Lessons unlearned: women offenders, the ethics of care, and the promise of restorative justice.

• Author: Failinger, Marie A.

Latasha, the child of an alcoholic father and herself an alcohol abuser by thirteen, was arrested at nineteen after she hit a police officer with a baseball bat. (1) The officer was attempting to arrest her when she tried to take her child back from her boyfriend and his new girlfriend and instead ended up assaulting the girlfriend's mother. (2) It was Latasha's second assault arrest. (3) Latasha's mother, who separated from her father at ten, described Latasha as incorrigible; she said Latasha's father "screwed up Latasha by using her to get back at me." (4)

Chris, a twenty-two-year-old woman, was arrested for permitting her husband to sexually abuse her five and nine-year-old nieces. (5) Chris's father was an alcoholic and was abusive to his wife and children. Once he pushed Chris's mother down the stairs, breaking her arm, while another time, he beat her brother so badly that his eardrums were broken. (6) In addition, he hit Chris so hard that it caused her speech to be "unintelligible," and as a result, she was described as "'nervous' and slightly retarded." (7) She was placed in special education classes after the second grade, and was "easily led." (8) When she was twenty-one, she married a thirty-five-year-old trucker. In accounting for her failure to stop her husband's abuse of the children, Chris suggested that she acted to please her husband, so he would love her. (9)

Betsey, a twenty-three-year-old woman, was a drug abuser whose face was scarred from injuries she received when she was pushed out of a moving car while turning a "trick." (10) Betsey burned her scalp when she improperly applied a delousing salve to kill the imaginary vermin that she thought were crawling in her hair during a drug overdose. (11) She was arrested for possession of drugs, carrying a concealed weapon, check-forgery, fencing stolen goods--crimes she admitted to but was never charged for--as well as a robbery she claims she did not commit. (12) Betsey's mother left her abusive father, who had taunted her by saying that Betsey would have "ninety-nine kids" before she got out of school. (13) As a result, she forced Betsey to wear unattractive clothes, attend church twice on Sundays, and stay home at night. (14) After Betsey dropped out of school, her live-in boyfriend's mother, Marlene, encouraged her to work in prostitution in the streets near a naval base. (15) Marlene's "man" (who prostituted her) introduced Betsey to her "man," and Betsey and her man's two "wives-in-law" (other prostitutes with relationships with the same man) worked together in Milwaukee, Memphis, Nashville, and Florida. (16) She went through many men in her descent into drugs, and she was particularly touched by one man who tried to help her get off drugs without asking anything in return; however, he was ultimately imprisoned for forgery. (17)

The steep rise in female offenders since the 1960s (18) has finally caused criminologists, lawyers, judges, and others to consider why they have not learned more about women offenders' lives, in order to better understand and explain why they enter, and how they proceed through the criminal system. (19) The rise in women's crime is particularly confounding because the overall crime rate has dropped. (20) Between 1990 and 1996, the state court convictions of women increased forty-two percent for felonies, thirty-seven percent for drug offenses, and thirty percent for violent felonies, while the overall crime rates in the same courts have dropped significantly. (21) There also has been an "explosion" in the number of incarcerated women. Prior to the war on drugs, about two-thirds of the women were put on probation and they represented less than five percent of the inmate population; however, by 1998, seven-and-a-half percent of all federal inmates were women, and seventy-two percent of them were drug offenders. (22)

The study of these disturbing statistics has resulted in a number of theories that try to explain the recent increase in the number of women in prison. (23) Some suggest that the increase can be attributed to the economic instability of single-parent families that many women offenders head. (24) Others argue that the turn toward mandatory sentencing for drug offenses has affected women the most, because they are least likely to be able to trade information for a reduced sentence. (25) Still others point to the increase in incarceration rates for non-violent offenses that women traditionally engage in, such as larceny, fraud, embezzlement, and shoplifting, as part of the gender equalization trend pushed by uniform sentencing guidelines. (26)

