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Sara’s story of cycling in and out of prison has become all too familiar. At age 50, she is again serving time, a plea-bargained, seven-year sentence in the “Buen Pastor” women’s prison in San José, Costa Rica, for selling crack and attempting to bribe a police officer with the equivalent of US$3.75. When she was 13, Sara left home, fleeing sexual abuse by her uncle. She ended up living on the streets (where she has spent most of her life) and began using and then selling drugs to support herself and her habit. Sara has suffered a lifetime of abuse, poverty, violence, and incarceration. Imagine what her life could have been like if social services and other forms of government support had been the response to her situation of vulnerability, rather than prison.
Sara is not alone. The female prison population is growing worldwide. But in Latin America, women are being incarcerated in alarming numbers. While the number of men incarcerated is greater, the incarceration of women is growing at a faster pace. Extremely punitive drug laws are the driving force behind this disturbing trend. Research carried out by the Research Consortium on Drugs and the Law (CEDD) reveals that in Argentina, Brazil, Costa Rica, and Peru, more than 60% of women are behind bars for drug-related offences. In Argentina, for example, the population of women incarcerated for drug offences climbed 271% between 1989 and 2008, and 290% in Brazil between 2005 and 2013. The majority of these women are accused of or convicted of low-level, non-violent offences, yet they will spend years behind bars.
This worrying trend is reflected in other parts of the world. According to the Thailand Institute of Justice, 80% of the female prison population in that country is imprisoned for drug-related crime. A similar pattern has also been recorded in Europe and central Asia. A study published by Harm Reduction International in 2012 shows that in these regions, an average of one in every four women deprived of liberty is serving a custodial sentence for drug-related offences. In some countries this figure is as high as 70%. The global data available shows that immediate custodial sentencing is being applied across regions as a first port of call in response to drug offences.
The current drug policies that have resulted in the excessive criminalisation and incarceration of women must be fundamentally reformed. Drug policies should be based on the fundamental legal principle that incarceration should only be used as a last resort. Low-level offences committed by women or men should be addressed through alternatives to incarceration and by ensuring that the penalties are proportional to the offences committed. Special attention should be given to the gender perspective in developing, implementing, and evaluating legislative and drug policy reforms.
Who are these women?
Women who go to prison for drug offences offer diverse explanations as to what led them to be incarcerated. Sara’s story reveals a common pattern: women who become involved in drug use and then begin selling drugs to support their habit; or who are sex workers and use drugs to make their situation more tolerable and then also end up selling them. Although there are women who report having become involved by their own choice and say they were aware of the risks associated with the drug business, in many cases the women have been coerced by a partner or family member – a situation which is facilitated by emotional bonds fraught with gender stereotypes and unequal power relations between men and women. Some women in prison say they were deceived and did not know what they were doing. Others say they were not fully aware of all the risks they were taking.
The latter is particularly the case with women who transport drugs from one country to another. These women are often referred to as ‘mules’, a term with obvious derogatory implications. Drug trafficking organisations will sometimes seek out women in situations of vulnerability and entice them into transporting drugs as a means of earning money to support themselves, their family, their drug consumption or a combination of these. In the end, however, these women are engaged in poorly remunerated, high-risk tasks, with a significant probability of being caught, while those running the drug business reap the profits.
While the factors leading to their involvement in the drug trade may differ, most of the women incarcerated for drug crimes share common characteristics, most prevalently, social exclusion and poverty. They have little or no schooling, leading them to seek out a living in the informal economy, and are responsible for providing care for dependents, whether children, young people, elderly, or persons with disabilities. In many cases they have been victims of violence, sexual abuse, or commercial sexual exploitation at some point in time and possibly repeatedly. They have had little or no access to government services or support. Some groups have an even greater propensity to be subjected to discrimination in the enforcement of drug laws, such as indigenous women, Afro-descendant women, and LGBTI people.
It is important to stress that these women do not pose a real threat to society. They are arrested for performing low-level tasks, but are locked up in pre-trial detention or with excessive prison terms. Once they have served their sentences and are released, their criminal records make it even harder to find decent work in the legal economy, which perpetuates a vicious cycle of social exclusion and incarceration.
