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Gender Politics in the US Criminal Justice System

Bree Beery

The state of women in the United States criminal justice system, an apparently fair organization of integrity and justice, is a perfect example of a seemingly equal situation, which turns out to be anything but. While the policies imposed in the criminal justice system have an effect on all Americans, they affect men and women in extremely dissimilar manners. By looking at the United States' history of females in the criminal justice system, the social manipulation of these females and the everlasting affects that incarceration have on all women, both in and out of prison, this essay will explore the use of the criminal justice system as simply another form of control from which there is no hope of escape. This system of control then leads to the examination of the everlasting, yet never successful, female struggle to balance the private sphere of domesticity with the public sphere of society and the criminal justice system's attempt to keep women within the boundaries of the private.

For centuries women who have entered the justice system have been oppressed, because the system was and still is a system designed by a patriarchal society and implemented primarily to control wayward males. The witch hunts in 17th century New England, is the first of many examples in which society exerted control over women by labeling them 'witches,' yet leaving the men alone. The primary determinant of who was designated a witch was gender, in fact eighty percent of all those killed were women. Of those women, females who were spinsters or widows, rather than wives or mothers "were represented disproportionately among the witches." In the 1800's, imprisoned women suffered the same terrible conditions as their male counterparts, yet they were not allowed to go to "workshops, mess halls, or exercise yards" , but rather were brought needlework and food and forced to remain in their cells. In the late 19th and early 20th century reformatories were created hoping to "uplift" and "improve" the characters of the women incarcerated. The reformatories, however, were created solely for women and no such corresponding development took place within male prisons. Reformatory training was centered on fostering ladylike behavior and turning women into perfect wives and mother, while at the same time repressing their sexuality. It encouraged subordination and isolation in order to instill in these women a new value system. However, the Great Depression and decline in the feminist movement in the 1930's lead these institutions to their demise. Although they are gone, reformatories, and early governmental and societal actions can give us great insight and help prepare us to understand the developments in, as well as the recent state of, women in the criminal justice system.

In looking at the history of women imprisonment and crime, except for the alarmingly increasing rates, not much else has changed. Since 1980 the number of women in prison has increased at nearly double the rate for men and there are now nearly seven times as many women in prison as in 1980. However, the increasing rate of crimes and incarceration of females is still not considered a serious problem. Despite this alarming increase rate of imprisonment, the public outcry continues to be deafeningly silent. In fact some just dismiss it as a result of the women's movement and the associated empowerment of women, essentially saying that gender equality brings about violence in women. Whatever the reason, there is still so little public interest as well as very few studies conducted on female crime and imprisonment, in comparison to those conducted on males. This lack of interest is due to the fact that society chooses to overlook these women because they are not the societal norm and they represent everything that a female should not be.

In examining the oppression women face in the criminal justice system it is vital to look at their crimes and the reasoning behind committing such offenses. Women have always and continue to be incarcerated for minor criminal offenses, as opposed to violent and homicidal crimes. Today, there are virtually no women charged with white collar crimes, such as fraud and embezzlement and very few are charged with homicide, "women's offenses are rarely vicious, dangerous or profitable." Instead, women, as the primary caretakers of the home and family, may be more driven by poverty and societal pressures to engage in more "crimes" of survival. These would include prostitution, pick-pocketing, shop lifting, robbery and trafficking drugs. These acts of stealing or hustling are seen as necessary for the survival of themselves, but more importantly for the survival of their family, because of the economic and/or societal problems they face. Most often women's crimes arise from difficult circumstances within society at large. However, when women do engage in violent crimes, it is often for fundamentally different reasons than men. Many women are much more likely to kill a male partner than to kill anyone else. A majority of the women incarcerated for homicide kill out of self defense and is often in response to years of male abuse. This then leads into the role gender plays in sentencing and the courtroom, which is a rather complicated one.

