Studies about environmental crime have grown exponentially within the past 20 years; however, studies focusing on the impacts of crime as it relates to victimization receive little attention within this context (Bisschop & Vande Walle, 2013; Hall, 2013). Environmental victimization raises questions that the criminal legal system has not yet addressed (Hall, 2013). Specifically, why are there high rates of cancer and other diseases among communities that live near refineries and petrochemical plants and what are the financial impacts on these local communities? The literature demonstrates an unequal geographic distribution of health hazards and differential risks of exposure, causing minoritized communities to bear the brunt of their impact (Bryant, 1995; Chakraborty & Zandbergen, 2007; Goldman, 1993; Linder et al., 2008). Aside from direct exposure to potential environmental hazards, people living near industrial complexes, such as oil and natural gas refineries, may suffer indirect or less noticeable consequences like soil contamination, substandard housing, limited neighborhood amenities, and reduced safety (Maantay, 2001; Sexton, 1997), as well as various adverse health outcomes, such as different forms of cancer, low-birth, preterm, heart defects in infants, and other reproductive consequences (Axelsson et al., 2010; Collins et al., 2016; Johnson et al., 2003; Lin et al., 2018; Linos et al., 1991; Sans et al., 1995; Simonsen et al., 2010; Weng et al., 2008; Williams et al., 2020; Wilkinson et al., 1999; Yu et al., 2006). These communities may have residents who are not knowledgeable about the hazards that surround them or are socioeconomically disadvantaged. This puts them at a greater risk for debilitating health outcomes as they lack access to adequate resources to address direct and indirect effects of environmental hazards or resistance to the placement of industrial corporations (O’Neill et al., 2003).  

This study uses an environmental justice lens to explore environmental victimization through the lived experiences of Black residents in areas near oil/gas and petrochemical plants. Illuminating factors, such as risk perception, perceptions of victimization, health, and economic impact, are important to inform justice policy and the implementation of infrastructure that will improve community outcomes near environmental hazards. The current study begins with a review of prior research and provides a framework for the study centered on environmental justice, environmental racism, and environmental victimization. This research spotlights the oil, gas, and petrochemical industry in Texas and Louisiana, highlighting notable cases of environmental harms, and the region of study. A description of the study’s methodology, followed by an analysis of the data is presented. Finally, a discussion of results and policy implications is provided.  

Early research on environmental justice underscores that conditions, such as environmental racism are a reason hazardous facilities are located in racial minority and impoverished communities, with race being a significant factor (Bailey & Faupel, 1992; Berry et al., 1977; Bullard, 1983, 1993; Comacho, 1998; Goldman & Fitton, 1994; LaDuke, 1993). However, research that has examined social demographics and proximity to hazardous facilities and environmental hazards have resulted in mixed conclusions (Ash & Fetter, 2004; Been, 1995; Brown et al., 1997; Bullard et al., 2007; Downey, 2005; Glickman et al., 1995; Pastor et al., 2006; Zahran et al., 2008). Regardless, the link between pollution, health, and financial impacts is complex, as communities are exposed to different sources of pollution (Johnston & Cushing, 2020) and thus requires further examination. Moreover, the conceptualization of environmental victimization, an emerging field within environmental justice, is important to explore. Community members’ risk perception of nearby hazardous facilities influences corporate decisions on facility placement and drives environmental community groups to advocate for better local conditions.

Environmental Justice 

Environmental movements are frequently associated with upper and middle-class white Americans who possess high levels of education and economic resources (Bullard, 2020). Despite the environmental movement hinting at pollution and environmental degradation in the 1950s and 1960s, environmental justice (EJ) began gaining traction in the 1970s and 1980s (Maantay et al., 2010; Taylor, 2014; Walker, 2012). The 1980s catapulted the EJ movement via grassroots activism, notably the 1982 protests in Warren County, North Carolina, against a hazardous landfill (Villarosa, 2020). The movement seeks to address and rectify the inequities in environmental protection and resource distribution, ensuring communities have equal access to a healthy environment. Further, as the environmental movement expands to encompass greater racial and socioeconomic diversity, there is a growing recognition by scholars and activists that marginalized groups are disproportionately subjected to environmental stressors such as localized water and air pollution, toxic chemical leaks, and litter and solid waste pollution (Bullard, 2020).  

