.
        Criminal justice reforms should not eliminate punishments
    for offenders, but they offer a chance to ensure that
    punishments fit the crimes. Effective punishments can reduce
    the likelihood that a woman recidivates. Over 40 percent of all
    people leaving prison will re-offend and be back in prison
    within three years of their release.
        By addressing underlying causes of crime such as addiction
    or mental illness, we may help people from reoffending. That is
    good for families, who don't have to lose moms and dads for
    years at a time. It also allows women to keep working to earn
    income, pay taxes, and support their families. That truly gives
    people a chance at a better life.

                      Dignity for Women in Prison

        Women have unique health and wellness needs that men do not
    have and ones that do not disappear when they serve time in
    prison. Women need on-going gynecological care and prenatal
    care if they are pregnant. Women have menstrual cycles that
    demand hygiene products such as menstrual pads and tampons.
    They require separate facilities for showering and using the
    toilet.
        Serving a criminal sentence should not mean that female
    inmates serve in dehumanizing, unsanitary, unsafe, or unhealthy
    conditions. Nor should they have to pay for products that they
    cannot afford.
        If women are pregnant, it is especially important for both
    the health of the mother and the baby that their prenatal care
    is provided.
        As a mother of a seven-month-old, I can only imagine how
    challenging it would be to be restrained while pregnant and
    especially during labor and delivery. Although 2,000 births
    occur to women in custody, the stories of miscarriages that
    follow from shackled inmates falling and hurting themselves
    remind us why this practice was important to end.
        These are two areas where progress has been achieved on the
    federal and State levels. The First Step Act directed the
    Federal Bureau of Prisons to make feminine hygiene products
    available to prisoners for free. It also prohibits the use of
    restraints on pregnant women in federal prisons unless there
    are good reasons for her to be restrained, such as being a
    flight risk or a healthcare professional determines the use of
    restraints is necessary for treatment.
        There are still areas for more to be done at the federal
    level to provide dignity for women inmates. It's reasonable for
    women to have privacy from male correctional officers when they
    are undressed in showers, bathrooms, and dressing rooms or
    being searched. States are adopting such measures like
    Louisiana, which passed reforms to preclude male correctional
    officers from conducting pat-down searches.
        These are expectations that transcend partisanship and
    underscore that even behind bars, women should be treated with
    dignity.

                    Removing Barriers to Opportunity

        We are living through an impressive time for women in the
    labor force. The tight job market today is also encouraging
    employers to hire individuals that they would not have
    considered before such as those with a criminal record. Some
    private employers are proactively removing questions about
    criminal pasts from employment applications.
        Yet, too many women are locked out of the economic
    recovery, the labor force, and the prospect of economic
    mobility because of their criminal background. From sentencing
    to second chances, women who desire to make amends, better
    themselves, and become productive citizens face government-
    imposed barriers to achieving opportunity.
        Once a woman leaves incarceration, she needs to work.
    Former inmates who find steady employment are less likely to
    return to crime. However, women with low educational levels and
    who lack a steady employment history and vocational skills face
    difficulty finding employment.
        The government can help women gain the skills, education,
    and training that they need to secure work opportunities
    beginning while serving their time.
        Vocational training and career technical education programs
    teach inmates employment skills or job-specific skills with the
    goal of reducing the risk of recidivating.
        The First Step Act encouraged rehabilitation programs and
    offers significant incentives to inmates who participate in
    recidivism reduction programs.
        Congress and states should explore and assess the
    effectiveness of such programs to scale what works and learn
    what doesn't work.

                         Occupational Licensure

        Occupational licenses are another barrier of entry for
    those with a criminal record. Occupational licenses are
    government ``permission slips'' to work in a vocation. Workers
    have to satisfy state-level requirements of education and
    training at their own expense.
        Occupational licensure has expanded significantly over the
    last five decades increasing from just 5 percent of the
    workforce in 1950 to 20 percent in 2000.
        There are hundreds of occupations that require licensure
    and many of them are vocations that women work in: Manicurists,
    cosmetologists, makeup artists, preschool teachers, shampooers,
    interior designers, florists, hair braiders, and tax preparers.
    These can be low- and middle-income vocations where individuals
    can work for employers or be entrepreneurs.
        Occupational licensure creates barriers to work because
    they often require higher levels of educational attainment and
    skills that can be costly and take a long time to secure. The
    qualifications may be unnecessary or unrelated to the actual
    vocation. Many occupational licenses are not portable across
    State lines. Most concerning, many states have ``good
    character'' standards that prohibit ex-offenders from ever
    obtaining a license.
        A study by an Arizona State University researcher found
    that states with the heaviest occupational licensing burdens
    saw an average increase of over 9 percent in new-crime
    recidivism rates over a three-year period. Conversely, states
    with the lowest burdens and no character provisions saw an
    average decline of nearly 2.5 percent in the recidivism rate.
        Reforming occupational licenses are an important key to
    reducing recidivism. This is a bipartisan area of concern; the
    Obama Administration released a report calling for occupational
    licensing reforms. It's encouraging to see states eliminate
    licensing requirements or good character provisions.
        Preparing women for life after prison will help them settle
    into a productive lifestyle and prevent them from returning to
    the behaviors that led to their crimes.
        The criminal justice system is an area where we believe
    that smart reforms can help women who are breadwinners for
    households where someone is serving time or who have themselves
    been in the justice system and want to be productive Members of
    society.
        It's exciting to see criminal justice reforms at the State
    and federal level deliver transformational impact for women and
    by extension their families and communities.
        Thank you for the opportunity to be here this morning to
    discuss these issues of importance to women in society. I
    welcome any questions you may have.

