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American Constitution Society Brown Brief on Intersectionality of Race Gender and Reentry for African American Women 2010

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The Intersectionality of
Race, Gender, and Reentry:
Challenges for African-American Women
By Geneva Brown
November 2010

All expressions of opinion are those of the author or authors.
The American Constitution Society (ACS) takes no position on specific legal or policy initiatives.

The Intersectionality of Race, Gender, and Reentry:
Challenges for African-American Women
Geneva Brown*
To deliver up bodies destined for profitable punishment, the
political economy of [the prison-industrial complex] relies on
racialized assumptions of criminality – such as images of black
welfare mothers reproducing criminal children – and on racist
practices in arrest, conviction, and sentencing patterns.1
The nexus of the declaration of the War on Drugs, the actions of state legislatures, and
the fact that prisons are becoming for-profit institutions has created the largest incarcerated
population in the world.2 One percent of all Americans has been or will be incarcerated.3
Professor Angela Davis has warned of the growing prison industrial complex and the ways in
which it devastates communities.4 The devastation caused by mass incarceration is particularly
pronounced in African-American communities which saw dramatic increases in incarceration.5
African-American men are the largest incarcerated population in the United States.6 Mass
incarceration has decimated the African-American community.7 The unintended consequences
*

Geneva Brown is an Associate Professor of Law at Valparaiso University School of Law. She received her B.A.
and J.D. degrees from the University of Wisconsin and her M.A. degree from the University of Illinois-Chicago.
She can be reached by email at Geneva.Brown@valpo.edu.
1
Angela Davis, Masked Racism: Reflections on the Prison Industrial Complex, COLORLINES (Sept. 10, 1998),
http://www.colorlines.com/article.php?ID=309.
2
See JENIFER WARREN ET AL., PEW CTR. ON THE STATES, ONE IN 100: BEHIND BARS IN AMERICA 2008 35 tbl.A-7
(Feb. 2008), available at http://www.pewcenteronthestates.org/uploadedFiles/One in 100.pdf (comparing the inmate
population of the United States with that of other countries by total inmate population, as well as by inmates per
100,000 residents).
3
Id. at 7 (“One in every 99.1 U.S. Adults are behind bars”); see id. at 24–27 (describing the methodology and
assumptions taken to make the calculation).
4
See Davis, supra note 1 (opining on the bases for the growth of the prison industrial complex, and on the havoc
that results for the communities involved).
5
See infra Part I.A (outlining the “intensified criminalization of drugs” as it relates to the growth in prison
populations and, in particular, the African-American prison population).
6
See WILLIAM J. SABOL ET AL., U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS BULLETIN: PRISONERS IN
2008 (Dec. 2009), available at http:bjs.ojp.usdoj.gov/content/pub/pdf/p08.pdf [hereinafter PRISONERS IN 2008].
7
See D. H. Kaye & Michael E. Smith, DNA Identification Databases: Legality, Legitimacy, and the Case for
Population-Wide Coverage, 2003 WIS. L. REV. 413, 454 (2003) (observing that the annual arrest rate among
African-Americans is more than two and a half times the white rate); MaryBeth Lipp, A New Perspective on the
“War on Drugs”: Comparing the Consequences of Sentencing Policies in the United States and England, 37 LOY.
L.A. L. REV. 979, 1022 (2004) (“[O]ne-third of black males born today likely will spend at least some part of their
lives behind bars[,] . . . nearly one-tenth of black males in their twenties already live in prison, and almost one out of
three black males currently remains under criminal justice control.”); Dorothy Roberts, The Social and Moral Costs
of Mass Incarceration in African-American Communities, 56 STAN. L. REV. 1271, 1279 (2004) (commenting that
mass imprisonment takes a tremendous toll on black communities); Bryan A. Stevenson, Confronting Mass
Imprisonment and Restoring Fairness to Collateral Review of Criminal Cases, 41 HARV. C.R.-C.L. L. REV. 339, 343
(2006) (detailing how mass imprisonment has created obstacles to reliable administration of the criminal justice
system and created unjustifiable procedures that bar prisoner appeals); Loïc Wacquant, From Slavery to Mass
Incarceration: Rethinking the “Race Question” in the US, 13 NEW LEFT REV. 41, 53–54 (2002) (arguing that mass
imprisonment presents an institutional impediment to progress and equality for African-Americans that has

1

of mass incarceration include the effects on the African-American family, including the rise of
African-American women in federal and state prisons.
The racialized nature of mass incarceration has arisen from the philosophy of law and
order regimes;8 as a result, racial overrepresentation exists at every level of the criminal justice
system, from the front lines of law enforcement to prison sentences.9 The strategy used by local
police departments of policing as an “occupying force”10 in low-income African-American
communities leads to discriminatory treatment by police officers.11 This discriminatory
treatment pervades the court system. The disparate sentencing of crack versus powder cocaine is
a prime example, and was responsible for sending a generation of African-American men and
women to prison.12
Mass incarceration of African-Americans leads to massive reentry into communities.
Consequently, communities are expected to absorb ex-offenders with limited funding and
services to assist in the reintegration. Legal reforms have created impediments to ex-offenders’
participation in employment, education, and housing.13 Race and gender further complicate the
challenges of reentry.
historical antecedents in slavery and American racial apartheid laws); MARC MAUER & TUSHAR KANSAL, THE
SENTENCING PROJECT, BARRED FOR LIFE: VOTING RIGHTS RESTORATION IN PERMANENT DISENFRANCHISEMENT
STATES 1 (2005), available at http://www.sentencingproject.org/pdfs/barredforlife.pdf (describing the practices of
states that strip people who have been convicted of felonies of voting rights after imprisonment, as well as the
practices of states that permanently bar voting rights unless the person is pardoned).
8
See Bruce Western & Christopher Wildeman, The Black Family and Mass Incarceration, 621 ANNALS AM. ACAD.
POL. & SOC. SCI. 221, 223 (2009) (arguing that the law and order themes of political movements were related to the
genesis of mass imprisonment).
9
See Fair Sentencing Act, S. 1789, 111th Cong. (2010) (reducing the disparity in powder versus crack cocaine
sentencing from 100-to-1 to 18-1); see also Celesta A. Albonetti, Sentencing Under the Federal Sentencing
Guidelines: Effects of Defendant Characteristics, Guilty Pleas, and Departures on Sentence Outcomes for Drug
Offenses, 31 LAW & SOC'Y REV. 789, 789 (1997) (revealing a disparity in sentencing for drug related crimes based
on ethnicity, gender, educational level and citizenship); Marvin D. Free, Jr., The Impact of Federal Sentencing
Reforms on African-Americans, 28 J. BLACK STUD. 268, 268 (1997) (showing that African-Americans are
disproportionally incarcerated in Federal penal institutions); TUSHAR KANSAL, RACIAL DISPARITY IN SENTENCING:
A REVIEW OF THE LITERATURE (Marc Mauer ed., The Sentencing Project 2005), available at
http://www.soros.org/initiatives/usprograms/focus/justice/articles_publications/publications/racial_disparity_200501
28/disparity.pdf (finding that black and Latino males are subject to particularly harsh sentencing, are disadvantaged
in the course of the legal process, and are more likely than whites to receive death sentences); HEATHER C. WEST &
WILLIAM J. SABOL, U.S. DEPT. OF JUSTICE, BUREAU OF JUSTICE STATISTICS BULLETIN, PRISONERS IN 2007, at 3 tbl.5
(2008), http://bjs.ojp.usdoj.gov/content/pub/pdf/p07.pdf. [hereinafter PRISONERS IN 2007] (illustrating that AfricanAmericans are imprisoned in greater numbers than whites, even though whites significantly outnumber AfricanAmericans in the general population); U.S. SENTENCING COMM’N, REPORT TO CONGRESS: COCAINE AND FEDERAL
SENTENCING POLICY (May 2002), available at http://www.ussc.gov/r_congress/02crack/Ch5.pdf (illustrating the
racial disparity in sentencing based on powder versus crack cocaine. In 1992, 91% of crack cocaine offenders
sentenced were African-Americans. By 2000, that number decreased to 84.7%).
10
Cf. Hague Convention IV Respecting the Laws of War on Land Section III, art. 42, Oct. 18, 1907, 36 Stat. 2277
(defining occupied territory as territory that is “actually placed under the authority of the hostile army.”).
11
KATHERYN K. RUSSELL, THE COLOR OF CRIME 36-38 (1998) (proving disproportional and irrational hostile
treatment of black men by police departments across the United States).
12
Id. at 132 (showing significantly more severe treatment of possessors of crack cocaine over possessors of powder
cocaine).
13
See infra Part III.C (discussing the legal obstacles facing former drug offenders seeking to take advantage of
governmental programs and services).

