ACLU Virginia -- Women in the Criminal Justice System - Pathways to Incarceration in Virginia, 2018

• Aug. 1, 2018 • Locations: United States of America -> Virginia • Topics: Private Prisons, Gender Discrimination -- Women, Racial Discrimination, Gay/Lesbian, War on Drugs, Jail Specific, Mental Health

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PHOTO: NARAL PRO-CHOICE OF AMERICA/FLICKR

WOMEN
IN THE
CRIMINAL
JUSTICE
SYSTEM:
PATHWAYS TO
INCARCERATION
IN VIRGINIA

Acknowledgement

First and foremost, we would like to thank the residents of Friends
of Guest House in Fairfax, Virginia, for sharing their powerful
stories during our July 2017 focus groups. We would also like
to thank Guest House Executive Director Kari Galloway and her
staff; Dorothy Owsley, Executive Director of Transitional Services
for Women in Roanoke, Virginia; and the staff of Bethany House
in Roanoke, Virginia, for inviting us into their facilities and
educating us on their work.
The hard work and critical thinking of many have enriched this
report over the last three years. Their talents, which range from
social science research to legal expertise, have given depth to
our efforts. Gail Deady, ACLU of Virginia’s The Secular Society
Women’s Rights Advocacy Counsel, is the principal author of this
report. She was assisted by numerous past and present ACLU of
Virginia staff members and interns, as well as generous volunteers
and staff members from the national ACLU.
Frank Knaack, ACLU of Virginia Director of Policy and
Communications, contributed his vast criminal justice reform
and over-incarceration expertise to shape the report during its
early inception before passing the baton to Legal Director Rebecca
Glenberg, who kept us on track and helped further refine the
report’s focus. The Secular Society Research Assistant Lachelle
Roddy spent hundreds of hours completing an in-depth literature
review, which provided critical perspective to our work. ACLU of
Virginia’s Executive Director Claire Guthrie Gastañaga and its
Director of Strategic Communications, Bill Farrar, further shaped
2

ACLU of Virginia: Women in the Criminal Justice System

the report’s scope, readability, and relatability, in addition to editing
and polishing. ACLU of Virginia’s Investigator Mateo Gasparotto
provided critical data analysis, and Communications Associate
Phuong Tran brought everything together in a final format. Last,
but not least, ACLU of Virginia Dunn Criminal Justice Fellow
Rob Poggenklass provided invaluable feedback every step of the
way—from the first brainstorming sessions to offering insightful
and challenging comments throughout the drafting process and
final review.
The ACLU of Virginia’s talented interns and volunteers provided
critical support through every stage of researching and drafting this
report. Summer legal intern Rachel Rubinstein provided hours of
legal research, synthesis, and analysis that helped refine and shape
this report’s final scope. Legal externs Kevin MacWhorter and
Christina Brow also provided significant legal research and drafting
support. Intern Amanda Hales created extensive infographics and
charts, and provided invaluable assistance during interviews and
focus groups with formerly incarcerated women.
We are ever in awe of our volunteers, and owe a special thank
you to Professor Alexis Edwards, Ph.D. of Virginia Commonwealth
University. Professor Edwards generously donated dozens of hours
to analyzing conviction data obtained from www.virginiacourtdata.
org, an open government project that makes Virginia General
District and Circuit Court data available for bulk download.
Professor Edwards’s insights were critical to developing our
recommendations for reforming and improving Virginia’s court
data entry protocols.
We offer a special thank you to Amy Fettig at the ACLU’s National
Prison Project, who helped with her thoughtful comments and
guidance.
Finally, we gratefully acknowledge the early and continued support
of The Secular Society in nurturing and providing funding for this
project.

Acknowledgement

PHOTO: MICHELLE FRANKFURTER/ACLU

WOMEN IN
THE CRIMINAL
JUSTICE SYSTEM:
PATHWAYS TO
INCARCERATION IN
VIRGINIA

Copyright© 2018 by the American Civil Liberties Union
Foundation of Virginia Inc.
All rights reserved. Information from this publication may be
used freely so long as proper attribution is made.
ACLU of Virginia
701 E. Franklin Street
Suite 1412
Richmond, VA 23219
(804) 644-8022
acluva@acluva.org
www.acluva.org

ACLU of Virginia: Women in the Criminal Justice System

Contents
Acknowledgement...........................................................................................................................................2
Executive Summary........................................................................................................................................6
Introduction....................................................................................................................................................16
Typical Woman Offender..............................................................................................................................20
Pathways to Incarceration...........................................................................................................................24
Substance Abuse..........................................................................................................................................24
Poverty..........................................................................................................................................................26
School-to-Prison Pipeline..............................................................................................................................32
Disproportionate Criminalization of Lesbian, Bisexual, and Transgender Women..................................34
Trauma and Victimization............................................................................................................................36
Mental Health Conditions.......................................................................................................................... ..39
Women in Virginia’s Criminal Justice System........................................................................................44
Misdemeanor vs. Felony................................................................................................................................45
Government Transparency............................................................................................................................46
Arrest............................................................................................................................................................48
Prosecution....................................................................................................................................................51
Kaamilya’s Story: Part I...........................................................................................................................52
Pre-Trial Detention.......................................................................................................................................52
Cash Bond.................................................................................................................................................54
Plea Deals & Sentencing..............................................................................................................................54
Sentencing Guidelines...............................................................................................................................54
Bifurcated Trials........................................................................................................................................56
Plea Deals..................................................................................................................................................57
Diversion....................................................................................................................................................59
Drug Courts...............................................................................................................................................59
Jessica’s Story...........................................................................................................................................61
Community Supervision................................................................................................................................62
Kaamilya’s Story: Part II.........................................................................................................................63
Collateral Consequences................................................................................................................................64
Friends of Guest House.................................................................................................................................65
Incarceration..................................................................................................................................................66
Prisons vs. Jails............................................................................................................................................66
Prison and Jail Population Increases...........................................................................................................68
Local and Regional Jails............................................................................................................................68
Virginia Department of Corrections..........................................................................................................68
Incarceration Statistics by Race and Crime............................................................................................. . .71
Recommendations.........................................................................................................................................76
Legislative Study..........................................................................................................................................76
Recommendations for Local Judges, Prosecutors, and Law Enforcement................................................78
Recommended Legislative Action................................................................................................................80
Methodology..................................................................................................................................................84
Appendix........................................................................................................................................................86
Contact Us.....................................................................................................................................................90

Contents

Executive Summary

Incarcerated
women often
become engaged
with the criminal
justice system
as a result of
attempts to cope
with challenging
aspects of their
lives, such
as poverty,
unemployment,
and physical or
mental health
struggles –
especially those
arising from drug
addiction and
past instances of
trauma.
*For citations for any of
the facts in this summary,
please see the full report.

In Virginia and across the country, women are being
incarcerated at rates that are increasing much more rapidly
than men.
Between June 30, 2000 and June 30, 2014, the average daily
population of adult women incarcerated in jails across the U.S.
increased by 55%, from approximately 70,400 women inmates
in 2000 to 108,800 women inmates in 2014.
The population of adult men incarcerated in jails across the
U.S. only increased by 16% during the same time period, from
approximately 543,100 men inmates in 2000 to 631,600 men
inmates in 2014. Women composed 15.3% of the average daily
population in Virginia’s local and regional jails in 2014, about
one percent higher than the percentage of women incarcerated
in local jails nationally. This represents a 32% increase between
2010 and 2014—more than double the national increase during
the same time period. In contrast, the average number of men
inmates only increased about 4% between 2010 and 2014.
These statistics give rise to a few critical questions: Why is
the incarceration of women increasing in Virginia at much
higher rates than the incarceration of men? Are there genderspecific factors that are not being addressed through ongoing
legislative and policy efforts to reduce Virginia’s prison and
jail populations? If so, what are they? And what reforms must
be made to ensure that women are included in our efforts
to promote safe communities while reducing the number of
Virginians sentenced to prison and jail time?
Reasons Women are Incarcerated
Women incarcerated in the U.S. tend to be young, unmarried,
plagued by poverty, and lacking in education and job skills.

ACLU of Virginia: Women in the Criminal Justice System

Women in the Criminal Justice
System
Women incarcerated in
the U.S. tend to be young,
unmarried, plagued by poverty,
and lacking in education and
job skills. More than half of
all women in U.S. prisons,
and 80% of all women in jails,
are mothers. Most were the
sole or primary caregiver to
young children before their
incarceration.

More than half of all women in U.S. prisons, and 80% of all
women in jails, are mothers. Most were the sole or primary
caregiver to young children before their incarceration.
Incarcerated women often become engaged with the criminal
justice system as a result of attempts to cope with challenging
aspects of their lives, such as poverty, unemployment, and
physical or mental health struggles – especially those arising
from drug addiction and past instances of trauma.
A woman’s race, ethnicity, socioeconomic status, sexual
orientation, and immigration status can contribute to her risk
of substance abuse and dependency. As the national ACLU
explains in its report “Caught in the Net,” “[w]omen may use
drugs to help them work long hours or perform multiple jobs
to make ends meet, or to help them survive poor workplace
conditions and sexual harassment on the job.” Economic
pressures also force many women to remain in abusive living
situations, which can in turn lead to drug use. In many
cases, a combination of all of these factors play a role in a
woman’s involvement with drugs. Three of the four primary
crimes for which women are incarcerated in Virginia – drug
possession and distribution, larceny, and shoplifting – are
often economically motivated and committed to support drug
dependencies. These offenses are typically a consequence of
circumstances – lack of access to employment, family stability,
drug treatment, and protection from sexual and physical abuse.

Photo: Community members in Richmond joined the march for prison reform on January 21, 2017. Phuong
Tran/ACLU-VA
Executive Summary

Women report economic need as the underlying motivation
for their crimes more than twice as often as men. There is a
direct correlation between women’s mental health conditions
and the likelihood that they will engage in crime and become
incarcerated. Between 2011 and 2012, a larger percentage of
women in prison (20%) or jail (32%) than men in prison (14%)
or jail (26%) met the threshold for serious psychological distress
in the past 30 days. During the same time period, a larger
percentage of women in prison (66%) or jail (68%) than men
in prison (35%) or jail (41%) had a history of mental health
problems. These characteristics of a typical offender in the
Virginia criminal justice system are often overlooked and must
be considered in creating and implementing reforms that will
adequately address the problems in the system.
Stakeholders Who Can Impact Women’s Incarceration
This report considers stakeholders at various levels of the
justice system including: police who decide whom to arrest,
release, or book into jail; Commonwealth’s Attorneys (CAs) who
decide whom to prosecute and whom to recommend for pretrial release or a diversion program; judges and magistrates
who decide whether to hold or release someone on bail while
their case is pending; and community supervision officers who
decide how to respond to violations of community supervision
conditions.
From the beginning of a criminal case to sentencing, CAs have
unparalleled authority to decide outcomes – such as who gets
released on bail, who gets a plea deal, and which cases go to
trial. Judges have vast discretion to decide whether someone
may be released on bail, and how much bail to set. They also
heavily rely on recommendations from the CA as to whether
bail should be set (and in what amount) or whether a defendant
is referred for pre-trial services.
Unique Impacts of the Criminal Justice System on Women
The most recent national data available indicates that women
generally receive greater leniency than men when judges,
magistrates, or bail commissioners make pre-trial custody and
release decisions. Women can nevertheless face significant
financial obstacles to securing pre-trial release when cash bond
is set. If a judge denies bail, the defendant must remain in jail
throughout the court process. The time between arrest and a
criminal trial can take months. If the defendant does
8

ACLU of Virginia: Women in the Criminal Justice System

Lavette’s Story
Lavette Mayes was separated
from her children, lost her
small business, and spent 14
months in jail – all because
she couldn’t afford to post
bail. Her story is a tragedy
of the United States’ unjust
mass incarceration system,
which holds over 2.3 million
people today and incarcerates
a greater portion of its
population than any other
country.

PHOTO: DANIEL BOCZARSKI /ACLU

Eighty percent of women
in jails are mothers like
Lavette, many of whom are
stuck because they can’t
afford bail. Lavette ended up
taking a plea bargain just so
she could reunite with her
children. “I don’t think society
understands,” she says. “When
you incarcerate women,
you’re incarcerating the whole
family.”

not promptly work out a plea deal, she risks losing her job, her
housing, and – in many cases – custody of her children.
A judge’s decision to deny a mother bail or to set bail without
regard for her ability to pay can put tremendous pressure on
her to accept a plea deal instead of exercising her right to a
trial. No mother should be forced to choose between exercising
her right to prove her innocence before a jury and losing her
children and her home. The CAs and judges with discretion
to facilitate plea deals seldom take the time to discover the
full story behind a woman’s criminal history. For example, a
defendant with a long criminal history of petty theft who is
before the court on her third misdemeanor shoplifting offense
(which, under Virginia law, constitutes a felony) may have
been shoplifting to support a drug addiction. Yet, judges, CAs,
and overburdened court-appointed defense attorneys rarely ask
criminal defendants to explain why they committed a crime.
Even if they did, defendants who are not convicted of drug
crimes may be ineligible for drug court, diversion, or referral
to a drug treatment program in lieu of incarceration. These
defendants instead slip through the cracks and remain in a
cycle of arrest, detention, incarceration, and recidivism.
Even when diverted to community supervision programs,
Executive Summary

In Virginia, a
criminal conviction
can create lifelong barriers
to employment,
education,
housing and other
opportunities.

women still face high rates of failure. Supervision conditions
– including available treatment or programming – often fail
to address women’s specific risk factors or treatment needs.
Violations may also result from the challenges of juggling
community supervision requirements with work and family
responsibilities. As the majority of women who become involved
in the criminal justice system are mothers, childcare duties
further complicate supervision requirements that involve
frequent court appearances and meetings with probation officers,
with no extra money to spend on babysitters or reliable fast
transportation across town. All of these issues make women
particularly vulnerable to being incarcerated not because they
commit crimes, but because they may run afoul of one of the
burdensome obligations of their probation.
In Virginia, a criminal conviction can create life-long barriers to
employment, education, housing and other opportunities. These
include:
• Loss or denial of public housing assistance.
• Requirements by private landlords to disclose prior
convictions on a housing application. Landlords can deny an
application solely on the basis of a prior drug manufacturing
or distribution conviction, or if the landlord subjectively
believes a person’s criminal record puts other tenants or the
premises a t risk of substantial harm.
• Denial or eviction from public housing. If someone is evicted
from public housing because of a drug crime, for example,
a public housing authority must prohibit that person from
public housing for at least three years. Public housing
agencies can also refuse admission based on past criminal
records related to drug use.
• Difficulty or inability obtaining a professional license,
certificate, or registration.
• Ineligibility for Temporary Assistance for Needy Families
(TANF) program due to a felony drug conviction.
Recommendations
The ACLU of Virginia recommends that the Governor or the
Virginia General Assembly convene a committee, task force or
work group to study women’s pathways into Virginia’s criminal
justice system.

ACLU of Virginia: Women in the Criminal Justice System

The work group should include representatives from the
Virginia Indigent Defense Council, the Department of Criminal
Justice Services, the Virginia Sentencing Commission, the
Virginia State Police, and the Virginia Departments of
Corrections and Juvenile Justice Services, as well as other
stakeholders, including criminal justice and prison reform
advocates; individuals who provide direct services to currently
and formerly incarcerated women and their families; individuals
with knowledge of drug addiction and recovery; representatives
from local sheriff’s departments and Commonwealth’s
Attorney’s offices; civil rights and civil liberties advocates; at
least two formerly incarcerated women; and women’s rights
advocates.
The workgroup should make recommendations regarding:
• Education and training of those involved in the criminal
justice, mental health, and drug treatment arenas about the
unique needs and characteristics of women and mothers in
the criminal justice system;
• Increased investment of public dollars in treatment and
services to address the underlying causes of women’s
involvement with crime in a community setting, not a
correctional setting;
• Improved collection and tracking of data on women in
the criminal justice system – at the state and local levels
– that will inform future policymaking, such as: numbers
and growth trends; activities underlying specific charges;
commonly charged offenses; physical and mental health
status; income levels; race; sexual orientation; age; parental
status; immigration status; and place of residence;
• Identification of the statutes, regulations, and policies
driving the increase in women’s involvement in the criminal
justice system and recommended legislative, administrative,
and/or local policy reforms that will reduce the number
of women involved in the criminal justice and corrections
systems across Virginia;
• Identification and revision of educational policies that
drive girls into the juvenile justice system, and creation of
programs for educators and child welfare professionals to
identify the signs of sexual victimization and support girls
who have been traumatized by violence;
• Identification of ways to increase women’s eligibility for,
Executive Summary

THE PROBLEM

THE OVER-INCARCERATION OF
WOMEN IS A SYMPTOM OF A COMPLEX
NETWORK OF SOCIAL BARRIERS,
ECONOMIC INEQUALITY, REPRODUCTIVE
INJUSTICE, AND RACIAL AND SEXUAL
DISCRIMINATION DEEPLY WOVEN INTO
OUR SOCIETY.
participation in, and successful completion of diversion and
drug court programs;
• Revision of the Virginia Sentencing Guidelines to include
policies that reflect an understanding of women’s levels of
culpability and control with respect to drug crimes, and
methods of encouraging judges (and juries) to consider
factors such as an individual’s familial obligations during
sentencing.
Law enforcement agencies should ensure that police officers
are complying with the statutory mandate to issue summonses
for misdemeanor violations unless there is clear evidence that
the subject will not respond to the summons, will continue
the violation, or is a danger to self or others. Local judges,
prosecutors and law enforcement should implement reforms
to increase referrals to pre-arrest crisis intervention programs
and pre-booking diversion programs. Finally, judges and
prosecutors should eliminate the use of cash bail and instead
utilize alternative risk reduction strategies, such as proven non12

ACLU of Virginia: Women in the Criminal Justice System

discriminatory risk assessment tools combined with pre-trial
services and supervised release programs.
The ACLU of Virginia also recommends legislative action
including:
• Increasing the felony larceny threshold to at least $1,500;
• Repealing Virginia’s three strikes petit larceny statute;
• Establishing eligibility for record expungement;
• Enacting plea guidelines for prosecutors;
• Amending laws regarding jury sentencing to ensure juries
will have access to the sentencing guidelines available
to judges and, particularly in the absence of that reform,
repealing the authority of prosecutors to demand jury trials
over the objections of defendants;
• Expanding eligibility and increasing resources for pre-trial
diversion programs;
• Increasing funding for data collection and analysis; and
• Increasing funding for alternative sentencing and
community-based treatment programs.
This is by no means an exhaustive list of the reforms
necessary to reduce the widespread and discriminatory
suffering imposed by over-incarceration of women in Virginia.
Further investigation into women’s prison and jail conditions
– including access to adequate healthcare and visitation with
children – as well as post-release factors that influence women’s
recidivism rates is necessary. The over-incarceration of women
is a symptom of a complex network of social barriers, economic
inequality, reproductive injustice, and racial and sexual
discrimination deeply woven into our society. This paper is
intended to be the first step in a long campaign to reform the
criminal justice system for all women in Virginia.

