The United States' Addiction to Imprisoning Women for Drugs

United States women prison

While drug reform initiatives are taking root across the United States, Tennessee’s draconian law criminalizing pregnant drug users could help the country keep it’s notorious title as the world’s largest incarcerator of women, an infamy fuelled largely by the war on drugs.

On July 1, a controversial new piece of legislation (SB1391) came into force in the US state of Tennessee meaning women can be imprisoned “for the illegal use of a narcotic drug while pregnant, if her child is born addicted to or harmed by the narcotic drug.”

Two women were charged with assault within the first month of the new law after their newborn babies tested positive for illicit substances, reported Al Jazeera. Though neither woman was ultimately sentenced to prison, instead being sent to attend court-ordered rehab, SB1391’s harsh penalties mean that judges have the scope to hand down a maximum prison term of 15 years.

As one Tennessee woman who suffers from problematic drug use told Al Jazeera, if SB1391 had been in place when she had given birth to her child it would have deterred her “from going to the hospital and seeking care” for her baby, as she “wouldn’t want to end up in jail.”

The disastrous consequences of this new law – one in a state where harm reduction programs are neither ubiquitous, nor easily accessible -- are manifold. When looking at the role of drug prohibition in driving female incarceration rates, SB1391 sadly does little to buck the historical trend in the US.

The US held nearly a third of all women who were imprisoned globally in 2012, as the graphic below illustrates (N.B. the graphic incorrectly states that the statistics are from 2013). According to the International Centre for Prison Studies, the US is the biggest offender in locking up women, ahead of both Russia and China.

When considering these figures, it is worth noting that women, as a whole, make up a small percentage of violent crime offenses. Consequently, The Sentencing Project, among others, has attributed the growth in female prisoners, in part, to the rise in rigorously enforced drug law violations across the US.

As noted in a 2013 report by The Sentencing Project, the proportion of women incarcerated for drug offenses surpasses that of men, with this pattern becoming increasingly stark over time. For example, in 1986, 12 percent of women in state prisons were imprisoned for a drug crime compared to 8 percent of men. In 2009, this disparity lingered; females (25.7 percent) remained more likely to serve time for drug offenses compared to men (17.2 percent).

Besides the well-documented financial costs of penal institutions, the social costs of prison for women and their children can be extremely destructive. The Sentencing Project notes there is evidence to suggest that maternal imprisonment “can be more damaging” to a child than paternal imprisonment. It is estimated that mothers in prison are five times more likely to have to place their children into foster care compared to fathers.

Despite the immense amount of harm frequently caused by imprisoning mothers (and others), the crux of the issue goes beyond that; those incarcerated for non-violent drug offenses -- whether or not they are parents -- should not be ensnared in the penal system.

Sentencing reform at both federal and state levels is being worked towards, albeit cautiously, meaning the United States could well lose the infamy of being the country that locks up the most women. With bills such as SB1391 being put into practice, however, don't expect to see this anytime soon.