California Puts Into Motion Alternative Custody for Incarcerated Moms

But most of these women won't be going home any time soon. Here's why.

By Julianne Hing Sep 20, 2011

California is set to implement a law passed last year that will allow some female inmates in state prisons who are pregnant or who are the primary caregivers for their kids to finish their sentences outside of prison. Criminal justice reform and inmate advocates say, though, that the plan has been mistakenly touted as an early release program, and that in fact, many women may simply be shuffled to other facilities where they’ll still be locked up.

The move has been spurred in part by the Supreme Court order to the state to deal with the current prison overcrowding problems by reducing the prison populations from their current 200 percent capacity to 137.5 percent capacity. California state prisons currently house 146,000 inmates in facilities that were meant for just 80,000 people.

Part of the hope is that the money the state will save incarcerating women in state prisons will go to social services and treatment programs to make sure inmates do not return to prison again. As of 2009, the California Legislative Analyst’s Office estimated it cost California $47,000 a year to incarcerate someone in a state prison.

The law, authored by California state Sen. Carol Liu, allows for women who have less than two years left of their sentence to serve; have not been convicted of sex offenses; have no current or prior felony convictions and who haven’t attempted to escape from prison in the last ten years to be eligible for a program where they could serve the remainder of their time under house arrest, in a residential drug treatment program, or in what’s called a "transitional care facility."

Prison inmate advocates say there are many open questions about what those transitional care facilities will look like, but that given the passage of other recent laws that call for the expansion of reentry prisons, it’s likely that the facilities women will be transferred to will mean that they’ll still incarcerated.

"There’s been a history of the Department of Corrections saying they’ve identified four to 5,000 inmates who pose no threat and should go home and have only non-violent property related offenses on their record, who are mothers, who really just need vocational training and drug treatment and shouldn’t be in prison," said Cynthia Chandler, director of the human rights organization JusticeNow, that advocates for the rights of incarcerated women and transgender folks.

"But when we delve into the language of the bills and the policy, the plan turns out to actually be to construct new prisons that are run by the Department of Corrections and are staffed by guards but are just not called prisons but which are, for all intents and purposes, prisons."

Chandler said that during the conversations surrounding the state’s massive billion-dollar prison expansion bill AB 900 passed in 2007, there was talk of building 4,000 beds for so-called female rehabilitative community correctional centers where women would be housed in smaller, guarded facilities closer to the communities they came from. The Supreme Court ruling didn’t necessarily order for the release of inmates, it simply demanded that the prison system reduce overcrowding. If the Department of Corrections accomplished that by building more prisons or alternative facilities, that would be legally permissible.

The reach of the program could also be curtailed by Gov. Jerry Brown’s realignment plan that could result in county jails being given more discretion about where people serve their sentences.

Emily Harris, the statewide coordinator for Californians United for a Responsible Budget, agreed that the current plan is vague on details about what will actually happen to women who qualify to participate in the program. "One of the things we know is the devil is in the details," Harris said, pointing to some questions around the law’s language.

"What does ‘release’ really mean?" Harris said, "Does it mean that people are released into a treatment center, or into their homes but that their home will be surveilled, and do you need to have a home address in order to go home?"

Harris and Chandler said that while many women may technically qualify to leave state prisons, other extenuating circumstances will likely keep many women for participating. In a sense, the very people the law attempts to help may be barred from taking part in the alternative custody arrangements.

"What we know is that it’s disproportionately poor women of color who will not be able to go home," Chandler said.

Chandler said, for instance, that people with felony drug convictions, even if that’s not why they’re in prison now, are barred from living in Section 8 housing. So if the home a woman would intend to serve her house arrest under was classified as Section 8, she’d be unable to participate in the program. And while 80 percent of women in prison are mothers, they are more likely to be the primary caregivers for their kids than men are, but because of the harshness of child welfare laws, mothers often get their parental rights terminated if they cannot reunify with their child in 18 months.

If a woman has lost her parental rights and her child put in foster care, she will no longer be classified as a primary caregiver, and therefore would not be able to take part in the program, either.

"In our experience working with people to defend their parental rights, it tends to be poor women of color who don’t have additional family or monetary resources who end up facing the removal of their parental rights altogether," Chandler said, adding that still, "this group is the most highly likely people thought of when this program was established."

Lawmakers estimate that some 4,000 of the 9,500 female California state prison inmate population could potentially qualify to be moved to alternative facilities. It may turn out to be far fewer who actually go home.

Still, inmate advocates say they are optimistic, and the work now is to pressure the Department of Corrections to put its savings into social services. "We want to be supporting the release of people and reducing the number of people in prisons but it’s important that we’re actually releasing them and not just shuffling them from state prisons to county jails," Harris said.