Phyllis Goldfarb, Professor of Law, Boston College Law School. I am grateful to Arthur Berney, Mary Bilder, Eric Blumenson, Anthony Farley, Michele Goodwin, Maria Grahn-Farley, Leonard Kaplan, Andrew Leipold, Ray Madoff, Judy McMorrow, Eva Nilsen, Evangeline Sarda, Avi Soifer, and Judy Tracy for their support, encouragement, and engagement with these ideas. Thanks to Cindy Robinson and Louis Dundin for research assistance, Irene Good for library assistance, Theresa Kachmar for administrative assistance, and Boston College Law School for research support. I am indebted to the journal staff at the University of Iowa College of Law for so effectively organizing a symposium on the drug war. I am also indebted to Michele Goodwin for creating opportunities for me to present this article to a responsive audience at the Urban Health and Race Law Conference sponsored by DePaul Law School in April, 2002 and at the Annual Congress of the International Association of Law and Mental Health at the University of Amsterdam in July, 2002. I also appreciate my colleagues' willingness to engage these ideas during a faculty colloquium at Boston College Law School in June, 2002.
This article explores the impact of the drug war on women's lives. In Part I, I examine the usage of the word "war" and its connotations. In Part II, I illustrate the impact of the drug war on women's lives by detailing a dozen federal cases in which women have served-or, in several instances continue to serve-long mandatory sentences for drug offenses. In Part III, I explore gender issues that emerge from these cases. In Part IV, I consider the consequences of long-term incarceration of tens of thousands of women, prisoners of the drug war's politics and policies.1
In early September of last year, staff members of the Iowa Journal of Gender, Race & Justice were busily organizing for the symposium on the drug war held on October 5-6, 2001. More sinister organizing efforts were also nearing completion in early September, culminating in the catastrophic events of September 11, 2001 and leading to a declaration of a war on terrorism. On the very weekend that the drug war symposium was held at the University of Iowa College of Law, the United States' bombing of Afghanistan began.2 Instantly, the war on terrorism had replaced the war on drugs as a national priority.3
Because the timing of the drug war symposium set it against the backdrop of the war on terrorism, I found myself contemplating both wars simultaneously. Although I had been asked to contribute a gender analysis of the drug war to the symposium, world events led me to examine more generally the imagery of war and its functions. Clearly, the usage of the word "war" in the drug war is intended metaphorically, highlighting policymakers' perceptions of the importance and urgency of deploying considerable law enforcement resources to fight the use and distribution of illegal drugs. So, too, the word "war" in the "war on terrorism" might have referred to the importance and the urgency of devoting considerable law enforcement resources to undermining terrorist networks. The prosecution of this war, however, as first and foremost a military endeavor suggests that for the "war on terrorism," usage of the word "war" is intended more literally.
Nevertheless, the line between the literal and the metaphorical is permeable, unstable, and hard to locate in this picture. In the year 2002, is America literally at war?4 Or, as with the drug war, are we focusing primarily on disrupting the work of terrorism by finding, arresting and prosecuting its perpetrators?
The recognition that the illegal drug trade helps finance terrorist activity supports the notion that the line between "war as metaphor" and "war as active military operation" can be a hazy one.5 Lending further support to this notion is the awareness that by the end of the twentieth century, the drug war itself had become increasingly militarized in its law enforcement apparatus and techniques.6 In contemporary culture, the objectives of war and the objectives of law enforcement-the literal usage and the figurative usage of the word Page 279 "war"-have become increasingly intermingled. The multiple uses of the word "war" lead to an obvious inquiry: Why do we as a society frame particular actions and policies as wars?
