VI.The Impact Of Current Drug Policy On Women

Women, particularly minority women, have disproportionately felt the adverse impact of the harsh drug sentencing laws. (50) A study of female "drug mules" was conducted by the Correctional Association of New York, (51) focused on prosecutions occurring in Queens, New York, where JFK International Airport serves as a major entry port for international travel. The Correctional Association found a startling increase in the number of women arrested and charged with "A-I" felony narcotics offenses, many of whom were first time arrestees. This was primarily a result of the combined effect of the accessorial liability statute and the "Rockefeller Drug Laws," so that women suspected of being used as couriers by drug smugglers frequently faced mandatory prison sentences of 15 and 25 years-to-life, even on their first arrest. (52)

The report further found that despite the fact that many of these women claimed to be unwitting agents of drug distributors, or marginally involved in drug operations, they did not go to trial because of the excessively high stakes involved. Plea bargain agreements, which guaranteed relatively short sentences of 3 years-to-life, was "too good" an offer to refuse, (although unconscionable under many individual circumstances), given the risk of a much more severe sentence if found guilty at trial. Many of these women were mothers, (53) unable or unwilling to risk being separated from their children for considerably longer periods in the event of conviction after trial, and therefore pleaded guilty even if they were innocent or able to present valid defenses to the offense charged.

In these cases, women are disproportionately affected by the lack of judicial discretion involved in the mandatory sentences statutes, regardless of any mitigating circumstances which may exist. (54) Due to draconian drug laws such as these, which often fail to distinguish between major and minor participants in drug cases, fail to provide any relief for first time offenders, or to allow reasonable consideration of other mitigating factors and/or individual characteristics of the defendant, the resulting rate of incarceration for women in Queens County, and for women throughout the U.S., has grown dramatically in recent years. This growth includes an increase of 275% from 1980 to 1992, in the total number of women incarcerated in the U.S.; and an increase of 433% during the five year period from 1986 to 1991, in the number of women incarcerated in state prisons for drug offenses. (55)

Even those women who are not defendants in drug cases are profoundly affected by current drug policy, with its emphasis on enforcement rather than rehabilitation. When fathers are incarcerated for drug use or sale, it is the women who are left to raise children in single parent households. When teenage boys become involved in the drug trade, it is their mothers who are evicted when civil forfeiture laws are enforced. When men who are injection drug users share needles because of lack of availability of clean needles, the women they sleep with risk HIV infection.

For those women who have substance abuse problems, a combination of mandatory reporting requirements and the child abuse and neglect laws serve to deprive them of access to medical services, pre-natal care, and even substance abuse counseling. (56)

A further disturbing trend has emerged in states throughout the nation, wherein pregnant women and new mothers, suffering from substance abuse problems, face criminal prosecution on serious charges, including drug distribution, assault and murder, upon theories that such drug use, while pregnant, constitutes "delivery" of drugs to the unborn fetus. (57) In these cases, it is asserted that injury to the unborn and newly born infant justifies imposition of severe criminal sanctions upon the female drug user. These criminal prosecutions represent a new and novel category of penal sanctions, (58) from which men are entirely excluded -- another unfortunate result of our nation's current punitive approach to drug policy.