2

The legal community has overlooked the impact of the intersectionality of race and
gender, and the criminal justice system suffers from the same dilemma.14 Law enforcement, the
government, and research institutions measure “gender” as “white women” and “race” as
“African-American men.”15 African-American women remain invisible until the policies being
pursued have had a devastating impact on their lives. Our criminal justice policies are nearing
that point, as the rates of incarcerated African-American women are at historic highs.16
African-American women face challenges in reentry and reintegration that other
populations do not have to face. Additionally, incarcerated African-American women are often
mothers, care givers, and heads of household before they become offenders.17 Once they
become offenders, their children become displaced and income that is desperately needed by
their families is lost.18 African-American children languish in foster care, awaiting their parents’
release from prison or, alternatively, become permanently severed from their families.19
Furthermore, African-American women suffer health consequences that are largely ignored by
mainstream society. Rates of HIV transmission are rampant in low-income African-American
communities, and African-American women are now the fastest growing HIV positive (HIV+)
population.20 Incarcerated women are overrepresented in rates of HIV transmission.21
Federal laws frustrate the transition from prison to community with draconian
consequences. Drug offenders are not able to obtain public benefits, housing, or education.22
14

See Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics and Violence Against Women
of Color, 43 STAN. L. REV. 1241, 1245 (1991) (arguing that women of color face conditions and burdens
significantly harsher than those faced by white women).
15
See Paula C. Johnson, At the Intersection of Injustice: Experiences of African-American Women in Crime and
Sentencing, 4 AM. U. J. GENDER SOC. POL’Y & L. 1, 6 (1995) (stating that there is a dearth of analysis of AfricanAmerican women due to a dualistic approach towards social studies, in which relevant categories are race or
gender).
16
See Stephanie R. Bush-Baskette, The War on Drugs as a War on Black Women, in GIRLS, WOMEN AND CRIME:
SELECTED READINGS 185, 193 (Meda Chesney-Lind & Lisa Pasko eds., 2004); see also Joseph Cudjoe & Tony A.
Barringer, More than Ripples: The Interwoven Complexity of Female Incarceration and the African American
Family, 2 MARGINS: MD. L.J. RACE, RELIGION, GENDER & CLASS 265 (2002).
17
The percentage of poor black children who live with their single mother with no involvement of the father is
49.3%; 45% live in arrangements where there is significant visiting by the biological father. Ronald B. Mincy &
Helen Oliver, Age, Race, and Children's Living Arrangements: Implications for TANF Reauthorization, No. B-53
THE URB. INST. 1, 5 (2003), available at http://www.urban.org/UploadedPDF/310670_B-53.pdf.
18
See Jeremy Travis et al., Families Left Behind: The Hidden Costs of Incarceration and Reentry, THE URB. INST.
1,1 (2003), available at http://www.urban.org/UploadedPDF/310882_families_left_behind.pdf (addressing the
significant impact of incarceration on the children of those incarcerated).
19
See generally DOROTHY ROBERTS, SHATTERED BONDS: THE COLOR OF CHILD WELFARE (2002) (addressing the
significant intervention of child welfare services with black families).
20
See infra Part II.B.3 (discussing the HIV+ female prison population and the difficulties those women face during
reintegration).
21
See Ann S. De Groot, et al., Women in Prison: The Impact of HIV, 2 HEPP NEWS 1, 1 (1999), available at
http://www.aegis.com/files/hepp/hepp1999-06.pdf (providing statistics of and addressing explanations for the high
percentage of HIV+ women in the prison population, and suggesting that gynecological care in prisons could reduce
the transmission of HIV and positively impact the health of HIV+ incarcerated women).
22
See Nekima Levy-Pounds, Beaten by the System and Down for the Count: Why Poor Women of Color and
Children Don‟t Stand a Chance Against U.S. Drug-Sentencing Policy, 3 U. ST. THOMAS L. J. 462, 488-93 (2006)
(examining the severe obstacles facing convicted female drug offenders after incarceration).

3

Reentry without obtaining employment, education, or income leads to failure. African-American
women are disproportionately victimized by these policies that frustrate reentry and maintain
poverty.23 They become the true casualties in the War on Drugs.
This Issue Brief is divided into three sections. The first identifies the trends of mass
incarceration in the African-American community, and discusses reentry policies and the
challenges created by such policies. The second elucidates intersectionality through the lives of
African-American women offenders and the problems that African-American women offenders
have with reentry. The third section concludes with reviewing legislative trends and proposals
for gender and race-based treatment considerations for reentry.
I.

Mass Incarceration and the African-American Community
A.

The War on Drugs Created Mass Incarceration

Public support for the War on Drugs gave Congress the political will to pass tough drug
enforcement initiatives.24 Each initiative to pass spawned greater rhetoric, and no politician,
Democrat or Republican, could afford to be seen as soft on drugs. Consequently, the War on
Drugs became a favored public policy initiative. Kenneth Nunn, a critic of the War on Drugs,
found that the rhetoric of war allowed policy to be framed as employing military strategies and
faciling military enemies.25 African-Americans and Latinos became the socially constructed
enemy in the Reagan Administration’s drug war. 26 The war would imprison an entire generation
of African-American men and women at alarming rates.27

23

See id. at 488.
Once women with drug convictions are released from prison, they face systematic denial of access
to public benefits such as cash grants, food stamps, and participation in public housing programs.
For single mothers struggling to provide for their children, access to such benefits are critical and
could mean the difference between stability and life on the streets for women and their children.

Id.
24
See Kenneth Nunn, Race, Crime and the Pool of Surplus Criminality: Or Why „War on Drugs‟ Was a „War on
Blacks, 6 J. GENDER RACE & JUST. 381, 389 (2002).
Congress itself soon became a beehive of activity in support of the War on
Drugs. First, the Administration persuaded Congress to enact all of its
“legislative offensive” toughening the laws governing bail, sentencing, criminal
forfeiture, and the exclusionary rule. Second, Congress was called upon to
finance the war, and it responded in the first year of the war with a special
appropriation that gave the Administration 100 percent of what it had requested
in addition to the regular fiscal 1983 drug enforcement budget.
Id. at 390 n.65 (quoting STEVEN WITSOTSKY, BEYOND THE WAR ON DRUGS: OVERCOMING A FAILED
PUBLIC POLICY 4 (1990)).
25
Id. at 388 (2002).
26
See id.
27
See id.

