The number of women inmates in the U.S has continued to increase at a steady rate. By the end of 2005 about 1,250,000 women were in prison or jail or on probation or parole with a total of 107,578 of them in federal prisons, which made up 7% of the total prison population in the U.S.. Of this numbers, a better percentage of them are composed of women of color of which blacks are the majority. In the contemporary world unlike in the colonial times about 70% of the women prisoners are in for “non violent drug, property or public order offenses”. (Peter A 78)
Unlike their male counterparts, the criminal justice system in the US has not comprehensively addressed the grievances that the women prisoners face. This can be attributed to the fact that prison population has ideally been male-dominated. With a 7% total prison population the policy makers have often times overlooked the need to address or tailor make the criminal justice system to address the various “peculiarities” that women prisoners face, which might not necessarily be the same as those ones of their male counter parts. However, “this does not mean that the system has been blind to the issues and concerns of the women folk, rather the pace of changes since the colonial times has moved at a slower pace, in the process leaving a trail of various injustices committed towards the women prisoners”. (Michael H. et al, 129)
The history of criminal justice has continued to evolve over the years, this has been necessitated by various factors which include; customs and values which have been changing over the time, political ideas and economic conditions which have continued to expose the society to better and humane methods of rehabilitating offenders. The crime scene has also continued to evolve on the other hand. To clearly understand the history of the criminal justice system and especially the government policies that have continued to evolve, there is a need to comprehensively understand the colonial history of the justice system, as we know it today (Michael H. et al, 146).
In ancient Greece and Rome crime was viewed as a private matter, which meant that the prerogative of investigation and punishment was usually left at the hands of the offended party, for example even with such offences as murder that were considered very serious, justice was left on the hands of the victim’s family. In places like Athens slaves were given the responsibilities of guarding public places and assisted in areas like handling of criminals, and making arrests. (Peter A 108)
During the middle ages, punishment of crime was mostly dealt with through “trial by ordeal” or ‘blood feuds’ between the affected parties. Fines were imposed on the offenders who were required to pay the victim a set amount, in cash or other non-monetary means. Failure or lack of the ability to pay would lead to corporal punishment which would include whipping, branding, mutilation, or flogging or execution in extreme cases. It is important to note that women in most instances were never involved in most of the crimes or if they did the society did not treat them as harshly as their male counterparts. (Peter A 111)
When the colonialists established themselves in the newfound frontiers they did not have clear policies to administer the states they were governing. The only form of law that was commonly used was the English Common Law System, which was the best known during the 17th century. This particular system was utilized by trial and error to resolve various problems in the society. The system only included various sets of rules and regulations. These rules were based on precedent decisions that judges had made in England. The system only addressed or distinguished only two types of crimes, felonies and misdemeanors.
The colonialists lacked any form of professional legal expertise, therefore developed their own criminal justice system, which meant that the laws they set in the new western frontiers determined future shaping of the laws here. Religion came in handy and played a pivotal role in shaping these laws, where the colonialists turned to the Bible and used it to craft laws to govern these states. A good example of such law was the Book of the General Laws and Liberties of the Massachusetts Bay colony of 1648 that was Biblically based to some extent. This influenced greatly issues to do with women. Therefore the criminal justice system during this period had no special provisions that specifically addressed women, it was rear for women to be involved in any form of misdeed.
The criminal codes that the colonialists used, limited themselves to such societal issues like idleness, lying, various sexual offences and drunkenness, which were considered crime regardless of gender. These codes as previously said were based on biblical principals of what is sin. The colonialists on the other hand held individual liberties in high regard, which would be the precursor to many contemporary criminal codes. These laws were very discriminatory especially to the slaves and particularly to the black women.
During the colonial times the laws that existed did not protect the black women. A white man could kill or even rape a black woman at will and nothing could be done about it. On the other hand the black woman who committed crime was harshly punished and not offered any benefits of chivalry unlike her white women folk who had committed similar offences. Majority of the females executed during this period were black female slaves. The courts regarded black women equal to the black men, “that is, as field animals who were the personal property of the slave master”.