In the early 20th century many women were incarcerated for public order offenses, also known as 'moral' offenses, which would include fornication, adultery, drunkenness, etc. They were then sentenced to private reformatories, which as stated earlier, would help to 'improve' them. This is interesting because this once again illustrates the battle between public and private. Once a woman crosses over into the public sphere, by doing something as simple as drinking, she is punished and sent away to be to the private world of prison. This struggle still exists in modern day. Because of the equal rights movement many people would consider women to receive the same punishment for the same crime as a man, however, this is anything but true. Women will either receive lesser or harsher punishment depending on their crime. If a woman has committed a minor offense, it is easy to lessen her sentence by playing into traditional gender stereotypes. According to feminist criminologists, Nicole Rafter and Estelle Freedman, women who conformed to the bourgeois definition of femininity and motherhood were punished in a much ore mild manner than those who did not. However, women who commit larger offenses often face harsher punishments, mainly because most of the crimes that they commit are against males. Women who kill or attempt to kill their abusers are incarcerated for several reasons, first to deter other women from believing they can similarly resist, second, to reinforce in women the belief that they have no right to their own bodies and lastly to assert and protect men's power over women. In fact women often face harsher penalties than men who kill their partners."

This inequality of the sexes, presented in the courtroom is then crossed over into many, if not all of the U.S. state and federal prisons. According to a 1990 fall issue of Time magazine, "women are confined in a system designed, built and run by men for men." Women are receiving all the negative aspects of a men's prison, such as maximum security, control units, shock incarceration, etc, without receiving any of the benefits. Whereas men are treated as men, at least out of fear, women in prison are treated as animals or children. Many argue that women's prisons are filled with a spitefully destructive paternalistic mentality; women are perpetually infantilized by routines and paternalistic attitudes. Powerlessness, helplessness and dependency are all systematically heightened in prison.

This method of 'rehabilitation' merely places women back into the private sphere of domesticity by enforcing traditional women's roles and promoting subordination. This is mostly achieved by placing a social stigma on incarcerated females. This stigma, much like Hester Pryne's scarlet 'A', though invisible, serves as a warning to women to stay within the 'proper female sphere.'

Therefore the criminal justice system is just another form social control used to impose and strengthen traditional women's roles as well as cultivate a reliance and submissiveness of women to society. What is tragic about this system is that society prepares the crime and many women, have no choice, but to commit it. Women are thus caught helplessly in a cruel cycle between the public and private. In looking at the past to predict the future, it looks as if there is no way out of this malicious cycle. If women try to break out of the private sphere of domesticity and into the public sphere of a patriarchal society, they are always, through governmental controls and policies, forced back into their private spheres of home and family, which is for some women, their own personal prison.


1 Gendered Justice: A Select Bibliography;,
Compiled by the University of Toronto Centre of Criminology Library. March 10, 2003.

2 Carol F. Karlsen, The Devil in the Shape of a Woman (New York: W. W. Norton, 1987), p. xii.

3 Carol F. Karlsen, The Devil in the Shape of a Woman (New York: W. W. Norton, 1987), p. xii.

4 Nicole Hahn Rafter, Partial Justice: Women in State Prisons 1800-1935 (Boston: New England University Press, 1985)

5 Elaine De Costanzo and Hellen Scholes, "Women Behind Bars, Their Numbers Increase," Corrections Today, June 1988.

6 Peter Appleborne, "Women in U.S. Prisons: Fast-Rising Population," New York Times, June 15, 1987

7 Assata Shakur, "Women in Prison: How We Are," The Black Scholar, vol. 9, no. 1, April 1978, p. 9.

8 Angela Brown and Kirk Williams, "Resource Availability for Women at Risk," unpublished paper presented at the American Society of Criminology Annual Meeting, Chicago, November 1987.

9 Nancy Rubin, "Women Behind Bars," McCall's, August 1987

10 Estelle B. Freedman, Their Sisters' Keepers: Women's Prison Reform in America, 1830-1930 (Ann Arbor: University of Michigan Press, 1981)

11 Estelle B. Freedman, Their Sisters' Keepers: Women's Prison Reform in America, 1830-1930 (Ann Arbor: University of Michigan Press, 1981)

12 Shelly Bannister, op. cit., argues that women who respond to male violence with physical resistance, and are incarcerated as a result, should be viewed as political prisoners.

13 Sandy Rovner, "Abused Women Who Kill," Judgment, vol. 10, no. 2, June 1987

14 Nicole Hahn Rafter, Partial Justice: Women in State Prisons 1800-1935 (Boston: New England University Press, 1985)

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