4

The rate of incarceration since the start of the War on Drugs defies historic norms.
Between 1925 and 1973, the average incarceration rate was 100 per 100,000.28 Incarceration
rates grew dramatically starting in 1974. In 1974, the total number of persons ever imprisoned
was 1.8 million including 595,000 African-American men and 51,000 African-American
women.29 Since the implementation of the War on Drugs, the incarcerated population in the
United States increased threefold.
By 2001, the total number of persons ever imprisoned was 5.6 million, with 1.9 million
African-American men and 231,000 African-American women in that population.30 AfricanAmerican imprisonment increased 20% since 1974 and imprisonment of African-American
women doubled.31 At the end of 2008, 2.4 million people were in prisons.32 Of the 1.6 million
inmates in state and federal prisons, African-American males composed the largest incarcerated
population with 591.900 (white males numbered 428,200).33 African-American women
numbered 29,100.34 U.S. incarceration rates for 2008 averaged 506 per 100,000.35 The
disproportionate nature of African-American incarceration rates becomes more pronounced
when understanding that African-Americans are 12.9% of the U.S. population.36 AfricanAmerican male prisoners numbered 3,161 per 100,000 African-American men. AfricanAmerican women prisoners numbered 149 per 100,000 African-American women.37 In contrast,
white male prisoners numbered 487 per 100,000 white males,38 and white female prisoners
28

Western & Wildeman, supra note 8, at 227.
THOMAS C. BONCZAR, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, PREVALENCE OF IMPRISONMENT
IN THE U.S. POPULATION, 1974-2001, at 1 (2003), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/piusp01.pdf.
30
Id.
31
Id. The total imprisoned population from 1974-2001 was 3,800,000. African-Americans composed 56% of the
population with 2,131,000 persons imprisoned. African-American women composed 3% of the total persons ever
imprisoned. From 1974-2001, African-American women composed 6% of the total persons ever imprisoned.
32
PRISONERS IN 2008, supra note 6. The total population includes inmates held in all state or federal public
facilities, local jails, U.S. Immigration and Customs Enforcement owned and contracted facilities, jails in Indian
country and juvenile facilities. Id. at 8.
33
Id. at 2 (graphing the number of male prisoners under state or federal jurisdiction by categories of White, Black,
Hispanic, or Latino).
34
Id. (graphing the number of female prisoners under state or federal jurisdiction by categories of White, Black,
Hispanic, or Latino).
35
BUREAU OF JUSTICE STATISTICS, PRISON STATISTICS SUMMARY FINDINGS 1 (June 30, 2008), available at
http://www.ojp.gov/bjs/prisons.htm. “[T]here were an estimated 509 sentenced prisoners per 100.000 U.S. residents
– up from 506 at yearend 2007.” Id.
36
JESSE MCKINNON, U.S. CENSUS BUREAU, THE BLACK POPULATION: CENSUS BRIEF 2000, at 1 (Aug. 2001),
available at http://www.census.gov/prod/2001pubs/c2kbr01-5.pdf (“Census 2000 showed that the United States
population on April 1, 2000 was 281.4 million. Of the total, 36.4 million, or 12.9%, reported Black or AfricanAmerican.”).
37
PRISONERS IN 2008, supra note 6; see also PRISONERS IN 2007, supra note 9, at 4:
29

Black male offenders had the highest imprisonment rate . . . of all racial groups,
male or female. This was 6.5 times the imprisonment rate of white males and 2.5
times that of Hispanic males. Similarly, the black female imprisonment
rate…was almost double the imprisonment rates for Hispanic (79 prisoners per
100,000) and 3 times the rate for white females (50 per 100,000).
38

PRISONERS IN 2007, supra note 9, at 4 tbl.6 (listing the prison rate for sentenced prisoners in the years 2000, 2006,
and 2007).

5

numbered 50 per 100,000 white females.39 At particular points in the historic arc of the War on
Drugs, African-American men and women became the most incarcerated populations in the
United States. “Women in Prison,” a Department of Justice Report published in 1991, noted that
women who were most likely in prison were black, aged 25 to 34, unemployed at the time of
arrest, high school graduates or holders of a GED with some college, and were never married.40
As the number of incarcerated African-Americans declines from historic highs in the 1990s, the
challenge and focus shifts to life after prison, reuniting with family and reentry into community
life.
B.

Reentry Policy and Challenges
1.

Sentencing Policy

Certain facets of reentry have changed since the implementation of the War on Drugs.
The changes in sentencing philosophy directly influenced thousands of offenders facing reentry.
One such change was the shift away from indeterminate sentencing, which had received heavy
criticism from critics on the left and right.41 The left found that too much judicial discretion
distorted justice.42 Critics from the right believed that indeterminate sentences were too low and
wanted proportional punishment.43 By 1998, 17 states created sentencing commissions that
designed sentencing grids that significantly restrained judicial discretion.44 Mandatory minimum
sentences were enacted in all 50 states.45 Twenty-four states enacted three-strikes laws.46
47
Forty states enacted truth in sentencing laws, requiring offenders serve a minimum of 50% of
their sentence.48 Some states required violent offenders to serve 85% of their sentence.49
These changes in sentencing policy created larger prison populations serving longer
sentences.50 The change also meant parole boards made fewer release decisions. The adoption
of truth in sentencing statutes not only removed discretion from parole boards, but increased
39

Id.
TRACY L. SNELL, BUREAU OF JUSTICE STATISTICS, WOMEN IN PRISON: SURVEY OF STATE PRISON INMATES, 1991,
2 (March 1994), available at http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=1073[hereinafter WOMEN IN
PRISON].
41
Jeremy Travis & Joan Petersilia, Reentry Reconsidered: A New Look at an Old Question, 47 CRIME & DELINQ.
291, 294 (2001) (describing the characteristics of women in prison).
42
Id. (“Liberal critiqued indeterminate sentencing by judges and discretionary release decisions by parole boards as
presenting opportunities for distortions of justice.”)
43
Id. (“The criticism from the right was equally fierce. The imposition of indeterminate sentences, with low
minimum and high maximum prison terms, was criticized as a fraud on the public.”)
44
Id.
45
Id.
46
Id. (noting that 24 states have lengthened prison terms for repeat offenders as a result of three-strikes laws).
47
See Nakima Levy-Pounds, Beaten by the System and Down for the Count: Why Women of Color and Children
Don‟t Stand a Chance Against U.S. Drug Sentencing Policy, 3 U. ST. THOMAS L. J. 462, 488-93 (2006) (examining
the severe obstacles facing convicted female drug offenders after incarceration).
48
See Travis & Petersilia, supra note 41, at 294-95.
49
Id. at 295 (recognizing that of the 40 states having truth-in-sentencing laws, 27 states and the District of Columbia
require violent offenders to serve at least 85% of their sentences in prison).
50
See Nunn, supra note 24, at 399 (discussing how the “cumulative effect” of new sentencing policies from the War
on Drugs has been an increase in the proportion of convicted drug dealers sentenced to prison and an increase in the
length of their sentences).
40

