By Anjana Samant
The enactment of the First Step Act earlier this month will bring some much-needed change to our criminal justice system. But the First Step Act remains just that, a first step — particularly with respect to the impact that mass incarceration has had on cisgender women and trans people.
The legislation ends two gender-specific indignities of federal incarceration: the shackling of pregnant women and restrictions on access to menstrual hygiene products.
Shackling pregnant women during delivery has zero safety or health purposes, and serves only to demean and endanger the individual and her infant. The First Step Act moves toward permanently banning this practice by prohibiting federal correctional authorities from shackling incarcerated women during pregnancy and for a period thereafter, with some exceptions. The act also requires the federal Bureau of Prisons to provide sanitary napkins and tampons at no charge. As with the shackling of pregnant women, unnecessary restrictions on access to menstrual health products have turned a normal bodily function into a 
nightmare for people in prison.
These changes, in addition to the act’s other reforms, are welcome improvements, but they only begin to scratch the surface for incarcerated women. Even in the areas of pregnancy and menstrual health, many problems in federal prisons will go unaddressed. For instance, the often indiscriminate and arbitrary use of solitary confinement against pregnant women and the inadequate provision of OB-GYN care will not change. Furthermore, though cost will no longer be an issue, access to sanitary napkins and tampons is not guaranteed since institutions can continue to set arbitrary monthly quotas on such supplies. The act also will not end policies that deny or delay laundry privileges or a change of clothes to someone who has bled through their clothing. And if you are in federal immigration detention or are one of the unknown number of transgender prisoners in federal men’s facilities, you are not covered by the legislation at all.
Moreover, most women behind bars will not benefit from the act simply because the vast majority of imprisoned women are in state and local facilities.
In recent decades, women have been the fastest growing incarcerated population in the country. That growth has been concentrated in state and local facilities due to several factors. The increased criminalization of poverty at the local level means that jurisdictions across the country are throwing women in jail because they cannot afford to pay government fines and fees, and because they cannot afford bail. As a recent ACLU and Human Rights Watch report found, “While most women admitted to jails are accused of minor crimes, the consequences of pretrial incarceration can be devastating.” Whether in jail for a day or for months, women face the prospect of losing their jobs, apartments, children, and — as the deaths of Sandra Bland and Natasha McKenna remind us — even their lives.
The rising women’s population in state prisons is partially the result of the overcriminalization of drug-related offenses, the spread of “broken windows”-style policing and sentencing, and the criminalization of behavioral responses to gender-based and sexual violence. Additionally, girls and trans youth — particularly youth of color — are being pulled into the criminal justice system earlier and more 
often through the increased criminal prosecution of in-school behavior and the school-to-prison pipeline.
Most cisgender women and trans people who come into contact with the criminal justice system either have some history of substance abuse, or are survivors of or witnesses to violence. Yet state and local facilities often fail to provide appropriate trauma counseling, mental health services, or other supports that would reduce retraumatization and improve odds of successful reintegration upon release.
The First Step Act’s requirement that incarcerated people in federal prisons be placed within 500 driving miles of their families signals an acknowledgment that family separation harms both people in prison and their loved ones. However, this rule will not apply to the roughly 60 percent of women in state prisons and 80 percent of women in local jails who are mothers with minor children. Even though these women also are more likely to be single parents or primary care providers than jailed fathers, odds are that they will be imprisoned far from home, regardless of the impact on their personal or their families’ well-being.
The reforms of the First Step Act should be implemented and expanded at the state and local levels. More steps should be taken to permanently ban the shackling and solitary confinement of all prisoners and ensure free and unimpaired access to menstrual health supplies and OB-GYN medical services. Additionally, we must end money bail and close debtors’ prisons, adopt incarceration and prosecution alternatives, and institute trauma-informed practices in all detention and prison facilities. These are just a few examples of more gender-inclusive reform efforts.
To achieve meaningful gender justice, we need to apply a gender lens in analyzing both problems and solutions. Otherwise, and despite important efforts like the First Step Act, sexist inequities in institutions throughout society, including the criminal justice system, will persist.
