by Philippa Greer
“Lisa Montgomery is mentally ill. Presently her mental condition results in her inability rationally to understand she will be executed, why she will be executed, or even where she is.”
— Petition for Writ Of Habeas Corpus, Lisa Marie Montgomery v. Warden of USP Terre Haute, Michael Carvajal, Jeffrey Rosen, 8 January 2021
Lisa Montgomery was executed on 13 January 2021 at a federal facility in Terre Haute, Indiana, United States. A victim of incest, sexual assault and abuse from childhood into her adult life, the United States government executed her by lethal injection despite its abject failure throughout her life to protect her from cumulative, severe child abuse and sexual violence. Lisa’s male attorneys, seemingly uninformed about her endurance of gender violence, failed to present a comprehensive picture of her decades of torture and abuse to the jury in her 2007 capital trial when she was sentenced to death. As observed by Sandra Babcock, founder of the Cornell Center on the Death Penalty Worldwide, the result for Lisa was deadly, since: “[p]rosecutors have a set playbook in capital cases involving women…[t]hey condemn women who are bad mothers, or who don’t fit an idealized version of femininity.”
As reasoned by The New York Times, Lisa Montgomery’s life experiences should not have been treated by the criminal justice system as genderless, rather she “endured a lifetime of abuse because she was a woman. She was trafficked and raped because she was a girl.” Government systems and institutions repeatedly failed her – from child protective services, to the education system, to law enforcement, to mental health services, to domestic violence advocacy. Her resultant mental illness gave rise to her eventual commission of a horrific crime. Yet, in addressing Lisa Montgomery’s case and advocating that her execution would constitute an “injustice on top of an injustice” given her lifetime endurance of sexual and gender-based violence, The New York Times averred that: “[n]o one is arguing that Lisa Montgomery should be freed from prison.”
Yet for prison abolitionists, including myself, who think beyond prisons as a tool to solve society’s problems and seek to reduce or eliminate them, the last claim is not true. However, before turning to address the current carceral moment through the lens of abolitionist feminism – and the inherent tensions it presents for carceral feminism in the context of #MeToo – it is imperative to firstly reflect upon the subject of women and incarceration itself. While attending to the dismantling project foreshadowed by prison abolition, it is essential that we pay attention to the issue of women in prison, in particular by documenting the unique problems encountered by incarcerated women in order to address them.
Women and Incarceration
Firstly, turning to the numerical context of women in prison, and noting that the United Kingdom has three separate prison systems across the distinct legal systems of England and Wales, Scotland and Northern Ireland, it is worth contextualising that over the six year projection horizon from 2020-2026 in England and Wales, the prison population is expected to increase to 98,700 by September 2026, according to the Ministry of Justice in the United Kingdom. This is largely due to the anticipated result of the recruitment of an extra 20,000 police officers, which is expected to increase charge volumes and therefore increase the future prison population. As of 20 November 2020, the prison population in England and Wales was 78,838. It is projected to increase in the short term to a pre-COVID-19 level of 83,200 by September 2021, then to keep increasing steadily to 98,700 offenders by September 2026.
However, the cohort of female adult prisoners make up only a small proportion of the overall population. In September 2020, females over the age of eighteen equated to 3,217 of the 79,235 prison population. By September 2026, they are expected to be just 4,500 of the 98,700 inmates in England and Wales. According to these statistics, men are therefore over 20 times more likely than women to be imprisoned in England and Wales.
In Scotland, following several years of sustained decrease, the prison population has risen sharply since 2017-2018 to an annual average of around 8,200 in 2019-2020 according to the Scottish Government. Yet this rise has been amongst the population of adult men only. The average number of women in prison has remained stable since 2013-2014. Therefore, throughout this time period, men consistently made up the majority of people in prison in Scotland, while the proportion of prisoners who are women decreased over the last ten years, from 1,693 individuals in 2010-2011 (8.3% of the total) to 1,263 in 2019-2020 (7.3%).
