Growth in U.S. female incarceration. Image credit: Prison Policy Initiative
Some 25 years ago I was living in Church Hill, then a sketchy Richmond neighborhood in the early stages of gentrification. One night police lights were flashing in my front window, so I stepped outside to see what was happening. Halfway down the block, a woman on the sidewalk was clutching an infant and bawling as police were confronting her. The police, it transpired, were arresting her on a charge relating to activities in her abode, a notorious crack house, and they had to haul her downtown. “Please don’t take my baby!” she wailed. “Please don’t take my baby!”
Curious, I inspected the premises. Other than a mattress on the floor, the house was bereft of furniture. The stink of dirty diapers permeated every room. I shuddered to think what kind of care the baby was receiving from a crack-addict mother. And I kept thinking, lady, if you don’t want to be separated from your baby, you should have thought about that before you started smoking cocaine. Even so, it was impossible not to feel compassion. The woman’s addiction had not smothered her maternal instinct. She was truly piteous.
I fully confess my ignorance of the inner workings of the U.S. criminal justice system, but it is my impression is that there was nothing unusual about the scene I witnessed, and that nothing significant has changed in the administration of justice since. If a woman is arrested for breaking the law, she is charged with a crime and taken to jail, where she may or may not get bail. She is held there until her trial. If found guilty, she goes to prison. As an inevitable part of the process, the mother is separated from her children, often for a considerable length of time.
In 2015 the Virginia prison system incarcerated 3,236 female inmates. (A roughly equal number were held in local jails.) The most frequent offenses, according to the Richmond Times-Dispatch, were larceny/fraud (38%); drug sales (14%); robbery (8%); and drug possession (6%). The racial breakdown: 62% white and 37% black. The average age was almost 38. Sixty-two percent were separated from minor children.
The criminal justice system has been separating women from their children pretty much forever. The system has procedures for providing care for the children — handing them over to relatives, holding them in orphanages, placing them in foster homes. There may be other options I’m not familiar with. While that system has been subject to criticism from time to time — sometimes children fall between the institutional cracks — I don’t recall anyone objecting to the underlying necessity of removing children from women who are charged and convicted of crimes.
Even a recent study by the leftist Prison Policy Initiative, which absurdly manages to find injustice in the treatment of women in a prison population in which 90% of the inmates are men, mentioned the issue of children only in passing, and mainly in the context that female inmates should be allowed more face-to-face time with them.
Now, over the course of a two or three weeks, the nation has totally flipped on the issue — not out of concern for American citizens caught in the criminal justice system, but for families seeking to enter the country illegally. All of a sudden, it’s an affront to the country’s moral conscience that children are separated from mothers being held in detention while awaiting adjudication. My point is not to criticize or defend the behavior of either President Trump or his enemies in the media, but to explore the implications of this new way of thinking for the administration of criminal justice here in Virginia.
If it is a shocking violation of American values to remove children from parents entering the country illegally, is it a shocking violation of American values to do the same with American citizens breaking state laws? If justice requires ending the practice for Guatemalans and Salvadorans entering California, does logic now impel us to do the same for Americans here in Virginia? If so, are we morally obligated to overhaul Virginia’s criminal justice system so mothers are never again separated from their young children before they are convicted of a crime and sent to prison?
Taking President Trump out of the equation so we can think calmly and rationally, not viscerally, what criteria do we apply? What is the proper balance between having a humane criminal justice system and one that expeditiously carries out the laws of Virginia? Do we apply one set of rules to immigrants and a harsher set of rules to native-born Americans? Or do we overhaul criminal justice across the board, not just at the border? I don’t see how we avoid asking these questions now.