For punishments, there were no prisons, as we know them today rather, punishment came in the form of public exposure. This usually entitled the heavy and extensive use of shamming which was simply meant to teach a lesson rather than punish. During this period the “criminals” were usually male. However, women if found guilty of any form of crime were punished heavily. Punishable crimes included infanticide, adultery or witchcraft. Whipping was a widespread mode of punishment and other forms included branding, being placed on pillory or even cutting off of ears.
Imprisonment was rare during the colonial time because the facilities could not be sustained and everyone was needed for labor anyway. But because of urbanization and industrialization there was need to develop facilities to incarcerate the ever-increasing number of offenders. Jails comprised of ordinary houses where people were held while awaiting trial. Rooms instead of cells served this purpose where men, women and children were put together. Such confinement would usually lead to rapes and abuse of the women and the juveniles, which sometime would lead to even death.
The jailers in these situations had so much authority and were notorious for corruption, public funds embezzlement and abuse of inmates especially the women who were sexually abused. (Feinman C 384).
The Quakers were known for their humaneness and took the first initiative of replacing execution for incarceration or confinement in prison or jail. These events would pave way for the Pennsylvania constitution of 1776 that included the construction of “houses” to punish criminals. The houses were focused in putting the inmates to hard labor though still maintained the public humiliation aspect by allowing the public to view the prisoners at work. .( Friedman L M 35)
These changes would eventually lead to the formation of the Philadelphia Society for Alleviating the Miseries of public Prisons in 1787. The society advocated for the treatment of the prisoners problem over physical punishment. By 1790 a sixteen-cell house had been opened in Philadelphia and called the Walnut Street Jail where prisoners were even given Bibles as part of the rehabilitation program.
The changes taking place here would go on to influence the changes in other states, in Massachusetts when the State prison opened there in 1805, such corporal punishment as whipping, branding and pillory use were eliminated. Through the 1820s to 1830s a movement to build state prisons or penitentiaries grew and greatly influenced the replacement of physical punishment to imprisonment. .( Friedman L M 55)
During the colonial period there was limited number of criminal justice system institutions and only included the county sheriff, judges and magistrates and the colonial courts. Prior to the American Revolution (1775–83), there were no distinctive American legal that existed. Criminal codes, punishments, and courts differed from one colony to the other. A more unified American legal system was underway by mid 1700s through the reform movement. The Revolution, which saw America achieve independence from Britain, hastened the reform process ushering in a new justice system, which protected and gave rights to the citizens. Later after the revolution court decisions and legislation would form the basis of the contemporary criminal justice system. Prior to the civil war, black people male and female were incarcerated disproportionately compared to the whites. This was because then, the Afro Americans were ranked lowly as slaves. After the civil war, many slaves were freed however most southern states passed the infamous Jim Crow laws which were high handed especially against the blacks. The black population in prison soared becoming the single most dominant group. The rise in the number would lead eventually to emergence of separate women’s quarters thereby changing the nature of women imprisonment. Through Sara Smith and Rhoda Coffin (Indiana Quakers) who opposed the sexual abuse leveled at women in 1869 saw the construction of the first separate women prison in 1874. (Lisa C. 105)
Law enforcement in the United States until the 19th century was the responsibility of the state and local governments. However, after the passing of the Interstate Commerce Act in 1870 the federal government took up some of these responsibilities. This would lead to the establishment of the department of justice, which was to execute such duties. By 1872, there was a transfer of the control of prison facilities to a new department from the Department of Interior. . ( Friedman L M 57)
Emergence of prisons for women
Women suffered from filthy, overcrowded and harsh treatment prison conditions in the early 19th century just like the men, although they were confined separately. However women suffered more especially because all these were accompanied with sexual abuse which some times resulted into pregnancy. A good example is the Rachel Welch case of 1826 where she became pregnant while in solitary confinement and later died soon after giving birth due to flogging from the prison officials. (John D. & Estelle B. 152).