Last but not least within UK borders, according to the Department of Justice in Northern Ireland, the overall average daily prison population in Northern Ireland increased by 4.7% during 2019-2020, to 1,516 prisoners. While males increased from 1,384 to 1,442 and the female population increased from 65 to 74, a larger proportion of female receptions were sentenced to “short” custodial sentences of one year or less (85.6%) compared to males (76.8%). Therefore, overall across the United Kingdom, female prisoners are overwhelmingly a minority within the long-term prison population.
Across the Atlantic, the United States has the dubious distinction of incarcerating the highest prison population per capita in the OECD (England and Wales has the thirteenth highest prison population per capita, with Scotland being the fourteenth and Northern Ireland being the twenty-sixth in the world). According to The Sentencing Project, there are 2.2 million people in the nation’s prisons and jails today. Since 2000, the United States has drifted around the 1.5 million prisoners mark. However around 231,000 women and girls were incarcerated in the United States as of 2019 according to the Prison Policy Initiative. Accordingly, in stark contrast to the total incarcerated population, women prisoners similarly remain a minority in the world’s most carceral nation.
Yet despite the fact that female prisoners are fewer in number, the outsized role of prisons and jails, including for pre-trial incarceration, has serious consequences for incarcerated women and their families. These impacts are seldom given due attention in mainstream media and public discourse. By contrast, high profile criminal cases tend to consume the public and media’s attention from a sensationalist viewpoint when it comes to the topic of women and incarceration, to the detriment of the majority of female non-violent prisoners.
Photo by Matthew Henry on Stocksnap.
Indeed, my personal interest in the gendered experience of women within the criminal justice system was first piqued by the tragic case of Aileen Wuornos, who was executed in Florida and referred to by the international media as everything from a “man-hating lesbian killer” to a “feminist hero who murdered in self-defense”. Years later, working for the British NGO Reprieve, and assisting in a juror investigation in the case of Linda Carty, a British grandmother currently on death row in Texas, I further reflected upon the experience of females prosecuted for crimes through a gendered lens (in Linda’s case, through a gruesome prosecutorial theory which had asserted that she planned to kill a pregnant mother in order to steal her baby). In the international realm, I have met in detention the first woman to be convicted of genocide by an international tribunal, Pauline Nyiramasuhko, and took note as she was labeled even in academic settings as the “mother of atrocities” for her role in the Rwandan Genocide against the Tutsi. Indeed, Pauline Nyiramasuhko’s case generated a high level of media and academic attention from the perspective of challenging how the roles of women as mothers do not prohibit them from planning or participating in violent crimes. The focus of media and public attention to cases involving females accused of violent crimes arguably shapes public understanding and the framing of the social issue of women in prison.
The absence of focus on female prisoners overall is in part perhaps attributable to the fact that there are typically fewer women prisoners than men, as highlighted above, and because the criminal justice sphere has traditionally been the purview of men. For instance, in the United States, the vast majority of police leaders and officers, corrections staff and prison wardens are men. In elected office, in 2021, there are still more men than women. For example, in 2021, 144 women serve in the US Congress: 26 women serve in the Senate and 118 women in the House. The number of women in statewide elective executive posts is 94, and the proportion of women in state legislatures is 30.8 percent. Therefore men are disproportionately involved in both the administration of punishment and incarceration and the drafting of policies on punishment and incarceration in the United States.
Similarly in England and Wales, as of 31 March 2020, there were 40,319 female police officers, constituting just 31 percent of police officers (less than a third overall). Only 36.9 percent (69) of senior leaders in public prisons and in Her Majesty’s Prison and Probation Service (HMPPS) were female. Further, while the UK elected a record number of female Members of Parliament in 2019, almost two-thirds of seats in the House of Commons were still represented by men. Criminology has also traditionally focused on men.
The gendered nature of the penal sector, shaped by primarily male institutional actors, results in prisons and jails being designed by men for men. In turn, they are not tailored to women’s needs and experiences. Given the comparatively low number of female prisoners and resultant invisibility of the female correctional population, the issue of incarceration is further cast as a men’s issue.