        Ms. Bass. Thank you. I want to thank all the witnesses for
    your testimony today. We will now proceed under the 5-minute
    Rule with questions. I will begin by recognizing myself for 5
    minutes.
        Ms. Shank, I did not understand why you were indicted. You
    said that you were indicted, it sounded like years after your
    partner, who abused you, passed away. You were originally--
    could you please go through the sequence again and explain why
    you were indicted?
        Ms. Shank. Absolutely. It tends to be a little confusing
    sometimes. The person that I was dating was murdered, like I
    had mentioned, in 2002. I was initially charged with conspiracy
    in 2002. I received a letter from my attorney 3 months after
    the initial charge stated that my case had been dismissed.
        Ms. Bass. Your conspiracy was?
        Ms. Shank. Drug-related conspiracy for a drug crime.
        Ms. Bass. So, you conspired to sell the drugs, even though
    you were locked in the house against your will?
        Ms. Shank. I lived in the home. So, I like I said, I moved
    on with my life. I had married and had children. Then in 2007,
    they knocked on my door with an indictment and charged me with
    conspiracy. Not only did I get charged with conspiracy, but I
    also received four felonies. I was charged with the possession
    with intention to distribute cocaine, crack and marijuana,
    along with the conspiracy charges, and a two-point gun
    enhancement, based that I lived in the home.
        Ms. Bass. So, you were indicted 5 years after the drug
    dealer died?
        Ms. Shank. Yes.
        Ms. Bass. Years after you were originally arrested?
        Ms. Shank. Yes.
        Ms. Bass. That is crazy. After you were released, I wanted
    to know what happened with your children. Who took care of your
    children while you were incarcerated?
        Ms. Shank. Their father.
        Ms. Bass. Their father took care of the children. After you
    got out, did you get custody of your children?
        Ms. Shank. Absolutely. Three weeks after I got out, I went
    down with their dad and I have joint custody of my daughters
    now. He is a wonderful man, and father, a wonderful father. He
    is never kept the children from me. He was very helpful in
    keeping my relationship with them.
        Ms. Bass. How much time did you serve?
        Ms. Shank. Nine years.
        Ms. Bass. So, how old are your children?
        Ms. Shank. Autumn is 15, Ava is 13, and Annalise is 11.
        Ms. Bass. So, from what years to when, when you went in,
    they were how old?
        Ms. Shank. 4, 2, and 6 weeks old.
        Ms. Bass. When you were released, they were how old?
        Ms. Shank. 13, 11, and 9.
        Ms. Bass. Were you able to stay in touch with them? Didn't
    you say for a while you were close to them, but then you were
    transferred away?
        Ms. Shank. Yes. Initially, I was in Pekin, Illinois, and I
    was able to see them in my first 3 years for about every 6
    weeks. I was able to maintain some type of connection with them
    being so small. But, the prison had closed for women, and I was
    transferred with 40 other women to Coleman, Florida.
        Ms. Bass. Did anybody take into consideration the fact that
    you would not be able to be in touch with your family if you
    moved?
        Ms. Shank. There was no consideration for anybody. There
    was 240 women that were scattered all across the country. Pekin
    was the closest prison for all the women there. So, women ended
    up in California, Texas, Florida.
        Ms. Bass. I am sorry to interrupt you. I was concerned
    about my time. The one thing that is said about women that are
    incarcerated different than men is that women don't receive
    visits. Women visit men in prison, men don't visit women in
    prison. I wanted to know from Ms. Shank and Ms. Kerman, was
    that your experience? Is that what you saw when you were in
    prison or is that not accurate?
        Ms. Shank. Absolutely. Women would get visits, and they
    would be very sparse as far as people visiting their families.
    I mean, you get a lot of grandmothers bringing kids,
    caregivers.
        Ms. Bass. How many and how often did you see women whose
    children were in foster care while they were--
        Ms. Shank. Often. I mean, I would talk to a lot of women, I
    was there for 9 years, so I spoke with many women over the
    years that would lose their children, custody of their
    children.
        Ms. Bass. Parental rights would be terminated if they were
    incarcerated too long?
        Ms. Shank. Yes, absolutely.
        Ms. Bass. Ms. Kerman, what was your experience in seeing,
    did you see women receive visits? Did you know women who lost
    their children? Did you know women who were in foster care?
        Ms. Kerman. Thank you, Chair Bass. I feel that the
    relationship between mothers and children is the single most
    important factor of incarceration of women. I was not a mother
    when I was incarcerated. I am now. I think about that all the
    time. I thought about it all the time when I was locked up. I
    was very, very lucky, I was serving time in Connecticut and a
    resident of New York City, so for many people it was easy to
    visit me. Since then, the facility in Danbury has been
    repurposed, and a huge percentage of women who were
    incarcerated there have also been transferred far away from
    their families.
        What would happen is that you would see women my bunkmate
    never received a visit the entire time we bunked together. She
    had two children. Then, there were certain families that were
    fortunate enough to be able to be up in the visiting room with
    some frequency.
        Ms. Bass. I am going to run out of time. I just wondered if
    anybody can comment on women that they saw who became pregnant
    while they were incarcerated?
        Ms. Shank. There was a woman in Florida who became pregnant
    by an officer while I was incarcerated. That is something that
    doesn't get talked enough about, the safety of women with
    officers who are there.
        Ms. Bass. Thank you. Mr. Ratcliffe.
        Mr. Ratcliffe. I thank the chair.
        Ms. Onwuka, you highlighted in your testimony the
    importance of dignity for women in prison. I agree with you:
    This certainly should not be a partisan issue. We should all be
    able to address in the spirit of bipartisanship, I think we
    can, the needs of women, girls in the criminal justice system.
        Some of those issues, as you pointed out, were addressed in
    the First Step Act, which President Trump signed into law late
    last year, but you mentioned, also, that there are still areas
    for more to be done at the Federal level to provide dignity for
    women inmates. So, can you elaborate on those additional areas
    it for improvement? Specifically, I am interested if you know
    any States that have taken action in those specific areas? Then
    if time is permitting, I would like to get the perspective of
    Ms. Shank and Ms. Kerman, given your experiences.
        Ms. Onwuka. Thank you. So actually, the comments of Ms.
    Cynthia Shank just now touch on one of those, the male prison
    guards area. I mentioned I think it is reasonable for women to
    have some expectation of privacy, particularly when they are
    changing, they are undressing, they are showering. We know that
    female prisoners are vulnerable, and a lot of them have
    unfortunately experienced sexual violence in the past.
        So, when you have a situation where, perhaps, a male
    correctional officer enters into a female cell, and she is
    changing, she may protest, and say, Can I have some privacy? A
    verbal altercation could ensue. This could be triggering for
    that woman behind bars, and it could lead to a place that she
    doesn't want to go, and you don't want to have her being.
        So, I think the American--there are a couple of
    conservative organizations and progressive organizations that
    have come together to talk about why during incarceration, it
    is reasonable that male guards shouldn't be present when a
    woman is strip-searched. They shouldn't be supervising women
    who are in showers and other sensitive areas. Even the idea of
    forced and inappropriate inspections, these things are
    counterproductive to rehabilitating a woman behind bars.
        So, I think there is an area there for understanding what
    is it? What happens when male guards are present? What are
    potential guidelines or guardrails that should be put in place
    between men and women in sensitive areas? We understand there
    are other places where it makes sense to have that happen.
        Another area that I think is concerning for pregnant women,
    we did talk about the shackling of women being ended, but I
    think the continued care for women who had a baby afterwards is
    really important.
        Some researchers found that correctional facilities tend to
    fail to provide physician-recommended standards of care for
    pregnant women, and that places women's health and the health
    of the child at risk, even after a woman has had a baby. I know
    very many women, who have had children, understand that there
    is an emotional toll that is taken. So, when you are denied
    medical care, or you don't have adequate medical care, even
    mental healthcare that may be needed postpartum. I think those
    are areas where you both need some guidance from obstetricians
    and gynecological experts on what kind of care is actually
    needed, and how Federal prisons can provide that care.
        Then in terms of States, I would have to do a deeper dive,
    I do know States like Louisiana, a lot of red conservative
    States have actually been implementing some of these at the
    State level. Texas is another great place that has implemented
    some changes in terms of Federal prisons, and so happy to
    provide some additional research at another time.
        Mr. Ratcliffe. Thank you.
        Ms. Shank and Ms. Kerman, do you want to add to that? Any
    perspective that you want to provide on those issues of dignity
    for women, areas that we could focus on here?
        Ms. Shank. Absolutely. The guard-to-female situation is
    something I don't speak about often, primarily because my
    children are usually in the room when I go and speak, but it is
    very prevalent, the guard and inmate relationships that happen
    in prisons. I never felt safe changing; guards know your
    routines and if they want to single you out, they will. It is
    very common for an officer to single somebody out.
        Ms. Bass. Would the witness yield for a minute? When you
    say guard-to-prisoner relationships, are these consensual, or
    are you describing rape?
        Ms. Shank. Well, when you put into perspective somebody who
    is over you who is in charge of you, they are consensual to the
    extent where you ask the inmates are there, but they are also
    vulnerable. These are their caregivers, these are people that
    are over them, they are authority over them, so while they are
    consensual relationships that I am aware of, to me, there is a
    level of not being consensual.
        Ms. Bass. Power.
        Ms. Shank. Power, absolutely. They wield that power. I
    never had a relationship with an officer, but I can tell you
    that officers would know when I would shower, and they would
    walk by my room, they would enter my room when I was getting
    dressed frequently. It happened at every prison that I was at.
    I was at three different places, and this is just my story. I
    mean, you can talk to any one of those women, and they will all
    tell you it was very common to know that this officer was in a
    relationship with that inmate, or it was just something that
    happened all the time.
        Ms. Bass. Thank you.
        Mr. Ratcliffe. Thank you.
        Ms. Bass. Mr. Nadler.
        Mr. Nadler. Ms. Kerman, your time in custody, you observed
    other women who were pregnant, I assume. You observed women who
    were pregnant gave birth while incarcerated? Can you describe
    what you observed?
        Ms. Kerman. Thank you, Mr. Nadler. I will never forget the
    first day in prison for a variety of reasons, but one of the
    things that I remember so clearly after being processed in by
    correctional officers and transformed into 11187424, it was
    February, I was being escorted up to the unit where I would
    live, to the building that would house me, and there were a
    group of women standing outside the building. There was a woman
    who was very visibly pregnant. I learned that she was 8 months
    pregnant, and I remember just being so confused when I saw her.
    I was literally, like, this must be a mistake. It had never
    occurred to me that there would be pregnant women in prison.
        I am still deeply confused by that. I am deeply troubled by
    the fact that so many women enter prison, and, of course, they
    have gone through an entire judicial process prior to
    incarceration, and that our choice as a society is to force
    them to go through their pregnancy and childbirth while under
    custody in a setting, as Ms. Onwuka has pointed out, that is
    not appropriate for pregnant
    people.
        That particular young woman that I saw went into labor
    shortly thereafter, just a few weeks later, she went into
    labor. She was the first person I had ever seen in labor. She
    labored for about 12 hours there in the prison, occasionally
    checked on by staff, but largely assisted by the other women.
        Mr. Nadler. In a hospital unit?
        Ms. Kerman. Finally, after about 12 hours, they took her
    out to the local hospital, which is where she gave birth. She
    was then immediately returned to the prison postpartum in
    recovery from having given birth, but also incredibly drawn,
    sad and devastated, because she had been separated from her
    infant, and all the biology that we know tells us that babies
    and mothers need to be together for months, for years really.
        Certainly, that young lady who was serving an 18-month
    sentence for a low-level drug offense, could have stayed in the
    community to give birth. She was from rural Maine, and it was
    very lucky that her family was able to take the baby, and it
    was very lucky that they were occasionally able to make the 8-
    hour drive down for her to see the baby.
        It was also very lucky that she was going home soon,
    because not everyone is that fortunate. The most important
    thing from my point of view that we think about pregnancy is
    reproductive rights, freedom, and motherhood when we think
    about women in the criminal justice system.
        Mr. Nadler. Let me ask that the video can clip from the
    Orange is the New Black which displays this heart-wrenching
    moment.
        Ms. Kerman. Let me quickly explain that this depicts the
    return of a prisoner immediately after giving birth.
        [Video shown.]
        Mr. Nadler. How long after giving birth was she returned to
    the prison?
        Ms. Kerman. The next day. She had a regular and
    uncomplicated birth. So, as soon as she could be medically
    discharged from the hospital, she was brought to prison.
        Mr. Nadler. Let me ask in the few seconds I have left, Ms.
    Shank. I believe the mandatory minimum sentencing laws are
    unjust for individuals and harmful to our communities and
    society. Can you tell us something about sentencing reform, any
    particular reforms you think would address issues specific to
    women?
        Ms. Shank. That is a good question. Alternatives to
    sentencing? Is that what you are asking?
        Mr. Nadler. Well, alternatives to mandatory sentencing.
    Whatever you--
        Ms. Shank. I mean, I think we need to give the discretion
    back to the judges, they need to be able to do their job. I
    think if they are allowed, if we take away mandatory minimum
    sentencing and allow them to sentence people on an individual
    basis, I think that would be more productive. I think we
    wouldn't have such an overload of people in prison, just kind
    of cut and dry, saying Okay, this is a category that you fall
    in, you go this way, you go right. I think it needs to be
    individual. I think you need to base--everybody's story is
    different; everybody's circumstances are different. I think the
    judge needs to be allowed to make that decision.
        Mr. Nadler. Thank you very much, my time has expired.
        Ms. Bass. Mr. Chabot.
        Mr. Chabot. Thank you very much, Madam Chair. Ms. Onwuka,
    if I could, you had mentioned in your testimony programs
    connected to the faith community, could you kind of expound
    upon that what have been your interactions, or your experience
    relative to faith-based programs in prisons, women's prisons,
    or men's for that matter?
        Ms. Onwuka. Sure. Thank you so much. I think the critical
    aspect of rehabilitation for many people behind bars has been
    faith, and the ability for those people to be connected to
    justice and restoration on a personal sense of their faith and
    their guiding beliefs. Part of that as you have seen some
    pretty successful programs that are faith-based that have
    actually been very helpful in achieving that.
        So, prison programs that I have seen very effective, the
    first one that comes to mind is PEP. In general, you have seen
    prisoners who participate in job training and educational
    programs; they are less likely to recidivate, and they are more
    likely to avoid reincarceration afterwards. The PEP program,
    which is the Prison Entrepreneurship Program, I believe it is
    Texas-based, has been a tremendous example of kind of faith-
    based, but also just private organization going in there and
    providing prisoners with the skills that they need,
    particularly around entrepreneurship.
        I like entrepreneurship because it is one of those areas
    where individuals who have a criminal record, for example, can
    actually start their own shop, hang their own shingle. I
    mentioned the statistic that 1,821 women, the new businesses
    were started each day in 2007 to 2018 because people were able
    to start those businesses that they want to do. So, PEP is a
    really great example of a program that works in the State
    level, and can be scaled nationally.
        Ms. Onwuka. When it comes to other faith-based programs
    that reduce recidivism, I think there are some other programs
    out there. Prison Fellowship is another great one, national
    Christian nonprofit serving prisoners. It was launched in,
    again, Texas. It is one of those places that has been a great
    launching pad for some of these programs.
        I will give you some statistics from their success.
    According to a study by the Texas Policy Council, only 8
    percent of the participants returned to prison within 2 years
    who completed the program that they provided compared to 20
    percent of offenders who were eligible for the program but
    elected not to participate.
        So, I think those are two examples of good programs,
    entrepreneurship related that could be helpful.
        Mr. Chabot. Thank you very much.
        The next question I will ask any of the panel Members who
    might like to comment until I run out of time. Most prisoners,
    men or women, are going to get out some day, and even those
