Criminal Legal Reform: An Intersectional Lens

October 15, 2021
Headshot of Aaron Gottlieb

 

Gender & racial disparities and a call for intersectional data in the analysis of California criminal justice reform.

 

Written by Merrit Stueven, MPP ’22
Edited by Anisha Asundi, WAPPP Research Fellow, and
Moira Notarstefano, WAPPP Communications Manager

In his talk for WAPPP’s fall seminar series on intersectional approaches to gender equity, Professor Aaron Gottlieb discussed the incarceration of women in the United States, the need for better—and intersectional—data on the experiences of incarcerated people, and the impact of criminal justice reforms in California.

Professor Gottlieb began his discussion by highlighting why he believes it is critical to take a gendered lens to mass incarceration, saying that when we think about incarceration, we often think of men, and especially men of color. However, the experiences of women, especially women of color and transgender women, are often invisible.

In the United States, women’s incarceration rate has grown at a significantly higher rate than men’s. Gottlieb cited that while the overall incarceration rate has increased by a factor of five in the last forty years, the incarceration rate for women has increased by a factor of eight. Before being incarcerated, women are especially likely to have experienced economic and social marginalization, including lower incomes, housing insecurity, mental health and substance abuse issues, and domestic violence. Gottlieb cited that an estimated 80% of incarcerated women have experienced some form of domestic violence, including intimate partner violence and childhood sexual abuse. Women are significantly less likely to be convicted of “violent” crimes and more likely to be held in local jails, including a large share who are being held pre-conviction.

Women’s experiences of incarceration itself are also strongly shaped by gender differences. For example, women have access to fewer programs inside prisons and jails than men; in Texas, men have access to 21 job certification programs while women have access to only two. This trickles down to impact women’s reentry experiences—women continue to experience extreme economic marginalization after being incarcerated. Overall, women have a higher likelihood of being unemployed and homeless after incarceration than men, and significant racial inequities exist for both men and women. After reentry, Black women experience homelessness at a rate 60% higher than white women, and Black women and Latinas have an unemployment rate double that of white women.

Women also continue to experience horrific violence in prisons and jails. While they make up only 7% of the state and federal prison population and 13% of those in jails, women make up 33% and 60% of cases of sexual victimization by correctional staff in these respective systems. Transgender women are especially vulnerable to violence—nearly 60% of trans women housed in men’s prisons experience sexual misconduct, compared to 4.4% of men. And this is in the context of an already much higher rate of incarceration: 21% of all trans women and 47% of Black trans women experience incarceration at some point in their lives.

Studying reforms to California’s criminal legal system, Gottlieb and his co-authors wanted to understand the reforms’ impact on incarceration overall, as well as on gender and racial disparities. The reforms, enacted in 2010, targeted non-violent offenses by reclassifying felony drug and property offenses into misdemeanors; limiting the reach of third strike laws for non-violent offenses; reducing revocation for parole and probation; and shifting punishment further towards county-level jail and diversion.

Compared to a synthetic control group of other states, the reforms showed a significant impact on incarceration in California overall. While the rates were nearly identical before 2010, by 2015, California’s incarceration rate was nearly 80 per 100,000 persons lower than the control. However, gender and racial disparities increased. Again with nearly identical rates before 2010, by 2015, the incarceration rate ratio for men-women was nearly 20% higher than in the control, the Black-White ratio was 43% higher, and the Latinx-White ratio was 25% higher.

In discussing these increased disparities, Gottlieb argued that race-neutral policies that do not make reducing racial disparities an explicit goal are unlikely to work. In addition, because of the gendered makeup of the non-violent and violent offender groups, a focus on non-violent offenses in reforms reduces incarceration rates for women more than for men. While the California reforms were effective in decreasing incarceration overall, Gottlieb cautioned that “We can still make reductions by focusing on non-violent offenses, but that’s really all we’ve done so far. And we’re not going to become like the rest of the world unless we start addressing violence, which is not often talked about enough in criminal legal reform.”

As he reflected on his findings, Gottlieb centered a need for better data and especially intersectional data. The study’s analysis was limited by the available gender and racial breakdowns of incarceration rates; Gottlieb expressed regret at not being able to further disaggregate the Black-White and Latinx-White ratios by gender to understand the impact of these intersecting identities. He emphasized that the lack of good data limits the nuanced study of women’s experiences with incarceration, including racial disparities and critically under-studied disparities by sexuality and gender identity. 

In reflecting on the importance of continued research and policies that target the harms of mass incarceration, Gottlieb offered a simple but powerful conclusion: “Women who are incarcerated are among the most marginalized people in our country, and we need to focus on them.”