Lauren Snider argues that the feminist alteration of frameworks of meaning that reject the traditional passive "woman in trouble" stereotype has created a new sort of paradigm of the female criminal. (27) Whether she actually exists or not, the new paradigmatic woman of criminal policy discourse is the "predatory, rational, calculating Female Criminal, the violent gang girl, (28) or the irresponsible, out-of-control Bad Mother/Child Abuser" who "justifies the surge of punitiveness reflected in incarceration rates." (29) While this paradigm shift may account for the rise in women's incarceration, there is no strong evidence that these women do not benefit as others did in the past from the "chivalry" or "paternalism" of the system that did not hold women fully accountable. Though some students of the criminal system have made this charge, others contend that chivalry, if it existed, worked only in favor of middleclass white women, and that paternalism does not explain why young women receive more punitive treatment than men, and fewer procedural protections in the system. (30) Judge Patricia Wald argues that women commit the same crimes, but the means they use are different--e.g., they usually do not carry weapons or plan the crimes, and they are often coerced into criminal behavior--so their punishment under a "just deserts" theory should be less severe. (31)

Eleanor Miller, by contrast, debunks the argument that the rise in crime is caused by either single objective factors, such as women's labor force participation, or subjective factors, such as new paradigms or women's own re-understandings of their sex roles. (32) She suggests, based on "street women" she interviewed in Milwaukee, that a complicated set of factors may better account for the increasing visibility of women's crime. (33) These factors include marginal workforce participation and accompanying economic stress, the influence of the men in these women's lives, the relationships of their family networks to deviant street networks, and other factors that are harder to predict such as the thrill of committing crime. (34)

Still others who study women's crimes are focused more on ostensible cures for crimes rather than causes. They argue that formal equal treatment of men and women in criminal sentencing, pushed by a liberal agenda, has in fact obscured the real ways in which women are placed at a disadvantage in the post-conviction criminal system. On one hand, these writers have documented actual inequalities in rehabilitation options offered to women, from mental health and employment options in prison, to the provision of adequate health care that accounts for women's particular reproductive and other health risks. (35) For example, Shearer notes that women have fewer imprisonment options, and are more rarely assigned to prisons based on their individual treatment needs, the severity of their crime, or issues of security. (36)

On the other hand, those who study the criminal system have demonstrated how formal equality does not address the real difference in women's situations. For example, criminologists have documented that women in the criminal system are more likely to abuse drugs and alcohol as a means of medicating themselves in response to the significant physical, sexual, and emotional violence they experienced as children. (37) Shearer notes that techniques used to treat male drug abusers, such as group settings and confrontation, "tend to be threatening to many women and often inhibit the ability of female substance abusers" to address past physical or sexual abuse, and feelings of worthlessness or the need to please others. (38) In addition, Judge Wald cites the failure of correctional systems to provide for gynecological or pregnancy-related health, noting that "postpartum care is frequently slapdash," and counseling is rare. (39)

Moreover, unlike male offenders, most women are caregivers and supporters of children; more than two-thirds of incarcerated women have children. (40) Women's incarceration disrupts not only their own lives, but also the lives of their children. In addition to increasing the troubling responsive behavior of children who are torn from their mothers at a young age, (41) children can literally lose their mothers because of their incarceration for non-violent offenses. New laws designed to put the children's interests first permit parental rights to be terminated more quickly when the mother is absent. (42) Moreover, few women's treatment programs embrace the reality that women need skills to support their children, and to re-learn interpersonal skills that suffered from their poor relationships with their children's fathers. (43)

This Article focuses on the reality that women's relationality, and particularly their relationships with men in their lives, (44) profoundly affects the behavior that lands them in the criminal justice system. Covington has described how dysfunction in women offenders' relationships leads to drug abuse and other crime, and how important it is that women offenders be treated in relational systems. (45) I argue that restorative justice, which is essentially grounded on an ethical understanding of crime and treats the offender as an interacting subject/agent, is a necessary avenue of response to most women offenders' crimes, and...