Executive Summary

PEOPLE.

ACLU of Virginia: Women in the Criminal Justice System

Executive Summary

PHOTO: SEAN RAYFORD /ACLU

NOT PRISONS.

Introduction

Across the country, women are the fastest growing population of
individuals incarcerated in prisons and jails. In 2015, nearly 2.2
million people were incarcerated in the United States.1 Nearly
9.4% of them were women.2 While the number of men incarcerated
in the United States decreased by 1.8% between 2014 and 2015,3
the number of incarcerated women increased by 0.7% during that
time period.4

In 1980, Virginia
prisons housed
only 303 women
inmates. By
June 30, 2015,
that number had
reached 3,123 — a
930% increase over
35 years

Virginia has generally followed national trends of the population of
incarcerated men decreasing while the population of incarcerated
women either increases or remains stagnant. In 1980, Virginia
prisons housed only 303 women inmates. By June 30, 2015, that
number had reached 3,123 — a 930% increase over 35 years.
The number of women incarcerated in local jails — which typically
house inmates convicted of low-level crimes or people awaiting
trial — is increasing at a faster rate than any other segment of
the correctional population.5 Women in jail now account for about
half of all incarcerated women in the United States.6
Between June 30, 2000 and June 30, 2014, the average daily
population of adult women incarcerated in jails across the U.S.
increased by 55%, from approximately 70,400 women inmates
in 2000 to 108,800 women inmates in 2014. 7 The population of

Danielle Kaeble & Lauren Glaze, Correctional Populations in the United
States, 2015, U.S. Dep’t of Justice Bureau of Justice Statistics, at 1 (Dec.
2016).

See id., at 15 (ACLU of Virginia calculations).

See 4id., at 15, 17 (ACLU of Virginia calculations).

Elizabeth Swavola, Kristine Riley & Ram Subramanian, Overlooked:
Women and Jails in an Era of Reform, Vera Institute of Justice, at 6 (2016),
https://www.vera.org/publications/overlooked-women-and-jails-report.

Id.

Zhen Zeng, Jail Inmates in 2016, U.S. Dep’t of Justice Bureau of
Justice Statistics, at 9 (Feb. 2018), https://www.bjs.gov/content/pub/pdf/
ji16.pdf (total population of juvenile women inmates was 600 and total
population of adult women inmates was 70,400 at mid-year 2000; total

1
2
3
4
5
6
7

ACLU of Virginia: Women in the Criminal Justice System

adult men incarcerated in jails across the U.S. only increased by
16% during the same time period, from approximately 543,100
men inmates in 2000 to 631,600 men inmates in 2014.8

Source: Zhen Zeng, Jail Inmates in 2016, U.S. Dep’t of Justice, Office
of Justice Programs, Bureau of Justice Statistics, at 9 (Feb. 2018),
https://www.bjs.gov/content/pub/pdf/ji16.pdf.

Women composed 15.3% of the average daily population in
Virginia’s local and regional jails in 2014, about 0.6% higher than
the percentage of women incarcerated in local jails nationally.9
This represents a 32% increase between 2010 and 2014. In
contrast, the average number of men inmates only increased
about 4% between 2010 and 2014.10

population of juvenile women inmates was 300 and total population of adult
women
inmates was 108,800 at mid-year 2014).
8
Id., at 9 (total population of 550,200 adult male inmates and 7,100
juvenile male inmates at mid-year 2000; total population of 631,600 adult
male inmates and 3,900 juvenile male inmates at mid-year 2016).
9
ACLU of Virginia analysis of Average Daily Population Reports published by the Virginia Compensation Board, Jan. 31, 2014 through Dec. 31,
2014; Todd D. Minton & Zhen Zeng, Jail Inmates at Midyear 2014, Table
3, U.S. Dep’t of Justice, Office of Justice Programs, Bureau of Justice
Statistics (June 2015), https://www.bjs.gov/content/pub/pdf/jim14.pdf
(showing
14.7% of inmates in local jails were women in midyear 2014).
10
ACLU of Virginia analysis of Average Daily Population Reports
Introduction

Why is the
incarceration of
women increasing
in Virginia at
much higher
rates than the
incarceration of
men? Are there
gender-specific
factors that are not
being addressed
through ongoing
legislative and
policy efforts to
reduce Virginia’s
prison and jail
populations?

Source: ACLU of Virginia analysis of Average Daily Population
Reports published by the Virginia Compensation Board).

These statistics give rise to a few critical questions: Why is the
incarceration of women increasing in Virginia at much higher
rates than the incarceration of men? Are there gender-specific
factors that are not being addressed through ongoing legislative
and policy efforts to reduce Virginia’s prison and jail populations?
If so, what are they? And what reforms must be made to
ensure that women are included in our efforts to promote safe
communities while reducing the number of Virginians sentenced
to prison and jail time?
While there are multiple ways women can become incarcerated in
Virginia, this paper will focus on women who are in the custody
of Virginia’s local and regional jails and the Virginia Department
of Corrections. It will provide an overview, based on the available
data, of the women who come into contact with the criminal justice
system in Virginia and across the U.S., as well as the crimes for
which they are most frequently incarcerated. It will also identify
the typical pathways that bring women into jail and prison across
the United States, and in Virginia. This report will conclude with
recommended legislative and policy changes that will set Virginia
on the path toward reducing women’s incarceration rates while
promoting healthy families and safe communities.

published by the Virginia Compensation Board, Jan. 31, 2010 through Dec.
31, 2010, and Jan. 31, 2014 through Dec. 31, 2014.
18

ACLU of Virginia: Women in the Criminal Justice System

PHOTO: MICHELLE FRANKFURTER/ACLU

Introduction

Typical Woman Offender

Women incarcerated in the U.S. tend to be young, unmarried,
plagued by poverty, and lacking in education and job skills.11
More than half of all women in U.S. prisons, and 79% of all
women in jails, are mothers.12 Most were the sole or primary
caregiver to young children before their incarceration.13
Incarcerated women often become engaged with the criminal
justice system as a result of their attempts to cope with
challenging aspects of their lives, such as poverty, unemployment,
and physical or mental health struggles — especially those arising
from drug addiction and past instances of trauma.
Source: Lawrence A.
Greenfeld & Tracy L.
Snell, Women Offenders,
U.S. Dep’t of Justice,
Office of Justice
Programs, Bureau of
Justice Statistics (2000)
at 8.

Katherine Van Wormer, Working with Female Offenders: A GenderS ensitive Approach, at 66 (2012).
12
Swavola, et al., supra note 28, at 12; Wendy Sawyer, Bailing moms out
for Mother’s Day, Prison Policy Initiative Blog (May 8, 2017), https://www.
prisonpolicy.org/blog/2017/05/08/mothers-day/; Susan W. McCampbell,
The Gender-Responsive Strategies Project: Jail Applications, U.S. Dep’t of
Justice Nat’l Inst. of Corrections, at 4 (2005), https://s3.amazonaws.com/
static.nicic.gov/Library/020417.pdf; see also Lauren E. Glaze & Laura M.
Maruschack, Parents in Prison and Their Minor Children, U.S. Dep’t of
Justice Bureau of Justice Statistics, at 1 (Aug. 2008; rev’d March 2010),
https://www.bjs.gov/content/pub/pdf/pptmc.pdf.
13
Swavola, et al., supra note 28, at 12; Wendy Sawyer, supra note 36;
Van Wormer, supra note 32, at 66; Polly F. Radosh, Reflections on Women’s
Crime and Mothers in Prison, 48 Crime & Delinquency 300, 306-308 (2002).
11

ACLU of Virginia: Women in the Criminal Justice System

How Do Women Get Tangled
Up in the Criminal Justice
System?
Incarcerated women often
become engaged with the
criminal justice system as a
result of their attempts to cope
with challenging aspects of
their lives, such as poverty,
unemployment, and physical
or mental health struggles—
especially those arising from
drug addiction and past
instances of trauma.

Source: Elizabeth Swavola, Kristine Riley & Ram Subramanian,
Overlooked: Women and Jails in an Era of Reform, Vera Institute
of Justice (2016), at 10.

Incarcerated women are also more likely to have had a tough
upbringing characterized by physical and sexual abuse, with
two-thirds of women in prison having suffered abuse before
incarceration.14 This history of abuse often impacts adult
relationships.15 Among women in jail, 86% experienced sexual
assault, and 77% experienced intimate partner violence prior to
incarceration.16
Furthering this point, many women in prisons and jails were
involved in coercive and abusive relationships, which may have
been the underlying cause of their incarceration.17
Women in prisons and jails are also likely to struggle with
substance abuse disorders. Among women in jail, 82% report
alcohol or substance dependencies.18 According to Amy Fettig,

Amy Fettig, Women Prisoners: Altering the Cycle of Abuse, 36 Am.
Bar. Ass’n Human Rights Mag. (2009), https://www.americanbar.org/
publications/human_rights_magazine_home/human_rights_vol36_2009/
spring2009/women_prisoners_altering_the_cycle_of_abuse.html; Radosh,
note
37, at 306; Van Wormer, supra note 32, at 66.
15
Van Wormer, supra note 32, at 66.
16
Swavola, et al., supra note 28, at 11.

17
Fettig, supra note 41.

18
Swavola, et al., note 28, at 9-10.
14

Typical Woman Offender

SUBSTANCE ABUSE

STUDIES INDICATE THAT SIGNIFICANT
NUMBERS OF FEMALE PRISONERS
SUFFER FROM THE DUAL PROBLEMS OF
MENTAL ILLNESS AND DRUG ABUSE.
staff counsel at the National Prison Project at ACLU, “Studies
indicate that significant numbers of female prisoners suffer from
the dual problems of mental illness and drug abuse. Drug use
for women is often characterized as self-medication. And because
prescription medications and counseling to treat mental illness
are beyond the reach of low-income women, illegal drugs become
the only available option.”19

Source: Amy Fettig, Women Prisoners: Altering the Cycle of Abuse,
36 Am. Bar. Ass’n Human Rights Mag. (2009).

19
22

Fettig, supra note 41.

ACLU of Virginia: Women in the Criminal Justice System

PHOTO: MICHELLE FRANKFURTER/ACLU

Executive Summary

Pathways to Incarceration

Substance Abuse

Women of color
— who, according
to at least one
study, “use drugs
at a rate equal
to or lower than
white women” —
are more likely
to be arrested
than white women
for drug-related
crimes.

The intersection of race, gender, and poverty is on display at
its starkest in the War on Drugs.20 In addition to being largely
ineffectual at eliminating the drug market21 and considered by
many to be an economic disaster,22 the War on Drugs has fueled
disproportionate arrests of people of color, especially women of
color.23 Women of color — who, according to at least one study,
“use drugs at a rate equal to or lower than white women” —
are more likely to be arrested than white women for drugrelated crimes.24 Though black women are disproportionately
incarcerated in facilities operated by the Virginia Department
of Corrections for drug crimes in Virginia, incarceration rates
show that white women — particularly those from rural areas hit

The disproportionate, gendered effects have been known for some time.
See L. Maher & R. Curtis, Women on the edge of crime: Crack cocaine and
the changing contexts of street-level sex work in New York City, 18 Crime L. &
Social Change 221, 221 (1992) (“Nowhere is the gendered relation between
women and the law more apparent in America at the moment than with
respect to the current ‘war on drugs’.”).
21
Nekima Levy-Pounds, Can These Bones Live? A Look at the Impacts
of the War on Drugs on Poor African-American Children and Families, 7
Hastings Race & Poverty L.J. 353, 355-56 (2010); Danielle Snyder, One
Size Does Not Fit All: A Look at the Disproportionate Effects on Federal
Mandatory Minimum Drug Sentences on Racial Minorities and How They
Have Contributed to the Degradation of the Underprivileged African-American
Family, 36 Hamline J. Pub. L. & Pol’y 77, 83-85 (2015).
22
Levy-Pounds, supra note 46, at 354 n. 6.
23
See ACLU, et al., Caught in the Net: The Impact of Drug Policies on
Women and Families (2005), https://www.aclu.org/files/images/asset_upload_file431_23513.pdf; Levy-Pounds, supra note 46, at 354. (“Of all the
communities impacted by the war on drugs, poor African Americans have
arguably experienced the most dramatic and lasting effects of the war.”);
Candace Kruttschnitt & Rosemary Gartner, Women’s Imprisonment, 30
Crime & Just. 1, 9 (2003) (“[S]ome factors may have had disproportionate
effects on the growth in the female prison population. The war on drugs, for
example, appears to have had a greater impact on the growth rate of women’s, compared to men’s, prison populations, at least at the state level.”).
24
ACLU, et al., supra note 48, at Executive Summary.

ACLU of Virginia: Women in the Criminal Justice System

hardest by the opioid epidemic — are the fastest growing prison
and jail population in Virginia.25
A woman’s race, ethnicity, socioeconomic status, sexual
orientation, and immigration status can contribute to her risk of
substance abuse and dependency. As the national ACLU explains
in its report “Caught in the Net,” “[w]omen may use drugs to
help them work long hours or perform multiple jobs to make
ends meet, or to help them survive poor workplace conditions
and sexual harassment on the job. Economic pressures also force
many women to remain in abusive living situations, which can
in turn lead to drug use…In many cases, a combination of all of
these factors…play a role in a woman’s involvement with drugs.”26
Additionally, factors such as a woman’s race and socioeconomic
status “also impact a woman’s ability to obtain the appropriate
healthcare, treatment, therapy, and social support to address
addiction.”27 The lack of “childcare or family centered treatment
presents a particularly difficult barrier to women, who are more
often than men the primary caretakers of young children. Many
residential treatment programs require stays from one month
to a year, making participation in such programs unrealistic
for many women with children and/or other obligations, such
as eldercare responsibilities.”28 Moreover, black and Latina or
Hispanic women face more significant barriers to accessing
substance abuse treatment than white women.29
Research further shows women tend to use drugs at higher rates
than men prior to arrest.30 One study found that 40% of women
in state prisons and 19% of women in federal prisons reported

Statistics based on the ACLU of Virginia’s analysis of incarceration
data published by the Virginia Department of Corrections between 1998 and
2016. These trends are reflected across the country. See Eli Hagar, A Mass
Incarceration Mystery, The Marshall Project (Dec. 15, 2017), https://www.
themarshallproject.org/2017/12/15/a-mass-incarceration-mystery.
26
ACLU, et al., supra note 48 at 11.
27
Id. at 8.
28
Id. at 13.
29
Id., at 13. (”SAMHSA reports that an individual’s race is one of the
main factors in determining whether an individual will be admitted to
treatment outside the context of the criminal justice system: whites represented almost 62% of treatment admissions nationwide, while African
Americans represented only 24% and Latinos less than 13%... [A]ccording to
the Drug and Alcohol Services Information System, ‘Hispanic admissions
[for substance abuse treatment] were 77 percent male and 23 percent female
compared with 69 percent male and 31 percent female among non-Hispanic
admissions.’”)
30
Kruttschnitt & Gartner supra, note 48, at 21; Lawrence A. Greenfeld
& Tracy L. Snell, Women Offenders, U.S. Dep’t of Justice, Office of Justice
Programs, Bureau of Justice Statistics (2000), at 8.
25

Pathways to Incarceration

committing the offense for which they are currently incarcerated
while under the influence of drugs.3132
During 2007-09, more women in prison (47%) or jail (60%) used
drugs during the month before the current offense than men in
prison (38%) or jail (54%).33

Research further
shows women
tend to use drugs
at higher rates
than men prior to
arrest.

Source: Jennifer Bronson, Ph.D., et al., Drug Use, Dependence, and
Abuse Among State Prisoners and Jail Inmates, 2007-2009, U.S.
Dep’t of Justice, Bureau of Justice Statistics, at 6-7 (2017), https://
www.bjs.gov/content/pub/pdf/dudaspji0709.pdf

In another study that sampled nearly 500 women in jails across
the country, 82% had experienced alcohol or drug abuse or
dependency in their lifetime.34
Poverty
Nearly a million Virginians were estimated to have been living in
poverty in 2016. More than 57% of them were identified as girls
or women.35

ACLU, et al., supra note 48, at 18.
ACLU et al., note 48, at 18.
Jennifer Bronson, Ph.D., et al., Drug Use, Dependence, and Abuse
Among State Prisoners and Jail Inmates, 2007-2009, U.S. Dep’t of Justice,
Office of Justice Programs, Bureau of Justice Statistics, at 6-7 (2017),
https://www.bjs.gov/content/pub/pdf/dudaspji0709.pdf.
34
Shannon M. Lynch, et al., Women’s Pathways to Jail: The Roles and
Intersections of Serious Mental Illness and Trauma, U.S. Dep’t of Justice,
Bureau of Justice Assistance, at 14-15 (2012).
35
U.S. Census Bureau, Poverty Status in the Past 12 Months by Sex
by Age: Virginia, 2016, 2012-2016 American Community Survey 5-Year
Estimates, available at https://factfinder.census.gov/bkmk/table/1.0/en/
ACS/16_5YR/B17001/0400000US51 (estimating that 921,664 Virginians
were living below the poverty level in 2016: 403,763 identified as male and
517,901 (56.19%) identified as female).
31
32
33

ACLU of Virginia: Women in the Criminal Justice System

Source: United States Census Bureau, 2011-2015 American Community
Survey 5-Year Estimates: Virginia, Poverty Status in the Past 12
Months.

WOMEN’S EXPERIENCES
WITH POVERTY
34.2% of single mothers in
Virginia with children under
18 years old living in their
household were estimated
to be living below the federal
poverty line in 2016, compared
with only 9.7% of households
with single fathers.

Source: United States Census Bureau, 2012-2016 American Community
Survey 5-Year Estimates: Virginia, Poverty Status in the Past 12
Months.
Pathways to Incarceration

Additionally, 28.6% of single mothers in Virginia with children
under 18 years old living in their household were estimated to be
living below the federal poverty line in 2016, compared with only
14.8% of households with single fathers.36
The correlation between poverty and crime is well-documented.37
In general, those on the economic margins of society are far more
likely to experience significant stress and problems with drugs.38
These types of stressors may account for higher involvement
in larceny, theft, check and welfare fraud, and forgery among
women living in poverty.39 This is compounded in Virginia, which,
has one of the lower felony larceny thresholds in the country.40
This means that any crime involving theft becomes a felony if the
value of the goods or money involved is $500 or higher.
Three of the four primary crimes for which women are incarcerated
in Virginia — drug possession and distribution, larceny, and
shoplifting — are often economically motivated and committed to
support drug dependencies.