The human cost is immeasurable. As noted by Penal Reform International, “[p]risons are single sex, coercive institutions designed to hold men in a secure environment.” The result is that women’s prisons are a poor adaptation of this model, being regimes under which women are held that do not respond to their specific needs. Further, as there are fewer women in prison, there are usually a smaller number of distinct facilities for women, resulting in women being held at greater distance from their families and communities. How women are impacted differently by the criminal justice system than men and how criminology has historically focused on studying men’s experiences must be remedied. A light must also be shone in particular upon the ways in which women’s abuse and resultant survival strategies are criminalized.
According to the National Resource Centre on Domestic Violence, there are six main pathways to incarceration which correlate with histories of abuse when it comes to female offenders, namely: 1.) abuse survivors and “runaway girls”; 2.) “street women” and prostituted women; 3.) women with untreated addictions; 4.) women arrested for economic crimes, sometimes coerced by batterers; 5.) women arrested for harming others, either falsely or for defending themselves; and 6.) women affected by the enforcement of discriminatory and coercive welfare, immigration and corrections policies and drug laws.
Women in the correctional system almost universally have histories of abuse and crimes stemming from that abuse (such as status offenses from running away from home as children, drug use to cope with the mental health effects of abuse, and sex work to pay for such self-medication). This means that the system of imprisoning women is built upon the criminalization of survival strategies, creating a “sexual violence to prison pipeline” (as argued by Mariame Kaba in 2017).
While a majority of female inmates experience sexual or physical abuse before entering prison, once incarcerated, the carceral system overwhelmingly fails to address such histories of abuse and there is typically a lack of adequate mental health services available. Women may be routinely administered medication without the opportunity to undergo psychotherapeutic treatment.
Further, the fact that prison is usually an institution of sexual violence itself, where people are sexually assaulted and raped as part of the system, must be addressed in the context of women and incarceration. For instance, in the United States, while such data is not disaggregated by sex or gender, correctional administrators reported almost 25,000 allegations of sexual victimization in 2015 in adult correctional institutions. According to Prison Policy, records show that correctional officials have subjected female inmates to rape, other sexual assault, sexual extortion, and groping during body searches in addition to strip searches and cavity searches.
Beyond enduring sexual abuse in prison, women in prison are also subject to medical neglect, often receive inadequate reproductive health care, and are often denied essential medical resources and treatments, particularly during times of pregnancy. Despite reform efforts, the shackling of all prisoners, including pregnant prisoners, is policy in federal prisons in certain circumstances and exists in almost all state prisons in the US.
Prison abolition is a feminist struggle. The above data illuminates the multitude of ways in which mass incarceration has deeply gendered effects, and resultantly has acute effects on families, constituting a suitable site for feminist intervention. For instance, since 1991, the number of children with a mother in prison in the United States has more than doubled, by 131%, and eighty-five percent of the primary caregivers of children during the mother’s incarceration were maternal grandmothers. Moreover, that the global prison industrial complex was built on black and brown women’s bodies and built on the criminalization of women’s survival strategies is undoubtedly a feminist concern.
In addition, abolition is not the end of the story for women, who are typically the primary caregivers who will be affected by the other systems of surveillance in place beyond physical prisons walls, including state involvement in their lives through child welfare and probation and parole systems. Michelle Alexander’s 2018 editorial follow-up, The Newest Jim Crow, to her foundational work The New Jim Crow urges us to stop thinking about the system of mass incarceration as simply a prison system and to address the urgent need to dismantle the digital prisons which exist in society. For instance, the emergence of “e-carceration”, or digital prisons, including the systems governing probation and parole and the over-policing inherent within child welfare systems, subjects societies to new, high-tech forms of racial and social surveillance and control.
