Jonathan P. Baird

As a law student back in the mid-1980s, I worked on a class-action case on behalf of female state prisoners in New Hampshire. The case had an unusual purpose. It aimed to force the state to create a women’s prison inside New Hampshire. There was not one.
At that time, the state exiled female inmates and shipped them off to out-of-state correctional facilities. The small number of female inmates translated into an almost complete lack of consideration of their needs by the state.
A lawsuit, Fiandaca v. Cunningham, challenged this unfairness. With no women’s prison in New Hampshire, the state effectively denied female prisoners access to their children and lawyers. The lawsuit also took issue with the poor quality of programs available to female prisoners which were not comparable to the men’s programs.
As part of my work on the case, I traveled around and took affidavits from a number of women who were mostly confined in Massachusetts prisons. There were 23 female state prisoners when the Fiandaca case was filed in 1983. Probably the biggest change since then, beyond getting a women’s prison in the state, has been the remarkable increase in the number of women inmates.
According to the most recent available data, in 2007 there were 142 women in the state’s women’s prison in Goffstown or at the Shea Farm Halfway House in Concord. There were 291 in jail and another 1,450 under correctional supervision in the community.
Considering the extent of the increase, it is surprising how little public discussion and analysis has been forthcoming about the reasons for the climb.
A little-noticed 2008 report from the New Hampshire Women’s Policy Institute entitled “Women Behind Bars” did make a serious attempt to study underlying reasons.
The report found a complex of reasons to explain the increase in female arrests, including substance abuse, mental illness, a history of domestic violence, low education and poverty. Recidivism was a major factor driving the increase.
Two-thirds of female inmates have children and almost half are single mothers. The Women’s Policy Institute report estimates that 1,300 or more children are affected by their mothers’ incarceration each year. Research suggests that children of incarcerated parents are five times more likely to enter the criminal justice system than children whose parents have never been incarcerated. They are also more likely to leave school and have issues with depression, substance abuse and delinquency.
Nationally, 64 percent of mothers in state prison lived with their children immediately before their incarceration. The children of these inmates will often have emotional and psychological problems stemming from the trauma of separation. In effect, the children will do the prison time too.
From the perspective of societal self-interest, addressing the multiple needs of offenders is rational. It is about future crime prevention. It is not about being a bleeding heart or excusing the crimes of the women. Those crimes must not be excused.
Yet being tough or warehousing is not in and of itself a policy. It is certainly not a thoughtful policy. Many of the female prisoners are very young. The great majority will leave prison and re-enter society. Their children are in the background, but they are very much part of the equation.
A comprehensive treatment approach is needed that integrates substance abuse treatment, mental health, child care, children’s needs, housing assistance and job training. Long-term, successful rehabilitation should be the goal. Many of these women can turn their lives around.
We are far from having such an approach. We do not even gather adequate data to understand the unique profile of women offenders. Warehousing trumps rehabilitation.
Of course, there are many who will argue that such a rehabilitation approach is too expensive or not worth it. I would suggest that lack of investment and treatment is even more expensive. The cost will be more incarcerations and more lives ruined by largely treatable conditions like substance abuse, mental disorders and domestic violence victimization.
Too bad budget sheets do not typically capture the costs of lack of treatment.
Recently our Legal Aid softball team played two games against the inmates at the prison in Goffstown. Many of the prisoners who were not playing came out to watch. I was struck by how young the women were. They could have been high school or college students. Some looked like classic All American girls.
There is sometimes a thin line between being in prison and being on the outside. The path to criminality is not a given. Demonizing inmates and ignoring their needs is short-sighted. The upward trend in female incarceration could be combated if the political will was there.