Three Ways to Reduce the Number of Women in Prison in the Americas

Years in the making, the ground-breaking report on Women Deprived of Liberty in the Americas was launched by the OAS’s Inter-American Commission on Human Rights (IACHR) on July 20, 2023.

Even as the research for the report was underway, women’s incarceration in the region continued to rise. Data provided by the World Female Imprisonment List shows that excluding the United States, an estimated 95,000 women are behind bars in the Americas today, compared to about 38,000 in the year 2000, an increase of more than 150 percent in little over two decades.

Behind these statistics are the tragic stories of the women who are living in these prisons, in deplorable conditions, while neglected and abused, and isolated from their families.

Here are three reasons why this report is so important for efforts to reduce dramatically the number of women behind bars in the Americas.

1. Change the narrative about women in prison.

This report starts from the premise that women in prison have rights; their basic human rights must be protected and promoted. While this may sound obvious to some, that is not the commonly held opinion among many in the region.

As the report elaborates, in Latin America the continued rise in women’s incarceration is driven in large part by excessively punitive drug laws and harsh “mano dura” policies that disproportionately impact women. Anyone alleged to be involved in drugs or gangs is portrayed as a dangerous criminal. Women involved in the criminal legal system face even higher levels of stigma and discrimination than men, as they are viewed as having defied the gendered and caregiving roles that society has assigned to them. And this is even more true for trans women.

In order to gain public and governmental support for the policy reforms presented in this report, we need to change the narrative about who the women in prison are and the reasons that led them there. We also need to promote discussion of alternatives to punitive policies that will make families and communities stronger and more resilient.

Finally, by including formerly incarcerated women, including trans women, in the expert meetings for this report and holding two separate sessions with them, the IACHR is acknowledging formerly incarcerated women as powerful agents of change. One of the most significant developments in recent years is the emergence of local organizations led and founded by formerly incarcerated women and the Latin American network of formerly incarcerated women. Who better than those who have experienced the horrors of incarceration to put forward alternative approaches?

2. Rethink alternatives to incarceration.

The IACHR states that one of the primary objectives of the report is to reduce the female prison population. That means bringing fewer women into the criminal legal system to begin with and avoiding the incarceration of those women who are caught up in it. The report analyzes the three main gender-oriented alternative measures being used in the region today and the reasons why, as presently conceived, they are in fact not good alternatives.

We need to rethink alternatives to incarceration. House arrest, electronic monitoring, and drug courts are three commonly used alternatives in the Americas that come from a punitive mindset, as opposed to one based on restitution and providing women with the life skills and resources that can keep them out of the criminal justice system in the first place.

The IACHR report calls on member states to prioritize the implementation of alternative measures from gender and intersectionality perspectives, taking into account the specific needs of women, particularly those who are more at risk because they face multiple factors of discrimination, such as mothers and trans women. It then lists a variety of options that are less harmful and potentially beneficial, including: non-onerous reporting requirements; suspended sentences; voluntary drug treatment; community programs and services; mediation; restitution to the victim or compensation; and restorative justice.

Here is more on why the commonly used alternatives today are problematic:

House arrest is the most common, but women may not have a home to go to or a family willing to provide for them. The conditions under which women are kept under house arrest are usually so strict that women cannot work to earn a living, fulfill their responsibilities as mothers or caregivers, or even go to the doctor when needed. For this option to truly be an alternative for those who could benefit, these conditions need to be significantly relaxed.

Electronic monitoring is becoming more popular, but the experience of those impacted by its use widely differs depending on the resources (human, social and financial) at their disposal. This includes, among other issues, having a home and a support network – something not always available to women in situations of vulnerability. The use of electronic monitoring also transfers the costs of confinement from the state to the individual and can cause a range of health problems.

In theory, drug courts are meant to provide treatment to those who need it, reduce prison populations, and limit the costs associated with incarceration. In practice, drug courts are a costly and cumbersome intervention that have had a limited impact on reducing incarceration and may even be detrimental to alleged beneficiaries. As this report rightly points out, drug treatment programs should be voluntary and carried out from a public health perspective.

3. Implement the IACHR’s blueprint for policy reforms across the region.

Governments across the region pay attention to recommendations put forward by the IACHR. The report also provides civil society actors with a very important tool for advocacy efforts to reduce women’s incarceration across the region. Here are just a few of the policy recommendations that are particularly important for reducing women’s incarceration:

• Reform drug laws to ensure proportionality in sentencing.
• Decriminalize drug use and possession for personal use.
• Use non-custodial sentences, or alternatives to incarceration, for low-level offenses.
• Dramatically limit the use of pre-trial detention.
• Ensure access to prison benefits, such as sentence reductions.
• Incorporate consideration of mitigating circumstances before, during, and after prosecution.

Other important recommendations include:

• Eliminate criminal records, which is so important for women and men trying to reconstruct their lives after prison.
• Collect good data with a gender focus, in order to implement sound evidence-based policies.
• Adopt policies to prevent and respond to gender violence in prison, including violence against trans women.

In recent years, there has been real progress in getting the issue of the disproportionate impact of incarceration on women on national, regional, and international agendas. Governments across the region now acknowledge the disproportionate impact of incarceration on women and the devastating impact on their children and families. Yet, with some important exceptions, that has not led to much-needed reforms. It is time to transform words into action, and this comprehensive report provides just the tool that governments need to do that.