    that have some form of homicide often times are going to get
    out. Those that have job skills at the Federal level we have
    prison industries. I used to work with, in the city of
    Cincinnati when I was on city council and as a county
    commissioner, programs that encourage people to work, and we
    had two-for-one programs. For every day you were out doing
    something on a work crew, you got 2 days off your sentence, for
    example.
        Relative to trying to get a skill that when the person gets
    out, that they could put actually into use, also making your
    time in prison perhaps pass more quickly, if that is possible,
    do you have any examples or programs that you think may have
    worked where you were at or an example where it doesn't work?
    Ms. Shank?
        Ms. Shank. One of the things that is very rarely offered in
    the Federal system, in the prisons that I was at, were any kind
    of programs whatsoever. There is the lack of program that we
    should be talking about. Each place that I was at, there was
    one program that would have been like a computer program. I was
    able to do that. That was the only program that I was able to
    do.
        I did in Coleman, Florida, get my CDL. Have I driven a big
    rig since? No. It is something oriented towards men. There is a
    lack of programs. Also, any kind of programming that you do,
    there is a list you have to get on to get into this class.
        Now, for me having a 15-year sentence, every class that I
    applied for, anybody who comes in after me and has a shorter
    sentence will be ahead of me on the list. So, guess how many
    programs I was able to do? Hardly any, because I would be moved
    back down the list because somebody with 2 years and is about
    to get out, would be able to do it. Whether it was a reentry
    programs, whether it is any other kind of programs, there is
    not enough programming in the system.
        Mr. Chabot. Thank you very much.
        Ms. Kerman. Cindy is correct. The Federal Bureau of Prisons
    is particularly egregious in terms of very limited
    rehabilitative programming or restorative programming. She
    draws a good comparison or a good point that many of the
    programs, the limited programs that are available, are
    completely designed for men.
        Ms. Onwuka points out a wonderful program, the PEP program
    in Texas. Unfortunately, that is only available to men. Women
    are not able to participate in Texas.
        There is an amazing program called Inmates to
    Entrepreneurs, which is based out of North Carolina but
    operates in other places, which does work with women, both
    incarcerated women and women who have returned to the
    community.
        Mr. Chabot should know that in our State of Ohio at the
    Ohio Reformatory for Women, which is a State facility, there is
    a tremendous program called Tapestry, which has been operating
    for 25 years, which is a recovery program for women with
    substance use disorder, but it does have a faith-based
    component.
        Ms. Bass. Thank you.
        Ms. Kerman. It is remarkably successful and operates a
    network of graduates, 800 women who have returned to the
    community. Of course, to this point is available to only a tiny
    percentage of women.
        Ms. Bass. Thank you. We are going to need to move on.
        Ms. Bass. Ms. Jackson Lee.
        Ms. Jackson Lee. Thank you so very much for holding this
    hearing and to you and the Ranking Member.
        It is clear that as we look at this set of facts, emotion,
    passion, that there is much work to do to build on what we have
    done in this committee, prison reform first steps, sentencing
    reduction, much work to do as it relates to women. This
    testimony has given us sort of the launching pad to be able to
    do so.
        We hope to introduce soon the End Racial Profiling, which
    certainly overlaps some of the reasons why women of color are
    in. I know that the idea of conspiracy on drugs is something
    that occurs with the man and the woman that is in on the
    conspiracy charge. We see that all the time. We must address
    that, and I look forward to looking specifically at those
    issues.
        Let me quickly say that one of my constituents, Dr. Roe,
    was not incarcerated but wearing a jumper coming from Jamaica,
    West Indies, an African American woman, was forced to put a
    blanket on to get on an airplane from the Caribbean, which is
    where people come for fun and play. So, we know that it
    permeates through LGBTQ and others, and so we look forward to
    doing that legislation.
        I want to focus, if I could, Ms. McCurdy, on this question.
    African American women are twice the rate of imprisonment for
    White women, Hispanic 1.4 times. My time is short. Can you just
    give a quick reason why you believe--and I want to ask some
    other questions to Ms. Shank and others--as quick reasons why
    you see that happening?
        Ms. McCurdy. Well, I think it is--
        Ms. Jackson Lee. Thank you for your work.
        Ms. McCurdy. No problem. It is important for this
    Subcommittee to focus on the fact and I think through all our
    testimony we have talked about it, but I just want to say it
    out loud, that some of the major reasons why women are ending
    up incarcerated is because they are traumatized and they have
    experienced trauma, whether it is physical abuse, sexual abuse,
    witnessing a violence in their communities, as well as they are
    caught in a cycle of poverty.
        So, until we address those concerns and we have real gender
    responsive programming that addresses the trauma that women
    have experienced--and men, but today we are talking about
    women--we are kind of spinning our wheels at this. Studies have
    said--
        Ms. Jackson Lee. Do you think women of color are caught up
    in those elements as well as Anglo women and others?
        Ms. McCurdy. Absolutely. Absolutely.
        Ms. Jackson Lee. I need to move--I just wanted to get that
    basic understanding of the reason. Thank you so very much.
        Ms. Shank, I have legislation moving through the Congress,
    unfortunately, it is stuck in the United States Senate--that
    deals with the birth of babies while incarcerated. You have
    given me the, as I say, the launch to add the children aspect,
    but it is to allow the mother to keep the baby. In some
    instances, they are incarcerated, and to keep the baby while
    incarcerated in a separate area and to nurture that child for 6
    months.
        Now, there are also options in the community for low
    offenses. We want to look at that. I want you to comment, if
    you will, on how powerful it would be if that scene where the
    woman would be coming back with her baby to a certain safe
    place, clean, orderly, baby nursery type, where those mothers
    could stay while they were incarcerated.
        Ms. Shank. I could barely watch that scene because it is
    very real. I had to turn away because it made me cry. It means
    everything if a mother could stay with her child. I don't know
    that to coming back to a nursery type situation without your
    child is going to do any good.
        Ms. Jackson Lee. Right. That is what I am saying. So, you
    come with the baby?
        Ms. Shank. You have to come with the baby.
        Ms. Jackson Lee. Right. Absolutely.
        Ms. Shank. You have to be able to be with the baby.
        Ms. Jackson Lee. That is what I was saying.
        Ms. Shank. It has to be able to--sorry. That must be able
    to happen. That is necessary, not only for the mother's sanity
    and well-being, but for the child as well. We have to remember
    that I am an adult, and I accepted the consequences of my
    sentencing, but my children were the innocent victims in this,
    and that is who we have to focus on. There is nothing available
    for children, even when I put my daughters in play therapy,
    they had to go to grief counseling. That was the therapy that
    they went to.
        Ms. Jackson Lee. So, may I add that we are now, with your
    testimony, believe that we should now look at that piece--
        Ms. Shank. Absolutely.
        Ms. Jackson Lee. --that helps mothers be together with
    their children, frequent visits--we are thinking of how we
    actually can do that, and you put a face on it.
        Ms. Shank. Frequent visits and also the type of visit. If
    you could allow more of a play-type situation instead of having
    your children having to sit in a chair and not be able to get
    up or something other than playing in a cement slab with no
    toys, really very limited things that you are playing with.
        I created costumes with my children out of toilet paper
    when they came to visit me for Halloween. A mother will do
    anything that they can to make their child happy, but if there
    is not even anything there for them to be able to do that, I
    mean, our resources are very limited. You just must be able to
    offer them something to be able to bring that child some form
    of happiness and some form of connection with that child.
        Thank you.
        Ms. Jackson Lee. That should be a part of our reformation
    for women.
        Ms. Shank. It should be part of the visits. Yeah. It should
    be part of rehabilitation, strengthening those family bonds. It
    is what keeps them together.
        Ms. Jackson Lee. Thank you so very much.
        Ms. Bass. Mrs. Lesko.
        Mrs. Lesko. Well, I want to thank you, Madam Chair. This
    has been a very interesting committee, so thank you for doing a
    hearing.
        I want to say to Ms. Shank, thank you for sharing your
    story. I am glad that you, after 9 years got clemency and you
    are getting your life back together.
        All of you, thank you for sharing your stories.
        I do have a question, and I am not sure who to ask of it,
    but in Arizona, I am from Arizona, we worked on sentencing
    reform. I think this is a bipartisan issue, quite frankly, both
    conservative groups and nonconservative groups, or I don't know
    if you call it liberal or whatever, agree on this issue that
    there is a problem.
        When we tried to do this in Arizona, the prosecutors pushed
    back saying, no, this is not first-time drug offenders that are
    in the Arizona prisons at least. The prisons actually showed us
    the statistics of who was in the prisons, and you had to be
    basically a drug dealer, not just a drug user, at least in
    Arizona, or it had to be a violent crime.
        So, I guess, Ms. McCurdy, you might be the right person to
    answer, is this the case also in Federal prison? I mean, do you
    have first-time drug offenders? Who is in the prison?
        Ms. McCurdy. So, not only do you have a number of first-
    time--particularly with women, first-time drug offenders. In
    the Federal system, you are charged with trafficking or
    possession with the intent to distribute. Again, as we have
    talked about what often women fall victim to, is the conspiracy
    laws.
        So, you don't have to necessarily have dealt drugs. You
    must have some role in a conspiracy, and that, quote/unquote,
    role is very little. As you have heard Cindy talk about, you
    could live with your partner and pick up the phone in your
    house that you live with your partner and that is enough to
    implicate you in a conspiracy. You can take money to the bank
    that your partner gave you. Again, you are not involved in the
    trade itself, but you have these peripheral roles, and that is
    enough to get you involved in the conspiracy. The problem on
    the Federal level is that the focus is not on your role; the
    focus is on the weight of the drugs.
        So, if the conspiracy is large and the weight of the drugs
    is large and you don't have information to trade with the
    prosecutor to cooperate, you cannot get your sentence reduced
    to be on the mandatory minimum. Often women, because they are
    not involved in the trade, they end up taking the entire weight
    of the drug trade, which in some instances gets them life
    without parole sentences.
        Mrs. Lesko. Very interesting.
        The other thing that was brought up by one of the witnesses
    was about childcare. If you do get out and you are on
    probation, you must go to mandatory meetings. I know in our
    State of Arizona we offer free or reduced childcare to low-
    income working women. There is usually a waiting list because
    there is a certain amount of funds.
        Is this something that I would assume would help in that
    situation? Because I imagine it would be difficult, especially
    if you are a single parent.
        Ms. Kajstura. Yeah. So that is definitely a step in the
    right direction. One of the other problems on probation is you
    are restricted to the hours you are allowed to leave the house,
    for example, if you have to do an emergency pickup of your kid
    and you can't reach your parole or probation officer in time,
    or the same thing for an emergency hospital visits. You are
    torn between your caregiving duties and knowing that you are
    going to get sent back to prison if you take your kid to the
    emergency room.
        Mrs. Lesko. Well, thank you. I only have 32 seconds left,
    and I have so many questions, so maybe I will follow up with
    all of you.
        The one thing that we did in our State too was we reformed
    our occupational licensing. I would imagine that if you have a
    criminal history, it might be difficult to get a regular job.
    So, I would assume a lot of women could be self-employed. So,
    what are your thoughts on that--I don't know how to pronounce
    your name, Ms. Onwuka? Thank you.
        Ms. Bass. Microphone.
        Ms. Onwuka. Your State is a great example of States of
    leading the charge in occupational licensing reform. For those
    who are unfamiliar, an occupational license is simply just a
    permission slip from the government for you to get into a
    vocation. That could be everything from hair braiding to being
    a florist.
        There are lots of certifications and hurdles, frankly, that
    can be costly, particularly if you are low income, you don't
    have a lot of money, you are taking care of children and the
    time it takes to get those certifications. A lot of them have
    nothing to do with any sort of health or actual trade itself.
    It is just a way to limit competition.
        So, Arizona is a great State. I think there are a lot of
    other States that are reforming, and I would absolutely
    encourage other States to look at particularly those industries
    where women are trying to get into those vocations. Those are
    entry-level jobs, and they can become a primary source of a
    very good income.
        Mrs. Lesko. Madam Chair, I know my time is up, but I just
    wanted to share with the Members that in our Arizona prisons,
    at least, we have what is called Correctional Industries, and
    there we put women to work. I have toured it.
        In fact, if you call a call center, you might be talking to
    a woman prisoner in Arizona, because they are actually
    contracted out and they are doing call center work for
    different companies. So, it is a good way for people to get
    trained, and I support that.
        I would like to work with you and other Members. I think
    there are pieces of this that we can work on in a bipartisan
    way.
        Ms. Bass. Absolutely.
        Mrs. Lesko. As long as we don't put in poison pills and
    that type of thing, I think we can work on it together.
        Ms. Bass. Thank you.
        Mrs. Lesko. Thank you.
        Ms. Bass. Thank you.
        Representative Demings.
        Mrs. Demings. Thank you so much, Madam Chair and thank you,
    Ranking Member, both of you, for your opening comments this
    morning that I think so adequately set the stage for today's
    hearing.
        Thank you to each of you. I served as a law enforcement
    officer for a lot of years, and our mission was to protect
    victims, but our purpose was never to create more victims. I
    think that it is so important that we understand the individual
    circumstances and victimization and other characteristics that
    women who are incarcerated face, like being victims of domestic
    violence, substance abuse, mental illness, being poor or low
    income. All of those are challenges that if we are going to
    improve how we do business, we have got to factor those things
    in. Eighty percent of the women who are incarcerated are
    parents.
        Ms. Shank, you are absolutely correct. I was a daddy's
    girl. I love my father, but you can't even put into words what
    it means to be with your mother and the special role that a
    woman plays, a mother plays in every household. So, thank you
    so much for being here today and helping us.
        We haven't even talked much about once you are released and
    coming back into society and the challenges of that. Ms. Shank,
    I would like to start with you. If you could just talk about
    the separation from your husband, but eventually, you were able
    to remarry and all, and that is great, but could you talk
    about, once you were released, some of the challenges that you
    faced coming back into society.
        Ms. Shank. Yeah. We did not reconcile. We are divorced, but
    we have a great relationship. We are coparenting our daughters
    and doing that together.
        When you are released, one of the challenges that I faced
    was to get a job. I was fortunate enough to get a job 29 days
    out of prison and just received my sixth promotion last week.
        Mrs. Demings. Congratulations.
        Ms. Shank. Thank you. That is determination and that is
    being a mother, having a lot of catching up to do.
        One of the things that was really hard, my halfway house
    was in Kalamazoo, which is an hour and a half drive away from
    my hometown, and they would have me come three to four times a
    week between the hours of 8:00 a.m. and 3:00 p.m., which are my
    work hours, to come in for whatever they wanted me to come in
    for, just checkups, checking in, meetings, drops, whatever
    random thing that they wanted. If I didn't, then that was a
    violation of my probation. If I lose my job, which my job just
    hired me out, and plus I am a felon which they are looking at
    me. I could have easily loose my job and that is a violation of
    my probation. They make things very difficult.
        Thankfully, I had a vehicle. I asked the person at the
    halfway house, what would I do if I didn't have a car? She
    said, well, you would just take the bus. That is like 4 hours.
        Mrs. Demings. Days.
        Ms. Shank. Yeah, but they expect you to follow all these
    rules, which I understand, but they make things very difficult.
    That was very challenging for me early on. Luckily, I am off
    that home confinement and off probation. No, I am still on
    probation. I am still on for 5 years, but I don't have to do my
    check-ins anymore.
        Mrs. Demings. Thank you very much.
        Ms. Kerman, do you have anything to add to that? Also, you
    talked about that this is about policy. Incarceration of women
    is more about policy and not crimes. Could you elaborate a
    little bit on that as well, please?
        Ms. Kerman. Sure. I woke up on the day of my release. I was
    in a Federal jail facility in Chicago, not the prison facility