Private corporations are investing in the electronic surveillance of those who have been criminalized, creating electronic monitors and G.P.S. tracking systems for the “re-entry” of those released from prison or jail. Yet these systems of electronic control and monitoring are replacing traditional, physical brick-and-mortar prisons, with invisible ones. Such punitive systems of surveillance are a manifestation of the over-policing of black bodies, women’s bodies, poverty, and motherhood. As Michelle Alexander argues, using fewer physical cages will not mean that less people will be caged, rather “many of the current reform efforts contain the seeds of the next generation of racial and social control.”
We must accordingly extend the gaze of feminist abolition from mass incarceration to mass criminalization if we are to address the perpetual criminalization, surveillance, monitoring and control of those already disadvantaged and marginalized in our societies. As these surveillance systems infiltrate mostly poor neighborhoods and families of colour, black and brown women’s mothering is ultimately compromised. As noted by Venezia Michalsen, by closing prisons, “we are simply clipping branches from the racist and misogynist tree, while the roots continue to flourish, surveilling Black women through other means.”
Therefore there is a need for prison abolition to be considered from a feminist perspective because of the impact of prison— in all of its forms (including the structures in the community which expand the state’s reach) — on women. Yet, in addressing the topic of prison abolition from a feminist perspective, we must respond to the fact that the prison industrial complex has done a lot to make women— although it should be acknowledged, primarily white women— feel safe.
Addressing the Fallacy of #MeToo through an Abolitionist Lens
“We’ve now been in quarantine longer than #BrockTurner turner was in jail.”
—Twitter user, 5 August 2020
Many prominent organizations and movements fighting domestic and sexual violence against women have heavily relied on policing and prisons. This has been consistently highlighted and criticised by INCITE!, a network of radical feminists of colour organizing to end state, community and personal violence against women of colour.
Following the six-month prison sentence imposed upon Brock Turner, the Stanford student convicted of sexually assaulting an unconscious woman, some feminist groups expressed outrage at the shortness of the sentence. For the first time since 1932, California voters proceeded to recall a sitting judge when they voted to remove Judge Aaron Persky, the sentencing judge in Brock Turner’s case. Judge Persky was removed, despite the potential harm to poor and minority defendants ultimately created by such a removal, which could deter other judges from rendering shorter prison sentences. Indeed, as public defenders argued, such a precedent would likely contribute to high rates of incarceration and play into the already prominent trend within judicial elections across the country of punishing mercy and rewarding punitiveness.
As noted by deputy public defender in Santa Clara County, Sajid Khan, “the culture of mass incarceration has so shaped our minds” that “we still insist on arbitrary, lengthy terms of incarceration as the response to crime.” Indeed, as INCITE! has emphasised, as accusations against high profile sexual offenders like Harvey Weinstein and Bill Cosby mounted, calls for justice similarly centered around arrest and prison. The convictions of such powerful men were classed specifically as “male accountability”, for instance by Ben Leit in The Spectator, who noted that, “Weinstein will be exactly where he belongs— behind bars.”
Yet such a response fails to recognise that harsher criminal punishments and lengthier prison sentences have, as INCITE! advocates, “always fallen hardest upon— and devastated— people and communities of colour”, while providing little safety or prevention from gender violence.
The inherent tension within the #MeToo movement and its relation to the criminal justice system becomes yet clearer when we recall the remarks of Judge Rosemarie Aquilina, who presided over the sentencing hearing of Larry Nassar, the former USA Gymnastics doctor who was convicted of molesting female gymnasts and sentenced to up to 175 years’ imprisonment. For instance, such statements went as far as alluding to prison rape: “[o]ur Constitution does not allow for cruel and unusual punishment. If it did […] I would allow some or many people to do to him what he did to others.” Through grassroots activism to judicial reasoning, carceral feminists overly rely on increased punitive responses and state power in the fight to end violence against women.
Building on the foundational work of INCITE!, much has been written about how we must reconcile prison abolition with the #MeToo movement, with a view to combatting impunity for sexual and gender-based violence through non-carceral means. Indeed, an overreliance on policing, prosecution, and imprisonment to resolve gendered or sexual violence is misplaced. As argued by Alex Press, despite convictions and prison sentences for outliers such as Harvey Weinstein, his powerful counterparts, “the unknown numbers of Wall Street traders, media executives, and political leaders who have committed less-well documented assaults” are not the ones who will be channelled into the criminal justice system. Instead, as Press argues, it will be the poor and working class, particularly those from communities of colour.
