We Can’t “End Mass Incarceration” if We Erase the Experiences of Criminalized Women

On March 31, Mayor Bill de Blasio vowed that by 2027, New York City would at last close the jail complex on Rikers Island. In both his public announcement and in subsequent interviews, Mayor de Blasio clearly situated the dismantling of the Rikers facility as the crux of the city’s efforts towards criminal legal reform, going as far as to say that “making this important change” will “end the era of mass incarceration.” Though Rikers is undoubtedly a site of immense abuse, to locate the city’s punitive malpractice exclusively within its most exceptional jail is a narrow and incomplete path towards reform that obscures the full continuum of harm wrought by the city’s criminal legal system. The legal and political architecture of mass incarceration is not manifested exclusively in carceral facilities, nor are its victims solely those who are detained. By centering criminal legal reform exclusively around the closure of Rikers Island, Mayor de Blasio has posited a largely male experience as the paradigm of criminal legal involvement in New York City. In doing so, he has erased the experiences of women and girls who suffer so much more from the less visible dysfunctions of the city’s criminal legal system, particularly at the policing and prosecutorial levels.

The city’s plan to close Rikers hinges on its ability to orchestrate a 50 percent reduction in the facility’s incarcerated population. Because around 9,300 of the 10,000 current prisoners on Rikers are male, the bulk of the effort to reduce the number of those confined must center around reforms targeted toward men and boys. As Mayor de Blasio stated in his public announcement, “Job one is to reduce crime. Reducing crime means reducing jail population.” Crime reduction is an inherently gendered practice, however, given that men and women face disparate criminogenic risks that lead them to be policed, prosecuted and incarcerated in different ways and for different crimes. Mayor de Blasio has suggested that sustaining his administration’s criminal justice strategy, which emphasizes neighborhood policing and increasing the volume of officers deployed, will help to keep crime to a minimum. Nevertheless, these reactive rather than restorative strategies disproportionately disadvantage women who are more susceptible to, and more threatened by, encounters with the police.

Since the 1990s, New York City’s policing practice has been characterized by the tactics of “broken-windows” policing, which stresses the punishment of low-level, quality-of-life offenses as a means of preventing more serious crimes. “Broken-windows” policing often targets drug offenses, petty theft, vagrancy, loitering and disorderly conduct, expanding the legal system’s definition of punishable criminal behavior, and in doing so, casting a wider net on those considered culpable. Despite the ample criticism that “broken-windows” policing has received from criminologists, politicians, activists and community members, Mayor de Blasio has praised the strategy, declaring as recently as September 2016, that “it is still the right approach.” While this more punitive culture of enforcement has led to the arrest of many more New Yorkers across the board, it has been most detrimental to women, since women are far more likely than men to be involved in low-level offenses. According to the Vera Institute of Justice, between 1980 and 2009, the arrest rate for drug possession or use doubled for men, but tripled for women. Today, the leading cause of arrest for women in New York City is a public order offense, most common of which is avoiding the city’s $2.75 MetroCard fare. So, while de Blasio’s emphasis on heightened neighborhood policing may decrease the number of serious crimes that warrant incarceration on Rikers, by further criminalizing vulnerable women, it is also more likely to increase the number of women arrested for low-level, dismissible misdemeanors.

Because of the types of crimes they commit and their minimal perceived risk to the community, the vast majority of women who are involved with New York City’s criminal legal system do not end up on Rikers Island. Instead, most women arrested for both misdemeanors and felonies are permitted to return to their communities because they are released on their own recognizance, their cases are disposed at arraignment, or the district attorney declines to prosecute in the first place. Amongst those who face sentencing, only around 7 percent of those charged with felonies and around 4 percent of those charged with misdemeanors are sent to jail or prison, while the vast majority are given conditional discharge, such as completing community service or attending programming. In 2014, of the 57,109 women arrested in New York City, only 2,722 were detained pre-trial because they could not make bail, and only 2,906 were ultimately sentenced to some time in jail. Based on their high rates of arrest, but low rates of incarceration, it is clear that women’s interactions with the criminal legal system in New York City occur disproportionately outside of carceral facilities.

The arrest and incarceration of women in New York City falls definitively along lines of race and class (as it does for their male counterparts). Across the board, most individuals who come into contact with the city’s criminal legal system are low-income people of color, who live in impoverished areas, rely on public benefits, are unemployed and do not possess post-secondary degrees. Nevertheless, criminalized women have unique vulnerabilities and challenges that are not faced nearly as acutely or on such a wide scale amongst criminalized men. In particular, these women are far more likely to be survivors of domestic violence or sexual assault; to suffer from substance abuse issues and mental illness; to have children under their direct care; and to have had their education derailed by suspension or expulsion.

Far more often than men, women commit crimes of indigence, stealing food or diapers for their children or selling drugs or sex to pay their rent and keep their homes. Incarceration — and even arrest and detention — are extremely disruptive in these women’s lives when considering their deep family and community ties and the several people who depend on them. As former US Attorney General Loretta Lynch declared in 2016, “Put simply, we know that when we incarcerate a woman we often are truly incarcerating a family, in terms of the far-reaching effect on her children, her community, and her entire family network.” These unique needs cannot be addressed, however, when the experiences of criminalized men define reforms aimed solely at ameliorating the ills of a single carceral facility.

For this reason, de Blasio’s narrative of criminal justice in New York City, which focuses solely on Rikers Island and those confined there, perpetuates a harmful erasure of the experiences of criminalized women and girls, rendering their pain nearly invisible. In order to reframe the discussion in a way that captures the full spectrum of experiences of those harmed by the criminal legal system, it is essential to broaden our focus beyond the jail to include the spaces and systems in which women and girls come in contact with the legal system most. Police, corrections officials and justice reformers alike will need to turn their attention to criminalization as opposed to a narrower focus on incarceration.

Such a redirection would entail increased concentration on the impacts of zero-tolerance disciplinary policies in schools; inadequate, stigmatizing treatment for mental illness and substance abuse disorders; and deficient social service and punitive infrastructure for handling sexual assault and domestic violence in low-income neighborhoods. Increasing our understanding of the ways in which these vulnerabilities establish a culture of insecurity and state-sanctioned neglect for women within their own communities will illuminate some of the reasons why women engage in the illicit economy and come into contact with the criminal legal system.

Any discussion of ending mass incarceration must begin at the point of criminalization, not confinement.

Contrary to de Blasio’s rhetoric, mass incarceration is not an issue located exclusively within jails and prisons. As Michelle Alexander, author of The New Jim Crow, has written, mass incarceration also encompasses the laws, policies, customs and culture that sustain the carceral system and exercise their control over all those — confined or otherwise — who have been labeled “criminal.” For this reason, any discussion of ending mass incarceration must begin at the point of criminalization, not confinement. If we limit our resources and attention to reforming the city’s prison system, we cannot confront the ills of the policing and prosecutorial systems that are manifested through the criminalization of vulnerable individuals — particularly women and girls of color — within their own communities. Instead, this singular focus posits men as the archetypal victims of the criminal punishment apparatus and enables the physical structures of incarceration to obscure the punitive codes and culture injected in low-income, minority communities by the criminal legal system.

While closing Rikers — and other jails around the country — is an essential goal, we cannot make the mistake of conflating the dismantling of carceral facilities with the amelioration of all of the myriad ills of the nation’s punitive apparatus. If we are committed to truly ending “mass incarceration,” we must also turn our attention to the experiences of women and girls — instead of rendering these narratives vulnerable to further erasure.