Broadly speaking, EJ encompasses all aspects of society deemed unsustainable by general health standards, including industrialization, pollution, overpopulation, energy consumption, and resource depletion (Maantay et al., 2010). The fundamental principles of EJ aim to ensure the right to protection from environmental hazards, prevent harm, shift the burden of proof from the environment to criminogenic actors, avoid the requirement of proving intent, and address existing inequities affecting underserved communities (Bullard, 2001). The framing of EJ within the United States by environmental scholars exhibits several key characteristics.  

• There is a notable emphasis on the politics of race, particularly the structure of grassroots civil rights activism (Scholsberg, 1999; 2013; Taylor, 2000). The rise of grassroots activism among communities and victims of environmental toxins is rooted in social justice, challenging corporations’ practices of site distribution based on sociodemographic factors, such as race, gender, and class, and addressing the power imbalance between citizens and corporations (Capek, 1993).  
• The movement differentiates itself from an ecological standpoint by focusing on justice for the people, shifting attention from environmental harm against nature to the well-being of communities (Agyeman et al., 2003).  
• The initial narrow focus on environmental boundaries centers on pollution and waste, highlighting the significance of toxic waste distribution and air pollution (Benford, 2005; Mutz et al., 2002).  
• Distributive justice emphasizes pursuing participatory justice, where individuals and communities actively advocate for themselves in environmental justice dialogues (Scholsberg, 2007; 2013; Wenz, 1988).  
• Attention is directed towards blame and responsibility, specifically focusing on corporate and industry actors, acknowledging the influential role of industrial power in establishing corporations that inherently produce environmental toxins affecting various communities (Gouldson, 2006).  
• There is an expansion in the scales of analysis used in research within the movement. For example, environmental issues are internationally conducted, and not just domestically. 
• The role of the government and its agencies, such as the creation of the Environmental Protection Agency (EPA), is pivotal in safeguarding and establishing regulations to mitigate environmental harms (Block & Whitehead, 1999; Holifield, 2001; 2004).  

Traditional perspectives on EJ center around the interplay among race, poverty, and the placement of hazardous waste sites (Walker, 2012). The contemporary EJ movement spearheaded by grassroot organizations and activists has elevated the importance of age, indigenous people, gender, and individuals with disabilities (Capek, 1993; Faber, 2008; Kurtz, 2007; Taylor, 2000), shedding light on the significance of policies and regulations concerning social inequities, and proximity to industrial corporations. This attention underscores the disproportionate impact on minoritized communities (Banzhaf et al., 2019).        

Early scholars scrutinized the framing of the Environmental Justice (EJ) movement in the United States, particularly examining the community struggles over waste sites in minoritized communities during the 1980s (Capek, 1993). Capek (1993) documented how these communities mobilized against pollution and contamination threats, employing civil rights discourse to advocate for their safety. Building on this foundation, subsequent research highlights how this discourse underscores environmental racism, emphasizing citizens’ rights to a clean and healthy environment (Benford, 2005). 

Environmental Racism 

Environmental racism is how society burdens minoritized communities with environmental policies that impose harmful effects yet benefit others (Fisher, 1994). Environmental racism is perceived as an element of racial capitalism—a system that relies on mistreatment of racialized people for capitalist gain (Robinson, 2023). Additionally, environmental racism is situated in long histories of oppression and deprivation of minoritized communities through colonialism, slavery, and racial capitalism (Kojola & Pellow, 2021; Pulido et al., 2016). Examples of such oppression include the creation of fence-line communities in where minorities resided. Fence-line communities, or areas that are situated near hazardous or toxic waste facilities, have predominantly Black residents—upwards of 75% compared to other racial/ethnic groups (Fleischman & Franklin, 2017). Compared to white Americans, Black Americans experience higher levels of air pollution irrespective of income (Mikati et al., 2018). Black Americans are further exposed to pollutions from the burning of fossil fuels at a rate of 1.5 times more than other Americans. This is associated with negative health effects such as lung and heart disease, as well as early death (Mikati et al., 2018; Villarosa, 2020).  

Examples of past environmental harms towards Black communities during the early stages of the EJ movement include a) the Ward Transformer Company dumping gallons of oil with polychlorinated biphenyls (PCBs) in Warren County, North Carolina (Villarosa, 2020); b) the U.S. General Accounting Office (GAO) finding that 75% of communities near Warren County, North Carolina where off-site waste landfills are found consisted of predominantly Black neighborhoods (U.S. GAO, 1983); c) the siting patterns of waste dumps in Houston, Texas are placed in predominantly Black neighborhoods and near schools; d) racial disparities existing in the siting of hazardous waste in New Jersey (Greenberg & Anderson, 1984).; and e) the United Church of Christ’s Commission for Racial Justice revealing that race is a significant predictor of hazardous waste facility locations in the U.S. compared to other factors, such as income, home value, and amount of waste generated (United Church of Christ, 1987; see Figure 1).  