Anjana Samant is a Senior Staff Attorney for the Women’s Rights Project
Gender justice is very important. We need to end the injustice by requiring that all judges, when considering a sentence for a women, affirm they are not giving to woman a lessor sentence than they would a man.
I think we need to look into the collateral impacts of incarcerating women to begin with – particularly for drug offenses.
About 75 to 80 percent of all women who are incarcerated are mothers with minor children according to recent census data. Most of them have minor children living with them at the time of their arrest and for whom they are the sole caregivers. The result of arrest an incarceration is that those children become even more vulnerable than they are now – many end up in foster care, are abused, end up on drugs and on the street, and remain at risk even if their mothers come home.
Certain welfare reform laws have exacerbated that problem by banning public assistance to people with drug convictions. The population most affected by this misguided law is formerly incarcerated women with children, most of whom were imprisoned for drug crimes. These women and their children can no longer live in public housing, receive food stamps, or access basic services. Who gets harmed? The children. And there is no evidence that these laws reduce drug use in those populations.
Nice attempt at obfuscation.
Women are given lighter sentences for committing the same crimes as men. That is the injustice.
First Step deals with drug sentencing which has mandatory sentencing regardless of gender.
A good example of what Jim Hoch is saying is just look at the different sentences that are given out to female teachers versus male teachers when it comes to having sex with their minor students.
Which has nothing to do with First Step, Keith.
Although I’m in favor of that disparity.
“having sex with their minor students.” Though note that if you are a senate candidate from Alabama hitting on a 16 year old when you are in your mid 30s is considered disqualifying. In SF giving drugs to a 16 year old and having sex with him when you are in your mid 30s makes you a hero and you get an airport terminal (among other things) named after you.
Y’know, thanks to fellow sarcasist JH, I might just stick around after Anonygeddon.
90% of this article has nothing to do with First Step either. Calling out sex discrimination should be supported by the vanguard.
Really? “The legislation ends two gender-specific indignities of federal incarceration: the shackling of pregnant women and restrictions on access to menstrual hygiene products.”
“The First Step Act moves toward permanently banning this practice by prohibiting federal correctional authorities from shackling incarcerated women during pregnancy and for a period thereafter, with some exceptions.”
Other than giving background on the problem, the entire article directly relates to provision of the First Step Act.
My initial response to you was to point out the overall problems that incarcerating women for minor offenses creates.
As the article points out, “As a recent ACLU and Human Rights Watch report found, “While most women admitted to jails are accused of minor crimes, the consequences of pretrial incarceration can be devastating.” Whether in jail for a day or for months, women face the prospect of losing their jobs, apartments, children”
I get that you want to change the subject… but First Step is the subject here.
“Moreover, most women behind bars will not benefit from the act simply because the vast majority of imprisoned women are in state and local facilities.”
Everything south of that is off topic.
First of all you said, 90% of the article and then cite a passage half way through.
But let’s look…
Next paragraph situations women as “fastest growing incarcerated population in the country.” That’s a concern. I agree with the comment that most women will not benefit from the act, but that’s part of why this is called “First Step” rather than “Final Step” as it sets the stage for further reforms.
Next paragraph talks about “overcriminalization of drug-related offenses” – that’s directly what First Step deals with.
Next paragraph on cis/ trans having substance abuse, situates the problem.
But then the next three paragraphs directly talk about First Step.
So again, I don’t know what you’re point is. This is an article about the impact of First Step on women and a discussion of the issues women specifically have to face in the criminal justice system.
The article mentions absolutely nothing about the point that you raised in the first comment.
“The article mentions absolutely nothing about the point that you raised in the first comment.”
Exactly, it dances around the discrimination as the author is party to it. That is why I brought it up.