    in Danbury. No one in the facility would confirm that I was, in
    fact, going to be released, but I was quite alert. I watched
    Martha Stewart get released from Federal prison the same day on
    the news.
        Finally, hours later, a correctional officer said, come on,
    pack out, Kerman. They took me down to receiving and
    disbursement and said, we don't have any women's clothes, here
    are the smallest set of men's clothes we have. Here is a
    windbreaker. It was Chicago in the winter and here is $28, this
    is a gratuity. I was like, thank you.
        They took me to an alleyway door and opened up the alleyway
    door and were like, see ya. I was very, very lucky because my
    fiance was waiting at the front door to take me home to New
    York, which was 800 miles away. If that had not been true, my
    entire life might have been, almost surely, completely
    different.
        Because I had safe and stable housing, I was able to start
    work a week after my release from prison. I can't overstate how
    important that work piece is.
        I was treated very differently by my Federal supervising
    probation office. Both of us were in the Federal system. Of
    course, I was subject to drug testing, check-ins, and so on and
    so forth, but they did not treat me with a heavy hand like they
    did Cindy.
        I think we have to look very hard at what drives disparity
    in the system. It is race, it is class. It is unacceptable, it
    is illegal.
        That brings me back to your question about policy and the
    fact that criminology experts all over the country will point
    out the fact that it is policy decisions that drive
    incarceration. Our incarceration rise in this country does not
    map to crime rates.
        We began to incarcerate people at a very high rate as crime
    rates were actually beginning to decline. Crime rates continued
    to go up and up and up even as we now enjoy historically low
    crime rates, like some of the lowest crime rates ever recorded
    since we started recording.
        Mrs. Demings. Thank you so much. My 5 or 6 minutes goes
    very, very quickly.
        Thank you so much, Madam Chair.
        Ms. Bass. You are very welcome. Representative Cline.
        Mr. Cline. Thank you, Madam Chair.
        I want to thank the witnesses for being here today.
        I want to talk a little bit about the need for bail reform.
    Despite overall decreases in incarceration, pretrial detention
    since 2000 has increased by 31 percent to make up about two-
    thirds of the overall jail population. Over 60 percent of women
    who are incarcerated have not been convicted of a crime and are
    held in custody pretrial. This has a unique impact because two-
    thirds of the women who could not meet bail conditions, two-
    thirds were mothers of minor children.
        So, at the time of the survey that I am quoting, over
    150,000 children had a parent in jail because they could not
    afford their bail bond. That means children are impacted by
    pretrial detention in startling numbers, and this problem is
    most often caused by the pretrial incarceration of sole
    provider mothers. So, we need to take steps to address this
    problem.
        As a former prosecutor, when you are presented with a
    potential bond situation in court, you have certain factors, at
    least in Virginia, to consider: Whether the the defendant is a
    flight risk, whether they are a risk to the community if
    released, or whether the severity of the offense with which
    they have been charged is also something to consider.
        There are also the issues of a secured bond versus an
    unsecured bond. We in Virginia have pretrial services, which
    can be administered, not in lieu of bond, but often they are a
    great way to help in the process to avoid having to keep
    someone incarcerated.
        So, let me ask anyone who would like to comment on that,
    what steps can we take to help address this problem?
        Ms. Kajstura. Well, I think part of the reason--so some of
    these problems are very systemic. Some of the impact that fees
    and bail bonds and the economic sanctions of the criminal
    justice system have on women are greater than men just because
    women don't tend to make as much money as men. This hits Black
    and Hispanic women even more so than White women.
        Mr. Cline. Okay. So, in addition--getting rid of a money-
    based bond, I get that. Let's go a little deeper. Secured
    versus unsecured, pretrial versus bond, can you speak to those
    specifics as to whether one might be more advantageous than
    another when it comes to reducing the impact on children in
    this situation?
        Ms. Kajstura. Yeah. I am not sure about the way those
    distinctions would make a difference. Maybe somebody else could
    speak to it.
        Mr. Cline. Okay. Anybody else? Ms. McCurdy?
        Ms. Kerman. I received bail and was able to pay my bail
    with the help of my family, and that literally made all the
    difference in my life. We know the data shows that people who
    are able to afford bail get better outcomes in their cases, for
    a variety of reasons, but including the fact that they are not
    desperate to plead guilty and take pleas that they should not
    take, which, of course, 95 percent of all criminal defendants
    take a plea.
        I can observe that from my time in that Federal jail, that
    women there who were on pretrial status were desperate. They
    were desperate about what was going on with their families.
    They were desperately uncertain about what was going to happen
    to their own lives. They had no idea--there is a woman who had
    been incarcerated there for 2 years pretrial.
        Mr. Cline. What about encouragement of stay-home
    monitoring? I mean, is that something that could enable maybe--
        Ms. Kerman. So, during my 6 years spent on pretrial, I
    simply reported to probation in New York City. My case was
    caught in Chicago, but I was supervised in New York City where
    I lived.
        Mr. Cline. You were 6 years on pretrial?
        Ms. Kerman. I spent 9 years under correctional control
    total, though I was fortunate to only spend 1 of it
    incarcerated.
        Mr. Cline. Wow.
        Ms. Kerman. So, 6 years of pretrial. I went through several
    probation officers that were supervising, but it was a pretty
    straightforward process. I turned up once a month. I was tested
    for drugs. All the same things that we require of probation,
    basically.
        I was not a mother, so I think that a mother is even less
    of a flight risk or we have a greater consideration as a
    society to make sure that a mother is able to be in the
    community. Certainly, the Federal system is set up to do
    something other than rely on bail or pretrial incarceration in
    the outcome of its sentences.
        I must reflect on the fact that, you are a former
    prosecutor, the responsibility of this really lies squarely
    within the prosecutorial function and its relationship with the
    supervision.
        Mr. Cline. With a recommendation. Right.
        Ms. Kerman. Women are a great example of the best possible
    candidates for pretrial treatment that does not involve
    incarceration.
        Mr. Cline. All right. Thank you. I yield back.
        Ms. Bass. Thank you. Representative McBath.
        Mrs. McBath. Thank you, Madam Chair.
        Thank you to each of you for being here today to share your
    expertise and your personal experience. It is critical that we
    hear from you.
        In recent years, I represent Georgia's 6th Congressional
    District, Georgia took on the challenge of criminal justice
    reform. Under the leadership of Governor Nathan Deal, a
    Republican, Georgia has enacted bipartisan reforms that are
    reducing recidivism--easy for me to say--recidivism and saving
    Georgia taxpayers billions of dollars.
        Unfortunately, these reforms may not be doing enough to
    affect the outcomes for women. Women are now the fastest
    growing population in Georgia's justice system, sadly to say. I
    know that we have to do more to make sure that women are more
    than an afterthought as we work to improve our criminal justice
    system.
        Ms. McCurdy, specialized courts like drug courts and mental
    health courts have been a major pillar of Georgia's criminal
    justice reform efforts, and they have also helped to reduce the
    incarceration of nonviolent individuals. How can we work to
    ensure that specialized courts are serving the needs of women?
        Ms. McCurdy. So specialized courts are definitely one
    answer to some of the problems in the system. The thing that I
    want to caution us about specialized courts is that often
    people are required to plead guilty before they get access to a
    specialized, a drug court, or a mental health court.
        Particularly with drug courts, when you are dealing with
    people who have substance abuse problems and because of their
    problems can fall off the wagon and ultimately have already
    pled guilty. We have to really be careful about the way we use
    our drug courts so that we are not funneling people in the
    system or basically being able to create a system where they
    will ultimately fail because they can't adhere to the
    conditions of drug court.
        So, my recommendation is particularly for drug courts, that
    we not require people to plead guilty at the time they enter
    and that they are able to at least try to get through the
    diversion aspect of the drug court before ultimately a plea or
    a decision about their actual charge is resolved.
        Mrs. McBath. Would you actually say that the percentages of
    women that are actually having to plead guilty has gone up
    within recent years?
        Ms. McCurdy. Yes.
        Mrs. McBath. Thank you for that.
        Ms. Kajstura, please forgive me if I mispronounce your
    name, do you have anything to add to that? I would love to hear
    from you.
        Ms. Kajstura. No, nothing to add. I would like to underline
    that the guilty plea aspect of diversion courts is the effects
    that cannot be understated. Any mistake then leads somebody
    back into the kind of mainstream courts with a guilty plea,
    whether or not they were, in fact, guilty. Because often, like
    any plea bargains, if you are facing a very high sentence
    possibility, you are coerced into pleading just to get out of
    jail, just to get out of prison.
        Mrs. McBath. Thank you.
        Another component of criminal justice reform in Georgia is
    the rehabilitative programs, including drug and mental health
    treatment and programs that improve people's employment
    prospects upon their release. Again, these investments in
    people save money by keeping people from committing crimes
    again.
        Ms. McCurdy, what obstacles do women face in assessing
    these programs? I am sure there are lots of obstacles they are
    having to overcome.
        Ms. McCurdy. Well, I think, particularly in the Federal
    system, one of the obstacles to even participating in the
    programs in the Bureau of Prisons is there is not enough
    programming, as I think Cindy has said.
        Even when there is programming, staff and women in prison
    don't even know about it. Particularly, for example, there is a
    trauma program called FIT in the Federal prison system. Only
    one facility actually, according to our Office of Inspector
    General report, even offers the program. Again, this is around
    trauma-responsive programming, and not many people knew about
    it.
        There is another program, MINT, and that is a program that
    is supposed to help mothers stay with their children while they
    are incarcerated. Only 37 percent of the people in the Federal
    prison participated in it, and many did not know about it and
    weren't told about it from the Bureau of Prisons. There were
    plenty of slots that were available for women to participate in
    it. We must get the information out.
        Mrs. McBath. Thank you so much.
        Ms. Bass. Thank you.
        Representative Steube.
        Mr. Steube. Thank you, Madam Chair.
        I hail from Florida where I spent some time in the State
    legislature, and we did, especially on the senate side,
    attempted to do an incredible amount of criminal justice reform
    before I left, and they were still working on it while I have
    been up here.
        One of the things that we never focused on was the female
    side of prison reform and criminal justice reform. All the
    focus was kind of what you guys are talking about, was just, in
    general, mostly on the male side of the equation. So, I
    appreciate all of you being here today and kind of bringing
    this issue to the forefront.
        I just would love to get your recommendations. Ms. Shank,
    in your testimony, you talked about women in prison with you
    and wanting them to have a second chance. Help me understand
    what that would look like. After a certain amount of time of
    good behavior, do we then bring them up for like a probation-
    type hearing? Like what, in your mind, is that second chance
    that we on the Federal side could look at doing in
    circumstances like that?
        Ms. Shank. Well, like right now with the First Step Act,
    their initiative with the programming. That to me is very
    important of allowing women to, first, let's get some programs
    in there. Let's allow them to get the help that they need.
    Let's allow them to get education. Then, putting in the
    incentives to give them help with time off or maybe just there
    is no parole or anything like that in the Federal system. You
    do 87 percent of your time.
        Relief. They just need relief of anything that we could do
    to help shorten their sentences, whether it would be
    programming or whether it would be a bill that we pass that
    recalculates the weight and the calculation and what that means
    to sentencing. We just need to allow the women a chance to
    breathe, to give them that second chance.
        There are women that I was incarcerated with who were
    serving 20-30-year sentences. For me, the prosecutor asked for
    89 years. I received my mandatory minimum sentence. So, let's
    get rid of these mandatory minimum sentences. That, to me, is
    very important.
        Mr. Steube. That was some of the things that we worked on
    the floor was getting rid of some of the mandatory minimums
    that went in. So, you are talking about rehabilitation,
    employment-type programs in the prisons.
        Ms. Kerman, you had talked about the Justice Home program
    in New York. Is that something that you would like to see at
    the Federal level, some type of similar program at the Federal
    level? Is that lacking? Do we not have something like that at
    the Federal level?
        Ms. Kerman. There is nothing remotely like it available in
    the Federal system. So, again, that gives discretion to judges
    and prosecutors. They evaluate the case in front of them, their
    felony cases, and they may elect to allow the woman to stay in
    the community, again, go through accountability measures but
    also get some wraparound help.
        Every woman is different. Some women need job education.
    Some women need mental health or access to mental healthcare,
    substance use disorder. Every case is different, but the
    results are fantastic. It saves the taxpayers money, and it
    saves those families the trauma of being torn apart by
    incarceration.
        I have to return to that question of trauma, because we
    know that it actually lies at the heart of most women's
    involvement in the criminal justice system. Eighty to ninety
    percent of women in the system have been the victims of sexual
    assault, other physical assault, or really significant trauma
    prior to their incarceration. The overlapping incidences of
    substance use disorder and mental health problems are directly
    related.
        If people in the community get the trauma response that is
    necessary in a timely fashion, we would see--and this is true
    of men as well, but it is disproportionately true for women--
    something very, very different in the criminal justice system.
    That experience of trauma, as Cindy's history of being a victim
    of domestic abuse, should have been considered at sentencing.
        Mr. Steube. Well, and you have previously testified before
    the Senate Judiciary Committee. Is that correct?
        Ms. Kerman. That is correct, sir.
        Mr. Steube. In the Senate Committee on Homeland Security on
    issues of prison reform?
        Ms. Kerman. That is correct.
        Mr. Steube. That was in 2014 and 2015?
        Ms. Kerman. Yes.
        Mr. Steube. So, since that time, what progress, if any, has
    been made in prison reform at the Federal level?
        Ms. Kerman. I think that we have seen lots of innovations
    at the State level. We have seen very little progress in the
    Federal Government, other than the passage of the Federal
    legislations recently.
        I must make the point that both the Federal Bureau of
    Prisons and all correctional systems operate with limited
    oversight in many cases and limited accountability when
    problems are found within correctional systems or individual
    prisons.
        Ms. Bass. Thank you.
        Ms. Kerman. No prison has ever been closed because it was
    badly run.
        Ms. Bass. Thank you.
        Mr. Steube. Thank you. My time has expired.
        Ms. Bass. Representative Deutch. I am sorry.
        Mr. Steube. Thank you. Oh, no, you are fine. I just wanted
    to say that I would be happy to work on these issues moving
    forward with the committee. We did a lot of this in Florida,
    and I certainly think that their testimony is very impactful on
    the issues. So, thank you.
        Ms. Bass. Thank you.
        Representative Deutch.
        Mr. Deutch. Thank you, Madam Chair.
        Thanks to all the witnesses for being here. Thanks for your
    helpful and really powerful testimony.
        Ms. Kajstura, you drafted an article entitled ``Women's
    Mass Incarceration: The Whole Pie 2018'' that dramatically
    captures the current State of women and girls in our Nation's
    criminal justice system. Some of the statistics in there, some
    of the statistics we have heard already today, over 219,000
    women and girls incarcerated in the U.S. We talked about the
    700 percent increase since 1980.
        The growth rate of incarcerated women now outpaces men. 60
    percent of women in local jails have not been convicted of a
    crime, and 80 percent of the women--80 percent of the women
    being held in jails are mothers.
        So, in January of this year, the American Journal of Public
    Health released a study on pregnancy in prisons, finding that
    in 22 States, they studied a total of 1,396 pregnant women who
    were held in prison, but accessibility to adequate medical care
    is atrocious. This is a devastating impact on women.
        I would just flag one incident in my own district. On the
    morning of April 10, there was an incident in Pompano Beach,
    Florida, that I represent. I would like to submit for the
    record a letter from the Broward County Public Defender Howard
    Finkelstein to Broward County Sheriff Gregory Tony detailing
    the incident.
        Ms. Bass. Without objection.
        [The information follows:]

