Historical Context
The Narcotic Control Act of 1951 established the nation’s first mandatory penalties for drug crimes (United States Sentencing Commission, 1991, p. 6). Before this act, the rehabilitation model of corrections had held sway, and it was generally maintained that “punishment could reform offenders” and consequently that judges should be allowed to determine prison sentences and parole boards allowed to determine when prisoners were ready for release (Caulkins, Rydell, Schwabe, & Chiesa, 1997, p. 8). The rehabilitation model regained popularity in the 1960s, and in 1970 Congress concluded that the Narcotic Control Act “had not shown the expected overall reduction in drug law violations” and repealed most mandatory sentences for drug offenders (United States Sentencing Commission, 1991, p. 7).
The rehabilitation model again came under attack in the 1980s, and this time politicians responded with three important pieces of legislation. The Federal Sentencing Reform Act of 1984 “created a Sentencing Commission to develop sentencing guidelines” (Caulkins, Rydell, Schwabe, & Chiesa, 1997, p. 9); the Anti-Drug Abuse Act of 1986 created the current mandatory sentences for drug trafficking (United States Sentencing Commission, 2011, p. 24); and the 1988 Omnibus Anti-Abuse Act extended the types of substances and offenses that were subject to mandatory sentencing (United States Sentencing Commission, 2011, p. 25). Politicians gave four main reasons for these bills: first, mandatory sentences were just, as those who committed serious drug crimes deserved long prison sentences; second, they would be harsh enough to deter further drug crimes; third, they would protect the public by taking offenders off the streets; and fourth, they would eliminate the sentencing disparity that existed when judges had more sentencing leeway (United States Sentencing Commission, 1991, pp. 13-14).
Levy-Pounds (2006) writes that, although mandatory sentencing laws were established “to provide lengthy prison terms for drug kingpins and other high-level dealers,” they “have had a disparate impact on persons who fall far outside those categories,” as thousands of “low-level, nonviolent women are serving lengthy prison terms for peripheral involvement in drug-related activity” (p. 467). Moreover, as explained by family systems theory, many of these women’s children in turn suffer from these laws.
Legal Issues
Women subjected to mandatory sentencing laws are often affected by additional laws. For instance, the Adoption and Safe Families Act of 1997 requires states to terminate parental rights if a child has been in foster care for 15 of the last 22 months (Notkin, Weber, Golden, & Macomber, 2009, p. 123). Consequently, many mothers serving prison sentences for nonviolent crimes must helplessly stand by as their children are orphaned. Once these women leave prison, additional laws prevent them from accessing programs that aid the poor. For example, the Housing Opportunity Program Extension Act of 1996 prohibits drug offenders from receiving Section 8 housing; the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 prohibits offenders from receiving welfare benefits or federal food stamps (Godsoe, 1998, p. 257); and the 1998 Amendment to Higher Education Act prohibits offenders from receiving the Free Application for Federal Student Aid.
Mandatory minimum sentences have been successfully challenged in court on a few occasions. In United States v. Pozzy (1990), for example, the United States First Court of Appeals reduced one woman’s mandatory minimum 24-month sentence to a three-month house arrest. The Court ruled that the Sentencing Commission had failed to take into account several important factors, one of them being that the woman was pregnant and thus would have been forced “to nurture [her] pregnancy and to have [her] baby outside of her home, away from her family” and in an environment that would be physically and psychologically “detrimental” to her and her baby.
Family Systems Theory
Family systems theory suggests that people learn self-differentiation in an intact family system or they become undifferentiated. That is, they either learn within a system to develop the capacity to become autonomous, free-thinking individuals able to respond to anxiety-provoking pressures in a positive manner, or they learn to be submissive, easily moved to think negatively, and respond in an unhealthy manner to these pressures. “A person’s basic level of differentiation may be determined by the degree of autonomy achieved in his or her family, but the functional level of differentiation is influenced by the quality of current relationships” (Nicholas, 2014, p. 75). Ideally, family composition includes parents who protect, nurture, discipline, and guide the children within the unit in a way that helps them develop healthy, productive behaviors as they journey through life.
So what if the maternal influence in the family is removed as a result of a criminal act that mandates a mandatory prison sentence? We will begin to answer this question by way of example. While in college, Kemba Smith fell in love with a charming older man named Peter Hall. After they had been dating awhile, Kemba began to hear “the buzz that Peter dealt drugs. She didn’t ask questions.