6

caseloads for parole officers.51 The nature of parole supervision shifted from a rehabilitation
model to that of law enforcement.52 The introduction of surveillance technology, including
electronic monitoring, provided enhanced capacity to detect violations and increased parole
revocations. In 1985, 70% of parolees successfully completed supervision. By 1997, the
completion rate plummeted to 44%.53 Successful reentry and reintegration back into
communities is not the norm.
Reentry is a difficult process for ex-offenders. States offer little to no assistance in the
transition from prison to community.54 Reentry programs generally should contain substance
abuse counseling, education, job readiness training, and access to community resources.55 In
reality, offenders are given a small stipend, ranging from $25 to $200.56 After which, they are
mostly left to fend for themselves, and typically return to the communities that became the
initiator of their criminal behavior.
Offenders face many additional challenges upon returning to their communities. A
majority of prisoners are released into major metropolitan areas, which makes reintegration
difficult.57 They are released into communities with minimal treatment, few skills, little
exposure to the work world, and little planning for transitioning from prison to community.58
These issues are compounded because offenders are returning to neighborhoods that are already
facing economic disadvantages. Research has found that high rates of returning offenders
destabilize communities. Todd Clear and Dina Rose indicate that high incarceration rates and
return rates may disrupt a community’s social network, affecting family formation, reducing
informal social control of children and income to families, and lessening ties amongst
residents.59
2.

Reentry and African-American Women

Reentry can be particularly difficult for female offenders because of their particularized
needs. Female offenders form a complex population who require gender based services and
treatment, and often have suffered from harsher social and economic circumstances than male
51

See Travis & Petersilia, supra note 41, at 295 (asserting that the widespread adoption of truth-in-sentencing
statutes will make release by parole board decisions “a vestige of a bygone era.”).
52
Id. at 298 (noting that recent surveys of parole officers have shown that the law enforcement function of parole
has been prioritized, rather than the rehabilitative functions).
53
Id. (finding that the rate of parole violations has “increased significantly over recent years.”).
54
James Austin, Prisoner Reentry: Current Trends, Practices and Issues, 47 CRIME & DELINQ. 314, 326 (2001)
(“[I]n general, most inmates are released directly from the facility in which they are presently housed with no
concerted effort to initiate a reentry process.”).
55
Id. (noting that the content of reentry programs “almost always” includes exposure to education, job readiness,
substance abuse counseling, and information on resources available in the community from various agencies).
56
Id. (“All inmates receive a minimal level of financial support that ranges from $25 to $200 plus clothing and bus
fare to some location within the state.”)
57
Travis & Petersilia, supra note 41, at 300 (suggesting that release into disadvantaged neighborhoods can alter the
social framework).
58
Id. (identifying the “inescapable conclusion” that the price society has paid for prison expansion is a decline in
preparation for prisoners’ return to the community).
59
Todd Clear & Dina Rose, Incarceration and the Community: The Problem of Removing and Returning Offenders,
47 CRIME & DELINQ. 335 (2001); see also Travis & Petersilia, supra note 41, at 301.

7

offenders before being incarcerated. Only about 40% of women reported that they were working
prior to being incarcerated.60 Almost 30% of women offenders reported receiving welfare
assistance prior to being arrested.61 Moreover, 60% of female offenders admitted to using drugs
prior to their offense, and 40% admitted using on the day of offense.62 Forty-four percent of
women offenders report being either physically or sexually abused and 69% reported the abuse
took place before the age of 18.63
Reentry services for women must focus on specific issues that male offenders do not
encounter. Physical and sexual abuse, along with the prevalence of drug and alcohol abuse make
reintegration difficult unless services are available. The recidivism rate for women offenders
averages 45%.64 Only 11% of women offenders were successfully discharged from parole.65
African-American women in particular face even greater challenges. African-American female
offenders are seven times more likely to be incarcerated over their lifetime than white women.66
African-American children are “seven and a half times more likely than white children” to have
an incarcerated parent.67 HIV rates for incarcerated African-American women are higher than
for white or Latino women.68 The intersectionality of race, gender, and criminal background
compounds reentry and reintegration issues for African-American women.
II.

Intersectionality and Problems of Reentry for African-American Women Offenders
A.

Intersectionality and African-American Women Offenders

Kimberle Crenshaw identifies the unique, and often ignored, political and social position
that African-American women endure by being neither white women nor African-American
men.69 Crenshaw explicates the intersectionality of race and gender:
60

LAWRENCE A. GREENFIELD & TRACY L. SNELL, BUREAU OF JUSTICE STATISTICS, WOMEN OFFENDERS 8 (1999),
available at http://www.ojp.usdoj.gov/bjs/pub/pdf/wo.pdf [hereinafter WOMEN OFFENDERS] (contrasting with the
statistic that almost 60% of male inmates had fulltime employment before being arrested).
61
Id. (distinguishing from the figure that under 8% of male inmates received welfare before incarceration).
62
Female offenders report higher usage of drugs and alcohol during the time of their arrest than male offenders. Id.
at 9 (comparing with the statistic that 32% of male inmates reported using drugs during their commission of the
crime).
63
Id. at 8 (announcing that, in addition, 44% of women offenders reported sexual assault during their lives).
64
WOMEN OFFENDERS, supra note 60, at 11 (“Overall, about 45% of women for whom parole supervision was
ended in 1996 were returned to prison or had absconded.”).
65
Id. (“In 1996, women accounted for about 11% of successful discharges from parole and 8% of unsuccessful
parole terminations.”)
66
Id. (“The estimates further show that about 5 out of 1,000 white women, 36 out of 1,000 black women, and 15 out
of 1,000 Hispanic women will be subjected to imprisonment during their lifetime.”)
67
LAUREN E. GLAZE & LAURA M. MARUSCHAK, BUREAU OF JUSTICE STATISTICS, PARENTS IN PRISON AND THEIR
MINOR CHILDREN 2 (2008), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/pptmc.pdf [hereinafter PARENTS IN
PRISON].
68
WOMEN AND HIV/HEPATITIS FACT SHEET, WOMEN IN PRISON PROJECT, CORR. ASS’N OF N.Y. 2 (2008), available
at
http://www.correctionalassociation.org/publications/download/wipp/factsheets/HIV_Hep_C_Fact_Sheet_2009_FIN
AL.pdf [hereinafter WOMEN AND HIV].
69
See Crenshaw, supra note 14; see also Jennifer C. Nash, From Lavender to Purple: Privacy, Black Women and
Feminist Legal Theory, 11 CARDOZO WOMEN’S L.J. 303, 308 (2005). Nash explains the dearth of diversity in prior
waves of feminist thought by stating that

8

[T]he experiences Black women face are not subsumed within the
traditional boundaries of race or gender discrimination as these
boundaries are currently understood, and … the intersection of
racism and sexism factors into Black women's lives in ways that
cannot be captured wholly by looking at the race or gender
dimensions of those experiences separately.70
The praxis of intersectionality becomes palpable by viewing the lives of African-American
women through the prism of incarceration and reentry.
Over 7.3 million persons are serving prison sentences or are under community
supervision.71 Race and gender do not serve as identifiers in serving offender populations. The
current system subsumes thousands of African-American women offenders into the prison
population without consideration for the inimitable traits that make circumstances for AfricanAmerican women more difficult. The African-American community, and African-American
women in particular, have unique needs in the areas of family and health care that are not taken
into consideration by current reentry systems.72
African-American children have become the face of the child welfare system. They are
more likely than white or Latino children to have a parent who is incarcerated.73 They are also
more likely to be in foster care and remain in foster care longer than white or Latino children. 74
African American families suffer systemic problems that are compounded by the health care
problems of African American women.