U.S. Census Bureau, Poverty Status in the Past 12 Months of Families
by Family Type by Presence of Related Children Under 18 Years by Age of
Related Children: Virginia 2016, 2012-2016 American Community Survey
5-Year Estimates, available at https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=CF.
See Appendix; Table 1
37
See, e.g., Dana Haynie & Darrell Steffensmeier, Gender, Structural
Disadvantage, and Urban Crime: Do Macrosocial Variables Also Explain
Female Offending Rates?, 38 Criminology 403, 406 (2000) (“Traditional
criminological theories[, including economic strain,] all recognize economic hardship [and] unemployment . . . as factors that promote crime.”);
id. at 432 (“[S]tructural disadvantage—adverse economic conditions and
conditions of social disorganization—affects the social order so that criminogenic pressures increase on both the female and the male populations.”);
Francisca D. Fajana, The Intersection of Race, Poverty, and Crime, 41 J.
Poverty L. & Pol’y 120, 120 (2007) (describing “the long tradition of intertwining race, poverty, and crime”); see generally Lance Hannon & James
Defronzo, The Truly Disadvantaged, Public Assistance, and Crime, 45 Soc.
Probs. 383 (1998).
38
Meda Chesney-Lind & Lisa Pasko, The Female Offender:Girls, Women,
and
Crime
119 (3rd ed. 2013).
39
Van Wormer, supra note 32, at 75, 83. See also Michele Estrin Gilman,
The Poverty Defense, 47 U. Rich. L. Rev. 495, 549 (2012) (noting that crimes
of poverty include “public benefits fraud, low-level drug dealing, panhandling,
prostitution and minor thefts.”).
40
At least 30 states have felony thresholds set at $1000 or higher. See
Alison Lawrence, Making Sense of Sentencing: State Systems and Policies,
National Conference of State Legislatures at 2 (June 2015), https://www.
ncsl.org/documents/cj/sentencing.pdf.
36

ACLU of Virginia: Women in the Criminal Justice System

Women’s offenses
are typically a
consequence of
circumstances
— lack of access
to employment,
family stability,
drug treatment,
and protection
from sexual and
physical abuse.

Source: ACLU of Virginia’s internal analysis of annual Crime in
Virginia reports published by the Virginia State Police (1999-2016),
available at http://www.vsp.state.va.us/Crime_in_Virginia.shtm.

Poverty and accompanying factors contribute “to women’s
participation in drug-related crime as a mechanism for survival,
as well as to some women’s propensity to use drugs as a means of
self-medicating.”41 Women’s offenses are typically a consequence
of circumstances — lack of access to employment, family stability,
drug treatment, and protection from sexual and physical abuse.42
Women report economic need as the underlying motivation for
their crimes more than twice as often as men.43 The povertycrime problem translates to higher arrest rates in impoverished
areas than their more affluent neighbors.44 Speaking generally, in

Nekima Levy-Pounds, Beaten By the System and Down for the Count:
Why Poor Women of Color and Children’ Don’t Stand a Chance Against U.S.
Drug-Sentencing Policy, 3 U. St. Thomas L.J. 462, 464 (2006).
42
Robin Levi & Ayelet Waldman, Eds., Inside This Place, Not of It:
N
arratives from Women’s Prisons 13 (1st ed. 2011).
43
Michele Eliason, Janette Taylor & Rachel Williams, Physical Health
of Women in Prison: Relationship to Oppression, 10 J. Correctional Health
175, 188 (2004). See also Joseph Cudjoe & Tony A. Barringer, More Than
Mere Ripples: The Interwoven Complexity of Female Incarceration and the
African-American Family, 2 Margins 265, 274 (2002) (“[D]eteriorating economic conditions push women to the brink faster than men; as the primary
caretakers of children, women may be driven by poverty to engage in more
‘crimes
of survival.’”)
44
Melissa S. Kearney, et al., Ten Economic Facts about Crime and
Incarceration in the United States, The Hamilton Project at 5 (May 1, 2014)
(“[C]rime tends to concentrate in disadvantaged areas…”), http://www.
hamiltonproject.org/papers/ten_economic_facts_about_crime_and_incarceration_in_the_united_states; Barbara D. Warner, Community Characteristics
and the Recording of Crime: Police Recording of Citizens’ Complaints of
Burglary and Assault, 14 Just. Q. 631, 633 (1997) (“Net the actual amount
of crime, arrest rates are higher in poor, nonWhite, and immigrant
communities.”).
41

Pathways to Incarceration

communities “where poverty has eroded individual opportunity
and neighborhood structure,” women often respond by engaging
in illegal activity.45 Arrest rates thus tend to be higher in
impoverished areas than elsewhere, which further promotes
economic marginalization of poor communities.46 This is due to
a number of factors, including, for example, the availability of
public services, which tend to be offered at higher rates in white
middle-class neighborhoods.47
This problem is also self-perpetuating. The poorest families face
higher risks of becoming crime victims.48 This is particularly true
for black women, for whom “poverty is the major correlative” to
involvement in crime.49
Additionally, research consistently demonstrates that where a
significant number of children live below the poverty line, the
economic environment contributes to a “circle of criminal arrests
and incarceration.”50 The likelihood that a teenage girl will be
arrested is much greater if she comes from a poor family.51
Contributing risk factors include living in neighborhoods with
high crime rates and rates of teenage pregnancy and early
motherhood, having unsatisfactory experiences at school, and
lacking supportive networks at home.52

Haegyung Cho, Note, Incarcerated Women and Abuse: The Crime
Connection and the Lack of Treatment in Correctional Facilities, 14 S. Cal.
Rev. L. & Women’s Stud. 137, 146 n. 85 (2004).
46
Benjamin H. Harris & Melissa S. Kearney, The Unequal Burden of
Crime and Incarceration on America’s Poor, Brookings Institute (Apr. 28,
2014), http://www.brookings.edu/blogs/up-front/posts/2014/04/28-unequal-burden-crime-americas-poor-kearneym-harrisb (“Rates of crime and
incarceration disproportionately impact low-income and minority communities, and contribute to the social and economic marginalization of the poor.”).
For example, from 2001-2009, Washington, D.C., saw an increase in arrests,
while the crime rate decreased. The two wards with the greatest increase
in arrests—27% and 34%—have “some of the highest percentages of people of
color in the District and the highest unemployment rates.” Conversely, the
arrest rate in Northwest, containing the most affluent wards, is much lower.
Just. Pol’y Inst., A Capitol Concern: The disproportionate impact of the
justice system on low-income communities in D.C., at 2-4 (July 2010), http://
www.justicepolicy.org/images/upload/10-07_EXS_CapitolConcern_AC-PSRD-DC.pdf.
47
Warner, note 69, at 633.
48
Kearney, et al.,supra note 69.
49
Paula C. Johnson, At the Intersection of Injustice: Experiences of
African American Women in Crime and Sentencing, 4 Am. U. J. Gender & L.
1, 42 (1995).
50
Jennifer Ward, Snapshots: Holistic Images of Female Offenders in the
Criminal Justice System, 30 Fordham Urb. L.J. 723, 738 (2003); Van Wormer,
supra note 32, at 44 (“Poverty is a major risk factor for delinquency and
often
is accompanied by other risk factors related to family disruption.”).
51
Van Wormer, supra note 32, at 44 (“Lower-class adolescent females
tend to confront higher risk levels than youth from the higher echelons.”).
52
Van Wormer, supra note 32, at 44.
45

ACLU of Virginia: Women in the Criminal Justice System

PHOTO: PHUONG TRAN/ACLU-VA

Pathways to Incarceration

SCHOOL-TO-PRISON PIPELINE

ne way in which discrimination due
to racist policies has manifested is
the school-to-prison pipeline, wherein
“discrimination pushes minority students out of
school and into the criminal justice system.”53
School administrators’ recent emphasis on a
“punitive approach to school discipline” that
includes police presence in schools helped
establish the pipeline.54 The phenomenon affects
students of all demographics, but the most
disproportionate effects fall on schools with
high percentages of low-income and minority
students.55 The symptoms are increased
suspension, expulsion, and arrests of minority
and low-income students, with black boys and
girls bearing the brunt of these policies.56
According to data collected by the U.S.
Department of Education from the 2011-2012
school year, black girls were suspended six times
as often as white girls, whereas black boys were
suspended three times as often as white boys.57
Virginia has the highest rate of student referrals
to law enforcement in the nation (15.8 referrals
for every 1,000 students), and the second-highest
rate of referrals for black students (25.3 referrals
for every 1,000 students).58
Girls who are suspended from school are more
likely to drop out, and face a greater likelihood of

Girls who are LGBTQ are also disproportionately
harmed by the school-to-prison pipeline.
Approximately 4-8% of youth identify as LGBTQ,
but one study found as many as 13-15% of youth
in juvenile detention are LGBTQ.61 The Center
for Transgender Equality notes that “[f]amily
rejection, homelessness, and hostility in the
foster-care and other safety-net systems often
serve to funnel LGBTQ youth into the juvenile
justice system.”62 Despite LGBTQ students’ clear
vulnerability to harassment, discrimination,
and violence at school, a 2010 study found that
LGBTQ youth “were up to three times more
likely to experience harsh disciplinary actions
in school than their non-LGBTQ counterparts.”63

Rebecca Klein, The Assault at Spring Valley High Shows the School-to-Prison Pipeline in Action, The
Huffington Post, Oct. 27, 2015, http://www.huffingtonpost.com/entry/spring-valley-school-to-prison_us_562f92c7e4b0c66bae59765a. See also India Geronimo, Systemic Failure: The School-to-Prison Pipeline and
Discrimination Against Poor Minority Students, 13 J.L. Soc’y 281, 281 (2012) (“The school-to-prison pipeline is the
nationwide trend where poor and minority students are funneled out of the education system and into the criminal justice system.”)
54
Geronimo, supra note 78, at 282.
55
Id. at 286; Klein, supra note 78 (“Black students are far more likely to be punished and targeted by school
authorities.”).
56
Klein, supra note 78.
57
Kimberlé Williams Crenshaw, et al., Black Girls Matter: Pushed Out, Overpoliced, and Underprotected, at 16
(2016), http://www.law.columbia.edu/sites/default/files/legacy/files/public_affairs/2015/february_2015/black_
girls_matter_report_2.4.15.pdf.
58
Chris Zubak-Skees & Ben Wieder, A State-by-State Look at Students Referred to Law Enforcement, Center
for Public Integrity (Apr. 2015), https://www.publicintegrity.org/2015/04/10/17074/state-state-look-students-referred-law-enforcement (last visited Aug. 23, 2018).
59
National Women’s Law Center, When Girls Don’t Graduate, We All Fail: A Call to Improve High School
Graduation Rates for Girls at 8 (2007), http://www.nwlc.org/sites/default/files/pdfs/when_girls_dont_graduate.
pdf.
60
Crenshaw, et al., supra note 82, at 25.
61
Harper Jean Tobin, Putting Prisons on the LGBT Agenda, The Huffington Post, Apr. 1, 2014, https://www.
huffingtonpost.com/harper-jean-tobin/putting-prisons-on-the-lg_b_5065219.html.
62
Nat’l Center for Transgender Equality, Standing With LGBT Prisoners: An Advocate’s Guide to Ending
ACLU of Virginia:
Women in the
Criminal
Abuse32and Combatting
Imprisonment,
April
10, Justice
2014, System
https://transequality.org/issues/resources/standing-lgbt-prisoners-advocate-s-guide-ending-abuse-and-combatincg-imprisonment (last visited Aug.23, 2018).
63
Id.
53

PHOTO: GEORGE HODAN/PUBLIC DOMAIN PICTURES

having contact with the juvenile justice system.
Though girls of all races face severe economic
consequences when they drop out of school, the
consequences of dropping out are particularly
severe for black and Latina or Hispanic girls,
who face a greater prevalence of unemployment
and low-wage work. Moreover, the income
gap between high school graduates and those
who did not finish high school is greater for
women than it is for men.59 This is particularly
problematic given the high prevalence of singlewage-earning black families headed by women,
and the number of black children who rely on
women wage-earners.60

PHOTO: NICHOLAS TAYLOR/ART 180

Executive Summary

DISPROPORTIONATE CRIMINALIZATION OF LGBTQ WOMEN

ystemic bias, abuse, and profiling of LGBTQ people by
law enforcement has resulted in a disproportionate
percentage of women who identify as lesbian,
bisexual, transgender, or nonbinary becoming involved in
the criminal justice system.

A recent national study of incarcerated people showed
26.4% of women in jails, and 33.3% of women in prisons,
identified as lesbian or bisexual women — 8 to 10 times
greater than the estimated 3.6 percent of women in the
U.S. who identify as lesbian or bisexual women.64 The study
showed incarceration rates for lesbian and bisexual women
were three times higher than the overall incarceration rate
for adults in the U.S.65 The study also found that lesbian
and bisexual women in prison tended to be younger, had a
higher prevalence of poor mental health, and had a lower
education level, than straight women in prison. They were
also more likely to be black or of other non-Hispanic, nonwhite races.66
Transgender people, especially those who are poor
or people of color, report high rates of harassment,
discriminatory arrests, and physical and sexual assault
by law enforcement.67 Approximately 16% of transgender
adults have been incarcerated at some point in their
lives, compared to 2.7% of all adults who have been in
jail and 10.2% of all adults who have been incarcerated
or under criminal justice supervision.68 Once in prison
or jail, transgender women are often denied necessary

Ilan H. Meyer, PhD, et al., Incarceration Rates and Traits of Sexual
Minorities in the United States: National Inmate Survey, 2011–2012,
107 Am. J. Pub. Health 264, 238 (2017), https://williamsinstitute.law.
ucla.edu/wp-content/uploads/Meyer_Final_Proofs.LGB_.In_.pdf. By
comparison, 3.3% of men in jails, and 5.5% of men in prisons, identified
as gay or bisexual men. Id.
65 Id. at 238.
66 Id. at 236.
67 Nat’l Center for Transgender Equality, supra note 96.
68 Id.
64

ACLU of Virginia: Women in the Criminal Justice System

healthcare, such as hormone therapy, and prohibited from
grooming in a manner that matches their gender identity. Denying
transgender people critical healthcare services can cause significant
psychological harm, including increased risk of suicide. Further,
transgender women are usually housed in men’s facilities, putting
them at high risk of sexual assault and violence. This often results
in transgender women being placed in solitary confinement for
their protection — even though solitary confinement is a cruel and
inhumane punishment usually reserved for inmates and prisoners
who pose a danger to other people.
While recent studies provide insight into the disproportionate
criminalization of lesbian, bisexual, and transgender women, there is
a significant need for further research and more comprehensive data
collection. Current evidence shows that most of the issues identified as
pathways to incarceration for all women — poverty, untreated mental
health and medical conditions, substance use disorders, the schoolto-prison pipeline, and physical and sexual abuse — are amplified for
LGBTQ people.69 It is well documented that stigmatization of LGBTQ
people results in discrimination and community marginalization,
which in turn leads to higher rates of poverty, lack of adequate
health care, and homelessness, as well as greater vulnerability to
domestic abuse, sexual assault, and physical violence.70
Lesbian, bisexual, and transgender women are also often perceived
as failing to conform to feminine sex stereotypes (e.g., labeled
as masculine or aggressive), which may in turn cause them to be
viewed by law enforcement and the judicial system as threatening
or dangerous — leading to more punitive treatment.71 Given the
disproportionate representation of lesbian, bisexual, and transgender
women among all inmates and prisoners, more must be done to
educate and train law enforcement and the judiciary—as well as
prison and jail administrators — about the specific issues driving the
over-incarceration of lesbian, bisexual, and transgender women, and
identify policy and procedural changes geared toward ending this
disproportionate cycle of incarceration.

M.V. Lee. Badgett, Laura E. Durso, & Alyssa Schneebaum, New Patterns of
Poverty in the LGBT Community, Williams Institute (2013), http://williamsinstitute.law.ucla.edu/wp-content/uploads/LGB-Poverty-Update-Jun-2013.pdf.
70 See Center for American Progress & Movement Advancement Project, Unjust:
How the Broken Criminal Justice System Fails LGBT People of Color, Movement
Advancement Project (Aug. 2016), https://www.lgbtmap.org/file/lgbt-criminaljustice-poc.pdf; Lourdes Ashley Hunter, et al., Intersecting Injustice: A National
Call to Action Addressing LGBTQ Poverty and Economic Justice for All, Social
Justice Sexuality Project Graduate Center, City University of New York (Mar.
2018), http://socialjusticesexuality.com/files/2018/04/Poverty-Reports-ExecSummary.pdf.
71 Meyer, et al., supra note 86, at 239.
69

Pathways to Incarceration

Trauma and Victimization
Women are most frequently arrested and incarcerated for property
offenses, such as shoplifting, embezzlement, and other types of
larceny; drug crimes; and simple assault. A woman’s engagement
in these crimes, however, may be a symptom of past or current
physical or sexual abuse, intimate partner violence, untreated
or poorly managed mental health conditions, or other types of
victimization.72
For example, a comprehensive study of women in jails recently
showed that 86% experienced sexual violence in their lifetime;
77% experienced domestic partner violence; and 60% experienced
caregiver violence. 73

A woman’s
engagement in
these crimes,
however, may be a
symptom of past
or current physical
or sexual abuse,
intimate partner
violence, untreated
or poorly managed
mental health
conditions, or
other types of
victimization.

Shannon M. Lynch, et al., Women’s Pathways to Jail: The Roles
and Intersections of Serious Mental Illness and Trauma, U.S. Dep’t
of Justice, Office of Justice Programs, Bureau of Justice Assistance
(2012), at 32.

See Lynch, et al., supra note 60, at 67 (“Experiences of intimate
partner violence were a factor in women’s drug offending and commercial
sex work.”); United Nations, Report of the Special Rapporteur on violence
against women, its causes and consequences, Pathways to, conditions
and consequences of incarceration for women, at 5 (Aug. 2013), http://dag.
un.org/bitstream/handle/11176/273207/A_68_340-EN.pdf?sequence=3&isAllowed=y (“Numerous studies in the United States illustrate a strong
correlation between incarceration and prior abuse, and the nexus with women’s involvement in the activities for which they were incarcerated including
drug use, prostitution and intimate involvement with criminals.”).
73
Lynch, et al., supra note 60, at 15, 32.
72

ACLU of Virginia: Women in the Criminal Justice System

A study of women in state prisons showed 57% had been physically
or sexually abused prior to incarceration, and that the rate of
prior sexual abuse of women prisoners was six times higher than
the comparable rate for incarcerated men.74

Source: Dana M. Britton, Feminism in Criminology: Engendering the
Outlaw, 571 Annals Am. Acad. Pol. & Sci. 57, 63 (Sept. 2000).