The fact that many popular college women were friendly with him made him seem safe” (Copeland, 2000). Their relationship quickly deepened, and although Peter beat Kemba, sometimes brutally, she believed she was in love and could not bring herself to leave him. And then one day he was arrested, and Kemba learned that the rumors that he dealt drugs were true (Copeland, 2000). Peter soon got out of jail, and Kemba, still believing herself to be in love, “became involved in the drug ring in a number of supporting roles. Sometimes she carried a gun in her purse for him. Eventually, she flew to New York with money strapped to her body” (Copeland, 2000).
Shortly after she became pregnant with Peter’s baby, Kemba and 11 other individuals were indicted by a grand jury. Kemba eventually “pleaded guilty to three charges: conspiracy to crack and powder cocaine trafficking, money laundering and making false statements to federal agents” (Copeland, 2000). Although Kemba had no prior criminal record and although she never sold Peter’s drugs nor benefitted financially from their sale, she was sentenced to 24 ½ years in prison with no chance of parole (Stuart, 2010, p. 10). Kemba’s parents were granted custody of her baby boy, and Kemba now faced the challenge of explaining to the boy why she was behind bars. Around his fifth birthday, “he began to get mixed up. All this talk about guns and drugs. He came up with the theory that Mommy shot someone” (Copeland, 2000). Kemba began to cry, and she then “lifted him onto her lap—because you can do that in a minimum security federal prison—and explained that she never hurt anyone, but her boyfriend did, and that’s the reason why she’s here” (Copeland, 2000).
Interdisciplinary Analysis
Female offenders have specific profiles as noted in federal and state data and research. In 2010, 113,000 women were incarcerated in state and federal facilities versus 1.5 million men (Sipes, 2012). According to Sipes (2012), women are being incarcerated now at a faster rate than men (US DOJ, BJS, 1999). Sipes (2012) states that 36 percent of women are convicted for violent crimes, 30 percent for property offenses, and 26 percent for drug offenses.
Female offenders also have unique demographic and background characteristics that can correlate to crime and incarceration or reveal differing pathways from male offenders. For instance, 73 percent of female offenders have mental health and substance abuse issues versus 55 percent of male offenders (Sipes, 2012). Female offenders also experience higher incidents of trauma in their lives, with eight in ten reporting histories of abuse (Sipes, 2012). Nationally, 57.2 percent of female offenders report histories of abuse, compared to 16.1 percent of male offenders. According to Sipes (2012), 40 percent of female and 32 percent of male offenders report drug use, and 18 percent of female arrests are for drug offenses (US DOJ, BJS 1999). Six in ten arrested women report being unemployed prior to their arrest, and 37 percent report monthly incomes of less than $600 (US DOJ, BJS, 1999). These statistics validate a sharp contrast in reasons why women versus men engage in some criminal activities, and the challenges they face when reintegrating into society after serving their prison sentences. The recidivism of female offenders also depends on their ability to avoid returning to abusive relations, to secure meaningful employment, and to recover from substance-abusing behaviors.
Brennan et al. (2012,) found that women with drug and property offenses were more normal functioning than other types of offenders and more likely to have situational offenses rather than serious or chronic behaviors. Battered women and those subjected to extreme abuse or those who suffered over a lifetime showed that the developmental issues surrounding parenting roles, stress, and age impacted the criminal offending behavior (Brennan, et al., 2012). In addition, factors such as lower socioeconomic status and antisocial aggressiveness in women contribute to the marginalization of offenders who may have been socialized into a pathway of criminal behavior (Brennan, et al., 2012). Statistically, about 74 percent of the 2om3n who followed this pathway were either drug-addicted or drug-affected (Brennan, et al., 2012).
Ironically, even when offending, family structure is important. Almost half of female offenders have never been married, and 64 percent of female offenders with minor children lived with them prior to incarceration (US DOJ, BJS, 1999). Statistically, seven of ten female offenders have minor children, which translates to 1.3 million children (US DOJ, BJS, 1999). Once incarcerated, grandparents are most likely to take on the role as caretakers of the children (US DOJ, OJP, 1998).