                           MR. DEITSCH FOR THE RECORD

    =======================================================================

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Deutch. Thank you, Madam Chair.
        Tammy Jackson, a 34-year-old woman, pregnant woman with a
    mental illness complained to jail officers at 3 a.m. that she
    was experiencing contractions. Jail officials moved the woman
    to an empty cell and left her alone for nearly 7 hours.
    Finally, after more than 4 hours, at 7:22 a.m., they spoke with
    a physician.
        The physician stated he would check on her when he arrived.
    Then they waited. Finally, a deputy observed the woman
    squatting and screaming in pain and then, I quote, heard a baby
    crying as he approached the cell. When he saw Ms. Jackson
    standing with a baby in her arms, he helped wrap the baby with
    a towel.
        The nurse described the incident as, and I quote ``a
    pregnant female had a spontaneous delivery.'' Well, it
    shouldn't have happened like that, obviously. That is not how
    anyone should be treated in America.
        However shocking as it may be, it is not an isolated
    occurrence. In fact, a few days earlier, another woman almost
    gave birth alone at a cell in the same facility. Fortunately,
    in that instance, jail officials transported the woman in time
    to a hospital where she gave birth to the baby.
        I would just ask--I think I will ask Ms. McCurdy, you
    first, what kind of data should prisons and jails be collecting
    on pregnancy for incarcerated women?
        Ms. McCurdy. Well, first of all, I find it funny that they
    characterized it as a spontaneous birth when they had a 9
    months' notice. I think it is important that we know four to
    five women enter jails pregnant, 4 to 5 percent of women enter
    jails pregnant. So, at the point that their pregnancy is
    acknowledged, medical attention should start at that point.
        Just as if women were not in jail or prisons, they need the
    continuous medical prenatal attention that women need on the
    outside as well. So, we can't wait until they get to the point
    where they are about to have birth to give them prenatal care.
    We must do it from the day they enter jails.
        More importantly, we need to stop putting pregnant women in
    jail. There are too many alternatives that we could turn to
    before the last option is to put a pregnant woman in jail.
        Mr. Deutch. I appreciate that. I agree.
        Just to put a few things in the record, that study also
    points out that there is no Federal agency that is responsible
    for collecting incarceration data that also collects pregnancy
    data. I assume--let me just confirm--that pregnancy data of
    incarcerated women should be collected by the Bureau of Justice
    Statistics, correct?
        Ms. McCurdy. Correct.
        Mr. Deutch. The lack of pregnancy data collected on
    incarcerated women is an indication, obviously, that our prison
    and jail system has not adapted to the increasing number of
    women and girls in the system.
        I am concerned, finally, that the quality of medical care
    and staff training for pregnant women can differ dramatically.
    Should a national standard be developed on the care that
    pregnant women receive while incarcerated?
        Ms. McCurdy. Absolutely. Again, that national standard
    should start with keeping women out of jails and prisons that
    are pregnant.
        Mr. Deutch. All right. Thank you. Thank you all very much.
        I yield back.
        Ms. Bass. Representative Richmond.
        Mr. Richmond. Thank you, Madam Chairwoman, and thank you
    for having this hearing.
        As I hear from the witnesses today, it appears a number of
    things that I take out of it, one of which is the power and the
    amount of abuse that can happen in prosecutorial discretion.
    That is a question for, I think, this Committee and
    policymakers to determine how much power that prosecutors are
    going to have.
        It was a prosecutor, Ms. Shank, that made the decision to
    come back after 5 years and charge you with a crime. Too often,
    prosecutors look at people as leverage to go after something
    else or collateral damage towards some other fight. I think
    that we need to make sure that we are holding our prosecutors
    accountable, so that if you are rich and affluent, you get
    different treatment than if you are poor and uneducated. I
    think that that is something that have to highlight.
        The other point I heard is programming. One of the things
    that I find to be the climax of foolishness in our correctional
    system in America is the fact that we encourage people when we
    lock them up to better themselves, and then when they get out,
    we have barriers to them getting licenses in those very
    professions we train them in.
        So, in many States, you have a catch-all phrase to get a
    license called good moral character. Well, we invested money in
    people--formerly incarcerated people to train them. What sense
    does it make to bar them from entering those professions once
    we invested in the training? Do you all agree that is
    counterproductive?
        I would note that everybody seemed to say yes, so--
        Ms. Shank. Absolutely.
        Ms. Kerman. Yes.
        Mr. Richmond. The other thing is the family connection. You
    all said it. I wrote an article a long time ago that said, I
    was talking about a father then, that the father may be in jail
    but the family is doing the time. Well, certainly when a mother
    is in jail, the family is doing the time.
        In the First Step Act, we said that we have to incarcerate
    people within 500 driving miles of the home. I think that the
    conversation today gives real credence to, maybe with women,
    that number needs to be reduced in half when you think of the
    importance and the difficulty and the fact that women are less
    likely to be visited in jail.
        The other thing I heard was gender-responsive correctional
    approaches that is guided by women-centered research and data.
    I think that that is very, very important, and I want to thank
    you all for your recommendations.
        So, Ms. Kerman, let me ask you a question. You talked about
    Justice Home. Does that also apply for violent crimes or just
    nonviolent crimes?
        Ms. Kerman. I think that is at the discretion of the
    prosecutors and the judges. Certainly, the program I served on,
    the board of the Women's Prison Association, which is one of
    the community agencies that does the ongoing work with
    participants, and we would certainly take anybody regardless of
    their crime of conviction. That program does give a possibility
    at record expungement, depending on what the crime is and
    depending on the person's completion of the program and, of
    course, depending on the discretion of the judge and the
    prosecutor.
        I think that it is a very artificial line often that we
    make the distinction between crimes we characterize as violent
    and crimes that we characterize as nonviolent. Anyone who is
    intimate with the courts system and the way that charges are
    brought knows--
        Mr. Richmond. Well--
        Ms. Kerman. --that those terms are not always true
    reflections.
        Mr. Richmond. Well, let me just cut you off. Because I did
    criminal offense, and I am not talking about the nuance between
    weight and not weight, whether it is determined as violent. I
    am talking about crimes of violence where there is a physical
    victim.
        Let me move on really quickly to something I don't think I
    heard, and that is housing at the end of incarceration is one
    of the biggest factors in recidivism. So, the question becomes,
    all of these artificial barriers to public housing, to public
    educational assistance, once you have been formerly
    incarcerated, how do we tackle those barriers?
        The last part of that is seeing, especially with crack
    cocaine, if a child in public housing was convicted of having
    crack or drugs, then the mother gets evicted from public
    housing. Now, with opioids, we do not see prosecutors and
    housing authorities push to evict opioid parents. So, a note
    that we ought to treat them the same way. But, how important is
    housing in this whole equation, stable housing when you get
    out?
        Ms. Kerman. I mean, safe and stable housing is not only
    important for women's return to the community. A lack of safe
    and stable housing is a determining factor in why many women
    end up in the system in the first place. Not having a safe
    place to live, women's lack of safety has a contributing factor
    to their potential to commit crimes as well.
        So as far as those many policy-based barriers to people
    gaining access to safe and stable housing, we should drop them.
    Those are not things that we have to do. Those are things that
    we choose to do. We should choose to tear down each and every
    barrier to full citizenship that people like me and Cindy face.
        Ms. Bass. Thank you.
        Ms. Kerman. We deserve our citizenship in full.
        Ms. Bass. Thank you.
        Representative Jeffries.
        Mr. Jeffries. Thank you, Chairwoman Bass, for convening
    this hearing and for your tremendous leadership in this area.
        I want to thank all our witnesses for your presence here
    today and for the compelling information that you are
    providing.
        Ms. Shank, I think you said in your testimony that you
    believe that the years and miles of separation caused by
    incarceration are in part designed to break the bonds between
    families. Is that right?
        Ms. Shank. That is absolutely correct. I feel that 1,000
    percent. Being we were limited to 300 minutes a month on phone
    calls, which we have to pay for ourselves. I had three
    daughters. They are fighting over the phone. Imagine a child
    when they hear that beep. My kids would panic when they would
    hear that beep before the phone is going to hang up, and then
    to cry and telling me, don't hang up, Mommy, don't hang up.
    Mommy, please, don't hang up. The phone just to drop, it is
    devastating. It to happen every single time, I mean, it is set
    up to keep you apart.
        They try and tell you that you are here and we want you to
    strengthen your family ties and they are offering things, but
    they don't offer anything. They move you 1,000 miles away,
    which I saw my daughters once a year. I had limited phone
    calls. They were too little to email and write letters. We
    would do the best we could. I would always write them and try
    anything I could to keep them to remember me, but it was very
    hard and very challenging.
        Mr. Jeffries. You were released from prison, I believe, in
    March of 2017, after serving 9 years. Is that right?
        Ms. Shank. Correct.
        Mr. Jeffries. Based on your experiences--and congratulate
    you on the success that you have had subsequent to your
    release--what is it that you think we as Members of Congress
    can think about in terms of how to both address the trauma that
    occurs based on the family separation and how to help
    facilitate the family unit coming together after one's release?
        Ms. Shank. I mean, that is a really good question because
    there is just nothing, nothing in play. I guess it would stem
    from the time that you are separated, to help during that time
    of incarceration, whether it is some type of family day they
    would offer at some of the prisons once a year, maybe
    encouraging that more. Just the type of visits that you have.
    Even the little visits I did have were very cold and the
    environment was very cold. It wasn't a very comforting
    environment. I think that plays a big part of it.
        When you come home, it is up to you ultimately, but if
    there were some type of therapy, family therapy that could be
    offered, I think that is very helpful, if you offered it to
    people. I know for me, I am in therapy. My children are in
    therapy. That is something that we had to be proactive about as
    individuals. I know that many people don't have the luxury of
    that, maybe to offer that would be very helpful.
        Mr. Jeffries. Thank you.
        Ms. Onwuka, did I pronounce that correctly?
        Ms. Onwuka. Yes.
        Mr. Jeffries. Okay. No, thank you.
        In your testimony, I think you made the important
    observation that too many women are locked out of the economic
    recovery as a result of their criminal background. And that
    obviously has consequences and implications for being able to
    put the family unit back together and to robustly pursue the
    American Dream after a period of incarceration.
        Could you offer some thoughts as to the impact of
    incarceration and the way forward in terms of how to make sure
    that we are really creating the ability for people, upon paying
    their debt to society, to follow the American Dream and succeed
    economically?
        Ms. Onwuka. Absolutely. Thank you. I spent a lot of time
    talking about the amount of opportunity that is available today
    in this economy and how because of that criminal record you are
    seeing people locked out. What is interesting is we are
    starting to see a shift now because of a tight jobs market,
    because it is harder to find qualified or employ people to fill
    positions, and we have 7.1 million unfilled positions right now
    in the economy.
        I think employers are starting to look at people they would
    not have considered before, and that includes people who have a
    criminal background, who have a criminal record. That is, I
    think, a great thing for women and great for anyone who is
    coming out of the correctional system. Again, that doesn't mean