We currently inhabit a “post-feminist” or “third wave feminist” cultural moment. A moment that
is ostensibly marked by multiculturalism, diversity, and racial and ethnic plurality. Nevertheless,
the second-wave feminist critique remains a potent one as there continues to be a dearth of
meaningful feminist scholarship that integrates and draws on the voices, narratives, and
experiences of women of color.
Id.
70
Crenshaw, supra note 14, at 1244.
71
LAUREN GLAZE & THOMAS P. BONCZAR, PROBATION AND PAROLE IN THE UNITED STATES, 2007 STATISTICAL
TABLES 1 (2008), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/ppus07st.pdf (detailing the number of
incarcerated individuals and the corresponding percentages compared to the total United States population from
2000 to 2007).
72
See Margaret E. Finzen, Systems of Oppressions: The Collateral Consequences of Incarceration and their Effects
on Black Communities, 12 GEO. J. ON POVERTY L. & POL’Y 299 (2005); see also Michael G. Vaughn et al.,
Variations in Mental Health Problems, Substance Abuse, and Delinquency Between African American and
Caucasian Juvenile Offenders: Implications for Reentry Services, 52 INT’L J. OFFENDER THERAPY & COMP.
CRIMINOLOGY 311 (2007).
73
PARENTS IN PRISON, supra note 67, at 2 (breaking down the percentages of how likely children of different races
have parents in jail).
74
U.S. GOV’T ACCOUNTABILITY OFFICE, AFRICAN-AMERICAN CHILDREN IN FOSTER CARE: ADDITIONAL HHS NEED
TO HELP STATES REDUCE THE PROPORTION IN CARE, H.R. Rep. No. 07-816 (2007) [hereinafter GAO REPORT]
(reporting to the Chairman of the Committee on Ways and Means about the effects that poverty has on AfricanAmerican children in foster care and potential strategies aimed at combating this problem).

9

Women who are incarcerated are exceptionally vulnerable to becoming HIV+ due to their
poverty and their time in jail.75 AIDS has become the number one killer of African-American
women between the ages of 25 and 34.76 Compounding the problem is a generation of AfricanAmerican men who are not present in the community to assist in child rearing and provide
income for the home.77 African-American women have this extra burden that white and Latino
women do not face. Incarceration effects employment, wages, community attachment and other
factors that bind a family to a community and to each other.78 Reentry services do not account
for the additional complexities of African-American women who not only suffer the aftermath of
incarceration but face the additional consequences of mass incarceration that destabilize the
African-American community.
B.

African-American Offenders and Reentry Issues
1.

African-Americans and the Child Welfare System

African-American children are overrepresented in most states’ foster care systems.
African-American children make up less than 15% of the children in the United States but
represented 27% of the children entering foster care and 34% of the children remaining in foster
care.79 Thirty-three states cite poverty as the reason for children being placed in foster care.80
African-Americans are four times more likely than other Americans to live in poverty.81 Poverty
leaves children vulnerable to abuse and neglect.82 However, poverty alone does not explain the
large number of African-American children in the foster care system.83 Bias, cultural
misunderstandings, and distrust between child welfare decision makers and families also

75

See Gloria J. Browne-Marshall, To Be Female, Black, Incarcerated and Infected with HIV/AIDS: A Socio-legal
Analysis, 41 No. 1 CRIM. L. BULL. art 3 (2005) (discussing the relationship between the rise in HIV+ infections in
Black women and the rise in the incarceration rate of Black women).
76
The Office of Minority Health, HHS Fact Sheet: Minority Health Disparities at a Glance, U.S. DEP’T OF HEALTH
& HUMAN SERVS. (Dec. 7, 2007), http://www.omhrc.gov/templates/content.aspx?ID=2139 (reporting on the high
rate of disease and illness experienced by African-Americans in comparison to other races as of December 2007).
77
See PRISONERS IN 2007, supra note 9, at 4 (showing the incarceration rates of individuals based on gender and
race); see also Western & Wildeman, supra note 8, at 233 (detailing how mass incarceration not only affects men,
but also the women and children left behind to cope with incarcerated partners and parents).
78
See Roberts, supra note 7, at 1282 (detailing how incarceration damages social networks and has other effects
upon the community).
79
GAO REPORT, supra note 74, at 7 (indicating the percentages of African-American children in foster care).
80
Id. at 9 (showing the number of states that reported a correlation between high poverty rates and the
disproportionate number of Black children entering foster care).
81
Id. at 4 (discussing the correlation that exists between minorities and families living below the poverty level).
82
See Robert Wexler, Take the Child and Run: Tales from the Age of AFSA, 36 NEW ENG. L. REV. 129, 132 (2001).
Wexler argues that poverty should not be confused with neglect. Id. He contends that there are financial incentives
for states to remove children from parents. The National Commission on Children found that children often are
removed from their families “prematurely or unnecessarily” because federal aid formulas give states “a strong
financial incentive” to do so rather than provide services to keep families together. Id. Indeed, state laws make the
confusion of poverty with neglect almost inevitable, by “defining in” almost every poor family. Id.
83
See Antoinette Greenaway, When Neutral Policies Aren‟t So Neutral: Increasing Incarceration Rates and the
Effect of the Adoption and Safe Families Act of 1997 on the Parental Rights of African-American Women, 17 NAT’L
BLACK L.J. 247, 254 (2004) (discussing the many challenges that face African-American parents in America today).

10

contribute to the removal of children.84 Additionally, once children are removed from their
homes, African-American children are likely stay in foster care longer than white or Latino
children.85
Child welfare agencies have problems providing services such as substance abuse
treatment and subsidized housing, contributing to longer stays for children and delaying or
denying the ultimate goal of family reunification.86 Once children are removed from their
homes, it becomes harder for them to be reunified due to the passage of the Adoption and Safe
Families Act (ASFA) of 1997.87 ASFA requires expedited timelines to place children in
permanent homes whether through reunification or adoption or guardianship and termination of
parental rights.88 Prior to the passage of ASFA, parents had up to 18 months for reunification
with their children.89 However, ASFA lowered this threshold to 12 months to keep children
from lingering in foster care.90 If children are in foster care for 15 of the most recent 22 months,
a petition to terminate parental rights must be filed.91
African-American children are the largest population of children with incarcerated
parents. Of the 1.7 million children who have parents in custody, 767,400 are AfricanAmerican.92 Incarceration threatens the parental rights of these African-American women. The
average sentence female offenders serve exceeds the timelines set by ASFA. Women serve an
average sentence of 44 months for drug offenses and 54 months for property offenses.93
Incarcerated women, therefore, face the continual threat of termination of their parental rights
unless the children are placed with a spouse or relative.
Nakima Levy-Pounds noted how the vicious cycle of poverty, addiction, and
incarceration leads formerly incarcerated mothers to permanently lose their children.94 Once
African-American mothers are sentenced to prison, the clock begins to run for the purposes of
ASFA guidelines.95 ASFA has failed in preventing children of color from languishing in the
84