It doesn’t claim that women are disproportionately sentenced, it simply points out, accurately, that even incarceration for women on minor offenses creates a down river impact – a point that I highlighted with additional information a comment you brushed off with a shrug. To me that’s the biggest issue – we make a lot out of the absence of fathers in the system, but perhaps the bigger impact is when women also get incarcerated and youth end up in abusive situations in foster care or on the street – that has an impact across generations. You don’t even want to discuss it and instead focus on a separate topic never discussed or addressed in this article.
“you brushed off with a shrug” It was so dumb I was embarrassed and thought the polite thing to do was to let it pass without notice.
The principle you are espousing is that judges should sentence people based on their prejudices about that person’s worth and place in society. Homeless people would fare the worst as they have no responsibilities at all and therefore can accommodate a lengthy sentence. Trans people are less likely to either be employed or to be parents so they should get more severe punishment as well. People with professional careers are less easy to replace and therefore should get lighter sentences for the good of society.
This could get lengthy…
That’s not the principle I’m espousing. The principle I’m espousing is that when we look at the downhill impact of incarceration for minor crimes, we ought to figure out ways to not incarcerate – either through alternative punishment or changing the laws. The First Step, in my view, is the first step forward toward those type of changes.
Our criminal justice system is self-perpetuating – by punishing one generation of perpetrators, we end up creating future criminals. Clearly for some crimes, this cannot be avoided and we must figure out mitigation for that, but for minor crimes, I think punishment does all involved more harm than good.
then you agree that women and men should receive equal outcomes?
I agree that I have problems with the current system regardless of gender, but I also believe there are gender specific issues that can be addressed within the system.
OK, so you do not believe in gender equality. That is a clear answer.
What about racial equality? Should outcomes be racially neutral or are there “racial specific issues that can be addressed within the system”?
yeah, it’s in the name
My experience is that all male and female inmates are handcuffed to their beds (usually bedrails) when in the hospital. This is true even if the inmate is comatose, intubated, and on a ventilator. Why cuffing a female inmate in labor to her bed is somehow considered an unconscionable crime against humanity but cuffing a male inmate who is comatose or so gravely ill he is immobile is beyond me.
Cuffing the mother to the bed demeans and endangers the newborn infant?? Explain that one to me. The last time I checked, newborn infants were not handcuffed.
I absolutely agree that menstrual pads/tampons should be considered to be in the same category as other personal hygiene products such as toothbrushes, toothpaste, and soap, and provided at no charge which in my experience is the case.
Soiled clothing is soiled clothing, whether it is the result of your period, spilling your food, getting a little poo/pee on you, someone throwing something on you, getting dirty at work, getting sweaty and stinky from exercise, or any number of other things that could happen. The usual and customary practice is generally that when inmates soil their clothes prior to laundry day, they usually hand wish it in the sink in their cell and hang it up to dry overnight.
The drug use to prison pipeline is a travesty, which might go along way to explaining why we have a 5% of the worlds population but 25% of the inmate population. Keeping them within 500 miles of their family just might go along way toward maintaining some sort of attachment to their family/community and nudging them toward rehab. The First Step Act is a huge step in the right direction to inject some sanity in to our criminal justice system.
As is the case with our healthcare system, we have the greatest criminal justice system in the world, for those who can afford it.
Here’s the NPR report on shackling: https://www.npr.org/templates/story/story.php?storyId=128563037
Wes… if a woman is pregnant, there is no ‘child’… only a fetus or a ‘product of conception’… not ‘human’ to many (I strongly disagree with those views, BTW… many others espouse those views).
But, a woman in labor (not just pregnant)[or, late pregnancy] is not likely to go anywhere… ask any woman who has given birth… ANY stress added to ‘labor’ can stress at least two persons, as I view it, and at least one is innocent of any crime.
Although only loosely related to this article via the Vanguard’s general advocacy regarding prison reform, I just noticed this article regarding an increase in crime:
https://www.msn.com/en-us/news/crime/crime-surge-casts-shadow-over-californias-reforms-on-prison-and-parole-policies/ar-BBRraru?ocid=spartandhp
I wonder if the pendulum will swing back in the other direction at some point, again.