The impact on their families
In addition, the vast majority of women incarcerated for drug offences in Latin America are single mothers. Consider Johana, a single mother who is incarcerated in the women’s prison in Bogotá, Colombia with a sentence of six years and four months for drug trafficking. In order to support her three children, Johana became involved in the family business, making calls to drug dealers and users from her aunt’s supermarket, but never handling the product. She and other members of her family were arrested in a sting operation. The judge reprimanded her for failing as a mother by putting her children at risk; indeed, women are often judged more harshly than men for committing the same crime, as they are seen as defying the gendered social role of caregiver that has been traditionally assigned to them. Johanna’s kids did end up in trouble without their mother to care for them. Was this, as the judge said, a result of what she did? Or was it because of poverty that Johanna was driven into the drug trade and her subsequent incarceration?
According to the Colombian human rights group, Dejusticia, 70% of incarcerated women in Colombia are single mothers. In Costa Rica, to give another example, in 2012 more than 95% of women incarcerated for bringing drugs into prison were the sole caregivers for their children. When incarcerated, these mothers suffer tremendously because they are not able to care for them. The children in turn suffer from being separated from their mothers. In the absence of strong social protection networks, the children are exposed to situations of abandonment and marginality; they often face greater poverty, end up institutionalised or living with strangers, or even on the streets. They too may become involved in drug use and drug-related crime.
While the incarceration of either parent has a devastating impact on children, studies show that when a father is in prison, most children continue to be cared for by his partner, mother or another female family member; however, when mothers are incarcerated, only a small percentage of children remain in the care of their fathers and often other family members are reluctant to take them in, due to the stigmatisation and discrimination that these women face. In short, harsh drug laws disproportionately affect women and their families.
An alternative approach
Drug policy reforms are urgently needed to end the mass incarceration of women for drug offences. In an effort to reduce the female incarcerated prison population in Latin America and the Caribbean, a working group of government officials and experts in the areas of gender, human rights and drug policy from 10 countries came together to develop a “Guide for Policy Reform” on the issue of women, drug policies and incarceration. The guide offers a road map for developing and implementing policy alternatives based on human rights and public health, that are gender-sensitive. The proposed reforms are rooted in the legal principle that incarceration should only be used as a last resort; that gender mainstreaming must be incorporated when developing, implementing and evaluating such reforms; and that the differential impact of the application of drug policies on women must be taken into account.
The guide also underscores the need for more inclusive drug policies. And central to achieving that goal is to incorporate women’s voices into the drug policy debate – the voices of incarcerated and formerly incarcerated women, of their family members and partners, women drug users, and the mothers, wives or partners of persons who are or have been incarcerated. Constructing more humane, inclusive and sensible drug policies requires more participation of women in their design, implementation and evaluation.
In addition, profound sentencing reforms are needed such that punishments are commensurate with the gravity of the crimes committed. The use, possession and cultivation of drugs for personal use should be decriminalised; no person should go to jail because they choose to put a substance into their own body. In addition, criminal justice systems should be capable of taking attenuating circumstances into account, for example in the case of women who have dependents in their care, or pregnant women. In no case should pregnant and caregiving women accused or convicted of non-violent drug crimes go to jail; instead, alternatives to incarceration should be implemented. Indeed, alternatives to incarceration are less costly and less harmful responses, and more effective for addressing most drug-related offences.
JusticeHome, sponsored by the Women’s Prison Association in the United States, provides an interesting alternative to imprisonment. Rather than go to prison, women in the state of New York convicted of a felony and with a sentence of at least six months can be selected to live at home with their children and participate in treatment, education, and employment programmes.
A good example of legal reforms with a gender perspective can be found in Costa Rica, which in 2013 reduced the penalties for women bringing drugs into prisons. Thanks to the reform, more than 150 women who had been sentenced under the previous law were released. In addition, now, women for whom bringing drugs into prison is their first offence, and who are affected by some of the conditions of vulnerability noted in the new law, can be eligible for alternatives to incarceration, making it possible for them to participate in social insertion programmes aimed at preventing recidivism.
The Costa Rican reform underscores that a human development focus is essential when considering drug policy reforms. Economic development programmes need to be implemented in rural areas where crops for illicit markets are cultivated and in marginalised urban areas where drug markets proliferate. Rather than pouring money into prisons, governments can better spend scarce resources providing education, training, and employment programmes that target women living in vulnerable conditions. For those women who do end up incarcerated, assistance should be provided to help them transition out of prison and to find employment, an even more difficult task with a criminal record.
“In the Bible, it says that women are…the foundation of the home”, Johana tells us, from her prison in Bogotá. “Well then, help us to be a strong foundation. Many of us are here for our children, how would it be if we had opportunities?”
This article is based on the report, “Women, Drug Policies, and Incarceration: A Guide to Policy Reform in Latin America and the Caribbean”, published by WOLA, IDPV, CIM/OAS and Dejusticia in February 2016.