Childhood physical or sexual abuse is also a pathway to jail or
prison for many women. When compared with girls who have
not been abused and neglected during childhood, abused and
neglected girls are nearly twice as likely to become involved in
the juvenile justice system, twice as likely to be arrested as adults,
and 2.4 times more likely to be arrested for a violent crime.75

CHILDHOOD PHYSICAL OR SEXUAL ABUSE
IS ALSO A PATHWAY TO JAIL OR PRISON
FOR MANY WOMEN.
Greenfeld & Snell, supra note 54, at 8 (showing that 12% of incarcerated women had been abused before turning eighteen, 20% had been abused
after turning eighteen, and 25% had been abused during both periods of
their life); Dana M. Britton, Feminism in Criminology: Engendering the
Outlaw, 571 Annals Am. Acad. Pol. & Sci. 57, 63 (Sept. 2000).
75
Cathy Spatz Widom, Ph.D., Childhood Victimization and the
Derailment of Girls and Women to the Criminal Justice System, in Research
on Women and Girls in the Justice System: Plenary Papers of the 1999
Conference on Criminal Justice Research and Evaluation—Enhancing Policy
and Practice Through Research, Vol. 3, Nat’l Institute of Justice, at 28
(Sept. 2000).
74

Pathways to Incarceration

Studies focused on
domestic violence
survivors have
shown that abusers
frequently use
economic abuse —
such as preventing
a victim from
working or
sabotaging her
attempts to obtain
employment — to
increase a victim’s
dependence on
the abuser, thus
making it less
likely that the
victim will leave
the relationship.

Source: Cathy Spatz Widom, Ph.D., Childhood Victimization and the Derailment of Girls
and Women to the Criminal Justice System, in Research on Women and Girls in the
Justice System: Plenary Papers of the 1999 Conference on Criminal Justice Research and
Evaluation—Enhancing Policy and Practice Through Research, Vol. 3, Nat’l Institute of
Justice (Sept. 2000), at 28.

Further emphasizing the connection between victimization and
likelihood of incarceration, studies focused on domestic violence
survivors have shown that abusers frequently use economic
abuse — such as preventing a victim from working or sabotaging
her attempts to obtain employment — to increase a victim’s
dependence on the abuser, thus making it less likely that the
victim will leave the relationship. When a victim does manage to
work, she may have a high incidence of absenteeism, lateness, and
harassment that makes her continued employment precarious.76

Shelby A. D. Moore, Understanding the Connection Between Domestic
Violence, Crime, and Poverty: How Welfare Reform May Keep Battered
Women from Leaving Abusive Relationships, 12 Texas J. Women & Law 452,
476 (2003).

ACLU of Virginia: Women in the Criminal Justice System

These experiences often cause women to turn to economic crimes,
such as embezzling money or passing bad checks, as a means of
escaping an abusive relationship.77
Additionally, according to a report funded by the Bureau of Justice
Assistance, witnessing violence has been found to be “associated
with women’s onset of engaging in property crimes, fighting,
and use of weapons. Sometimes this stemmed from affiliation
with criminal networks, and often women’s use of weapons or
aggression appeared to arise from efforts to protect themselves
or others.”78
Women’s experiences of child and adult trauma are also significant
predictors of their overall mental health difficulties. Extensive
victimization (e.g., victimization during childhood followed by
further victimization as an adult) is directly associated with
greater mental health problems, and mental health problems
are directly associated with engaging in criminal activities and
becoming incarcerated.79
Domestic violence and trauma is also connected to women’s drug
use. As explained in the “Caught in the Net” report, “Researchers
have consistently found high levels of past and current physical
and emotional abuse in the lives of women who use or abuse
illicit drugs. Many have suggested a direct relationship between
violence experienced by women and substance abuse. For example,
the 1989 National Women’s Study found a correlation between
the number of violent assaults a woman sustains in her lifetime
and the severity of her drug or alcohol dependency.”80 Without
adequate community resources, such as affordable and accessible
substance abuse treatment, many abuse survivors become
involved in the criminal justice system due to their substance
abuse disorders.81
Mental Health Conditions
There is a direct correlation between women’s mental health
conditions and the likelihood that they will engage in crime and

Kathleen J. Ferraro & Angela M. Moe, Mothering, Crime and Incarceration,
Sociology faculty Publications at 6 (2003), https://scholarworks.wmich.edu/
sociology_pubs/4.
78
Lynch, et al., supra note 60, at 67.
79
Id.
at 66-67
80
ACLU,
et al., supra note 48, at 9.
81
Holly M. Harner, et al., Posttraumatic Stress Disorder in Incarcerated
Women: A Call for Evidence-Based Treatment, 1 Psychological Trauma:
Theory, Res., Pract., & Pol’y 58, 59 (2013).
77

Pathways to Incarceration

become incarcerated. Between 2011 and 2012, a larger percentage
of women in prison (20%) or jail (32%) than men in prison
(14%) or jail (26%) met the threshold for serious psychological
distress in the past 30 days. During the same time period, a
larger percentage of women in prison (66%) or jail (68%) than
men in prison (35%) or jail (41%) had a history of mental health
problems.82
A recent study of women in jails found that 32% had serious
mental illness (SMI), such as major depression, bipolar disorder,
or schizophrenia and one third had experienced PTSD in the past
12 months.83 Another study found that 75% of women in jails
reported mental health symptoms within the past 12 months.84

Sources: Shannon M. Lynch, et al., Women’s Pathways to Jail: The Roles and
Intersections of Serious Mental Illness and Trauma, U.S. Dep’t of Justice Bureau of
Justice Assistance, at 14-15 (2012); Doris J. James & Lauren E. Glaze, Mental Health
Problems of Prison and Jail Inmates, U.S. Dep’t of Justice Bureau of Justice Statistics,
at 4 (2006).

Women offenders generally report mental health problems and
serious mental illness at a greater incidence than do male
offenders.85 Prisons and jails do not provide suitable environments

Jennifer Bronson, Ph.D., et al., Indicators of Mental Health Problems
Reported by Prisoners and Jail Inmates, 2011-12, U.S. Dep’t of Justice,
Office of Justice Programs, Bureau of Justice Statistics, at 4 (June 2017),
https://www.bjs.gov/content/pub/pdf/imhprpji1112.pdf.
83
Lynch, et al., supra note 60, at 14-15, 65.
84
Doris J. James & Lauren E. Glaze, Mental Health Problems of Prison
and Jail Inmates, U.S. Dep’t of Justice, Office of Justice Programs, Bureau
of Justice Statistics, at 4 (2006).
85
Lynch, et al., supra note 60, at 14-15.

ACLU of Virginia: Women in the Criminal Justice System

for women to receive treatment for these conditions. As explained
in the national ACLU’s report “Worse Than Second-Class,”
“[women] in custody are frequently guarded during their most
private moments by men without a woman guard present, despite
the potential for abuse and degradation... The loss of privacy
experienced by people in prison is especially damaging to the many
incarcerated women who are also victims of past sexual abuse,
since close supervision can reinforce feelings of vulnerability and
can re-traumatize women who have experienced violence by men.
The presence of male guards in women’s facilities also increases
the danger of staff sexual misconduct, which remains a serious
problem despite increased awareness of the issue” and the federal
Prison Rape Elimination Act (PREA) regulations.86
Jails are particularly ill-equipped to provide women inmates
with the comprehensive mental health care necessary to prevent
them from engaging in criminal behavior upon release. A study
commissioned by the Bureau of Justice Assistance recently found
that 30 to 45% of women in jail with a current mental health
disorder reported severely impaired functioning associated with
a serious mental illness, PSTD, or substance abuse disorder in
the past year. These offenders apparently do not have access to
treatments necessary to address their mental health conditions
and help them improve their basic level of functioning. These
levels of reported impairment, combined with the high rates of
serious mental illness, PTSD, and substance abuse disorders
among women in jail suggest there is a critical need for additional
mental health assessment and treatment resources within this
population.87

ACLU, Worse Than Second-Class: Solitary Confinement of Women in
the United States at 3 (Apr. 2014), https://www.aclu.org/sites/default/files/
assets/worse_than_second-class.pdf.
87
Lynch, et al., supra note 60, at 66.

Pathways to Incarceration

CHALLENGES WITH RE-ENTRY

JAILS ARE PARTICULARLY
ILL-EQUIPPED TO PROVIDE
WOMEN INMATES WITH THE
COMPREHENSIVE MENTAL
HEALTH CARE NECESSARY
TO PREVENT THEM FROM
ENGAGING IN CRIMINAL
BEHAVIOR UPON RELEASE.

ACLU of Virginia: Women in the Criminal Justice System

PHOTO: JERICA DECK/ THE HAMPTON SCRIPT

Pathways to Incarceration

Women in Virginia’s Criminal Justice
System

While the ACLU of
Virginia is engaged
in ongoing
investigations
of, and advocacy
regarding,
women’s jail and
prison conditions,
the analysis in
this report is
limited to the
initial pathways
to women’s
incarceration.
This remains
an important
piece of the overincarceration
picture for
women’s
imprisonment that
must be addressed.

Given the typical characteristics of women offenders and national
trends discussed above, is Virginia’s criminal justice system set
up to effectively address the ever-increasing percentage of women
incarcerated in prisons and jails? To answer this question, the
discussion below analyzes each step of the criminal justice system
— from arrest, to prosecution, to sentencing, incarceration, and
reentry — to identify policy changes necessary to address the
specific issues underlying women’s pathways into the criminal
justice system.
This discussion will consider the following stakeholders:
• Police who decide whom to arrest, release, or book into jail;

• Commonwealth’s Attorneys who decide whom to prosecute
and whom to recommend for pre-trial release or a diversion
program;
• Judges and magistrates who decide whether to hold or release
someone on bail while their case is pending; and

• Community supervision officers who decide how to respond to
violations of community supervision conditions.

This report does not, however, examine the conditions women
experience in Virginia’s jails and prisons. While the ACLU of
Virginia is engaged in ongoing investigations of, and advocacy
regarding, women’s jail and prison conditions, the analysis in this
report is limited to the initial pathways to women’s incarceration.
This remains an important piece of the over-incarceration picture
for women’s imprisonment that must be addressed.

ACLU of Virginia: Women in the Criminal Justice System

Is Virginia’s criminal justice
system set up to effectively
address the ever-increasing
percentage of women incarcerated in prisons and jails?

PHOTO: JERICA DECK/ THE HAMPTON SCRIPT

To answer this question, this
report analyzes each step of
the criminal justice system—
from arrest, to prosecution,
to sentencing, incarceration,
and reentry—to identify policy
changes necessary to address
the specific issues underlying
women’s pathways into the
criminal justice system.

MISDEMEANOR VS. FELONY

Under Virginia law, a misdemeanor is usually punishable
by up to one year in a local or regional jail, but is
sometimes only punished by a fine and/or community
supervision. A felony offense is punishable by one or
more years of jail time and incarceration in a state
prison, as well as by fines, fees, court costs, and at
least a year of supervised probation. A felony is also
punished by the loss of citizenship rights — including
the right to vote — and state collection of the person’s
DNA. For most felony cases, judges may voluntarily
follow sentencing guidelines established by the Virginia
Sentencing Commission, however, juries are asked to
sentence without being given access to the guidelines.

Women in Virginia’s Criminal Justice System

GOVERNMENT TRANSPARENCY

irginia’s court system, state police, jails, prisons,
and community supervision programs do not make
sufficient data available to the public, and, thus, inhibit
researchers’ ability to study trends in the jail and prison
population.

While the Virginia State Police provide arrest data on an
annual basis, they only delineate that data by race or sex, and
do not identify arrestees who identify as Hispanic or Latinx.
The public accordingly lacks access to data showing arrest
rates based on the racial characteristics of arrestees by gender.
For example, the Virginia State Police do not release data
showing how many black women were arrested for shoplifting,
and how many white women were arrested for assault, during
a given year and in a given locality. This inhibits researchers
from identifying specific cities and counties which may be
targeting people for arrest based on their race, gender, or
both.
A new law went into effect on July 1, 2018, that will permit
the public to request aggregated criminal court data from the
Office of the Executive Secretary. This law will also require
OES to compile an online database of this data by July 1,
2019. Unfortunately, prior to the passage of this law, access to
court data was available solely through the Virginia Supreme
Court’s Online Case Information system which only provided
information by case; no aggregated or bulk data was available
for General District and Circuit courts. No reasonable analysis
of the demographics of convictions in the Commonwealth was
practicable, save for the work of open data organizations
who would write software to compile data from the courts’
databases. Though the ACLU of Virginia obtained felony
prosecution and conviction data from all 118 jurisdictions
through one of these open government organizations,88 the
courts’ data entry methods inhibit effective data analysis
by creating separate entries for every charge against an
individual defendant, regardless of whether the charges were
for a single incident or arrest. This inhibits aggregate data
analysis, as it is difficult to identify typical sentence lengths

org.

Virginia Court Case Information System, www.virginiacourtcaseinfo.

ACLU of Virginia: Women in the Criminal Justice System

PHOTO: TJ KENTUCKY/FLICKR

for women convicted of specific crimes when it is extremely
difficult to determine how many charges are represented by each
recorded jail or prison sentence.
The ACLU of Virginia, with the help of volunteer statisticians,
was able to identify preliminary trends in women’s court
prosecution and conviction data. These insights, however, are
limited in their scope and utility because state courts in each
individual jurisdiction do not follow the same data entry practices.
For example, one court clerk’s office may routinely enter a
charge for stealing property valued over $200 as a violation of
Virginia Code § 18.2-95. A court clerk in another jurisdiction
may routinely enter the same charge as a violation of Virginia
Code § 18.2-95(ii). Both entries list the correct statute, but only
the latter identifies the specific charge. This is because Virginia
Code § 18.2-95 contains three subsections listing separate
criminal offenses: (i) stealing property valued over $5 directly
from another person; (ii) indirectly stealing property valued over
$200; and (iii) stealing a firearm. A researcher analyzing how
many people were prosecuted for a theft above the $200 felony
larceny threshold risks overincluding or underincluding such
prosecutions because it is impossible to isolate all convictions
under § 18.2-95(ii), specifically.
Anonymized digital jail inmate data, which the ACLU of Virginia
obtained through a FOIA request to the Virginia Compensation
Board, is also organized by criminal charge and contains many
of the same roadblocks for researchers as the court data. It does,
however, follow a standard method of entering criminal charges
that could serve as a model for individual courts.
The Virginia Department of Corrections declined to provide
anonymized prisoner data in response to the ACLU of
Virginia’s FOIA request (by statute, the release of such data
is discretionary). VDOC produces annual reports analyzing its
data for state responsible inmates. While these reports only
represent a snapshot in time (June 30th of each calendar year),
they provide insight into the racial characteristics of women
prisoners incarcerated in VDOC facilities. VDOC does not provide
any insights about the race, age, and geographic location of
women who are under VDOC custody but are either incarcerated
in a local, regional, or federal facility, or are under community
supervision.

Women in Virginia’s Criminal Justice System

Arrest
There were 276,144 arrests in Virginia in 2016.89 Over 28 percent
of them were women.90 Virginia’s pattern of arrests mirrors
national numbers, 91 with black people arrested in numbers
disproportionate (39.9%) to their representation within the state
population (20%).92 Virginia does not delineate arrest data by
gender and race, or identify the number of arrestees who are
Hispanic or Latinx.

During an average
year between 1999
and 2016, over 87%
of women’s arrests
were for three
types of crimes:
simple assault
(30.3%), shoplifting
or larceny offenses
(39.3%), or drug/
narcotic offenses
(17.5%).

Of the total number of arrestees in 2016, 58.9% were white, 39.9%
were black, 1.1% were Asian or Pacific Islander, and .1% were
American Indian or Alaskan Native.93
The types of crimes for which women are arrested in Virginia
have been remarkably consistent between 1999 and 2016.94 They
reflect a national pattern in which women are primarily arrested
for non-violent crimes linked to poverty and untreated drug
dependency or mental health conditions.

Va. Dep’t of State Police, Crime in Virginia, 2016, at 64 (2017),
available at http://www.vsp.state.va.us/downloads/Crime_in_Virginia/
Crime%20in%20Virginia%202016.pdf.
90
Id. at 64.
91
Id. Of the 8.4 million people arrested in the United States in 2016,
69.6% were white, 26.9% were black, 2.0% were American Indian or Alaska
Native, 1.2% were Asian, and 0.3% were Native Hawaiian or Other Pacific
Islander. Among jurisdictions collecting data on the ethnicity of arrestees,
18.4% of arrestees were Hispanic or Latinx. Unfortunately, the FBI does not
delineate arrest data by gender and race. When compared with the racial
makeup of the United States’ population, however, the percentage of black
people who were arrested in 2016 (26.9%) was more than double the percentage of black people estimated to be in the general population that year
(12.6%). Estimated Number of Arrests, FBI, https://ucr.fbi.gov/crime-in-theu.s/2016/crime-in-the-u.s.-2016/topic-pages/tables/table-21 (last visited Mar.
6, 2018). For the breakdown of the 2016 United States population by race
and ethnicity, see Appendix; Table 2.
92
The U.S. Census Bureau estimates that in 2016, the total population
in Virginia was broken down by racial and ethnic categories as shown in
Appendix; Table 3
93
Va. Dep’t of State Police, Crime in Virginia, 2016, supra note 124 at
64
(2017).
94
ACLU of Virginia analysis of Crime in Virginia reports published by
the Virginia State Police between 1999 and 2016. See Appendix; Table 4
89

ACLU of Virginia: Women in the Criminal Justice System

Source: ACLU of Virginia analysis of arrest data published annually by the
Virginia State Police in Crime in Virginia (1999-2016), http://www.vsp.state.
va.us/Crime_in_Virginia.shtm.

During an average year in this time period, over 87% of women’s
arrests were for three types of crimes: simple assault (30.3%),
shoplifting or larceny offenses (39.3%), or drug/narcotic offenses
(17.5%).95
The prevalence of shoplifting and larceny offenses among
women’s arrests in Virginia are consistent with studies showing
that women often engage in crime out of economic necessity or to
support an addiction. For example, women’s shoplifting arrests
showed a telling pattern during and after the Great Recession.
Between 1999 and 2007, shoplifting accounted for 15% of all
women’s arrests in Virginia. This percentage increased sharply
in 2008, and averaged 20% of women who were arrested between
2008 and 2014.96

ACLU of Virginia analysis of Crime in Virginia reports published
by the Virginia State Police between 1999 and 2016. Male offenses were
similarly consistent between 1999 and 2016, but showed different patterns
in types of offenses. For example, Drug/Narcotic Offenses (27.8%); Simple
Assault (26.9%); and Larceny Offenses and Shoplifting (22%) composed
76.7% of arrests. Other frequent offenses included; Burglary/B&E (3.8%);
Destruction of/Damage to Property/Vandalism (3.9%); Aggravated Assault
(3.9%); Weapons Law Violations (3.7%); Robbery (1.7%); Other (6.3%). See
Virginia State Police, Crime in Virginia (2017), http://www.vsp.state.va.us/
Crime_in_Virginia.shtm.