The question of mass incarceration and the negative state engagement surrounding it is best understood through gendered and feminist lenses. For abolitionist feminists, the struggle to end violence cannot be found within punitive and carceral systems, as prisons are sites of violence that can never be adequately reformed since both sexual and gender-based violence are reproduced by the carceral state. Instead, prisons must be eliminated, along with the conditions that channel individuals from society into prison, including racism, poverty and the root causes of violence.
Photo by Fmtechgirl on Wikimedia Commons.
As summarized by Maureen Mansfield in The Progressive Policy Think Tank, abolitionist feminism invites us to consider the world we want and how to organise to build it. Seeking a world beyond prisons, it focuses our attention on developing stronger communities and attaining gender, racial and economic justice. Abolitionist feminism therefore encourages us to consider our problems from a social justice, rather than a criminal justice or carceral state, perspective. In seeking alternative systemic strategies for addressing harm, it also acknowledges and responds to the violence caused by the state itself.
An abolitionist feminist lens reveals how carceral feminisms (as so labeled by Elizabeth Bernstein in 2007) (in common with other carceral ideologies) rely on criminalization, increased policing, prosecution and imprisonment, which reinforces state violence, as the solution to gender-based violence. Such an approach thereby upholds a system which ultimately punishes along race, class, gender identity and immigration status lines, which runs counter to the reported belief systems of many forms of feminism in terms of perpetuating race, class and gender violence. With respect to gender, the criminal justice system has particular impacts on women (cisgender and trans), trans men, gender non-conforming and intersex people, even when they themselves are victimised by violence and indeed despite the fact that women and LGBT persons are frequent targets of the criminal justice system.
In the US context, the turn toward criminalization within anti-violence activism gave rise to Congress passing the Violence Against Women Act (VAWA) in 1994, as the result of years of organising and strategic litigation by feminists which, as explained by Priya Kandaswamy, relied upon the “construction of women as innocent victims of violence who deserve protection from the state.” As INCITE! emphasises, carceral feminisms ultimately view solutions to gender-based violence through a white middle-class lens. In so doing, they ignore the ways in which intersecting identities (such as race, class, gender identity and immigration status) leave certain women more vulnerable to violence, including state violence.
As Beth Richie highlights, such a premise creates a binary between the “criminal” and the “victim”, thus excluding criminalised populations from the services they need as survivors of sexual and gender-based violence, including undocumented immigrants, substance users, sex workers and welfare recipients. It further alienates individuals from criminalised communities (such as people of colour, queer and transgender people), who are more likely to be targeted, than helped, by the criminal-justice institutions that anti-violence activists turn to.
Taking the example of VAWA, this prompted law enforcement to respond to complaints of domestic violence, sexual assault and other gender-based violence via ensuing mandatory arrest laws, policies on dual arrests (in which police could also arrest survivors) and punitive prison sentences. Such effects have led to the critique of VAWA as a failed policy. Yet despite VAWA’s punitive approach, in the majority of sexual assault cases, perpetrators are less likely to go to jail or prison than other criminals and sexual assault remains dramatically underreported. Punitive approaches ultimately fail to stop sexual and gender-based violence and in particular, domestic violence.
The expansion of punishment systems in response to sexual and gender-based violence is not only ineffective but it also results in, what Venezia Michalsen describes as an “expansion of racist, punitive, and patriarchal systems that punish and surveil communities of colour, in particular the mothering of Black and brown women.” As previously noted, such examples include the misogynist systems of surveillance sanctioned by the child welfare system in the United States.
More broadly, carceral feminisms focus narrowly on incarceration as if prison exists in a vacuum and the prison industrial complex does not bear its strange fruits within wider society. It is as if life were an episode of Law and Order—or Inspector Morse in the UK. As the credits roll at the end of the episode, with a sense of relief, everyone resumes their day, for a person has been apprehended and placed behind bars and the story has ended; the problem has gone away.