See id. at 258 (noting that racial discrimination and unfair biases against African-American women by
governmental agencies affect their rights as parents).
85
See id. at 254-55 (explaining the hurdles that African-American mothers face when trying to be reunited with their
children).
86
See id. at 258 (stating the deficiencies that exist in the administration of ASFA).
87
See generally Adoption and Safe Families Act, 42 U.S.C. § 675 (2006).
88
See GAO REPORT, supra note 74, at 10 (noting the effects the enactment of ASFA had on adoption, guardianship
and parental rights).
89
Id. at 11 (stating the requirements of ASFA).
90
Id. (examining the requirements of ASFA that require a permanency hearing no later than 12 months after the
child enters foster care).
91
Id. (showing the requirement that states must file a petition to terminate parental rights for children who have
been in foster care for 15 of the most recent 22 months).
92
PARENTS IN PRISON, supra note 67, at 2 (examining the number of African-American parents in prison in 2007).
93
WOMEN IN PRISON, supra note 40, at 4 (charting the median sentence length in months for state female prison
inmates).
94
See Levy-Pounds, supra note 47, at 488-89.
95
States are as aggressive as the ASFA in seeking to terminate the rights of incarcerated parents. See TEX. FAM.
CODE ANN. § 161.001(1)(Q) (West 2009) (stating that the court may order termination of parent-child relationship if
the court finds by clear and convincing evidence that the parent has knowingly engaged in criminal conduct
resulting in a conviction, has been incarcerated for more than two years, and it is deemed to be in the child’s best
interest); see also Erica D. Benites, In Defense of the Family: An Argument for Maintaining Parental Rights of

11

foster care system or losing their families. ASFA timelines have permanently severed ties of
tenuous families when the mother fails reunification requirements and parental rights are
severed.96 Children removed from their parents by ASFA become permanent wards of the
state.97 Children of color who become long-term foster placements suffer what is termed “foster
care drift.”98
2.

Health and Incarcerated African-American Women

Women who are incarcerated and released have greater need for social service
intervention. African-American and Latino women are the predominant incarcerated population,
while white women are the predominant probationary population.99 Incarcerated women may
require a variety of forms of assistance. They admit to histories of sexual and physical abuse at
levels that exceed societal averages. Over half the women in state prisons admit to having been
physically or sexually abused.100 Sixty percent of women in state prisons admit to having abused
drugs before being arrested.101 Over 30% admit committing the criminal offense that led to their
imprisonment to support their drug habit.102 In prison, treatment for their drug addiction is not
readily available. Federal funding earmarked for treatment in state prisons has not reached the
offenders. Only 10% of inmates surveyed (male and female) reported participating in
professional substance abuse treatment since admission.103 Research shows that in-prison drug

Incarcerated Women in Texas, 3 SCHOLAR 193, 196 (2001) (explaining the two year incarceration rule in the Texas
Family Code regarding parental rights).
96
See Wexler, supra note 82, at 129-30 (arguing that overzealous child welfare agencies remove children for
reasons of poverty instead of neglect, that the foster care system is unsafe, and that ASFA has hurt other formally
effective programs that were attempting to keep families together).
97
Id at 135.
98
See Robert Gordon, Drifting Through Byzantium: The Promise and Failure of the Adoption and Safe Families Act
of 1997, 83 MINN. L. REV. 637, 639 (1999). Gordon explores the original intent of ASFA and how it failed to meet
the basic needs of children languishing in foster care. Id.
Although ASFA's general principles make sense for children, its specific
provisions fail to protect children's interests. In some instances, Congress
appears to have been unable to see important distinctions among children. In
other cases, Congress may have seen children's interests but preferred,
notwithstanding its rhetoric, to favor certain parental needs or cultural
ideologies. Whatever the causes of these failures, their effect on children is
negative.
Id. at 657; see also Robert E. Lee & Michael T. Lynch, Combating Foster Care Drift: An Ecosystemic Model
for Neglect Cases, 20 CONTEMP. FAM. THERAPY 351, 353 (1998) (stating that when biological parents fail to
engage in actions necessary to get their children back from foster care, all parties involved suffer from foster
care drift).
99
See WOMEN IN PRISON, supra note 40, at 2 (noting that a woman in state prisons in 1991 was most likely to be
black, as blacks comprised 46% of state female prison inmates).
100
Id. at 5 (stating that more than four in every ten women reported that they had been abused before entering
prison).
101
Id. at 7 (charting that 65.3% of state female prison inmates reported that they used drugs regularly).
102
Id. (noting that 23.9% of state female prison inmates reported that they committed their offense to get money to
buy drugs).
103
See Travis & Petersilia, supra note 41, at 302 (stating that 10% of state inmates reported participating in
substance abuse treatment since their admission into prison, down from 25% in 1991).

12

treatment coupled with treatment in the post-release period significantly reduces both drug use
and recidivism.104
Beth Ritchie conducted in-depth interviews with incarcerated women of color from lowincome communities about their needs upon reentry.105 Ritchie found that substance abuse
treatment was one of the most significant needs for women returning to their communities from
prison.106 Not only was the treatment needed but gender-specific treatment was a particular
concern. Community based substance abuse treatments are most effective when they entail
childcare and protection from sexual harassment as components of their program to assist
formerly incarcerated women and prevent recidivism and relapse.107
3.

HIV+ Status

The Department of Justice estimates that 2.4% of the incarcerated women in state and
federal prisons are either HIV+ or have AIDS.108 The Department of Justice does not break
down these statistics by race. African-American women therefore become invisible in the race
and gender categorization although as a population they suffer the greatest impact of an HIV+
diagnosis. The Centers for Disease Control and Prevention report that 64% of the nearly
127,000 women diagnosed with HIV/AIDS were African-American women.109 Overrepresentation of HIV+ African-American women is magnified in the prison setting. Texas is a
salient example of the disproportionate rate of HIV status among African-American women in
state prisons. Of the HIV+ women in Texas prison, 22.8% were white, 72.4% were black, and
4.8% were Hispanic. It is a challenge for correctional facilities to provide healthcare for gender
specific medical issues when they must also address the complex psychosocial issues such as
depression, substance abuse, and prior physical and sexual abuse that impact the population.110
If correctional facilities fail to address the complicated issues facing HIV+ women, treatment
after reentry becomes all the more critical.
The stigma of HIV+ status and incarceration makes reentry and reintegration a tenuous
objective for this particular group of African-American women. The immediate post-release
period has been identified as involving a very high risk for mortality and few services are
currently in place to ensure continuity of medical care on release.111
104

Id. at 303 (discussing that a significant body of literature supports the notion that in-prison drug treatment can, in
conjunction with post-release treatment, significantly reduce further drug use).
105
See Beth E. Ritchie, Challenges Incarcerated Face as They Return to Their Communities: Findings from Life
History Interviews, 47 CRIME & DELINQ. 368, 371 (2001) (explaining how 42 interviews were conducted to assess
the needs of the incarcerated women when they return to their low-income communities).
106
Id. at 372.
107
Id.
108
LAURA M. MARUSCHAK, BUREAU OF JUSTICE STATISTICS, HIV IN PRISONS, 2006 – STATISTICAL TABLES tbl.2
(2008), available at http://bjs.ojp.usdoj.gov/content/pub/html/hivp/2006/tables/hivp06t02.cfm.
109
CTRS. FOR DISEASE CONTROL & PREVENTION, U.S. DEP’T OF HEALTH & HUMAN SERVS., HIV/AIDS AMONG
WOMEN 1 (Aug. 2008), available at http://www.cdc.gov/hiv/topics/women/resources/factsheets/pdf/women.pdf.
110
Michelle Onorato, HIV Infection Amongst Incarcerated Women, 4 HEPP NEWS 1, 1 (2001), available at
http://www.aegis.org/files/hepp/hepp2001-05.pdf.
111
Nina Harawa & Adaora Adimora, Incarceration, African-Americans and HIV: Advancing a Research Agenda,
100 J. NAT’L MED. ASS’N 57, 60 (2008), available at
http://www.nmanet.org/images/uploads/Publications/OC5708.pdf.