ACLU of Virginia analysis of Crime in Virginia reports published by
Women in Virginia’s Criminal Justice System

Virginia also has
a special “three
strikes” law that
automatically
turns a person’s
third conviction for
shoplifting into a
felony — regardless
of the value of
the items stolen
for any of the
three shoplifting
offenses.

Source: Crime in Virginia, 1999-2016, Va. Dep’t of State Police (2017), http://
www.vsp.state.va.us/Crime_in_Virginia.shtm.

Theft crimes, such as shoplifting or passing bad checks, are
classified as either misdemeanors or felonies based on the
monetary value of what was stolen. This is known as the “felony
threshold.” In Virginia, stealing any item valued more than $500
is a felony.97 This is among the lower felony larceny thresholds
in the country; until this year, it had not been raised since
1980.98 For context, in 1980 a gallon of gasoline cost 86 cents
and iPhones didn’t exist.99 Today, a gallon of gas costs $2.84 and
an iPhone retails for over $500.100 Increasing the threshold to
$500 is actually going backwards. In 1980 dollars, it would be a
threshold of $168.08, less than the $200 set then.101
Virginia also has a special “three strikes” law that automatically
turns a person’s third conviction for shoplifting into a felony —

the Virginia State Police between 1999 and 2015.
Va. Code Ann. § 18.2-95.
Va. Dep’t of Criminal Justice Services, Virginia Felony Larceny
Threshold: 35 Years Later, at 1 (2015), https://www.dcjs.virginia.gov/sites/
dcjs.virginia.gov/files/publications/dcjs/virginia-felony-larceny-threshold-35-years-later.pdf. At least 30 states have felony thresholds set at $1000
or higher. See Alison Lawrence, Making Sense of Sentencing: State Systems
and Policies, National Conference of State Legislatures at 2 (June 2015),
https://www.ncsl.org/documents/cj/sentencing.pdf.
99 Fact #915: March 7, 2016 Average Historical Annual Gasoline Pump Price,
1929-2015, Office of Energy Efficiency & Renewable Energy, U.S. Dep’t
of Energy (last visited Aug. 27, 2018), https://www.energy.gov/eere/
vehicles/fact-915-march-7-2016-average-historical-annual-gasoline-pumpprice-1929-2015.
100
National average according to AAA as of August 19, 2018. See AAA
Gas Prices, https://gasprices.aaa.com/state-gas-price-averages/.
101
CPI Inflation Calculator, Bureau of Labor Statistics, https://data.bls.
gov/cgi-bin/cpicalc.pl?cost1=200.00&year1=198007&year2=201807 (last
visited Aug. 27, 2018) (computing $500 in July 1980 to July 2018).
97
98

ACLU of Virginia: Women in the Criminal Justice System

regardless of the value of the items stolen for any of the three
shoplifting offenses.102 This creates a situation in which a woman
who was arrested for stealing food valued at $10 on three
occasions can be convicted of a felony and incarcerated in a state
prison for up to five years, even though she only stole a combined
$30 of goods.103
Prosecution
A Commonwealth’s Attorney (CA) is the top prosecutor in a city
or county. A prosecutor is a law enforcement official and an
attorney who represents the interests of the Commonwealth in
a criminal case. A prosecutor has a duty to seek justice in every
case, whether that means putting a violent person behind bars,
listening to the wishes of a crime victim, or dismissing charges
against an innocent defendant.
The CA appoints assistant prosecutors to help carry out the duties
of the office. These obligations include prosecuting all felony
criminal offenses in the city or county. Felony offenses range
from murder, rape, and robbery to drug possession and thefts of
more than $500, as well as arguably petty offenses like signing a
job application for a state job that includes misinformation. CAs
typically handle most misdemeanor prosecutions as well, though
they are not required to do so.
With these responsibilities, however, comes enormous power.
From the beginning of a criminal case to the end result, CAs
have unparalleled authority to decide outcomes — such as who
gets released on bail, who gets a plea deal, and which cases go to
trial.104 Moreover, for a variety of reasons, prosecutors are rarely
sanctioned for ethical or constitutional violations. The result is
undeniable: in the criminal justice system, a prosecutor has far
more power than any other public official.
These vast powers give prosecutors the ability to affect nearly
every part of Virginia’s criminal justice system — including
whether to prosecute low-level offenders under Virginia’s threestrikes larceny statute.

Under Va. Code Ann. § 18.2-104, a third or subsequent larceny is a
Class
6 felony.
103
Va. Code Ann. § 18.2-104.
104
See ACLU of Virginia, Unparalleled Power: Commonwealth’s Attorneys,
Voters, and Criminal Justice Reform in Virgnia (June 2016), https://www.
acluva.org/en/publications/unparalleled-power-commonwealths-attorneys-voters-and-criminal-justice-reform-virginia
102

Women in Virginia’s Criminal Justice System

KAAMILYA’S STORY: PART I

Commonwealth’s
attorneys are
rarely questioned
about their
oversized influence
on criminal
justice policy.
Because nearly
three-fourths of
all CA elections
are uncontested,
Virginia voters
seldom have the
option of removing
a CA from office.

Kaamilya is a 38-year-old African-American woman from the greater
Washington, D.C. area who now lives in Northern Virginia. She has struggled
with addiction to opioids for over 20 years. When she was employed, she
worked minimum wage jobs without health benefits. She shoplifted to support
her addiction, and had been convicted of misdemeanor larceny offenses several
times. But because she was never arrested or convicted of a drug offense, she
was not eligible for a diversion program and drug treatment was not included
in her sentences. The judges who sentenced her never asked her why she
shoplifted so frequently.
Kaamilya was most recently arrested for shoplifting about $20 of merchandise
from a pharmacy in Fairfax County—a toy for her five-year-old son and a
few bottles of iced tea. Because she had two prior misdemeanor shoplifting
convictions in that jurisdiction, the Commonwealth’s Attorney prosecuted her
under the felony “three strikes” shoplifting statute. Kaamilya was sentenced to
serve two years in state prison. The Commonwealth’s Attorney also prosecuted
her for contributing to the delinquency of a minor because her son was with her
when she committed the third shoplifting offense.
When Kaamilya asked for her sentence to include time at Guest House, a
comprehensive, gender-responsive re-entry program for recently incarcerated
women — the Judge refused her request.
“It was not even an option for him . . . . My judge was like, ‘No, you are not
getting off that easy. You are going to prison. I am going to make an example out
of her.’ Those were his exact words in the courtroom: ‘we’re going to make an
example out of her.”’

Pre-Trial Detention
When a person is arrested or booked into jail, a magistrate judge
typically sets a bail amount according to a fixed fee schedule.
Under Virginia law, a person who has been arrested is entitled
to an immediate hearing before a judge. During that hearing,
the judge will decide whether there was probable cause for the
arrest and whether that person is eligible for release on bail.
The judge will also determine whether the person qualifies for a
public defender or a court-appointed defense attorney.
Judges have vast discretion to decide whether someone may be
52

ACLU of Virginia: Women in the Criminal Justice System

released by paying bail or acquiring a bond. Bail is a sum of
money that a defendant pays to get out of jail while awaiting
trial. The bail payment can be returned to the defendant pending
the outcome of their case, but if the defendant fails to comply
with any court requirements after posting bail, she looses her
payment. If a defendant does not have the means to pay bail, she
may acquire a bond, also called a bail bond. This is a payment
made on the defendant’s behalf by a third party to secure their
release while awaiting trial. The third party typically charges
defendants or their families nonrefundable fees for making the
payment. Judges further possess great discretion in determining
how much bail to set in a given case. They also heavily rely on
recommendations from the CA as to whether bail should be set
(and in what amount).
According to the Vera Institute of Justice, “women generally
receive greater leniency than men when judges, magistrates, or
bail commissioners make pretrial custody and release decisions.
On average, women were released on their own recognizance
(ROR) at higher rates; were denied release less often; and when
bail was set, amounts were lower for women than for men. This
may be because women have less extensive criminal histories,
and their alleged offenses typically pose less of a public safety
risk than those of men.”105
Women can nevertheless face significant obstacles to securing
pre-trial release when cash bond is set. According to a report
from the national ACLU and the Prison Policy Initiative, “A
previous study found that women who could not make bail had
an annual median income of just $11,071. Among those women,
black women had a median annual income of only $9,083 (just
20% that of a white non-incarcerated man).”106 When the typical
$10,000 bail amounts to a full year’s income, women will be
disproportionately kept in jail while their case proceeds.107
If a judge denies bail or bail is set above the defendant’s ability
to pay, the defendant must remain in jail throughout the court
process. The time between arrest and a criminal trial can take
months. If the defendant does not promptly work out a plea deal,
she risks losing her job, her housing, and — in many cases —

Swavola, et al., note 28, at 29 (internal citations omitted).
Aleks Kajstura, Women’s Mass Incarceration: The Whole Pie 2017,
ACLU & The Prison Policy Initiative, at 3 (2017), https://www.aclu.org/
report/womens-mass-incarceration-whole-pie-2017.

105
106
107

Id.

Women in Virginia’s Criminal Justice System

No mother should
be forced to choose
between exercising
her right to prove
her innocence
before a jury and
losing her children
and her home.

custody of her children. A judge’s decision to deny a mother
bail or to set bail without regard for her ability to pay can put
tremendous pressure on her to accept a plea deal instead of
exercising her right to a trial. No mother should be forced to
choose between exercising her right to prove her innocence before
a jury and losing her children and her home.
CASH BOND

Virginia currently does not provide data analyzing how the
cash bond system affects individuals based on their gender.
Other states which have studied this issue have found that
systems requiring cash bond disproportionately prevent women
offenders from securing release from pre-trial detention.108
This is due to the wide range of social barriers affecting
women who become involved with the criminal justice system,
as well as systemic gender inequality.109
For example, in 2016 women earned 80 cents for every dollar
earned by a white man, on average. But black women earned
only 63 cents, and Latinas or Hispanic women earned just 54
cents, for every dollar earned by a white man.110 The wage
gap has real consequences for women struggling to retain
employment and hold their families together while trying
to avoid a prolonged — and financially devastating — period
of incarceration. Given the steadily increasing women’s jail
population and the significant discretion afforded to judges
in Virginia to order cash bond, this issue warrants further
data collection and analysis delineated by gender and race if
a decision is not made to end the use of cash bail completely.

Swavola, et al., supra note 28, at 29-30.
Swavola, et al., supra note 28, at 29.
National Partnership for Women and Families, Fact Sheet:
America’s Women and the Wage Gap (Apr. 2017), http://www.
nationalpartnership.org/research-library/workplace-fairness/
fair-pay/americas-women-and-the-wage-gap.pdf.

108
109
110

Plea Deals & Sentencing
Sentencing Guidelines
The Virginia Sentencing Commission is a judicial branch agency
charged with developing, implementing, and administering felony
sentencing guidelines used in Virginia circuit courts. Compliance
with the sentencing guidelines is voluntary, though judges
are nevertheless required to complete sentencing guidelines
54

ACLU of Virginia: Women in the Criminal Justice System

worksheets in all cases covered by the guidelines (approximately
95% of felony sentencing events).111
In FY2016, 82% of sentences were within the recommended
guidelines range in jail and prison cases.112 Departures from the
guidelines are typically no more than one year above or below
the recommended range.113 Judges are required to submit to the
Sentencing Commission written reason(s) for sentencing outside
the guidelines range.114
Virginia’s judges are not limited by any standardized or prescribed
reasons for departing from the guidelines. They may cite multiple
reasons for departure in each case. The Sentencing Commission
publishes a report analyzing sentencing guidelines departures
each year. In FY2016, only 9.8% of guidelines cases resulted in
sanctions below the recommended range.115
While the Sentencing Commission does not delineate data by
gender, circumstances disproportionately affecting women —
including past or current experiences of violence; economic
status motivations; marginal role in the offense or the drug
trade as a whole; physical or mental health; pregnancy; or
family responsibilities — were rarely listed as the reason a judge
deviated below the sentencing guidelines range.116 For example,
in FY2016, family ties and responsibilities were cited in only 1.5%
of cases granting downward departures. The defendant’s minor
role in drug-related offenses received even less consideration at
sentencing – “offender not the leader” was listed as the reason
for sentencing below the guidelines range in only 0.9% of drug
cases in FY2016.117

Va. Code Ann. § 19.2-298.01; Va. Criminal Sentencing Commission,
2016 Annual Report, at 8 (2016), http://www.vcsc.virginia.gov/2016Annualreportfinal.pdf [hereinafter 2016 VCSC Report].
112
Id. at 17.
113
Id. at 40.
114
Va. Code Ann. § 19.2-298.01. See 2016 VCSC Report, supra note 128,
at 18 (“Each year, as the Commission deliberates upon recommendations for
revisions to the guidelines, the opinions of the judiciary, as reflected in their
departure reasons, are an important part of the analysis.”)
115
See 2016 VCSC Report, supra note 128, at 18. The report noted that
“[f]or 339 of the 2,257 mitigating cases, a departure reason could not be
discerned.” Id.
116
See id. at 18 (“The most frequently cited reasons for sentencing below
the guidelines recommendation were: the acceptance of a plea agreement, a
sentence to a less-restrictive sanction, judicial discretion, the defendant’s
cooperation with law enforcement, the defendant’s lack of or minimal prior
record, court procedural issues such as a sentence recommendation provided by the attorneys, and mitigating offense circumstances.”)
117
ACLU of Virginia calculations from data in VCSC Report, supra note
128.
111

Women in Virginia’s Criminal Justice System

Bifurcated Trials
Virginia has a bifurcated process for adjudicating felony criminal
cases where the case is tried to a jury. In bifurcated trials, the
jury decides whether the defendant is guilty or innocent during
the first phase of the trial. The jury makes its sentencing
decision during a second phase of the trial, and is presented with
information about the defendant’s prior criminal record to help
them make a sentencing decision, but unlike a judge trying a
case, has no access to the sentencing guidelines. Only two other
states besides Virginia have bifurcated jury trials for non-capital
offenses.

In FY2016, 90.6%
of felony criminal
cases reported
to the Virginia
Sentencing
Commission were
decided by a guilty
plea.

Under this system, defendants accused of felonies in Virginia
must decide whether to plead guilty, or, if they plead not
guilty, whether to have their cases tried before a judge or a
jury. Empirical evidence has shown that juries are more likely
than judges to acquit criminal defendants.118 However, when a
defendant is sentenced by a jury, jurors are not permitted to
review or consider the sentencing guidelines, and judges are not
required to adjust jury sentences to fit within the recommended
sentencing range. Perhaps as a result, when juries convict a
defendant they tend to impose harsher sentences.119 Judges are
extremely reluctant to reduce a jury’s sentence even where it
clearly exceeds the guidelines.
Moreover, Virginia sentencing juries are not able to offer
alternatives to incarceration. For example, a jury cannot sentence
someone to probation or allow that person to serve jail time on
weekends in order to keep a job.
Under Virginia’s truth-in-sentencing laws, people convicted of
felonies must serve at least 85% of their sentence. This enhances
the risk of chancing a jury trial that may end with a much harsher

Harry Kalven, Jr. & Hans Zeisel, The American Jury 56 (1966).
In FY2016, only 43% of jury sentences reported to the Virginia
Sentencing Commission concurred with the sentencing guidelines (which
juries are not permitted to consult). 2016 VCSC Report, supra note 128, at
28. In cases in which the sentence was more severe than the recommended
range, the sentence exceeded the guidelines maximum by a median value
of 37 months. Id. See also Nancy J. King & Rosevelt L. Noble, Felon Jury
Sentencing in Practice: A Three-State Study, 57 Vand. L. Rev. 885, 910
(2004) (finding that sentences by juries in Virginia drug cases were on
average four to fourteen years higher than those imposed by judges). While
Virginia judges may modify a sentence recommended by a jury, they did so
for only 16% of jury sentences reported to the commission in FY2016. 2016
VCSC Report, supra note 128, at 28.

118
119

ACLU of Virginia: Women in the Criminal Justice System

sentence than a judge would have issued. The alternative is
putting your faith in one judge and giving up your constitutional
right to be tried before a jury of your peers.
The result of this system is that defendants charged with felonies
face tremendous pressure to make a deal with the CA. In FY2016,
90.6% of felony criminal cases reported to the Virginia Sentencing
Commission were decided by a guilty plea and 8.2% were decided
by a bench trial. Less than 1% of felony convictions for property
and drug offenses — the majority of crimes for which women are
arrested — were decided by jury trials during FY2016.120
Plea Deals
For the low-level, non-violent offenses for which women are usually
arrested in Virginia, CAs typically offer standard and quick plea
deals at arraignment or shortly thereafter. Both the sentencing
guidelines ranges and the jury sentencing system affect a
defendant’s bargaining power during plea deal negotiations. The
more uncertainty associated with going to trial, the more likely a
defendant will accept an unfavorable plea deal.
When a woman defendant is denied bail or does not have the
means to pay cash bail, a plea deal may be the only way to avoid
catastrophic consequences such as loss of housing or employment.
Mothers face additional pressure to take a plea deal, particularly
single mothers or those who act as a child’s primary caretaker.
The CAs and judges with discretion to facilitate plea deals seldom
take the time to discover the full story behind a woman’s criminal
history. For example, a defendant with a long criminal history
of petty theft who is before the court on her third misdemeanor
shoplifting offense (which, under Virginia law, constitutes a
felony) may have been shoplifting to support a drug addiction. Yet,
judges, CAs, and overburdened court-appointed defense attorneys
rarely ask criminal defendants to explain why they committed
a crime. Even if they did, defendants who are not convicted
of drug crimes may be ineligible for drug court, diversion, or
referral to a drug treatment program in lieu of incarceration.
These defendants instead slip through the cracks and remain in
a cycle of arrest, detention, incarceration, and recidivism.
Additionally, when women face more complex charges, their

120

2016 VCSC Report, supra note 128, at 27-28.

Women in Virginia’s Criminal Justice System

typically low-level role in a criminal enterprise often disadvantages
them in plea negotiations. For example, the war on drugs
legislation was designed to target major players in the drug trade.
By reducing sentences or charges in exchange for “substantial
assistance,” lower-level players are, in theory, protected by the
system. This policy assumed that low-level players would have
information that could lead to major players.
For women, the opposite is most often true. As the “Caught in
the Net” report explains, women are usually given more routine
responsibilities in drug distribution, and therefore “not only lack
information useful to prosecutors, but also often erroneously
believe that they could not be found guilty or be subject to long
sentences based on uninformed, inconsequential, or coerced
activity.”121 Often referred to as “the girlfriend problem,” women
are frequently pulled into their significant other’s offenses by
minimally or unknowingly participating in crimes.122

Virginia’s current
drug policies
target low-level
participants
— typically
women — with
severe punitive
approaches to
deterrence.