Yet as human beings are put in cages, families have to pay for phone calls to speak to them and incur costs to visit them, women have to figure out how to pay the household bills having lost a breadwinner in the family to the carceral system. In the desire to punish away our problems, women, and black women in particular, and their families, bear the brunt of the peripheral effects of the penal system. While white carceral feminisms focus on the immediate “solution” to the problem of crime, white women typically do not have to think about the ripple effects of the criminal justice system. Much like in an episode of Law and Order or Inspector Morse, the focus is on the goal of incarceration in isolation, which appears to make the problem go away, without any attention paid to the repercussions of the system.
In a world without prisons, the way to address sexual and gender-based violence without relying on state violence is through transformative justice and community-based responses rooted in care, which are not dismissive of conditions of poverty, race, and exploitation. As advocated by Angela Harris, the restorative justice lens focuses on healing, repair, and accountability. With respect to healing, this includes investing in resources to assist survivors to leave abusive environments, mental health and trauma counselling, and inclusive sexual assault centres that are accessible to all survivors. With respect to repair and accountability, this must include counselling for the person who caused harm, as well as a number of restorative justice efforts such as victim-offender mediation, community justice conferencing, workshops and trainings, removal from leadership positions, admission of guilt, public or private apologies, and specific behavioural changes.
Moreover, we must rechannel our resources to the prevention of sexual and gender-based violence before it occurs and address the root causes of systemic violence against women. Such prevention mechanisms include investing in education, health, social housing and the creation of unarmed service teams (outside of the police force) to address mental health, drug-related crises and gender-based violence. Additionally, prevention requires an investment in the societal and cultural shifts needed to end sexual and gender-based violence, such as confronting the centuries of policies and attitudes that dismiss sexual violence against women and the structures that protect perpetrators.
Image by Oregon State University on Flickr.
Women are undeniably leading the charge of the modern day prison abolition movement. From the origins of Angela Davis and Ruth Wilson Gilmore’s core work in the movement to abolish prisons, to contemporary organisers and activists in the criminal justice arena reimagining a world without prisons, women, and black women in particular, have played a central role in the movement. At the same time, women have been unprotected and failed most intensely by the criminal justice system.
As I have argued, the relative invisibility of the female correctional population and the fact that the issue of incarceration is typically cast as a men’s issue, detracts attention from the treatment of women in prison. The topic of women in prison, and the fact that women are routinely incarcerated in institutions designed to hold men, is highly relevant to a feminist analysis of prison abolition. So too is the fact that the system of imprisoning women is itself built upon the criminalization of survival strategies. That mass incarceration, and “e-carceration” (including the systems of probation, parole and child welfare) heavily impact women, and acutely affect families, further constitutes a suitable entry point for abolitionist feminist intervention.
However, abolitionist feminism must build on the ways in which restorative justice efforts can appeal to the distinct objectives of ending both sexual and gender-based violence and abolishing the prison industrial complex. Certainly, if abolitionist thought is to become more robust for the masses, it must better respond to carceral feminist tensions by demonstrating how sexual and gender-based violence can be better addressed outside of the penal realm, while also highlighting how incarceration does not make us safer. Ultimately, reparation cannot be delivered through punitive carceral systems. As prisons are rooted in systems of slavery and white supremacy, they cannot be used to end the violence which persists in our societies.
Philippa Greer is an international human rights lawyer and scholar with experience across four continents in human rights advocacy, international law, criminal justice, the death penalty, penal reform and women, peace and security. She is a Legal Officer (International Law) at the United Nations. A graduate of Harvard (LL.M., John F. Kennedy Memorial Scholar) and Edinburgh (LL.B. (First Class Honours); Dip. PLP) universities, Philippa’s work has been featured by CNN, the Huffington Post and others. She tweets @philippa_bear.
 Legal Officer, United Nations. This paper is written by the author in her personal capacity and does not reflect the views of the United Nations.