Family Systems Theory
As mentioned earlier, family systems theory asks us to consider how families are impacted when mothers are incarcerated. The first thing to consider is that these women are often sent to prisons far away from their families, sometimes in different states, thus limiting visiting time. Their children are often shipped off to foster care or unknown relatives. In many cases, these children continue to be victimized through emotional, physical, or sexual abuse (Mauer, 2010, p. 7).
Wildeman and Western (2010) write that having an incarcerated parent increases the likelihood that children will experience behavioral and mental health problems. Notkin, Weber, Golden, and Macomber (2009) write that “parental incarceration is considered an ‘adverse childhood experience’ of the type that significantly increases the likelihood of long-term negative outcomes for children, such as drug addiction, obesity, or their own experiences with incarceration” (p. 124). Other studies show that having an incarcerated parent increases the likelihood that they will drop out of high school (Women and Gender, 2015).
Once released from prison, these women often struggle to provide for their families. One reason for this, as illustrated earlier in this paper, is that certain laws make it difficult for drug offenders to receive government assistance. Additionally, individuals with criminal records face social stigma that hinders their ability to procure employment (Wildeman & Western, 2010). Wildeman and Western (2010) note that the effects of incarceration can cause significant health breakdowns, which can in turn impact parenting, mental health, and job abilities.
Because of these economic realities, these women are often forced to become overly dependent on their own parents. As discussed by Davis, Bahr and Ward (2012), familial support is one of the key factors in offender reintegration and success. Continuing to live with and be supported by extended family members can lead to an environment of enmeshed relationships. This in turn can hinder the ability of children to differentiate themselves from their relatives.
Ethical Considerations
In the intersection of social work and legal studies, an analysis of congruence with ethics is required. The National Association of Social Workers’ (NASW) Code of Ethics discusses two key concepts that relate to the effects of mandatory sentencing laws and their impact on family systems: self-determination and commitment. Mandatory sentencing laws are incongruent with self- determination, because self- determination requires respect for the client’s right to decide for themselves, to identify their own goals and wishes for their lives (NASW, 2008, 1.02). In cases where social workers suspect harm to self or others, this can be limited (NASW, 2008, 1.02). However, in most criminal sentences, the offender is deemed capable of rehabilitation and not a threat (remember, only 36 percent of women offenders are incarcerated for violent offenses, and of these many are one-time occurrences) (Sipes, 2012). Self-determination provides fertile ground for empowerment, confidence, and hope that one has the tools needed to be successful in leaving a criminal life behind.
The NASW Code of Ethics is both congruent and incongruent with mandatory sentencing laws, in promoting the well-being of clients. For example, the Code of Ethics states that the “primary responsibility” of social workers is to “promote the well-being of clients” (NASW, 2008, 1.01). By condoning and supporting mandatory sentencing laws, we are not supporting the well-being of clients, as we are supporting methods that lead to compromised financial opportunities and compromised family systems. However, the Code of Ethics also states that social workers additionally have “responsibility to the larger society” that “may on limited occasions supersede the loyalty owed clients” (1.01). If an offender is a threat to others, we need to consider ourselves more committed to society as a whole when we incarcerate a dangerous offender. Still, in most cases, as stated by Wildeman and Western (2010), the impact of over-sentencing and over-incarcerating, largely through mandatory sentences, leads to a pervasive and perennial negative impact on society, through its most powerful system, the family.
Conclusion
Bills that promise such reforms are currently making their way through both houses of the United States Congress. Both bills would implement three main reforms: first, they would limit the types of drug crimes that require mandatory sentences; second, they would reduce current mandatory prison terms, lowering mandatory life sentences to 25 years and mandatory 20-year sentences to 15 years; and third, they would change the safety valve provision, giving judges significantly more discretion in reducing mandatory sentences (Sentencing Reform and Corrections Act, n.d.).
Although organizations such as Families Against Mandatory Minimums (FAMM) argue that these bills do not go far enough (FAMM President Julie Stewart, 2015), they would nonetheless benefit thousands of families. For instance, they “could be applied retroactively, and an estimated 6,500 people now in prison would be able to petition for new sentences” (Hule & Steinhauer, 2015). Both bills have gained bipartisan support, and the Senate version overwhelmingly passed the Senate Judiciary Committee on October 22 (Senate Judiciary Committee, 2015), and the House version unanimously passed the House Judiciary Committee on November 22 (House Judiciary Committee, 2015).
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