Virginia’s current drug policies target low-level participants —
typically women — with severe punitive approaches to deterrence.123
Even if unintentional, the effects are significant: Women can be
sentenced to ten or more years in prison because of the mere
presence of drugs in their homes or minimal involvement in
drug-related crimes.124 Plea deal arrangements, by contrast, can
involve a suspended sentence, “time served” during pre-trial
detention, community service, and/or drug treatment.

ACLU, et al., supra note 48, at 11.
United Nations, supra note 93, ¶ 6; Am. Civil Liberties Union,
“’Girlfriend problem’ harms women and children, impacted families call
mandatory sentences unfair and destructive,” June 14, 2005, https://www.
aclu.org/news/girlfriend-problem-harms-women-and-children-impacted-families-call-mandatory-sentences-unfair.
123
ACLU, et al., supea note 48, at 12.
124
Fettig, supra note 40. See also Polly F. Radosh, Reflections on
Women’s Crime and Mothers in Prison, 48 Crime & Delinquency 300, 307
(2002) (“A woman who drives her boyfriend to make drug deals and waits
in the car until after the deal is completed may end up serving a longer
sentence than her boyfriend, who is the actual dealer. Drug convictions and
sentencing rely very heavily on informant deals. The driver in the car would
not have knowledge that would be beneficial to authorities and thus could
not ‘deal’ with prosecutors on her own behalf. Also, loyalty to boyfriends or
husbands prevents many women from making deals, even when they have
such knowledge. A review of more than 60,000 federal drug cases indicates
that men are much more willing to sell out women to get a shorter sentence
than women are likely to sell out men.”).
121
122

ACLU of Virginia: Women in the Criminal Justice System

DIVERSION

When a defendant without any previous drug convictions
pleads guilty, or enters a plea of not guilty, for possession of a
controlled substance or marijuana, a judge may defer further
court proceedings and place the person on probation. The
terms of probation must include (1) successfully completing
a treatment or education program, (2) remaining drug and
alcohol free during the probation period and submitting to
drug tests, (3) making “reasonable efforts” to secure and
maintain employment, and (4) completing community service.
Though holding down a job and attending the appointments
and meetings implicated by these requirements requires
transportation, the diversion program still requires the DMV
to suspend participants’ driver’s licenses for six months if they
were arrested for possession of drugs other than marijuana.125
DRUG COURTS

In Virginia, as in other states, adult drug courts divert
participants from incurring a criminal record. Successful
graduates have their criminal charge(s) withdrawn and the
arrest may be expunged from the participant’s legal record.
The arrest is not erased from criminal justice databases,
however. This means employers and landlords who run
criminal background checks on job and housing applicants
will likely learn of the arrest.
There are currently 33 adult drug courts in Virginia.126 Virginia
courts do not provide data showing how many criminal

Va. Code Ann. § 18.2-251 . License suspension is left to the judge’s
discretion for marijuana possession convictions, but is required if the
possession occurred while operating a motor vehicle. This carve out for
marijuana possession does not apply to juveniles.
126
Sup. Ct. of Va., Virginia Drug Treatment Court Dockets, http://www.
courts.state.va.us/courtadmin/aoc/djs/programs/dtc/dtc_directory.pdf
(last visited Aug. 23, 2018).
125

Women in Virginia’s Criminal Justice System

defendants were eligible for referral to drug court. Only 290
women offenders were referred to an adult drug court between
July 1, 2015 and June 30, 2016. Of those referred, 249 (86%)
presented with high enough treatment needs and risk factors
to qualify for drug court.127
While data is not available showing the racial makeup of
adult drug court participants by gender, the vast majority of
adult drug court participants were white (62%). Only 35% of
participants were black; 0.5% identified as Hispanic. In 2015
and 2016, “the typical participant in drug court was a White
single male, high school graduate, between the ages of 20
and 39.”128
The requirements for successfully completing drug court
are particularly difficult for low-income people to navigate;
participants:
• Must appear before the judge regularly, up to once a
week.129
• Must pay all court-ordered court fines, fees, and
restitution before graduation.
• Must complete court-ordered treatment program.
• Must obtain and keep employment throughout program,
and
• Must “submit to frequent and random drug testing.”130

A single mother working a minimum-wage job ($7.25 per
hour in Virginia) would likely find it extremely difficult, if not
impossible, to successfully complete drug court and avoid a
conviction.

Sup. Ct. of Va. Dep’t of Judicial Svs., Virginia Drug Treatment Courts:
2016 Annual Report (2017), http://www.courts.state.va.us/courtadmin/
aoc/djs/programs/dtc/resources/2016annualreport.pdf [hereinafter
2016 Va. Drug Court Report] (ACLU of Virginia analysis of report data).
Of the 718 cases referred to an adult drug treatment court between
July 1, 2015 and June 30, 2016, 428 were men. Of the 609 people who
scored high enough on the Risk and Needs Triage (RANT) questionnaire
to qualify for drug court, 360 (%) were men. 84% of men who took the
RANT questionnaire scored high enough to be eligible for drug court.
The majority (59%) of active participants in adult drug court participants
in 2016 were men.
128 Id. at 9.
129 Id.
130 Id. at 19, 36, 52.
127

ACLU of Virginia: Women in the Criminal Justice System

JESSICA’S STORY

“

The reason why I couldn’t do drug court is I didn’t
have the money to pay the babysitter. I’ve got a
five-bedroom house and a car. I was the director of
operations with the bachelor’s degree. But that does
not mean that I could successfully go through drug
court. I lost my job as a director, and I’m about to
lose my car and my five-bedroom house. If you don’t
have the ability to get to drug court every day and the
fees that it costs to get there, to pay the babysitter –
all that, it’s a setup for failure. I should be pressed
to make sure I’m doing well in recovery as an addict,
not make [drug court] the hardest challenge of my
life on top of becoming sober.

”

Incarceration

Community Supervision
Often considered an alternative to incarceration, probation (also
referred to as community supervision) is frequently set with
unrealistic conditions that undermine its goal of keeping people
out of prison or jail.131 A significant number of women receive
sentences that include community supervision, due to their
propensity to commit low-level, non-violent offenses.

Many women,
however, do not
complete their
community
supervision
successfully.
Women often
violate the
terms of their
supervision for
technical reasons,
such as a missed
appointment or
unpaid fines or
fees, rather than
because they
committed a new
offense.

Many women, however, do not complete their community
supervision successfully.132 Women often violate the terms of their
supervision for technical reasons, such as a missed appointment
or unpaid fines or fees, rather than because they committed a new
offense.133 Violations typically result in additional requirements
on their supervised release or new sanctions, including short
stays in jail or the revocation of a suspended sentence.134
There are a number of reasons for community supervision failure
among women. Supervision conditions — including available
treatment or programming — often fail to address women’s specific
risk factors or treatment needs. Violations may also result from
the challenges of juggling community supervision requirements
with work and family responsibilities. As women who become
involved in the criminal justice system are overwhelmingly mothers,
childcare duties further complicate supervision requirements that
involve frequent court appearances and meetings with probation
officers, without the income to spend on babysitters or reliable
fast transportation to meetings.135 All of these issues make
women particularly vulnerable to being incarcerated not because
they commit crimes, but because they may run afoul of one of the
burdensome obligations of their probation.
As of June 30, 2016 (the most recent data available), 14,483
women were under Virginia Department of Corrections community
supervision in Virginia.136 The number of women under local
community supervision is not available. The vast majority (90%)
of women under VDOC supervision were on probation. Only 130
women were in a diversion center.137 VDOC does not provide

Kajstura, supra note 124, at 4.
Swavola, et al., note 28, at 32.
Swavola, et al., note 28, at 32.
Swavola, et al., note 28, at 32.
Kajstura, supra note 124, at 4.
VADOC Statistical Analysis and Forecast Unit, SR Offender Population
Profile FY 2016, at 24 (April 2018), https://vadoc.virginia.gov/about/facts/
research/VADOCDemographicReportFY2016.pdf.
137
Id.
62

ACLU of Virginia: Women in the Criminal Justice System

PHOTO: FELTON DAVIS/FLICKR

131
132
133
134
135
136

gender or race data for offenders who were incarcerated or
reincarcerated due to a probation violation. Local and regional
jails and courts similarly do not provide a reliable data source
showing the number of people serving probation sentences
following a jail sentence, their demographic characteristics, or
how many of them were incarcerated or reincarcerated because
of a probation violation.

KAAMILYA’S STORY: PART II
“I never had drug charges. All of my charges stemmed from my addiction, so they were shoplifting and stealing cars
and stuff like that to keep me high. Maybe that’s one of the reasons why a judge never wanted to sentence me to
rehab—because I didn’t get caught with drugs.
I sat in prison with women from southwest Virginia who were sentenced to three years for a first violation. They go
back to a town with one streetlight. They’ve been stripped of everything: you can’t have a driver’s license; you have
a felony on your record, no one wants to hire you; there’s no public transportation where you live and the only way
you could get to a job is to drive. And if you get behind the wheel of a car and get pulled over, then you have violated
the terms of probation and you end up right back up in prison.
No one is proactive about us not going back to prison. They make it as hard as they possibly can so we will continue
to come back into this system. To me, it feels like a modern-day form of slavery: I’ve done your sentence and then
you strip me of everything else. If I didn’t have Guest House, where would I be living right now? Because in the state
of Virginia I can’t get housing. It’s only by the grace of God that I have the job that I have.
No one takes any of those things into effect. They say, “do your sentence, get out, and become a productive citizen.”
Well I can’t be a ‘productive citizen’ if you have all these Scarlet Letters attached to me. I really wish that they
would be a little more proactive when they do the sentencing — think about the long-term effects, and think about
why they continue to see this person show up in their courtroom. What can we do differently to help this person
not continue to show up in the courtroom?
Do not give me drug treatment inside of a prison with four over-worked counselors that have caseloads of 300
women at a time. They have no time to sit down and talk to me and get down to a deeper level of why I do the same
things that I do.

PHOTO: FELTON DAVIS/FLICKR

I leave prison not having any tools to make it. And then go right into the County programs with case managers that
have the same caseloads as the ones in prison. They have no time to sit down and talk to you.

Women in Virginia’s Criminal Justice System

Collateral Consequences
In Virginia, a criminal conviction can create life-long barriers
to employment, education, housing and other opportunities,
including:
• Lose or be denied public housing assistance.138
• Private landlords can require applicants to disclose prior
convictions on a housing application.139 Landlords can deny an
application solely on the basis of a prior drug manufacturing or
distribution conviction, or if the landlord subjectively believes a
person’s criminal record puts other tenants or the premises at
risk of substantial harm.140
• If someone is evicted from public housing because of a
drug crime, for example, a public housing authority must prohibit
that person from public housing for at least three years.141 Public
housing agencies can also refuse admission based on past criminal
records related to drug use.142
• It may be difficult, if not impossible, to obtain a professional
license, certificate, or registration.143

Federal statutes and HUD regulations require that a public housing
authority (PHA) or an owner of assisted housing have the authority evict
tenants the PHA determines to be engaged in criminal activity—regardless
of whether they have been arrested for or convicted of any crime. Federal
law also requires states to allow a PHA to reject applicants based on past
convictions for “crimes of physical violence to persons or property” or
“criminal acts which would adversely affect the health, safety or welfare
of other tenants,” including “drug-related criminal activity,” and “illegal
use of a drug.” 24 C.F.R. § 960.203(c)(3), 204; 42 U.S.C. 13661(c). HUD
regulations require PHAs to reject applicants if the PHA has “reasonable
cause to believe” that any member of the household is currently using an
illegal drug, or has a “pattern of illegal use of a drug that may threaten
the health, safety, or right to peaceful enjoyment of the premises by other
residents.” 24 CFR § 960.204(a)(2)(i), (ii). PHA leases must be allow
the PHA to terminate a lease if it determines (with or without an arrest
or conviction) that a tenant or a tenant’s guest engaged in drug-related
criminal activity “on or off the premises” or if a household member is
“illegally using a drug.” 24 CFR § 966.4(l)(5). Virginia cities and counties
have discretion to shape public housing policies.
139
Va. Code Ann. § 36-96.2(F).
140
Va. Code Ann. § 36-96.2(D), (F).

141
24 C.F.R. 982.553.
142
24 C.F.R. 982.553.
143
A criminal conviction can be the sole basis for denying a professional
license, certificate, or registration in a diverse range of fields—including
many professions typically occupied by women (e.g., cosmetology, nursing,
dental hygienists)—if it “directly relates to the occupation or profession
for which the license, certificate or registration is sought.” Va. Code Ann.
§ 54.1-204(A). Regulatory boards also have “authority to refuse a license,
certificate or registration if, based upon all the information available,
including the applicant’s record of prior convictions, it finds that the
138

ACLU of Virginia: Women in the Criminal Justice System

• A person with a felony drug conviction may be ineligible
for Temporary Assistance for Needy Families (TANF) program if
certain conditions are not met.144
• All of these collateral consequences make it more difficult
for low-income people — especially women who are single parents
or a child’s primary caretaker — to comply with the rigorous
requirements of probation or drug court/diversion programs.
A few programs in Virginia, including Transition Services for
Women in Roanoke, and Friends of Guest House in Fairfax, have
provided formerly incarcerated or criminal justice-involved women
with the support and resources they need to break the cycle of
incarceration. These programs, however, are few and far between.
They also lack sufficient financial support from the state.

applicant is unfit or unsuited to engage in such occupation or profession.” Id.
In determining whether a conviction “directly relates” to the occupation in
question, regulatory boards employ a broad nine-factor test that gives them
enormous discretion to deny past offenders a professional license, certificate,
or registration. Va. Code Ann. § 54.1-204(B).
144
Va. Code Ann. § 63.2-505.2.

FRIENDS OF GUEST HOUSE
Friends of Guest House is a comprehensive, gender-responsive reentry program
located in Fairfax, Virginia, that addresses healthcare, employment, education,
housing, and family/community reconnection for post-incarceration women. In
so doing, Guest House has had tremendous success helping its residents break
the cycle of crime by fully addressing its root causes. Without re-entry support,
70% of ex-offenders nationwide re-offend within two years. Among Guest House
graduates, fewer than 10% reoffend.145
Guest House provides case management, mental health, and substance abuse
counseling, life skills training, and direct help or community referrals for
healthcare, education, vocational training, job placement, housing, emergency
needs (food, shelter, etc.), child custody and, generally, navigating the postincarceration environment in constructive ways.
ACLU of Virginia focus group interviews conducted with nearly all of Guest House’s residents and program participants in July 2017 demonstrated
the program’s value and effectiveness, as well as the scarcity of similarly effective programs for women in Virginia. Most program participants
had been incarcerated in multiple local or regional jail facilities in various areas of Virginia. All of them had to engage in extraordinary selfadvocacy to obtain a place at Guest House. Many indicated that completing the program was their best and only chance to obtain substance
abuse treatment and mental health counseling, obtain employment, and take the steps necessary to successfully reenter the community.

145 About Friends of Guest House – A women’s reentry program in Northern VA, Friends of Guest House, https://friendsofguesthouse.org/
about/ (last visited Aug. 24, 2018).

Women in Virginia’s Criminal Justice System

Incarceration

The data on women who are incarcerated has long been obscured
by the larger picture of men’s incarceration. The disaggregated
numbers presented here are an important first step to ensuring
that women are not left behind in the effort to end mass
incarceration.

PRISONS VS. JAILS
Virginia has two primary types of jail facilities: local jails and regional jails.146
Local jails generally serve the locality (e.g., city or county) in which they are
located. They are managed by locally elected sheriffs, and accounted for 43.4% of
the total jail inmate days in FY2016.147 Regional jails house inmates from multiple
localities. They are administered by a superintendent who serves the regional jail
board or jail authority (which is generally composed of two members from each
participating locality: the sheriff and an appointed representative).148 Regional
jails accounted for 56.0% of total inmate days in FY2016.149 The Commonwealth of
Virginia provides substantial funding for local and regional jails, but has little direct

The City of Danville also operates a jail farm pursuant to Virginia
Code Section 53.1-96, in which “any person convicted and sentenced to
confinement in jail…may be confined and required to do such work as may
be assigned him during the term of his sentence.” It has a 120 bed capacity,
but does not house women. It was operating at 126% capacity in FY2016.
See Va. Compensation Bd., FY2016 Jail Cost Report: Annual Jail Revenues
and Expenditures Report, at 59 (Nov. 1, 2017), http://www.scb.virginia.gov/
docs/fy16jailcostreport.pdf.
147
Id. at IV.
148
Va. Dep’t of Criminal Justice Svs., Virginia’s Peculiar System of Local
and Regional Jails, at 3 (2010), https://www.dcjs.virginia.gov/sites/
dcjs.virginia.gov/files/publications/research/virginias-peculiar-system-local-and-regional-jails.pdf
[hereinafter Virginia’s Peculiar System].
149
FY2016 Jail Cost Report, supra note 185, at IV.