    that everybody is going to do that.
        At the State level we have seen the movement towards ban-
    the-box. For those who are unfamiliar, it is the idea that
    employers do not ask whether you have any sort of criminal
    background. It is a way of giving someone a chance based on the
    merits of their experience and their background before writing
    them off because they have a criminal record.
        There are States who have implemented it. I think, it is
    interesting. Private companies who do it from Coca-Cola to Koch
    Industries, Starbucks, Google, all of these companies have
    voluntarily started to do that. I think that is a way of
    opening up opportunity for women, for people of color, for
    everyone who has a criminal background.
        I hesitate to say that it should be a Federal policy or
    that it should be mandated because it could have an unintended
    consequence, particularly against people of color and
    particularly against men of color, but there is an opportunity
    there for voluntary private sector companies to say, you know
    what, I am going to weigh someone's applications based on the
    merit.
        I talked a lot about it, and several people have talked
    about vocations, and we have seen the Trump Administration
    interestingly talking about apprenticeships. It is an idea that
    I think people have forgotten or written off just to blue
    collar industries.
        Recently, the Trump Administration released a new
    regulatory change that would actually expand apprenticeships to
    White collar opportunities, which I think is an interesting
    place because there are going to be people who have a criminal
    record who don't go to a 4-year college, who don't have a bunch
    of ABCs behind their name but still want to get into an
    industry that can be a great middle-class lifestyle.
        Ms. Bass. Thank you.
        Ms. Onwuka. So, seeing that--oh, sorry.
        Ms. Bass. Sorry. We need to move on.
        Mr. Jeffries. My time is expired but thank you very much
    for your testimony.
        Ms. Bass. Representative Cicilline.
        Mr. Cicilline. Thank you. I want to thank our Chairwoman
    Bass for convening this really important hearing and for your
    extraordinary and longstanding leadership on these issues.
    Thank you so much to our witnesses for really powerful
    testimony.
        I want to focus for a moment on this whole idea of family
    impact, because I think one of the things that people need to
    understand, one of my most haunting memories was doing a school
    visit and seeing a fifth-grade boy clearly distracted, kind of
    not paying attention, and me kneeling down to ask him if he was
    okay, and him in a very quiet voice saying, my mom went to jail
    last night.
        The notion that he was expected to like study and pay
    attention and behave, and so understanding that in many ways
    children of incarcerated parents are victims as much as others
    and are blameless in the conduct of an adult parent but really
    suffer the consequences.
        So, I am intrigued by this idea of both pre-sentence and
    post-sentence whether or not we ought to require sentencing
    judges and judges making determinations with respect to release
    to consider the impact on family, not just allow them to, but
    saying understand the reality of incarcerating.
        This particularly is the case where women are most often
    the primary caregiver and the obvious special relationship
    between a mother and her children, whether we ought to do that
    both in pretrial and in sentencing requiring, sort of
    understand, as a sentencing judge or as a judge making a bail
    determination the full impact of your decision on, not just the
    defendant, but the family who are blameless in this instance.
        I wonder whether you agree, Ms. Shank and Ms. Kerman, that
    makes sense.
        Ms. Shank. It absolutely makes sense, and I think that
    should be highly considered.
        Ms. Kerman. It absolutely makes sense. Again, Massachusetts
    and Tennessee have signed that very requirement into law, and
    so judges in those States will be required to do just that.
        Mr. Cicilline. That is a requirement. It is not discretion.
    They are required to consider it?
        Ms. Kerman. The Governor of Tennessee just signed that
    legislation, I believe, last week or the week before, and it
    was in last year's omnibus crime reform bill in Massachusetts.
    So, the nitty-gritty is the transformation of the prosecutorial
    function and of the bench in terms of how prosecutors and
    judges understand what is expected of them.
        Mr. Cicilline. All right. When you make changes like that,
    I know you have to also implement training and good education
    both of the court and of the prosecutors.
        The second thing I want to mention is there has been a lot
    of discussion about the separation of family as it relates to
    the placement of a defendant--of a person in custody and their
    family.
        Is there any good policy or reason that you can think of--
    and this is for anyone--that we shouldn't simply require the
    Bureau of Prisons to place the defendant in the facility
    closest to their home, period, obviously consistent with
    security needs? But, if there is a facility closest to your
    home that meets the security, ought that be the presumption and
    they have to argue and if, in fact, they don't follow that,
    they have to give some reason?
        Mr. Cicilline. It seems to me 200 miles, even 250 miles is
    still a very long distance to expect anyone to travel. Why not
    just have the presumption, because it is your family.
        Ms. Kerman. Yeah. If you are a poor family in New
    Hampshire, the Bronx, then, Connecticut might as well be Mars
    for some people.
        Mr. Cicilline. I only have a little bit of time, so I just
    want to--do you agree that makes sense?
        Ms. Kerman. I absolutely agree that makes sense, that local
    supervision can get complicated and there is very little
    oversight. So, the requirement for the Federal Government to
    then oversee local law enforcement, which I would support,
    would be a necessity.
        Mr. Cicilline. The final thing I want to ask you about, Ms.
    Kerman and Ms. Shank, in the State of Rhode Island, we have a
    very robust reentry initiative in which defendants, before they
    are returned to a community, meet with a reentry counsel that
    has housing experts and healthcare experts and mental health to
    be sure that there is in place a comprehensive plan for their
    successful reentry. It has really produced extraordinary
    results because we have seen so much evidence about people who
    are released without that support system who come back because
    they don't have a place to live, they get involved with drugs
    again.
        So, I am wondering whether your experiences in the Federal
    system, whether you had a similar experience that was sort of
    well planned before you were released so you would be
    successful. If not, do you think some model like that makes
    sense?
        Ms. Shank. Absolutely a model like that makes sense. There
    is really no programming, there is no reentry. There is very
    limited--you don't even have access to information to fill out
    for your driver's license. They give you zero. There is no
    information available to you in the Federal system. They do not
    prepare you whatsoever. They just do not. You are released when
    they release you, they are done with you.
        Mr. Cicilline. Great. Thank you so much.
        I yield back.
        Ms. Bass. Thank you.
        Representative Dean.
        Ms. Dean. Thank you, Madam Chair.
        I am pleased to be here, and I thank all of you for your
    important testimony on all of these issues.
        In my limited time, I wanted to try to zero in on a couple
    of things. In my background, before I came to Congress this
    term, I was a State representative in Pennsylvania. I was on
    the judiciary Committee there, constantly fighting new
    mandatory minimums. So, I appreciate very much, Ms. Shank, the
    way you spoke about the discretion should be with the judges.
    So, some of these sentences might be that long under the
    discretion of the judge based on the facts and law in front of
    her or him.
        But if we could, maybe I will start with you Ms. McCurdy. I
    am also interested in the notion of addiction, substance abuse
    disorder and its impact on this. In Montgomery County, my own
    Montgomery County just May of this year, maybe you saw this
    case, a woman named Emma was convicted and sentenced to 21
    years in prison as a result of distributing heroin, sharing
    heroin in a KFC bathroom with her friend who was 20 years old
    that day and died. Don't get me wrong, this is an
    extraordinarily serious case with victims all around.
        The woman, Emma, was sentenced to 21 years in prison as a
    result of a mandatory minimum for, leaving the scene, allowing
    that woman to go on overdosed and die, not alerting first
    responders, but also enhanced because it was within 1,000 feet
    of a school.
        Can you speak to the notion of addiction, substance abuse
    disorder, this is two 20-year-old women, addicts of heroin and
    how that translates into incarceration?
        Ms. McCurdy. Yes. I mean, that is part of both property and
    drug crimes that you see women being incarcerated for. Again,
    with women, a lot of times it is because of their addiction.
    They are not getting treatment necessarily once they go to jail
    or prison, and a lot of times they are self-medicating because
    of the trauma that they have experienced before coming into
    contact with the criminal justice system. So, then it just
    becomes a cycle. If we don't treat the trauma, we don't treat
    the substance abuse that is responding to the trauma that is
    the self-medication from the trauma, then we just keep going
    around and around in circles.
        Ms. Dean. I appreciate that. I also had the chance as a
    State representative to visit Muncy prison in Pennsylvania, an
    all-women's prison. Between addiction, mental health disorders,
    and the connection between conspiracy and life sentences is an
    extraordinarily powerful and sad place at the same time.
        Can we talk about the issue, and maybe you both could tell
    me your experience with other women in prison whether they
    suffered life sentences, what we could be doing better in terms
    of life sentences particularly as it occurs with women?
        Ms. Shank. I mean, I think, initially, just sentencing
    somebody to life is wrong. I think we need to allow a person--I
    mean, I understand punishment in crime, but the punishment
    needs to fit the crime. I don't think we should just wash our
    hands at people. I think we need to allow somebody to punish
    them for their crime, let it fit the crime, but then let's help
    them not to let this happen again. What is the actual problem?
    Is it psychological? Is it mental health? Is it drugs,
    addiction? Do they need education? We need to not just lock
    people up, but we need to, as I like to say, bury them alive.
    We need to actually help them.
        Ms. Dean. So many of the women there describe that they
    just don't want to die there. They don't want this to be the
    end of their story. It is interesting you use the words wash
    our hands of people. I also was in Curran-Fromhold prison with
    Pope Francis in Philadelphia, where he used the gospel about
    washing the feet of your visitor, washing the feet of those who
    have traveled life's dusty, dirty road, because we all go down
    bad roads.
        So maybe, Ms. Kerman, you could speak to that issue of the
    Pope wanted to say this is not your whole story and know that
    we are all broken people like you.
        Ms. Kerman. When I think about the point that you raise,
    Representative, I think about my students in Ohio. I have
    lifers in both the men's facility and the women's facility
    where I teach. I have a young woman in my women's writing class
    who was sentenced when she was 16 years old. The propensity for
    us to put children into the adult system in this country is
    significant.
        We know that the decade between 15 and 25 is a decade where
    brain development is not complete; impulsivity, judgment, and
    bad decisions are rife. We all make bad decisions during that
    time period in our lives, not all of us are held accountable in
    the same way.
        I look at any--I have three students who were sentenced as
    children to adult life sentences, and they each, all three of
    them, are remarkably intelligent, thoughtful, humane people,
    and very different people now than when they committed their
    crimes. I believe passionately that everyone deserves a second
    chance and sometimes a third chance, but deserves to be
    measured, not only for their worst act, but also for their best
    acts and the best things they are capable of.
        That does not mean that victims do not deserve a central
    role in reforms to our criminal justice system, but what we
    have seen in places like California and other places in this
    country is that victims and survivors of crime are increasingly
    advocating for the very reforms that other parts of the
    community are also calling for.
        Ms. Dean. I just want to put onto the record, if I may, an
    article--
        Ms. Bass. Without objection.
        Ms. Dean. --that I have of our governor, Governor Wolf,
    granting clemency, commuting some sentences of lifers. It is
    very important that he do that, but many States and our Federal
    Government actually seek greater criminal justice reform.
        [The information follows:]

