This piece was published in coordination with Zealous, an organization working to amplify the perspective of historically overlooked voices.
There’s a gendered crisis underway that isn’t getting nearly enough attention. Although the majority of people locked up around the world are men, since 2000, women’s global incarceration has skyrocketed nearly 60%, according to the Institute for Crime & Justice Policy Research. In the United States, since the 1980s, the number of women in prisons and jails has increased sixfold. The US cages more women than anywhere else on earth, with just 4% of women’s total global population but 30% of the world’s incarcerated women, per the Prison Policy Initiative.
Women's experiences, however, are often overlooked and disregarded. In the words of our client Kwaneta Harris, who was held in solitary confinement for eight years in Texas: "By design, our daily lives in this women’s solitary facility are hidden from the public. There are details about our lives in ‘the hole’ that only folks currently living it can credibly describe. Society would be appalled, but we’re never invited to participate in discussions concerning us." This is an alarm bell for a new era: Women are the new face of criminalization, incarceration, and punishment.
Collectively, we are lifelong social justice practitioners, human rights advocates, and direct witnesses to widespread criminalization, mass incarceration, and systemic injustice. While we know that punishment-driven legal systems inflict immense harm on our clients, we continue to be shocked at the gendered (mis)treatment of accused women. That this phenomenon is marginalized in mainstream conversations about the criminal legal system mirrors how the experiences of women, particularly women of color and women from the Global South, are pushed to the periphery.
At the Cornell Center on the Death Penalty Worldwide, we have amassed evidence demonstrating that criminal legal systems around the world weaponize gender, race, and class against the most vulnerable people. In the case of women on death row in this country, for example, we have found shocking evidence of how prosecutors exploit gender and racial bias to undermine women’s fair trial rights, reducing women to caricatures within patriarchal norms. In the case of Brenda Andrew, on death row in Oklahoma, a prosecutor dangled her thong underwear in front of the jury and insinuated that it was proof of her guilt because it was not the sort of undergarment a grieving widow would wear. In the California case of Mary Ellen Samuels, prosecutors propped up an enlarged photo of the accused woman, naked, in front of the jury. In the case of Erica Sheppard, a Black woman facing the death penalty in Texas, the prosecution told the jury that she might be a woman, but she was “no lady,” tapping into age-old tactics to dehumanize and de-feminize Black women. And in far too many cases we’ve examined, prosecutors minimize women’s experiences of rape, sexual abuse, and intimate partner violence, dismissing them as insignificant events or calling into question women’s credibility.
As Black feminist scholars have long observed, the intersection of racism and sexism, which as Kimberlé Crenshaw explains is “greater than the sum of racism and sexism,” compounds structural violence through the criminal legal system. Like race, gender is a real-life social construct with material consequences. In practical terms, this means double standards, disparate treatment, and a world in which gender oppression is normalized to such a degree that it is invisible. Although the proportion of incarcerated Black women is declining relative to other demographic populations, Black women in the United States are still sentenced to extreme punishment and imprisonment at much higher rates than white women.
A report from the Center for Court Innovation found that Black girls are the fastest-growing population within the youth justice system, and lesbian, bisexual, gender nonconforming, and trans girls are overrepresented in the youth justice system as well. The criminalization of sex work is one example of laws that profile, target, and disproportionately affect trans women, of whom one in five have been incarcerated in their lifetime. Black trans women are particularly at risk of criminalization and incarceration: A 2015 survey found that 1 in 10 Black trans women had recently experienced incarceration, almost five times the rate of other trans people, let alone the general population.
Gender, racial, and poverty-based biases are not inevitable. They are the product of systemic injustices in legal and political institutions. The cash bail system, for example, is wealth-based discrimination that harms poor people in a multitude of ways. To mention poverty-based detention, we must add that poverty itself is racialized and gendered. Women in the US are subjected to higher rates of poverty than men and it is well-documented that women of color – especially Native American, Black, and Latina women – are subjected to the highest rates of poverty. One night in jail can produce dozens of life-altering consequences that devastate the lives of women and children. This is especially true in a patriarchal society that expects women — and in particular poor women of color — to perform caretaking roles without access to the resources they need to raise families, and yet is remarkably punitive when mothers are deemed not to have performed their roles well enough.
This form of dehumanization can be the difference between life and death. Our work makes clear that the stories of women on death row are either minimized, mischaracterized, untold, or unjustly told. As in the case of Brenda Andrew, perceived promiscuity becomes an aggravating factor: In addition to brandishing her underwear at trial, prosecutors called her a “slut puppy” and elicited testimony about an intimate relationship nearly 20 years before the crime. The sole woman judge on the Oklahoma Court of Criminal Appeals stated that these tactics served “no purpose other than to hammer home that Brenda Andrew is a bad wife, a bad mother, and a bad woman.”
Meaningful redress does not happen overnight, but we all have a role to play. In our experience, most public defense offices across the US (which are of course underfunded and overworked), while proximate to these issues of gender-based criminalization, are not routinely trained in identifying gender biases, challenging the weaponization of gender, sexual orientation, and race, and working to undo gender injustice within organizations. While most women who are sentenced to prison have been subjected to gender-based violence, as also established by the National Black Women's Justice Institute, the impact of such violence is often not explored as a driving force in bringing women into contact with the criminal legal system. In these cases, we need to recognize our collective ignorance of the forms of oppression and violence that shape the day-to-day lives and decisions of many women. Shifting our lens and broadening our cultural awareness, particularly in the criminal defense space, is one step forward to a gender-justice reckoning in the United States.
Any meaningful gender-justice reckoning must be global, anti-racist, decolonial, abolitionist, and economically equitable. To be meaningful, the right to counsel should provide people with competent, effective, and zealous advocacy. To us, this includes an approach in the courtroom and the world at large that actively challenges white supremacy, centers the expertise of incarcerated and formerly incarcerated women, and prioritizes the insights of people who understand gender-based violence. This can take shape through gender-inclusive defense teams, a feminist workplace culture, tailored jury selection questions, gender-sensitive trial defenses, narrative storytelling in collaboration with clients, organizational partnerships, arts advocacy, and more. For us, the personal is political as we aim to undo the hierarchies of structural, systemic, and interpersonal oppression all around us.
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