13

C.

Laws Frustrating Reentry

The War on Drugs created a tidal wave of legislation meant to socially and legally
ostracize drug offenders. Enhanced, determinate prison sentences did not satisfy the rabid desire
to demean drug users and offenders. Terminating avenues to public funding for welfare
subsidies, education, and housing for persons with drug convictions became a mantra for
Congress.112 This type of legislation operated as a collateral attack on African-American women
gaining freedom from prison by barring them from services critical to achieving successful social
and legal reintegration.
African-Americans have the highest poverty rates of any racial or ethnic group at 24%.113
The average income for African-American households is $33,916, or 62% of the white median
household income.114 Poverty permeates nearly a quarter of the African-American population;
the same population suffers from poor education, high unemployment and, high incarceration
rates.115 Drug offender status laws further stigmatize a population seeking to participate in
society, and often leave little to no legitimate means for reintegration.
1.

Public Assistance

Landmark welfare reform legislation passed by the Clinton administration had severe
consequences on public assistance eligibility for drug offenders. Under the Personal
Responsibility and Work Opportunity Reconciliation Act (PRWORA), drug offenders are denied
eligibility for public assistance for life.116 PRWORA reduces benefits if a drug offender is part

112

See Lisa A. Crooms, The Mythical, Magical Underclass: Constructing Poverty in Race and Gender, Making the
Public Private and the Private Public, 5 J. GENDER RACE & JUST. 87 (2001); Daniela Kraiem & Jennifer Reich,
Writing the Wrongs in Welfare: Why Legislating Morality Will Not Solve the Crisis of Poverty, 2 U.C. DAVIS J. JUV.
L. & POL’Y 6 (1997).
113
CARMEN DENAVAS-WALT, ET AL., ECON. & STATISTICS ADMIN., U.S. CENSUS BUREAU, INCOME, POVERTY AND
HEALTH INSURANCE COVERAGE IN THE UNITED STATES: 2007 13 tbl.3 (Aug. 2008),
http://www.census.gov/prod/2008pubs/p60-235.pdf.
114
Id. at 6
115
See Western & Wildeman, supra note 8, at 223-26.
116
“Denial of assistance and benefits for certain drug-related convictions
(a) In general. An individual convicted (under Federal or State law) of any offense which is
classified as a felony by the law of the jurisdiction involved and which has as an element the
possession, use, or distribution of a controlled substance (as defined in section 102(6) of the
Controlled Substances Act (21 U.S.C. 802(6))) shall not be eligible for-(1) assistance under any State program funded under part A of title IV of the Social Security Act
[42 U.S.C.A. § 601 et seq.], or
(2) benefits under the food stamp program (as defined in section 3(l) of the Food Stamp Act of
1977) or any State program carried out under the Food Stamp Act of 1977 [7 U.S.C.A. § 2011
et seq.].”
21 U.S.C. § 862(a) (2006).

14

of a family that receives public assistance.117 No other criminal class has legislation geared
towards the denial of public benefits like drug offenders. PRWORA has a disproportionate
impact on African-Americans, especially African-American women, and children in particular.
States can choose between three types of sanctions. Fifteen states utilize the lifetime ban. 118
Eleven states have a partial ban or term limits on benefits.119 Twelve states make benefits
dependent on drug treatment.120 The public assistance ban prevented 35,000 African-American
women from receiving benefits.121 Predominantly African-American and Latino women are
banned for life in seven states.122 Reintegration becomes a Herculean effort when women are
denied public benefits, such as food stamps, on which many formerly incarcerated women rely.
Mothers are not able to provide for the fundamental needs of their children, potentially creating a
crisis for families and child welfare agencies.
2.

Education

The demonization of drug offenders, led Congress to systematically excise drug offenders
from being able to participate in public benefit programs, including those providing access to
education. The Higher Education Act substantially limits the ability of drug offenders to access
financial aid.123 Drug offenders are ineligible for federal financial aid for prescribed time
117

Id. § 862(b)(1); see also id. § 862(d)(1)
(d) Limitations(1) State Elections(A) Opt out- A State may, by specific reference in a law enacted after [the date
of the enactment of this Act], exempt any or all individuals domiciled in the
State from the application of subsection (a) of this section.
(B) Limit period of prohibition- A State may, by law enacted after [the date of
the enactment of this Act], limit the period for which subsection (a) of this
section shall apply to any or all individuals domiciled in the State.

118

PATRICIA ALLARD, THE SENTENCING PROJECT, LIFE SENTENCES: DENYING WELFARE BENEFITS TO WOMEN
CONVICTED OF DRUG OFFENSES 3 (Feb. 2002), available at
http://www.sentencingproject.org/doc/publications/women_lifesentences.pdf (monitoring the implementation of a
lifetime welfare ban in all fifty states); PATRICIA ALLARD, THE SENTENCING PROJECT, LIFE SENTENCES: DENYING
WELFARE BENEFITS TO WOMEN CONVICTED OF DRUG OFFENSES 2 (Supp. 2006), available at
http://www.sentencingproject.org/doc/publications/9088smy.pdf [hereinafter LIFE SENTENCES SUPPLEMENT].
119
LIFE SENTENCES SUPPLEMENT, supra note 118.
120
Id.
121
Id. at 1.
122
Id.
123
20 U.S.C. § 1091(r) (2006).
Suspension of eligibility for drug offenses.
(1) A student who is convicted of any offense under any Federal or State law involving the
possession or sale of a controlled substance for conduct that occurred during a period of
enrollment for which the student was receiving any grant, loan, or work assistance under this title
shall not be eligible to receive any grant, loan, or work assistance under this title from the date of
that conviction for the period of time specified in the following table:
If convicted of an offense involving:
The possession of a controlled substance:
Ineligibility period is:
First offense
1 year

15

periods124 and subsequent offenses can lead to a lifetime ban.125 Additionally, some states have
passed laws that bar offenders from obtaining professional licenses.126 States have also created
two eligibility criteria that negatively impact offenders and keep them from obtaining
professional licenses – good moral character and lack of a prior criminal conviction.127 The
offender’s criminal record in some jurisdictions imputes bad moral character.128 The denial of a
professional license keeps African-American women out of various avenues of employment
dominated by women, such as nursing.129 The federal government uses the War on Drugs and
related legislation as a guise to continue to punish offenders who have already served their
sentences. Denying the right to seek an education is tantamount to a life sentence of poverty and
unemployment.
3.

Housing

Ex-offenders also suffer discrimination in the area of housing, justified by the federal
government under the guise of protecting the community.130 Drug offenders are at the mercy of
public housing agencies that are granted access to criminal records of housing applicants.131 The
presence of an occupant with a drug offense can jeopardize a housing grant. Additionally, if an
offender’s family lives in publicly subsidized housing, the entire family risks eviction.132 An

Second offense
Third offense
The sale of a controlled substance:
First offense
Second offense

2 years
Indefinite.
Ineligibility period is:
2 years
Indefinite.