                            MS. DEAN FOR THE RECORD

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        Ms. Bass. Representative Mucarsel-Powell.
        Ms. Mucarsel-Powell. Thank you, Chairwoman Bass, for
    holding such an important hearing.
        The issue of women that are stuck in an unjust criminal
    justice system is becoming a greater issue in this country and
    it is rarely part of the conversation. So, I thank you, Ms.
    Shank, and other women who may be present here today, Ms.
    Kerman, for lifting up your voices, for your courage in sharing
    your stories. It is the only way that we are going to bring
    attention to the issues, so thank you for being here today.
        The fact is that most women are charged with lower-level
    offenses and have less extensive criminal histories than their
    male counterparts. In 2017, women of color were particularly
    impacted by our laws where 40 percent of Federal women
    offenders are Hispanic, and 21 percent are Black. Of these
    women, upwards of 85 to 90 percent have a history of domestic
    or sexual abuse. Sixty percent of the women that are right now
    in prison have children 18 years or younger.
        I wanted to start with Ms. McCurdy. In the past 40 years,
    we have seen that the State prison population of women has
    grown up to by 834 percent. Why do you think we have had such a
    drastic increase of women who are now in the prison system?
        Ms. McCurdy. Because of the war on drugs is one of the
    major reasons. Both in the Federal and State system, we have
    focused so much of our attention, for example, in the Federal
    system, 45 percent of the people that are in Bureau of Prison
    custody are there for drug offenses. So, almost half of the
    people that are in Federal custody are there for drug offenses.
    Some of them are women, but what you are seeing is the result
    of the focus on the war on drugs and why so many women and men
    are in prison, even though many of them really need treatment
    and don't need incarceration.
        Our money would be better spent if we really focused on
    treating their substance abuse, because a lot of it is
    substance abuse, whether they were charged with trafficking or
    charged with possession, versus spending on the Federal level
    $36,000 a year per person to incarcerate people. We could
    spend, I think Piper talked about $20,000 a year for drug
    treatment, probably even less than that, though.
        Ms. Mucarsel-Powell. Yeah. The economic cost is huge, but
    the human cost is devastating for generations.
        Ms. McCurdy. Is even more devastating. Absolutely.
        Ms. Mucarsel-Powell. In 2016, the imprisonment rate of
    African American women was twice the rate of imprisonment for
    White women. Hispanic women were imprisoned 1.4 times more than
    White women.
        Ms. McCurdy, why are women of color more likely to be
    imprisoned at twice the rate than White women? What solutions
    do you see in solving this gap?
        Ms. McCurdy. Well, again, as I talked about before, I think
    one is we have to develop alternatives to incarceration. Also,
    in terms of women that are in prison, we must be very
    responsive to their health needs, their mental health needs,
    their physical health needs, their gynecological needs. We also
    have to train correction staff, for example, when women end up
    in prison, to make sure they are being responsive, gender
    responsive to women's needs.
        As Piper said earlier, the prison systems were built on the
    fact that mostly men would be in them. So, a lot of the
    policies reflect that now and they have not caught up to the
    fact that we have so many women that are in those prison
    systems. Policies have to be responsive to gender needs. Those
    are some of the major things that we really need to focus on.
        We talked about shackling on the Federal level, that has
    been addressed to a certain extent, but we haven't talked about
    solitary confinement. Pregnant women are often held in solitary
    confinement while they are pregnant and postpartum. We must ban
    the policies that allow women that are pregnant to be held in
    solitary confinement. That is very dangerous.
        Ms. Mucarsel-Powell. Thank you, Ms. McCurdy. As a mother,
    it has been tough to hear your testimony this morning. It is
    tough enough to see that this Administration is following
    family separation policies, and they are doing the same in the
    criminal justice system, and it is just heartbreaking.
        A question for Ms. Kerman. You testified that policy, not
    crimes, drive our incarceration. I have seen that in other
    policies that the Administration has taken as well. Can you
    explain a little bit what you mean by that?
        Ms. Kerman. Sure. So, you are drawing attention to racial
    disparities in the system is a reflection of policy. So, I live
    in Ohio, you might have two young men committing the exact same
    offense, but by policy and procedure, one of those young men
    might be heavily policed if he lives in a poor neighborhood,
    and one of those young men might not be policed at all if he
    lives in a fraternity house at OSU. Those disparities, those
    are policy choices, and those things drive disparity and drive
    some of those problems.
        We have talked a lot about substance use disorder and about
    its factor in driving incarceration and the availability or
    lack of treatment. I have to draw our attention back to this
    policy of mandatory minimum sentencing. If harsh punishment
    related to drug offenses worked, then we would not be where we
    are with addiction and drug abuse in this country.
        Ohio has one of the highest overdose rates in the country.
    We incarcerate a huge number of low-level drug offender. It
    does not result in less addiction and less substance use.
        There is a certain point in time, decades in, when we have
    to say regardless of what our punitive instincts are, that the
    policies and approach we have used is not working in terms of
    the public health and safety concerns which concern us the
    most. So that is a good example of that policy driving
    incarceration, even as it fails to solve the problems that we
    want solved in the community.
        Ms. Mucarsel-Powell. Thank you, Ms. Kerman. I think I am
    out of time.
        Ms. Bass. Representative Cohen.
        Mr. Cohen. Thank you, Madam Chairman.
        One policy we have in State and Federal both is we have
    private prisons. I would like to know your opinions on that as
    a factor in driving prison population and if there are any
    studies to show jurisdictions without private prisons and with
    private prisons and the rate of incarceration and the length of
    sentences. Who wants to jump in?
        Ms. Kajstura. So, I think private prisons definitely help
    keep mass incarceration in play in this country, because they
    provide space to hold people and they take often the kind of
    easiest cases, you could say, and charge the government the
    most to take care of people and do a really poor job of it
    because they have absolutely no government oversight.
        The private aspect of incarceration extends far past
    prisons, and this is important because--particularly important
    to women's incarceration because about half of women are
    actually incarcerated in jails rather than prisons. Jails use a
    lot of private contractors that make it hard and difficult to
    talk about family separation. In jails, even though you are
    ostensibly closer to home, often it is harder to keep in touch
    because the phone call rates are much higher. There are some
    county jails in Michigan where it is $1.50 a minute to talk on
    the phone.
        Jails are more likely to have letter bans, so literally
    banning letters from home. Your kids are relegated to a
    postcard size that is public, you can't put it in an envelope,
    to communicate with your family. Visits are often turned into
    video visits. So, a company comes in and charges $20 for a
    visit, and your family still has to drive to the jail, but they
    can't see you. They are put in a separate room with a video
    monitor.
        So, yes, there is a lot of private companies benefiting
    from mass incarceration and making things worse within the
    criminal justice system.
        Ms. Shank. If I can just say that privatized prisons are
    like a self-fulfilling prophecy of prisons built in the State,
    and often if the bed is empty, the State is fined. So, the
    State is going to do everything they can to not be fined to
    fill these beds. So, it is like a self-fulfilling prophecy, no
    one wins except the people making the money.
        Mr. Cohen. Tennessee is one of the worst States, I think.
    It was the home of Corrections Corporation of America, which is
    one of the large private prison people. I was a State senator
    for 24 years and thought--being in the Tennessee system because
    they would, lobby for longer sentences and lobby against
    different ways of release and that they made a lot of money and
    done really well. It is unfortunate, and that shouldn't happen.
        Has anybody done any studies on the cost to society of
    having a mother, particularly maybe as distinguished from a
    father, who is removed from a family and what cost that has to
    society at large?
        Ms. McCurdy?
        Ms. McCurdy. I don't know about financial. I haven't seen
    any studies on the financial cost, but I know the cost to
    children is that they often develop depression, anxiety. In the
    end, they end up in the criminal and juvenile justice system.
    So, that is the human cost of being separated from their
    mothers, because they don't have the guidance that they need in
    the early stages and are just, again, traumatized by their
    separation from their mother.
        Ms. Shank. I can tell you my own personal study, which was
    we had two incomes when we were married--a family. We had
    actually purchased our first home. We actually bought property
    to build our first home. When I was initially indicted and when
    I went away to prison, we went to a single-family income where
    my then-husband, Adam, had to take a different job because he
    couldn't take care of a 6-week-old baby with the hours, so he
    had a loss in income there. Then he became dependent on the
    State for medical insurance for the children. I mean, you lose.
        Mr. Cohen. I have a bill called the Fresh Start Act, which
    I have had for some time, and with the Democratic leadership
    here, we might have a chance to move it. It would provide a
    pathway for expungement in Federal crimes. If you had 7 years
    without any penalties and you have a nonviolent crime, you
    could get your record expunged.
        How would expungement help women, other prisoners, and
    family reunification?
        Ms. Kerman. Expungement would be a huge benefit and a good
    example of a smart policy change. I am much, much more
    fortunate than most formerly incarcerated people in this
    country, but I still cannot escort my son's field trips under
    Ohio State law because I have a felony conviction, despite my
    good conduct since my release in 2005. I would say that
    expungement, under appropriate guidelines, with whatever you
    have considered putting into the legislation, would be a huge
    benefit.
        There are an estimated 70 million people in this country
    who have some kind of a criminal record. So, this is not a
    fringe issue; this is something that impacts an enormous number
    of Americans.
        Mr. Cohen. Thank you very much. I yield back.
        Ms. Bass. Thank you very much.
        I want to, before we conclude, really thank today's
    witnesses. I think this was a very, very powerful hearing. One
    of the things that I am so encouraged by from this hearing is
    this was a very bipartisan hearing. It was a bipartisan hearing
    from the witnesses and from the questions and comments of my
    colleagues on both sides of the aisle.
        I do want to make a few points in concluding. I think it is
    clear, and statistics would back up, that women are arrested,
    not 100 percent, but a high percentage of women are arrested
    and incarcerated because of their relationships with men.
        The conspiracy laws that especially were used a lot during
    the war on drugs were used to arrest women, to use women as
    leverage as the female partner of a drug dealer to get at the
    man, that maybe with the assumption that he would rescue her.
    What happens is that he abandons her, he cuts her lose, and she
    often takes the wrap and sometimes serves more time than the
    man she was being leveraged for.
        A small percentage of women are arrested for violent crime,
    but even then, a lot of times the violent crimes is related to
    abuse. It is related to responding to someone who is abusing
    her, especially women who are arrested for murder. So, this
    gives us an opportunity to really examine gender-specific
    criminal justice reform.
        A comment on pregnancy. When a woman delivers and is
    separated from her child, like was shown in the clip, it is not
    just a matter that she is sad; it is massive physiological
    changes that happen during and especially after pregnancy.
    There is a massive decrease in hormones that was happening to
    that woman. When women go into postpartum depression, it is
    physiological as well as psychological. So, we can only imagine
    what happens to women who are put in solitary confinement
    during pregnancy or after delivery. It puts them at risk for
    suicide.
        So, I am glad to see that there is interest and support on
    the issue from both sides of the aisle. The conversation that
    we have had with each other during this hearing, I believe that
    this could be the first step toward developing comprehensive
    legislation that addresses criminal justice reform that is also
    gender specific.
        Thank you very much, and the hearing is adjourned.
        [Whereupon, at 12:33 p.m., the Subcommittee was adjourned.]

                                    APPENDIX

    =======================================================================

        Testimony submitted by Prison Fellowship to the House,
    Committee on the Judiciary, for the record.

                     TESTIMONY OF PRISON FELLOWSHIP

        Prison Fellowship is the nation's largest Christian
    nonprofit serving prisoners, former prisoners, and their
    families, and a leading advocate for criminal justice reform.
    The organization was founded in 1976 by Charles Colson, a
    former aide to President Nixon who served a seven-month
    sentence for a Watergate-related crime. For over 40 years, our
    ministry has shared the new hope and life purpose available
    through Christ to men and women in prison. Those who once broke
    the law are transformed and mobilized to serve their community,
    replacing the cycle of crime with a cycle of renewal.
        Our prison events, classes, and programs reach more than
    375,000 prisoners each year. We have over 11,200 Prison
    Fellowship volunteers across the United States who make it
    possible to serve people in prison and nearly 300,000 children
    of incarcerated parents annually.
        Located in 90 prisons in 28 states, the Prison Fellowship
    Academy is the organization's most intensive in-prison program,
    taking men and women through a voluntary, holistic life
    transformation spanning months, where they are mentored by
    Prison Fellowship staff and volunteers to lead lives of purpose
    and productivity inside and outside of prison. The Prison
    Fellowship Academy is designed to address criminogenic needs
    including anti-social cognition, anti-social companions, anti-
    social personality and temperament, family and marital
    relationships, substance abuse, employment, education, and
    recreation activities. In three State prisons in Texas and
    Minnesota, Prison Fellowship Academy participants make up
    entire prison units. The Prison Fellowship Academy and other
    faith-based classes are currently funded entirely through the
    generosity of private donors and foundations.
        130 federal prisons participate in our Angel Tree program
    and 137 federal prisons have Prison Fellowship connection
    classes, which include Bible studies, recovery groups, and
    seminars on topics from marriage, anger management, and more.
    Prison Fellowship has a pending request to launch an Academy in
    the federal system and seeks to be recognized as an educational
    program under the Bureau of Prisons' reentry program division
    rather than only as a religious service under the chaplaincy
    division.

        Incarcerated Women and the National Challenge Before Us

        We commend the House Judiciary Committee for drawing
    attention to the challenges facing female prisoners through the
    ``Women and Girls in the Criminal Justice System'' hearing. We
    are honored to provide our insights drawn from our policy work
    and direct ministry to women impacted by crime and
    incarceration. Recent trends in corrections make the
    committee's dialogue on these matters urgent. The female prison
    population has increased by over 750 percent since 1980.\1\
    Women now comprise roughly 7% of the total incarcerated
    population.\2\ At the end of 2017, there were more than 224,000
    women behind bars.\3\ While this increase in incarceration has
    impacted women of every background, striking racial disparities
    are present, with the imprisonment rate for African-American
    females double that of White females.\4\
    ---------------------------------------------------------------------------
        \1\ Sentencing Project, Fact Sheet: Incarcerated Women and Girls,
    The Sentencing Project (2016), https://www.sentencingproject.org/wp-
    content/uploads/2016/02/Incarcerated-Women-and-Girls.pdf.
        \2\ Jennifer Bronson & Ann Carson, Prisoners in 2017, Bureau of
    Justice Statistics (April 2019), https://www.bjs.gov/content/pub/pdf/
    p17.pdf.
        \3\ Id.
        \4\ Id. at 15.
    ---------------------------------------------------------------------------
        Just as troubling as these statistics are the histories of
    brokenness so many incarcerated women bring with them to their
    sentences. Data from a Bureau of Justice Assistance study of
    female jails makes clear that women who commit crime have often
    been victims of violence themselves. Eighty-six percent of
    respondents report sexual violence in their lifetime, 77
    percent report partner violence, and 60 percent report violence
    by a caregiver or parent.\5\ Over 65 percent of women
    incarcerated in prisons and jails identify a history of serious
    mental health problems or serious psychological distress--rates
    substantially higher than their male peers.\6\ Between 2007 and
    2009, 69.2 percent of female State prisoners met the Diagnostic
    and Statistical Manual of Mental Disorders criteria for drug
    abuse or dependency.\7\ Prison Fellowship does not highlight
    these sober realities to downplay personal responsibility for
    crime or deny that incarceration can be necessary on grounds of
    public safety and just punishment. Rather, these unsettling
    facts make the need for a corrections culture centered around
    the human dignity of incarcerated women--and their capacity for
    personal development and second chances--all the more urgent.
    ---------------------------------------------------------------------------
        \5\ Shannon Lynch et al., Women's Pathways to Jail: The Roles and
    Intersections of Serious Mental Illness and Trauma, Bureau of Justice
    Assistance (September 2012), https://www.bja.gov/Publications/
    Women_Pathways_to_Jail.pdf.
        \6\ Jennifer Bronson and Marcus Berzofsky, Indicators of Mental
    Health Problems Reported by Prisoners and Jail Inmates, 2011-12, Bureau
    of Justice Statistics (June 2017), https://www.bjs.gov/content/pub/pdf/
    imhprpji1112.pdf.
        \7\ Jennifer Bronson, et. al, Drug Abuse, Dependence, and Abuse
    among State Prisoners and Jail Inmates, 2007-2009, Bureau of Justice
    Statistics (June 2017), https://www.bjs.gov/content/pub/pdf/
    dudaspji0709.pdf.
    ---------------------------------------------------------------------------