Women went through such abuse especially because men officials ran such institutions and the conditions were as pathetic. For example in 1838 in the New York City Jail, there were about seventy women in a forty-two one-person cells. At Auburn Penitentiary, in New York in the 1920s, more than twenty-five women inmates serving up to 14 years were lumped together in a small room with sealed windows to prevent communication with men. Such sexual abuse was a mainstay in almost all penitentiaries, where like in the Indiana state prison, prostitution services for the male guards was availed and the women prisoners were supposed to offer such services.( Friedman L M 55)
The criminal justice system today has also evolved to become a very punitive measure against women just like in the colonial days. Ever since the civil war the black women has been punished more severely compared to her white counterpart. The number of women in state and federal prisons has continued to increase since 1980 to nearly double the number of men. Various theories have continued to emerge to explain this upward trend. The upward trend is sometimes attributed to the heightened political pressure that has been witnessed in the last 20 years. (Lisa C. 105)
In the United States what guides the criminal justice policy is the 1967 Residents Commission on Law Enforcement and Administration of Justice. Over 200 recommendations were issued in the comprehensive report entitled “The challenge of crime in a free society”. These recommendations were designed towards helping in the prevention and fighting of crime in a systematic criminal justice approach. The recommendations also sought to the increase coordination between the correctional agencies, the courts and the law enforcement. As per the President’s Commission, criminal justice system was defined as an avenue where the society is able to “enforce the standards of conduct necessary to protect individuals and the community” (Furumto, K B 54).
Today the criminal justice system in America poses “unique harm to women in the form of sexual abuse, medical neglect, denial of productive rights, economic survival and challenges to motherhood.” In the neo-criminal justice system according to various scholars’ girls and women are positioned at a disadvantage and especially in regards to the tenets of fairness, equity and parity. Male chauvinism and sexism has continued to affect this particular area.(http://prisonactivist.org/women/women-and-imprisonment.html)
Gerda Lerners in what she calls “patriarchy” which she defines thus “the manifestation and institutionalization or male dominance over women and children in the family and the extension of male dominance over women in society in general. It implies that men hold power in all the important institutions or society and that women are deprived of access to such powers” (http://prisonactivist.org/women/women-and-imprisonment.html)
Statistics on women imprisonment in the U.S has therefore shown great disparity from the men based on this fact alone. This has differed in areas like the proportion of women compared to men in prison, reasons for being sent to prison and conditions within the prisons themselves. (http://prisonactivist.org/women/women-and-imprisonment.html)
Today in most prisons the guards who are mostly male have been given total authority over the women. This means that they can intrude in the privacy of the prisoner with impunity, denying them an atmosphere to attend to their intimate needs. In the name of security the male guards monitor the women while bathing or changing her clothes. This is very evident in such facilities like Michigan, and Huron valley where a better percentage of the guards are male. Here it is not a surprise to witness situations where the male guards are allowed to body search the women inmates, running hands all over the women bodies. (http://prisonactivist.org/women/women-and-imprisonment.html)
In total 80% of the women who are incarcerated are mothers and in most cases single mothers; they go through extreme emotional pain upon separation from their children. Unlike the male counter parts they usually have no one else they can entrust their children with, posing a great danger of permanently losing them. This is perhaps one of the greatest forms of punishment that any mother can bear and “engenders despondency, feelings of guilt and the anxiety about their children’s welfare. (http://prisonactivist.org/women/women-and-imprisonment.html)
Women inmates have continued to suffer greatly at the hands of the criminal justice system that is meant to rehabilitate them. This has been brought about by the influence of a combination of male chauvinism and lack of comprehensive legislative guidelines that would properly address women inmate issues independent of the those ones of the males.