146

ACLU of Virginia: Women in the Criminal Justice System

authority over their operation other than certification and inspection of facilities.150
The following types of individuals may be confined in a local or regional jail, and are
the responsibility of the locality and referred to as local responsible (“LR”) inmates:
• Individuals charged with a felony, misdemeanor, or ordinance violation
who are not released on bail;
• Offenders sentenced to jail following conviction of a local ordinance or
misdemeanor;
• Offenders sentenced to 12 months or less following a felony conviction; or
• Offenders awaiting a probation or parole revocation hearing due to violation
of the conditions of their probation, parole, or post-release supervision. 151
The Virginia Department of Corrections is responsible for housing individuals
convicted of felonies and sentenced to serve one or more years in prison. Such
individuals are referred to as state responsible (“SR”) offenders. VDOC operates 26
major institutions (e.g., prisons), eight field units, five work centers, two diversion
centers, and one detention center.152 SR offenders may be incarcerated in a local
or regional jail during the time between when they are sentenced and when they
are transferred to a facility operated by VDOC, such as a state prison or diversion
center.153 VDOC may also enter into contracts with local or regional jails to hold state
responsible offenders on contract or as part of a work release program.154

Virginia’s Peculiar System, supra note 163, at 1.
Id.
Va. Dep’t of Corrections, Management Information Summary
Annual Report For the Fiscal Year Ending June 30, 2017, at 6 (2017),
https://vadoc.virginia.gov/about/facts/managementInformationSummaries/2017-mis-summary.pdf [hereinafter Management Information
Summary].
153
The Virginia Department of Corrections is to take these inmates into
custody within 60 days of the date the Circuit Court clerk mailed final
sentencing order. Va. Code Ann. § 53.1-20.
154 Virginia’s Peculiar System, supra note 163, at 1. Jails receive per diem
payments from the federal government to hold state and federal prisoners.
About 28% of local and regional jail space is used by state and federal
inmates. Id.
150
151
152

Incarceration

Prison and Jail Population Increases
Local and Regional Jails
In FY1998, inmates spent 5,921,327 days housed in Virginia’s
jails. By FY2016, that number had increased by 72% to 10,209,820
days — with facilities operating 125% above capacity, on average.155
While the ACLU of Virginia’s primary concern is safeguarding
liberty, over-incarceration is also a significant fiscal matter and
a tremendous waste of taxpayer dollars. The cost to operate all
of Virginia’s jails has skyrocketed: increasing 178% from $358
million in FY1998 to $995.6 million in FY2016.156

Source: Virginia Compensation Board

Women composed 15.3% of the average daily population in
Virginia’s local and regional jails in 2014, about one percent
point higher than the percentage of women incarcerated in local
jails nationally.157 This represents a 32% increase between 2010
and 2014. In contrast, the average number of men inmates only

FY2016 Jail Cost Report, supra note 161, at 2; ACLU of Virginia analysis of Annual Jail Revenues and Expenditures Reports published by the
Virginia Compensation Board for Fiscal Years 1998 through 2017.
156
FY2016 Jail Cost Report, supra note 161, at 1.
157
ACLU of Virginia analysis of Average Daily Population Reports published by the Virginia Compensation Board, Jan. 31, 2014 through Dec. 31,
2014. ; Todd D. Minton & Zhen Zeng, Jail Inmates at Midyear 2014, Table
3, U.S. Dep’t of Justice, Office of Justice Programs, Bureau of Justice
Statistics (June 2015).
155

ACLU of Virginia: Women in the Criminal Justice System

increased about 4% between 2010 and 2014.158
This pattern appears to be continuing. According to the most
recent available data, the average number of women in Virginia
jails during the first five months of 2016 is 10% higher than
it was during the same time period in 2014, but the average
male population decreased nearly 8% during that time.159 These
increases occurred despite the number of arrests falling for both
men and women an average of 4% and 3.3% per year, respectively,
between 2010 and 2015.

Source: Virginia Department of Corrections

On average, 28,887 offenders were housed in DOC-operated
facilities in FY2016, and an additional 1,568 offenders were
housed in a privately operated prison located in Lawrenceville,
Virginia.160 The DOC spent $1.2 billion in FY2017—up from $1.17

ACLU of Virginia analysis of Average Daily Population Reports published by the Virginia Compensation Board, Jan. 31, 2010 through Dec. 31,
2010, and Jan. 31, 2014 through Dec. 31, 2014.
159
ACLU of Virginia analysis of Average Daily Population Reports published by the Virginia Compensation Board, Dec. 31, 2014 through May 31,
2014, and Jan. 31, 2016 through May 31, 2016.
160
Management Information Summary, supra note 188 at 6.
158

Incarceration

billion in FY2016.161 Women offenders composed 8% of the total
SR population, representing an incarceration rate of 71 women
prisoners per 100,000 residents.162
The population of SR confined women increased 10.5% between
FY2011 and FY2017, compared to a 0.1% decrease in the population
of SR confined men during the same time period.163 This trend
shows no sign of stopping in Virginia, with women offenders
composing 14% of all new SR court commitments in FY2015.164

Source: Va. Dep’t of Corrections, Female State Responsible Population Trends, FY2011FY2015, at 3 (Oct. 2016).

Based on forecasting prepared by the Virginia Secretary of Public
Safety and Homeland Security, the population of SR confined
women is projected to grow 1.8% annually between FY2017 and
FY2023, faster than the 0.6% annual increase predicted for the
population of SR confined men.165

Id.
Id.
Va. Sec. of Public Safety & Homeland Security, Report on the Offender
Population Forecasts (FY2018 to FY2023), at 12 (Oct. 15, 2017), https://rga.
lis.virginia.gov/Published/2017/RD375/PDF [hereinafter Forecasts].
164
Va. Dep’t of Corrections, Female State Responsible Population Trends,
FY2011-FY2015, at 3 (Oct. 2016), https://vadoc.virginia.gov/about/facts/
research/new-statsum/offenderpopulationtrends_fy11-fy15Female.pdf
[hereinafter Female SR Trends] (showing 1,699 new female SR court commitments in FY2015); Forecasts, supra note 199, at 9 (showing 12,286 total
new SR court commitments in FY2015).
165
Forecasts, supra note 199, at 12.
161
162
163

ACLU of Virginia: Women in the Criminal Justice System

Incarceration Statistics by Race and Crime166
As of June 30, 2016, the population of state responsible (“SR”)
women incarcerated in a major facility, detention center, or
work center operated by the Virginia Department of Corrections
(VDOC) broke down as shown in Table 1.167 VDOC groups crimes
into different categories than the arrest data collected by the
Virginia State Police. It appears, however, that simple assault
would be characterized as a “violent” offense, and that larceny
and shoplifting would be characterized as “property” offenses.
Offense Type

Female

Violent

973

33%

Property/Public Order

1,341

45%

Drugs

592

20%

Total

2,979

100%

Race

Female

White

1 ,913

64%

Black

1,028

35%

Hispanic

Other

Total

2,979

100%

In contrast, on June 30, 2016, the male SR population incarcerated
in a major facility, detention center, or work center in Virginia
broke down as follows:
Offense Type

Male

Violent

20,154

59%

Property/Public Order

8,040

24%

Drugs

4,850

14%

840

Total

33,884

100%

Data is not publicly available regarding the race and gender characteristics of individuals incarcerated in Virginia’s local and regional jails.
The ACLU of Virginia is in the process of analyzing data obtained from the
Virginia Compensation Board regarding the race and crime types of women
and men held in Virginia’s local and regional jails between CY2013 and
CY2015.
167
The most recent available Virginia Department of Corrections data
indicates that 691 women SR offenders were housed in local and regional
jails on June 30, 2016. Twenty-five percent of those women were charged
with violent crimes, 42% were charged with property or public disturbance
crimes, 23% were charged with drug crimes, and 10% were charged with
an unreported crime type. See Va. Dep’t of Corrections, State Responsible
Offender Demographic Profile: FY2016, at 14-15 (Apr 2018), https://vadoc.
virginia.gov/about/facts/research/VADOCDemographicReportFY2016.pdf.
166

Incarceration

Race

Male

White

12,778

38%

Black

20,030

59%

Hispanic

908

Other

168

<1%

Total

33,884

100%

The statistics collected as of June 30, 2016 reflect an ongoing
trend in the types of crimes for which women are incarcerated
in Virginia as shown in the figure above. Between FY2011 and
FY2015, an average of 91% of new women’s SR court commitments’
most serious offense was one of six types of crimes: robbery
(4%), assault (10%), burglary (5%), larceny/fraud (46%), drug
sales (15%), or drug possession (11%).168 The number of new
SR women’s court commitments in each of these categories
increased between FY2011 and FY2015: violent offenses went up
14%; property offenses went up 21%; and drug offenses went up
42%.169 The increase in new SR court commitments corresponds
to the 32% increase in women’s drug arrests between 2009 and
2014.170
Between FY2011 and FY2015, of the population of confined
SR women whose most serious crime was a property offense,

Female SR Trends, suspra note 200, at 4. The population of men’s new
SR court commitments showed similar trends between FY2011 and FY2015,
with an average of 76% newly confined, on average, for one of six most
serious offenses: robbery (8%), assault (11%), larceny/fraud (23%), burglary
(11%), drug sales (14%), or drug possession (10%). The percentage of the
women’s SR new court commitments (NCC) with robbery, assault, larceny/
fraud, or drug possession as their most serious offense either decreased
or remained steady between FY2011 and FY2015, whereas the number
confined for drug sales increased by 33%. The ACLU of Virginia obtained
data for the men’s SR new court commitment population by subtracting the
number of women SR new court commitments in each category during each
fiscal year, as noted on page 4 Female SR Trends, from the total number
of new SR court commitments in each category during each fiscal year, as
noted on page 5 of Va. Dep’t of Corrections, State Responsible Offender
Population Trends FY2011 – FY2015 (Sept. 2017), https://vadoc.virginia.
gov/about/facts/research/new-statsum/offenderpopulationtrends_fy11-fy15.
pdf [hereinafter SR Population Trends], and then calculating percentages
and percent change, as shown in Appendix; Table 5.
169
Female SR Trends, supra note 200, at 4. The ACLU of Virginia categorized VADOC offenses as follows: “Violent Offenses” include Capital Murder;
First-Degree Murder; Second Degree Murder; Manslaughter; Abduction;
Rape/Sexual Assault; Robbery; Assault; and Weapons Offenses. “Property
Offenses” include Burglary/B&E and Larceny/Fraud. “Drug Offenses” include Drug Sales and Drug Possession. “Other Offenses” include Conspiracy;
Sex
Offenses; SUI; Habitual Offender; and Other Property/Public Order.
170
In contrast, the number of men arrested for drug offenses between
2009 and 2013 increased by 15.5%, but the percentage of new commitments
of SR men with drug sales as their most serious crime remained steady
between FY2011 and FY2014.
168

ACLU of Virginia: Women in the Criminal Justice System

“larceny/fraud” was the most serious crime for 72% of them, on
average.171 In comparison, members of the confined SR men’s
population doing time for property offenses were more likely to
have robbery (46%) as their most serious crime.172 This contrast
is even more pronounced among new court commitments whose
most serious offense was a property crime: On average, 84% of
women’s new court commitments’ most serious property crime
was “larceny/fraud” between FY2011 and FY2015, whereas men’s
new court commitments were more evenly distributed between
burglary (26%), robbery (19%), or larceny/fraud (55%) as their
most serious property offense.173
While the rate of imprisonment has increased for people of all
races during the past 30 years, the rate of imprisonment for black
people has increased at a substantially higher rate. Although the
majority of prisoners are men, the population of incarcerated
women has grown at higher rates than men: from 3% in 1970
to 9.4% in 2017.174 Nationally, black women’s imprisonment rate
rose 828% between 1985 and 1991 — significantly higher than the
increase among black men (429%) and white women (241%).175
Black women’s imprisonment rate doubled between 1991 and
2005.176
Like men and consistent with national prison and jail populations,
women in Virginia’s jails and prisons are disproportionately
women of color. In 2015, the population of women in Virginia
over 18 years old was estimated to be 20% black, 72% white, and
8% Native American, Pacific Islander, Native Alaskan, or another

Female SR Trends, supra note 200, at 6 (percentages based on calculations
by ACLU of Virginia staff).

172
Female SR Trends, supra note 200, at 6; SR Population Trends, supra
note 205, at 5. Percentages based on calculations by ACLU of Virginia staff
(see note 183).
173
Female SR Trends, supra note 200, at 6; SR Population Trends, supra
note 205, at 5. Percentages based on calculations by ACLU of Virginia staff
(see note 183).
174
Mark G. Harmon & Breanna Boppre, Women of color and the war on
crime: An explanation for the rise in Black female imprisonment, 2016 J. of
Ethnicity in Crim. Just. 1, 2; The Prison Policy Initiative, Mass Incarceration:
The Whole Pie 2017 (Mar. 2017), https://www.prisonpolicy.org/reports/
pie2017.html (estimating that 2.3 million people are incarcerated in the
United States’ “1,719 state prisons, 102 federal prisons, 901 juvenile correctional facilities, 3,163 local jails, and 76 Indian Country jails as well as in
military prisons, immigration detention facilities, civil commitment centers,
and prisons in the U.S. territories.”); Aleks Kajstura, supra note 124, at 2,
The Prison Policy Initiative & ACLU Smart Justice (Oct. 2017), https://www.
aclu.org/report/womens-mass-incarceration-whole-pie-2017 (estimating there
are 219,000 women among the 2.2 million people estimated to be incarcerated in the United States).
175
Harmon & Boppre, supra note 189, at 2.
176
Harmon & Boppre,supra note 189, at 2.
171

Incarceration

racial background, with 6.5% of that population identifying as
Hispanic.177
As of June 30, 2015, the population of SR women over 18
years old was 37% black, 62% white, and less than one percent
Hispanic or another racial group (categorized by VDOC as Native
American, Pacific Islander, Native Alaskan, or an unknown racial
background).178 Though the numbers do not correspond perfectly
due to Virginia’s racial categories differing from those used by
the U.S. Census Bureau, there is a wide disparity between the
proportion of the SR women’s population that is Black (37.94%)
and the corresponding percentage of adult black women residing
in Virginia (19.4%).179

Source: U.S. Census Bureau, 2012-2016 American Community Survey 5-Year
Estimates; Va. Dep’t of Corrections, Female State Responsible Population Trends,
FY2011-FY2015at 5 (Oct. 2016).

See U.S. Census Bureau, 2012-2016 American Community Survey
5-Year
Estimates (ACLU of Virginia calculations).
178
Female
SR Trends, supra note 200, at 5.
179
See U.S. Census Bureau, 2012-2016 American Community Survey
5-Year Estimates, Sex by Age: Black or African American Alone: Virginia
2015, https://factfinder.census.gov/faces/tableservices/jsf/pages/
productview.xhtml?pid=ACS_16_5YR_B01001B&prodType=table. Men’s incarceration rates in Virginia show similar disparities. Within the population
of SR men, 60.24% were identified as Black, 36.72% were identified as White,
2.32% were identified as Hispanic, and 0.72% were identified as “other.” The
U.S. Census Bureau estimates the 2014 18+ male population in Virginia was
74.23% White, 18.62% Black, and 7.15% “other” (As/AINA/NHOPI), with
7.63% of that population identified as Hispanic. Again, though the numbers
do not provide a direct comparison, there was a large disparity between the
number of Black SR men incarcerated in Virginia (60.24%) and the estimated percentage of black men over the age of 18 living in Virginia (18.62%).

177

ACLU of Virginia: Women in the Criminal Justice System

PHOTO: MICHELLE FRANKFURTER/ACLU

Incarceration

Recommendations

Legislative Study

The ACLU
of Virginia
recommends that
the Governor
or the Virginia
General Assembly
convene a
committee, task
force or work
group to study
women’s pathways
into Virginia’s
criminal justice
system.

The ACLU of Virginia recommends that the Governor or the
Virginia General Assembly convene a committee, task force or
work group to study women’s pathways into Virginia’s criminal
justice system.
The work group should include representatives from the Virginia
Indigent Defense Council, the Department of Criminal Justice
Services, the Virginia Sentencing Commission, the Virginia State
Police, and the Virginia Department of Corrections, as well as
other stakeholders, including criminal justice and prison reform
advocates; individuals who provide direct services to currently and
formerly incarcerated women and their families; representatives
from local sheriff’s departments and Commonwealth’s Attorney’s
offices; civil rights and civil liberties advocates; at least two
formerly incarcerated women, and women’s rights advocates.
The workgroup should make recommendations about the following
issues:
• Educating those involved in criminal justice, mental health,
and drug treatment about the unique needs and characteristics of
women and mothers in the criminal justice system;
• Investing public dollars in community-based treatment and
services to address the underlying causes of women’s involvement
with crime;
• Collecting and tracking data on women in the criminal
justice system—at the state and local levels—that will inform
policymaking, such as: numbers and growth trends; activities

ACLU of Virginia: Women in the Criminal Justice System

underlying specific charges; commonly charged offenses; physical
and mental health status; income levels; race; sexual orientation;
age; parental status; immigration status; and place of residence;
• Identifying the statutes, regulations, and policies driving
the increase in women’s involvement in the criminal justice system
and recommending legislative, administrative, and/or local policy
reforms that will reduce the number of women involved in the
criminal justice and corrections systems across Virginia;
• Identifying and revising educational policies that drive
girls into the juvenile justice system, and creating programs for
educators and child welfare professionals to identify the signs of
sexual victimization and support girls who have been traumatized
by violence;
• Identifying how to increase women’s eligibility for,
participation in, and successful completion of diversion and drug
court programs;
• Revising the Virginia Sentencing Guidelines to include
policies that reflect an understanding of women’s levels of
culpability and control with respect to drug crimes, and methods
of encouraging judges (and juries) to consider factors such as an
individual’s familial obligations during sentencing.
An Important First Step
to Address Women’s
Incarceration

PHOTO: PHUONG TRAN/ACLU-VA

Identifying and revising
educational policies that drive
girls into the juvenile justice
system, and creating programs
for educators and child welfare
professionals to identify the
signs of sexual victimization
and support girls who have
been traumatized by violence.

Recommendations

Recommendations for Local Judges, Prosecutors, and Law
Enforcement
Increased use of summons and release. Police departments have
reduced arrest rates and jail populations by issuing citations
for low-level offenses such as misdemeanor larceny, marijuana
possession, or driving with a suspended license in lieu of arrest.
A Virginia statute mandates that police officers issue a summons
for any misdemeanor unless there is evidence that the person
will not respond to the summons, will not cease the criminal
behavior or is a danger to self or others. This is essentially the
same procedure utilized when a speeding ticket is issued.180 A
focused review of officer actions to encourage increased use of
the summons in lieu of arrest and booking would likely result in
fewer women being held without bail or unable to pay the amount
of bail ordered, which would in turn enable them to continue
working during their criminal proceedings, reduce pressure on
their families, and put them in a stronger negotiating position
with respect to a plea deal.
Pre-arrest crisis intervention programs. Given the high rates of
mental health conditions among women in prisons and jails,
localities in other states have developed programs that divert
people experiencing crises or trauma to health services instead
of arresting them. For example, both Memphis, Tennessee, and
Akron, Ohio, adopted a Crisis Intervention Team model that
enables specially trained officers to respond to incidents involving
people exhibiting symptoms of mental health crises or trauma.
The officers then decide whether to make an arrest or refer the
individual to community-based services. The CIT model has been
found to significantly reduce arrest rates in such situations.181
Pre-Booking Diversion Programs. Pre-booking intervention
programs, such as Seattle’s LEAD program, give police officers
discretionary authority to divert people to a community-based
intervention program for offenses driven by unmet behavioral
health needs and poverty, such as low-level drug and nuisance
offenses and petty theft. In lieu of the normal cycle of arrest,

The most recent available Virginia Department of Corrections data
indicates that 691 women SR offenders were housed in local and regional
jails on June 30, 2016. Twenty-five percent of those women were charged
with violent crimes, 42% were charged with property or public disturbance
crimes, 23% were charged with drug crimes, and 10% were charged with
an unreported crime type. See Va. Dep’t of Corrections, State Responsible
Offender Demographic Profile: FY2016, at 14-15 (Apr 2018), https://vadoc.
virginia.gov/about/facts/research/VADOCDemographicReportFY2016.pdf.
181
Swavola, et al, supra note 28, at 25.
180

ACLU of Virginia: Women in the Criminal Justice System

End Cash Bail

PHOTO: SARAH J/FLICKR

Whether a woman remains in
jail should depend on her individual circumstances and risk
factors, not her ability to pay to
secure her release.

booking, detention, prosecution, conviction, and incarceration,
officers refer people into a case-management program providing
support services such as housing and drug treatment. Prosecutors
and police officers work closely with case managers to maximize
the opportunity to achieve behavioral change. In the pilot
LEAD program in Seattle, Washington, women constituted 34%
of LEAD participants. Following enrollment in the program,
Seattle’s LEAD participants were 58% less likely to be arrested
again when compared with people who went through the normal
criminal justice process for the same offense.182
End Cash Bail. Whether a woman remains in jail should
depend on her individual circumstances and risk factors,
not her ability to pay to secure her release. Judges and
prosecutors should eliminate the use of cash bail and instead
utilize alternative risk reduction strategies. Risk assessment
tools combined with pre-trial services and supervised release
programs provide alternatives that remove unaffordable and
unreasonable financial conditions of release.