                 Our Direct Ministry and Policy Vision

        Prison Fellowship's direct programming serves incarcerated
    women as they navigate a corrections system primarily designed
    with men in mind. Our evidence-based Academy program is now
    active in over 19 women's prisons in 14 states, with the
    strategic goal of ensuring a presence in at least one women's
    prison in every State by 2026. At a Southern California jail,
    Prison Fellowship is piloting the Create New Beginnings
    curriculum, using art as a restorative vehicle to help women in
    prison navigate topics like shame, empathy, and forgiveness.
        Throughout our history, Prison Fellowship has also been
    blessed by the contributions of formerly incarcerated women on
    our staff. We would be remiss not to mention here in particular
    Mary Kay Beard, a former federal prisoner sentenced to a 21-
    year sentence who would go on to encounter the Christian faith
    and found Angel Tree, now one of the American church's most
    crucial expressions of the Gospel's love for children impacted
    by incarceration.\8\ In 2017, Prison Fellowship acquired
    Daughters of Destiny, a Florida-based ministry to incarcerated
    women co-founded by Annie Goebel, who was formerly incarcerated
    and continues to serve on Prison Fellowship's staff.
    ---------------------------------------------------------------------------
        \8\ Steve Rempe, The Origins of Angel Tree, Prison Fellowship
    (December 2, 2014), https://www.prisonfellowship.org/2014/12/the-
    origins-of-angel-tree/.
    ---------------------------------------------------------------------------
        These direct encounters remind Prison Fellowship of the
    urgency for policies that make our justice system more
    restorative, evidence-based, and constructive. At the same
    time, we know the specific challenges of women in our prison
    system require specific policy remedies. Restrictive housing
    and physical restraints should not be used for pregnant
    incarcerated women, whether during term, in labor, or recovery,
    unless required to address clear and present danger to the
    woman, her child, or others.\9\ An estimated three to five
    percent of women in prison and jail are pregnant.\10\ As a
    ministry that values the sanctity of human life, Prison
    Fellowship urges full access to quality prenatal care for
    incarcerated women and their unborn children. Sixty-one percent
    of female State prisoners have children under the age of
    18.\11\ Access to parenting classes, regular contact with loved
    ones, and placement in facilities within reasonable proximity
    to family Members can allow incarcerated women to grow as
    responsible, engaged mothers. Moreover, the scale of prior
    abuse experienced by incarcerated women demands far more
    expansive trauma-informed care and greater training for
    corrections and programming staff. Finally, we urge
    policymakers to be cognizant of how ``collateral consequences''
    with limited rationale in public safety, including bans on
    access to nutrition, housing, and other safety net benefits
    placed on individuals with a criminal record, pose particular
    risks to formerly incarcerated women and their children.\12\
    ---------------------------------------------------------------------------
        \9\ Emily Greene and Kate Trammell, Will Corrections Meet the
    Growing Needs of Its Growing Female Prison Population, Prison
    Fellowship (March 19, 2018), https://www.prisonfellow
    ship.org/2018/03/will-corrections-meet-needs-growing-female-prison-
    population/.
        \10\ Naomi Schaefer Riley, On Prison Nurseries, American Enterprise
    Institute (March 2019), http://www.aei.org/publication/on-prison-
    nurseries/.
        \11\ Lauren Glaze and Laura Marushack, Parents in Prison and Their
    Minor Children, Bureau of Justice Statistics (March 2010), https://
    www.bjs.gov/content/pub/pdf/pptmc.pdf.
        \12\ USCCR, Collateral Consequences: The Crossroads of Punishment,
    Redemption, and the Effects on Communities, U.S. Commission on Civil
    Rights (June 2019), https://www.usccr.gov/pubs/2019/0-13-Collateral-
    Consequences.pdf.
    ---------------------------------------------------------------------------

                             State Reforms

        Prison Fellowship has been privileged to advance common
    sense State reforms that recognize the dignity of incarcerated
    women. In December 2018, we supported the American Legislative
    Exchange Council's model policy, ``Dignity for Incarcerated
    Women.'' \13\ In the 2019 Texas legislative session, Prison
    Fellowship supported the passage of House Bill 650, which
    featured several key protections for incarcerated women.\14\ In
    2009, our ministry helped to pass Senate Bill 1290 in New York,
    which allows women who are pregnant to be removed from a prison
    for purposes of receiving proper medical care during childbirth
    and prohibits the shackling of anincarcerated woman during
    delivery of her child.\15\ Moreover, given that one in four
    female State prisoners are sentenced for drug crimes--a rate
    substantially higher than that of their male counterparts--
    incarcerated women have particularly benefited from Prison
    Fellowship's successful advocacy for appropriate sentence
    reductions and alternatives to incarceration for certain drug
    offenses.\16\
    ---------------------------------------------------------------------------
        \13\ ALEC, Dignity for Incarcerated Women, American Legislative
    Exchange Council (November 2018), https://www.alec.org/model-policy/
    dignity-for-incarcerated-women/.
        \14\ H.B. 650, 86th Reg. Sess. (T.X. 2019).
        \15\ S.B. 1290, 200-2010 Reg. Sess. (N.Y. 2009).
        \16\ Bronson, supra note 2 at 15. (For a summary of Prison
    Fellowship's approach to state-level criminal justice reform, see
    Prison Fellowship, Faith & Justice Legislative Playbook 2018-2019,
    Prison Fellowship (2019), https://www. prisonfellowship.org/wp-content/
    uploads/2019/06/J_ FLegislativePlaybook2019.pdf.).
    ---------------------------------------------------------------------------

                   The First Step Act Implementation

        Prison Fellowship likewise had the opportunity to play a
    role alongside many Members of this Committee in the passage of
    the bipartisan First Step Act in December 2018. Key features of
    this legislation have already impacted women in our federal
    prison system. The bill codified certain Bureau of Prisons'
    policies to provide female hygiene items free of charge and
    limit the use of restraints on pregnant women.\17\ Seventeen
    women have received sentencing reductions for certain drug
    crimes under the legislation's retroactive application of the
    Fair Sentencing Act.\18\
    ---------------------------------------------------------------------------
        \17\  Nathan James, The First Step Act of 2018: An Overview,
    Congressional Research Service (March 2019), https://fas.org/sgp/crs/
    misc/R45558.pdf; Office of Public Affairs, Department of Justice
    Announces First Step Act Implementation Progress, United States
    Department of Justice (April 2019), https://www.justice.gov/opa/pr/
    department-justice-announces-first-step-act-implementation-progress.
        \18\  USSC, First Step Act of 2018 Resentencing Provisions
    Retroactivity Data Report, United States Sentencing Commission (June
    2019), https://www.ussc.gov/sites/default/files/pdf/research-and-
    publications/retroactivity-analyses/first-step-act/201900607-First-
    Step-Act-Retro.pdf.
    ---------------------------------------------------------------------------
        Key provisions of the First Step Act nevertheless remain to
    be implemented, making congressional oversight crucial for the
    restoration of incarcerated women. Roughly half of all female
    federal prisoners are sentenced for drug crimes, and the First
    Step Act's provisions for reforming punishment for these
    offenses await further implementation.\19\ The absence of a
    United States Sentencing Commission with a quorum means the
    sentencing guidelines have yet to reflect the First Step Act's
    sentencing reforms for certain drug offenses. The Department of
    Justice and Independent Review Committee have put consideration
    and effort into developing the new Risk and Needs Assessment
    for federal prisons. These systems are used by numerous State
    and local justice systems to identify the criminogenic risks
    and corresponding recidivism-reducing programs for each
    incarcerated person.\20\ Prison Fellowship urges further
    refinement and timely implementation of the assessment, and the
    corresponding expansion of quality prison programming. The
    establishment of this system will not only allow incarcerated
    women to have a more constructive experience in prison, but
    also allow them to earn certain opportunities, such as expanded
    contact with family Members or, based on their risk level and
    sentence type, earned-time credits to complete more of their
    sentence at a residential reentry center or in home
    confinement.\21\
    ---------------------------------------------------------------------------
        \19\  Bronson, supra note 2 at 16; James, supra note 17 at 8-9.
        \20\  Public Safety Performance Project, Risk/Needs Assessment 101:
    Science Reveals New Tools To Manage Offenders, Pew Center on the States
    (September 2011), https://www. pewtrusts.org//media/legacy/
    uploadedfiles/pcs_ assets/2011/pewrisk assessmentbriefpdf.pdf.
        \21\  James, supra note 17 at 5.
    ---------------------------------------------------------------------------
        We call on Congress to cement this shift to a more
    constructive federal prison culture through explicit, full
    funding of the First Step Act in FY2020 appropriations and in
    future appropriations cycles.
        Geographic distance between federal prisoners and their
    home communities continues to weaken the family engagement and
    social support crucial for successful reentry.\22\ Research
    from the Chuck Colson Task Force on Federal Corrections found
    in 2014 that 27 percent and 25 percent of federal prisons lived
    more than 500 miles or between 250 and 500 miles from their
    primary residence.\23\ The First Step Act codified an
    established BOP policy to house all prisoners, subject to other
    considerations, within 500 miles of their primary residence.
    Prison Fellowship recognizes how the BOP must carefully weigh
    this goal alongside numerous logistical, fiscal, and security
    priorities, including the very limited number of female BOP
    facilities. Nevertheless, we believe greater proximity between
    incarcerated women and their families will strengthen family
    relationships, including for those with children, and allow
    women to draw on the social networks needed to break the habits
    and mindsets that first brought them to prison. We therefore
    urge BOP to consciously pursue creative solutions to continue
    to reduce the geographic distance between incarcerated women
    and their home communities, so that as many women as possible
    can live within 500--and preferably 250--miles of their primary
    residence.
    ---------------------------------------------------------------------------
        \22\ The Chuck Colson Task Force on Federal Corrections, Final
    Recommendations of the Chuck Colson Task Force on Federal Corrections,
    Urban Institute (January 2016), https://www
    .urban.org/research/publication/transforming-prisons-restoring-lives/
    view/full_report.
        \23\ Id. at 40.
    ---------------------------------------------------------------------------
        As the BOP continues to expand quality correctional
    programming under the First Step Act, it must be cognizant of
    crucial programmatic gaps for incarcerated women. A September
    2016 Boston Consulting Group highlighted several ``unmet
    population needs'' among federal female prisoners for
    ``intensive, residential mental health treatment'' and
    ``relationships management and self-management and control
    programming.'' \24\ We urge the BOP to revisit these needs
    among incarcerated women in the federal system.
    ---------------------------------------------------------------------------
        \24\ Boston Consulting Group, Reducing Recidivism Through
    Programming in the Federal Prison Population, Department of Justice
    (September 2016), https://www.justice.gov/archives/dag/page/file/
    914031/download.
    ---------------------------------------------------------------------------

                       Additional Recommendations

        Addressing the unique needs of incarcerated women should
    rank as a key next step for both the Administration and
    Congress in building on the momentum of the First Step Act. In
    particular, we urge both Congress and the BOP to revisit some
    of the key recommendations of the Chuck Colson Task Force, on
    which Prison Fellowship's Senior Vice President of Advocacy and
    Public Policy Craig DeRoche had the privilege to serve. The
    Task Force's promotion on greater family engagement is
    particularly salient for incarcerated women. While commending
    serious BOP progress on this issue, the Task Force did
    emphasize lingering barriers, such as ``visitation hours that
    were modified or restricted without adequate notice or
    explanation; visitation guidelines that varied across
    facilities, and even within facilities over time; and
    visitation privileges that were perceived to be restricted as a
    disciplinary measure.'' \25\ Specifically, the Task Force
    called for the establishment of a BOP ``central family affairs
    and visitation office to oversee prison visitation procedures
    in the interests of facilitating family visits while ensuring
    security is not compromised, expand video conferencing and
    programs designed to enhance the bonds between incarcerated
    parents and their children, and increase other forms of support
    for families of those in prison.'' \26\ Given some of the
    extreme geographic distances between certain federal prisoners
    and their families, the Task Force also recommended greater
    contracting ``with State facilities when no appropriate federal
    facility is located within reasonable proximity [of home.]''
    \27\ We encourage this Committee and the BOP to revisit these
    recommendations and evaluate paths for implementation.
    ---------------------------------------------------------------------------
        \25\ The Chuck Colson Task Force, supra note 22 at 40.
        \26\ Id.
        \27\ Id. at 41.
    ---------------------------------------------------------------------------
        Second, the scale of abuse and past victimization
    experienced by incarcerated women demands a robust scaling up
    of trauma-informed care. An Office of Inspector General report
    from September 2018 highlighted how ``due to current staffing
    BOP may not be able to ensure that all [female] inmates who are
    eligible for [the trauma treatment] program can participate in
    it before their release from BOP custody.'' \28\ The report
    further noted how the current model for BOP trauma-informed
    care could only reach ``3% of BOP's sentenced female inmate
    population'' at a given time.\29\ At an average BOP female
    institution, 17 percent of prisoners are on a waiting list for
    trauma care.\30\ The painful psychological wounds experienced
    by too many incarcerated women in federal prisons are not being
    met with robust, easily accessible trauma-informed care, and we
    urge greater BOP attention and funding and corresponding
    congressional oversight and action.
    ---------------------------------------------------------------------------
        \28\ Id. at 19.
        \29\ Id. at 21.
        \30\ Office of the Inspector General, Review of the Federal Bureau
    of Prisons' Management of its Female Inmate Population, Department of
    Justice (September 2018), https://oig.justice.gov/reports/2018/
    e1805.pdf.
    ---------------------------------------------------------------------------
        Thank you for this opportunity to present Prison
    Fellowship's policy recommendations to honor the dignity of
    incarcerated women to the Committee.

                                     [all]