The concept of war serves to rally supporters and stiffen resolve for a prolonged engagement. More importantly, by declaring war, we define an enemy. War strongly invokes the structural opposition of us versus them. It follows, then, that war often has racialized meanings, because one way to understand the function of race is its creation of an "us-versus-them" dynamic.7Many observers have described and decried the racialized enforcement of the wars on drugs8 and terrorism.9
How the "us-versus-them" dynamic embedded in the imagery of war applies to the construction of gender is a difficult and complex question. Without doubt, war has gendered meanings. It is a male-centered and male- identified institution, motivated primarily by fear of the harm other men can do and glorifying qualities that are culturally identified as masculine. Women have always played a role in war, more often given the gender stratification of society as targets and trophies than as commanders or combatants,10 and more often as those who struggle to hold family and community together after the departure of so many men. This includes helping the family and the culture process its grief after war's inevitable losses.
This aspect of war holds true to a significant degree in the drug war metaphor. As men were removed in droves, particularly from low income communities of color, to become prisoners of war in the drug war's prisons,11women in the community became even more disproportionately burdened with providing and caring for those who stayed behind, and to the extent possible, also caring for the incarcerated person with even more limited personal and Page 280 financial resources for doing so. This has been among the deepest and most frequently overlooked consequences of the drug war in women's lives.
Beyond this profound impact, a major way that women have been caught in the crossfire of the drug war has been through heterosexual relationships with men engaged in drug activity. Such relationships put women at considerable risk of severe penalties, including conviction of a drug offense, often as a constructive possessor, an aider and abettor, or a co-conspirator, typically with stiff, mandatory penalties.12 Because the drug war has been fought on many fronts, these penalties include not just conviction but eviction,13 forfeiture of jointly held property,14 loss of student financial aid,15 and a lifetime ban on welfare benefits.16 While many of these penalties have a disproportionately harsh impact on women, my primary focus in this article is on women who are convicted of drug offenses. The following illustrations provide greater contextual understanding of the risk of criminal conviction posed by women's relationships, illuminating the hazard that the drug war, as it has been waged, has posed in women's lives.
Case #1: In 1993, Dorothy Gaines was a widow living in Mobile, Alabama with her three children, ages nineteen, eleven and nine.17 Assisted by government-subsidized housing, Gaines was supporting her family by working as a nurse's aide, although she still found time for involvement in her church and for community service.18 She had never experienced legal trouble of any sort.19
Trouble arrived on the scene after Gaines began dating a man named Terrell Hines. Although Gaines believed Hines to be a recovering crack addict,20 he was in fact a driver in a crack cocaine operation.21 When police arrested participants in the operation, one of the participants claimed Gaines was involved. Consequently, her home was searched, yielding no drugs, paraphernalia, or cash.22
Despite the fruitless search, the state charged Gaines with conspiracy to distribute crack cocaine, but ultimately dismissed the charges for lack of evidence.23 One year later, federal prosecutors charged her again.24 Due to an arrangement with the prosecution, four members of the drug ring implicated Gaines in drug activity, receiving in return a reduction in their sentences. As a result, these four witnesses received sentences ranging from five to twelve years.25 Gaines, on the other hand, received a sentence of nineteen years and seven months.26
Predictably, Gaines' extremely long sentence devastated her family. Her oldest child, Natasha, dropped out of college to become a substitute parent for her two younger siblings.27 Natasha later became seriously ill, the stress of the situation recognized as a contributing factor.28 After several years of persistent letter writing in an effort to secure help for his mother,29 Philip, the middle Page 282 child, gave up when the pain of having his mother in prison became too great.30He stopped visiting her and stopped working in school, causing him to be held back twice.31
By 1999, Gaines had exhausted her appellate opportunities without success.32 With the help of advocacy organizations, letters that Philip and others had written on her behalf found their way to attorneys Gregg Shapiro and A. Hugh Scott at the Boston law firm of Choate, Hall, and Stewart.33 Believing Gaines to be a victim of an overzealous federal prosecution, Shapiro and Scott filed a petition for clemency with the Department of Justice, asking President Clinton to commute Gaines' sentence.34 On December 23, 2000, President Clinton granted the petition.35 After more than six years in prison for what she...