See Susan E. Collins, et al., Seattle’s Law Enforcement Assisted
Diversion (LEAD): Program effects on recidivism outcomes, 64 Evaluation &
Program Planning 46-56 (Oct. 2017) (finding that compared to the system
as usual, LEAD is associated with 68% lower odds of arrest and 39% lower
odds of felony charges during two years after program entry). There are
currently 20 LEAD programs in operation in the United States: https://
www.leadbureau.org/. Dozens of other jurisdictions are in the process of
launching, developing, or exploring such programs.

182

Recommendations

Recommended Legislative Action
Increase the Felony Larceny Threshold. Virginia is spending
valuable and limited resources prosecuting and incarcerating
people for low-level felonies, resources that could be better
directed to programs that keep communities safe. The majority
of women’s arrests and subsequent incarcerations in Virginia
are for shoplifting and larceny crimes. The General Assembly
set a $200 felony larceny threshold in 1980, and adjusted it this
year to $500. Unfortunately, this $200 threshold, when adjusted
for inflation, would be approximately $585 today, so Virginia’s
“increase” is actually a decrease to $188 in 1980 dollars.. A felony
for a low-level offense like theft of $500 can destroy a woman’s
family, chance at ever finding work again, educational prospects,
and more significantly increase the chance she will be trapped
in the revolving door of the criminal justice system. Virginia
should follow the lead of many states in the U.S. by raising the
threshold to at least $1,500 and reserving the felony designation
for more serious crimes. Statistically, this will result in fewer
women being incarcerated in Virginia. 183
Repeal Virginia’s Three Strikes Statute. The “three strikes” larceny
statute is particularly cruel and unwarranted, often imposing
severe prison sentences costing taxpayers tens of thousands of
dollars for petty thefts. Furthermore, retail loss specialists have
found no evidence linking an increase in the larceny threshold
to increased crime. There is evidence, however, linking low-level
larceny crimes to low-income women struggling to survive an
abusive relationship or supporting a drug dependency. Instead
of invoking severe, ineffective penalties that harm these women
(and their children) and do not address the underlying cause
of their offenses, Virginia would get better results by repealing
this statute and using the savings to increase access to drug
treatment and other community-based services.
Enact Expungement Statutes. Based on national, state, and
local data, an increasing proportion of women are facing arrest
and conviction, largely for low-level and non-violent offenses.
Because women tend to work in jobs where background checks

Thirty states have set their felony larceny threshold at $1,000 or more,
including Georgia, South Carolina, Texas, Arkansas, Kansas, Mississippi,
and North Carolina, and 45 states have set their threshold at $500 or
more. See Alison Lawrence, Making Sense of Sentencing: State Systems and
Policies, National Conference of State Legislatures at 2 (June 2015), https://
www.ncsl.org/documents/cj/sentencing.pdf

183

ACLU of Virginia: Women in the Criminal Justice System

are most common, women are particularly at risk for long-term
unemployment. To ensure this trend does not lead to lifelong
unemployment and economic instability for women and their
families, legislators should consider passage of laws that provide
for expungement of criminal records.
Enact Plea Guidelines for Prosecutors. Plea guidelines would
provide Commonwealth’s Attorneys with guiding principles for
what is permitted during plea negotiations. Such guidelines would
not affect the prosecutor’s ability to determine with what crime
a person should be charged, but could require the prosecutor to
consult a chart that generates a range of plea deals that can be
offered based on the charging offense and the offender’s prior
history.184
Reform Jury Sentencing. Virginia is one of only six states that
allows jury sentencing for non-capital felonies. This adds another
barrier to women who are already disadvantaged by the plea
bargaining process, as prosecutors often secure plea deals by
threatening to request a jury trial. Three simple reforms would
improve defendants’ pre-trial bargaining power. First, the General
Assembly should amend the bifurcated trial statute to allow
defendants to waive the jury sentencing process without having
to obtain agreement from the Commonwealth’s Attorney and the
court. Second, the General Assembly should amend Virginia Code
§ 19.2-257 to ensure a Commonwealth’s Attorney cannot request
a jury trial over a defendant’s objection. Third, the law could be
amended to give juries access to the Sentencing Guidelines that
guide judicial sentencing.
Expand Eligibility for Pre-Trial Diversion. The current eligibility
criteria for drug courts and diversion programs exclude many
of those who need them most. The General Assembly should
substantially reduce the number of offenses that are disqualifying
and relax the criminal history disqualifications so that most or all
defendants with substance abuse or mental health problems will
have the opportunity to participate in those programs.

Juleyka Lantigua-Williams, Are Prosecutors the Key to Justice
Reform?, The Atlantic, May 18, 2016, https://www.theatlantic.com/politics/
archive/2016/05/are-prosecutors-the-key-to-justice-reform/483252/. New
Jersey is currently the only state that has adopted plea deal guidelines. See
Guidelines for Operation of Plea Agreements in the Municipal Courts of New
Jersey, available at http://www.njcourts.gov/attorneys/assets/rules/plea.
pdf. While New Jersey’s guidelines are currently inadequate, they provide a
starting point upon which Virginia could improve.

184

Recommendations

Pre-trial diversion is currently available only to offenders charged
with possession of a controlled substance or marijuana who do
not have previous drug-related offenses. As explained in this
report, many women struggling with substance dependency do
not become involved in the criminal justice system by committing
drug-related offenses. They may instead incur multiple low-level
offenses involving larceny or public nuisance. Other states and
localities have extended pre-booking and pre-trial diversion
programs to include low-level, non-violent crimes related to
substance abuse, as opposed to limiting the program to drug
crimes.
Courts, prosecutors, and nonprofits should work together to
reduce barriers for women who wish to participate in diversion
programs or other pretrial treatment services. This could be
achieved, for example, by expanding residential placements
available to women with children and working to address how
women’s child care needs and/or financial resources inhibit their
ability to successfully complete drug court or diversion programs.
Increase Funding for Data Collection and Analysis. To grasp the
full dimensions of women’s pathways into the criminal justice
system in Virginia, it is essential that data be disaggregated by
race and gender. While existing data can give us some sense of
underlying patterns, adopting a common policy across state and
local agencies for collecting and reporting data would enhance
the scope and reliability of research in this field. At minimum,
VDOC, the Virginia Sentencing Commission, the Virginia State
Police, DCJS, and the Virginia State Police should conduct raceand gender-sensitive analyses of their raw data and include that
information in their annual reports.
Additionally, due to poor and inconsistent data entry methods in
the General District Courts and Circuit Courts, it is prohibitively
expensive — if not impossible — to analyze patterns of criminal
charges and resulting penalties over time and by jurisdiction.
The Virginia Supreme Court should implement standardized data
entry protocols for all Virginia court clerks utilizing the Virginia
Case Information System to ensure the correct statute and
subpart (if applicable) are entered for each charge. The Virginia
Compensation Board’s existing data entry protocol for accurately
identifying statutory subparts could be adopted for this purpose.
Though the ACLU of Virginia obtained two calendar years of
inmate data from the Virginia Compensation Board, statisticians
were unable to analyze the data to the degree necessary to make
evidence-based policy recommendations. As an initial matter,
82

ACLU of Virginia: Women in the Criminal Justice System

VDOC should exercise its discretion to release anonymized data
for state responsible offenders to researchers.
Increase Funding for Alternative Sentencing Programs. Women
who return to the community to serve an alternative sentence or
following incarceration have a wide range of needs and are likely
to be overwhelmed with the number of obligations they must
address when they return. The General Assembly should allocate
additional funds to women’s transition homes and services to
better coordinate services, perform more effective outreach to
women prior to their release from prison or jail, and to better
identify and coordinate the services those women will need once
they return to their communities. VDOC, the Department of Health,
and localities should also increase collaboration with and financial
support for organizations that provide residential substance abuse
recovery programs to recently incarcerated women. For example,
Friends of Guest House in Alexandria, Transitional Options for
Women, and Bethany Hall in Roanoke, offer residential recovery
programs tailored to helping women establish a stable living
situation upon reentry to their communities.
Conclusion
This is by no means an exhaustive list, however, of the reforms
necessary to reduce the widespread and discriminatory suffering
imposed by over-incarceration in Virginia. Further investigation
into women’s prison and jail conditions — including access to
adequate healthcare and visitation with children — as well as
post-release factors that influence women’s recidivism rates
is necessary. The over-incarceration of women is a symptom
of a complex network of social barriers, economic inequality,
reproductive injustice, and racial and sexual discrimination deeply
woven into our society. This paper is intended to be the first step
in a long campaign to reform the criminal justice system for all
women in Virginia.

Recommendations

Methodology

The American Civil Liberties Union (ACLU) has long-standing
commitments to the rights of women and the incarcerated. We
decided to look at the typical pathways that lead to women’s
involvement with the criminal justice system more broadly, with
the goal of identifying ways to reduce the number of women
incarcerated in Virginia’s prisons and jails through advocacy,
legislation, or legal challenges.
This report was compiled after an extensive literature review;
analyses of annual reports and statistics compiled by the Virginia
Department of Corrections, the Virginia Department of Criminal
Justice Statistics, the Virginia State Police, and the Virginia
Sentencing Commission; statistical analysis of data obtained
from the Virginia Compensation Board through the Virginia
Freedom of Information Act; site visits to Transition Options for
Women and Bethany Hall in Roanoke, Virginia; and extensive
one-on-one interviews and focus group discussions with formerly
incarcerated women at Friends of Guest House in Alexandria,
Virginia. We focus on women’s pathways to incarceration in this
report because they have never been systematically explored in
Virginia. By identifying trends across the state and in individual
counties, we aim to help advocates, state lawmakers, and local
government officials reduce the number of women incarcerated in
Virginia’s local and statewide corrections facilities.

ACLU of Virginia: Women in the Criminal Justice System

PHOTO: MICHELLE FRANKFURTER/ACLU

Methodology

Appendix

Table 1 – Single-adult households by poverty level, gender,
and age of children.

Household Type

Female
Household
(below
poverty)

Male
Female
Male
Household Household Household
(below
(at/above (at/above
poverty)
poverty)
poverty)

Total Single

95,357

17,067

282,830

115,464

No related children
in household

13,238

4,533

124,976

55,520

Related children in
household under 5
yrs only

15,547

3,252

25,082

13,201

Related children in
household 5 to 17
yrs only

21,052

2,385

19,616

7,317

Related children in
household under 5
yrs and 5 to 17 yrs

45,520

6,867

113,156

39,426

Source: U.S. Census Bureau, Poverty Status in the Past 12 Months of
Families by Family Type by Presence of Related Children Under 18 Years by
Age of Related Children: Virginia 2016, 2012-2016 American Community
Survey 5-Year Estimates, available at https://factfinder.census.gov/faces/
tableservices/jsf/pages/productview.xhtml?src=CF.

ACLU of Virginia: Women in the Criminal Justice System

Table 2 – United States population by race and ethnicity
(2016).
White

Black

AI/
NA

Asian

NH/
OPI

Two
+

Hispanic

11.3%

0.3%

0.1%

0.0%

0.8%

NonHispanic

62.0%

12.3%

0.7%

5.2%

0.2%

2.3%

Total

73.3%

12.6%

0.8%

5.2%

0.2%

3.1%

Source: U.S. Census Bureau, 2012-2016 American Community Survey
5-Year Estimates: 2016, available at https://factfinder.census.gov/faces/
tableservices/jsf/pages/productview.xhtml?src=CF (last visited March 6,
2018).

Table 3 – Virginia population by race and ethnicity (2016).
White

Black

AI/
NA

Asian

NH/
OPI

Two +

Hispanic

5.6%

0.3%

0.1%

0.0%

0.6%

NonHispanic

63.1%

18.9%

0.2%

6.0%

0.1%

2.8%

Total

68.7%

19.2%

0.3%

6.1%

0.1%

3.4%

Source: U.S. Census Bureau, 2012-2016 American Community Survey 5-Year
Estimates: Virginia 2016, available at https://factfinder.census.gov/faces/
tableservices/jsf/pages/productview.xhtml?src=CF (last visited March 6,
2018).

Appendix

Table 4 – Percentage of women arrested by offense (ACLU
of Virginia analysis of Crime in Virginia).
Offense

Average %
Arrests:
Women

Simple Assault

30.3

Shoplifting

17.5

Larceny/Theft Offenses*

22.3

Drug/Narcotic Offenses

Aggravated Assault

3.4

Destruction of/Damage to
Property/Vandalism

2.7

Burglary/Breaking and
Entering

1.4

Other

5.4

Source: Virginia State Police, Crime in Virginia 1999-2016, available at http://
www.vsp.state.va.us/Crime_in_Virginia.shtm.
*Arrests for “Larceny/Theft Offenses” include the following categories of
offenses: All Other Larceny; Counterfeiting/Forgery; Credit Card/ATM Fraud;
Embezzlement; False Pretenses/Swindle/Confidence Game; Impersonation; Stolen
Property Offenses; Theft from Building; Theft from Coin-Operated Machine or
Device; Theft from Motor Vehicle; Theft of Motor Vehicle Parts or Accessories;
Welfare Fraud; and Wire Fraud. See Virginia State Police, Crime in Virginia:
2016 at 7-8, 33 (2017), http://www.vsp.state.va.us/downloads/Crime_in_Virginia/
Crime%20in%20Virginia%202016.pdf.

ACLU of Virginia: Women in the Criminal Justice System

Table 5 – State responsible (SR) new court commitments (NCC) by gender, crime and fiscal
year (FY).
Men- SR
NCC

FY2011

FY2012

FY2013

FY2014

FY2015

Robbery

887

8.5%

810

8.0%

815

8.0%

850

7.9%

782

7.4%

Assault

1,136

10.9%

1,102

10.9%

1,108

10.8%

1,187

11.1%

1,273

12.0%

Burglary/B&E

1,099

10.5%

1,064

10.5%

1,172

11.5%

1,101

10.3%

1,080

10.2%

Larceny/
Fraud

2,229

21.3%

2,281

22.5%

2,281

22.3%

2,421

22.6%

2,533

23.9%

Drug Sales

1,326

12.7%

1,399

13.8%

1,443

14.1%

1,515

14.2%

1,547

14.6%

Drug
Possession

1,125

10.8%

1,005

9.9%

996

9.7%

1,072

10.0%

930

8.8%

Total Men SR
NCC

10,449

74.7%

1,0156

75.4%

10,223

76.4%

10,705

76.1%

10,587

76.9%

Women- SR
NCC

FY2011

FY2012

FY2013

FY2014

FY2015

Robbery

3.9%

4.4%

4.6%

3.4%

Assault

142

10.4%

140

10.4%

165

10.9%

169

9.8%

173

10.2%

Burglary/B&E

4.8%

4.4%

5.4%

4.9%

4.4%

Larceny/
Fraud

650

47.6%

588

43.5%

703

46.6%

799

46.4%

800

47.1%

Drug Sales

166

12.2%

215

15.9%

204

13.5%

280

16.3%

274

16.1%

Drug
Possession

163

11.9%

150

11.1%

171

11.3%

193

11.2%

193

11.4%

1,366

90.7%

1,351

89.8%

1,508

92.4%

1,723

92.0%

1,699

92.5%

Total Women
SR NCC

Source: Va. Dep’t of Corrections, Female State Responsible Population Trends, FY2011-FY2015, at 4 (Oct. 2016), https://vadoc.
virginia.gov/about/facts/research/new-statsum/offenderpopulationtrends_fy11-fy15Female.pdf. The population of men’s new
SR court commitments showed similar trends between FY2011 and FY2015, with an average of 76% newly confined, on
average, for one of six most serious offenses: robbery (8%), assault (11%), larceny/fraud (23%), burglary (11%), drug sales
(14%), or drug possession (10%). The percentage of the women’s SR new court commitments with robbery, assault, larceny/
fraud, or drug possession as their most serious offense either decreased or remained steady between FY2011 and FY2015,
whereas the number confined for drug sales increased by 33%. The ACLU of Virginia obtained data for the men’s SR new
court commitment population by subtracting the number of women SR new court commitments in each category during each
fiscal year, as noted on page 4 of Va. Dep’t of Corrections, Female State Responsible Population Trends, FY2011-FY2015, (Oct.
2016), https://vadoc.virginia.gov/about/facts/research/new-statsum/offenderpopulationtrends_fy11-fy15Female.pdf, from the
total number of new SR court commitments in each category during each fiscal year, as noted on page 5 of Va. Dep’t of
Corrections, State Responsible Offender Population Trends FY2011 – FY2015 (Sept. 2017), https://vadoc.virginia.gov/about/
facts/research/new-statsum/offenderpopulationtrends_fy11-fy15.pdf, and then calculating percentages and percent change.
Appendix

To File a Legal Complaint:
If you believe your rights have been violated and would like to
receive help from the ACLU of Virginia, you can contact us by
phone or mail. For complete information about filing a complaint,
go to: https://acluva.org/en/online-intake-form
ACLU of Virginia
701 East Franklin Street, Suite 1412
Richmond, Virginia 23219
Fax: 804.649.2733
August 2018

ACLU of Virginia: Women in the Criminal Justice System

701 E. Franklin St., Ste. 1412,
Richmond, VA 23219

804.644.8022
acluva.org