Id.
124

Id.
Id.
126
Geneva Brown, White Man‟s Justice, Black Man‟s Grief: Voting Disenfranchisement and the Failure of the
Social Contract, 10 BERKELEY J. AFR.-AM. L. & POL’Y 287, 301-02 (2008) (noting the difficulties associated with
obtaining training and education after re-entry).
127
See Bruce E. May, Real World Reflection: The Character Component of Occupational Licensing Laws: A
Continuing Barrier to Ex-Felon‟s Employment Opportunities, 71 N.D. L. REV. 187, 195 (1995) (discussing
classification of state occupational licensing laws and how “criminal convictions” and “good moral character”
statutes pose the greatest obstacle to the ex-felon’s attempt to obtain a license).
128
Id. at 196 (providing an example of how, in Ohio, a criminal conviction automatically barred an applicant from
obtaining a dance hall license when a court determined evidence of good moral character was not relevant because
the applicant had two felony convictions and the licensing authority was simply following a rule that all felons are
denied licenses).
129
See Bureau of Labor Statistics, Quick Facts on Registered Nurses, U.S. DEP’T OF LABOR,
http://www.dol.gov/wb/factsheets/qf-nursing.htm (noting that “[w]omen comprised 92.1 percent of RNs in 2003.”).
130
See generally Public Health and Welfare Act, 42 U.S.C. § 1437d(q) (2006).
131
Id. § 1437d(q)(1)(A) (providing in relevant part that: “the National Crime Information Center, police
departments, and other law enforcement agencies shall, upon request, provide information to public housing
agencies regarding the criminal conviction records of adult applicants for, or tenants or, covered housing assistance
for purposes of applicant screening, lease enforcement, and eviction.”).
132
Id. § 1437d(q)(1)(B). The statute provides, in relevant part:
125

A public housing agency may make a request under subparagraph (A) for information regarding
applicants for, or tenants of, housing that is provided project-based assistance under section 1437f
of this title only if the housing is located within the jurisdiction of the agency and the owner of

16

offender who chooses not to place their family at risk faces homeless shelters as the only
available housing option.133 African-American women who are drug offenders are placed in the
precarious position of needing to secure safe, affordable housing, but having no access to public
housing. Many drug offenders seeking reentry to their communities are mothers seeking to
reestablish ties to their children. The presence of the returning mother could destabilize her
child’s life if housing becomes an issue.
III.

Legislative Trends and Recommendations
A.

Legislative Trends

A philosophical shift has begun to occur in the federal government in its perceptions of
drug offender sanctions. Congress passed and President Obama signed into law the Fair
Sentencing Act of 2010,134 which reduced the 100-to-1 sentencing disparity for crack versus
powder cocaine to 18-to-1. The Act also reduced mandatory minimum sentence for possession
of ten grams from ten years to five years and removed the mandatory minimum sentence for
simple possession of crack cocaine. The Act reduces the potential for multi-generational mass
incarceration. It does not assist ex-offenders already tainted by the criminal justice system.
Federal and state governments are beginning to address growing concerns about mass
incarceration. Senator Jim Webb has sponsored legislation that would create a National Criminal
Justice Commission,135 which would review criminal justice administration and policies. The
Commission would review mass incarceration and racial disparities along with other problematic
areas of the federal and state criminal justice system and make recommendations to alleviate
such problems. The bill is currently on the Senate legislative calendar.
Recent legislative action has had mixed results. In 2007, the Second Chance Act (SCA)
passed,136 addressing reentry as a growing public policy concern. SCA encourages the
expansion of evidence-based programs that assist the successful reintegration of ex-offenders
into the community and addresses the alarming rate of recidivism. Following the passage of
SCA, the Department of Justice’s Office of the Inspector General authored a report on DOJ
reentry programs.137 SCA grants were newly disbursed and the Inspector General could not
such housing has requested that the agency obtain such information on behalf of the owner. Upon
such a request by the owner, the agency shall make a request under subparagraph (A) for the
information. The agency may not make such information available to the owner but shall perform
determinations for the owner regarding screening, lease enforcement, and eviction based on
criteria supplied by the owner.
133
See JEREMY TRAVIS ET AL., URB. INST., FROM PRISON TO HOME: THE DIMENSIONS AND CONSEQUENCES OF
PRISON REENTRY 1, 35-36 (2001), available at http://www.urban.org/UploadedPDF/from_prison_to_home.pdf. The
authors found that “[i]n California, the Department of Corrections reports that at any given time 10% of the state’s
parolees are homeless. This rate is significantly higher in major urban areas such as San Francisco and Los Angeles,
where as many as 30% to 50% of parolees are estimated to be homeless.” Id. at 36.
134
S. 1789, 111th Cong. (2010).
135
S. 714, 111th Cong. (2010).
136
Second Chance Act of 2007, Pub L. No. 110-199, 122 Stat. 657.
137
AUDIT DIV., OFFICE OF THE INSPECTOR GEN., U.S. DEP’T OF JUSTICE, AUDIT REPORT 10-34, OFFICE OF JUSTICE
PROGRAMS’ MANAGEMENT OF ITS OFFENDER REENTRY INITIATIVES (July 2010), available at
http://www.justice.gov/oig/reports/OJP/a1034.pdf.

17

evaluate the effectiveness of the programs.138 However, the Inspector General warned that SCA
programs lacked effective performance measurement tools to assess any program’s progress.139
The Justice Department must define performance goals and have definable outcomes in order to
realize SCA’s goal of assisting ex-offenders with reentry.140
B.

Recommendations

African-American women offenders face collateral attacks on their motherhood, on their
ability to secure housing and employment, and on their ability to reintegrate. Reentry programs
must have a race and gender focus that confronts the intersectionality of race and sex that
pervades the lives of African-American women offenders. Programs must also be targeted to
attempt to preserve families and provide community care. Incarcerated mothers face the trauma
of being separated from their children. African-American mothers more often face the greater
trauma of being the sole support for their children. Additionally, incarceration takes an
emotional and financial toll on the family. Reentry plans that incorporate parental roles for
incarcerated mothers and that assist mothers in community transition benefit the child, the
parent, and society.
African-American women face greater obstacles in obtaining housing, employment, and
healthcare. Treatment needs that are not addressed in the correctional setting will need to be
addressed in the community. Reentry should tackle more than the social and economic needs of
offenders. Treatment is a fundamental reentry component and should address the issues of drug
addiction, as well as the physical and sexual abuse history of many offenders.
IV.

Conclusion

African-American women offenders face seemingly insurmountable problems in
attempting to reintegrate into their communities. They face the intersectionality of race, gender,
poverty, and incarceration. The general social expectation is that offenders, upon release from
prison, are to adjust to the demands of mainstream society and not recidivate. Race, gender,
poverty, and the War on Drugs make these mainstream demands difficult to meet. Reentry
programs do not provide sufficient assistance to expect consistent, successful reintegration.
African-American women, facing unique health, education, family, and background challenges,
are particularly hard-hit. Their children in foster care became unintended victims of inadequate
services. Family reunification deadlines become a ticking time bomb for formerly incarcerated
mothers hoping not to have their parental rights terminated. Draconian laws sanctioning drug
offenders after imprisonment also make reentry for African-American women arduous. AfricanAmerican women face significant challenges that are insufficiently addressed by the current
reentry framework when they attempt to reintegrate back into their communities. Federal and
state legislatures have addressed certain facets of the reentry infrastructure, but more aggressive
legislation is needed to repeal or amend laws that frustrate successful reentry of AfricanAmerican women.

138

Id. at 21.
Id. at 22.
140
Id.
139

18

 

 

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