After the Congressional Black Caucus pressured the EPA officials to address the disparate impact of pollution on minoritized communities in 1994, the EPA created the Office of Environmental Justice (formerly Office of Environmental Equity) (Villarosa, 2020). President Bill Clinton issued an executive order to address the health and environmental conditions of these communities. The government established a grant program to support grassroots organizations dedicated to EJ issues (Villarosa, 2020). The EPA created environmental statutes to protect U.S. citizens from exposure to high levels of toxins both in air and water (Keehan, 2018). Despite the designation of these federal laws by Congress to protect citizens, the EPA and state environmental agencies’ unequal enforcement of these laws perpetuated environmental racism in certain areas (Keehan, 2018). 

            Racists create disparities by bestowing advantages upon a particular racial or ethnic group, often to the detriment of others (Kaufman & Hajat, 2021). The distribution of power and privilege is not uniform across locations and time periods, as the features of the human environment change (Kaufman & Hajat, 2021). This uneven distribution allows for racist individuals to influence structures and institutions in order to shape the environments where individuals reside, engage in recreational activities, and work. Environmental racism stands as a crucial element within this overarching system of oppression (Kaufman & Hajat, 2021).  

Environmental Victimization 

The intentional placement of zoning and siting practices to target minoritized communities challenges the understanding of environmental victimization (Natali, 2015). Three components encompass environmental victimization, directly conflicting with traditional criminological perspectives (Natali, 2015). First, harm is not individualistic but can involve groups of people or communities of victims. Second, environmental offenders are often corporations or the State. Finally, establishing causality is complex, which leads to the notion that these crimes are ‘victimless’ (Bisschop & Vande Walle, 2013).  

Techniques of denying environmental crimes and the lack of accountability hinder efforts to establish causality and assign responsibility to offending parties in the victim-offender relationship (Natali, 2015). Neutralization strategies include denial that there is a problem and blaming or causing confusion among victims, thus hindering any progress towards the establishment of environmental victimization (Cohen, 2001; Natalia, 2015; Williams, 1996). Moreover, even if a clear causal relationship between environmental offenders and victims cannot be established, particularly concerning adverse health outcomes, neutralization techniques used by these corporations may still exacerbate the health and financial consequences for residents. These corporations are not held criminally responsible, further worsening the situation (Brown, 2013; Lynch & Barrett, 2015). For example, after the catastrophic oil spill from the British Petroleum-owned Deepwater Horizon oil rig in the Gulf of Mexico in 2010, BP distributed a massive public relations campaign to rehabilitate its reputation. This campaign involved Dawn dish soap, and the cleaning of ducks covered in oil by the soap. Television commercials showed volunteers cleaning up the beaches and water where the oil spill occurred. Volunteers cleaned ducks who suffered from oil getting in their feathers, with Dawn dish soap. The advertisement is about Dawn dish soap but was backed by BP oil company. Years after, the oil spill is better associated with the use Dawn dish soap than the fact that the BP company had faulty foundation for the oil rig causing the massive spillage and economic suffering of those along the Gulf Coast region. The use of the Dawn detergent campaign “neutralized” the company of wrongdoing by shifting the focus of attention. Therefore, it is important to explore the concept of environmental victimization as an active social process involving power dynamics, control, and resistance (Natali, 2013; White, 2011).   

HISTORY OF THE OIL/GAS AND PETROCHEMICAL INDUSTRY IN TEXAS AND LOUISIANA 

The oil refinery industry is a core component of global economics, with oil fluctuations contributing to economic success and failure of countries (Carpenter & Wagner, 2019). In addition, the fossil fuel industry is associated with exerting a disproportionate influence on U.S. foreign policy (Coll, 2012). Oil has been associated with 25 to 50% of interstate conflicts since 1973 (Colgan, 2013).  Texas and Louisiana are the largest oil producers in the United States. Louisiana has 15 operating refineries producing approximately 3 million barrels per day (bpd), while Texas has and 32 operating refineries in Texas producing approximately 6 million bpd (U.S. Energy Information Administration, 2021). The advancements in fracturing techniques have significantly increased oil and natural gas production within the past decade (U.S. Energy Information Administration, 2021). The chemicals released during the fracturing process include carcinogens, reproductive toxins, and mutagens which can infiltrate nearby environments through spills, leaks, and wastewater disposal (Colborn et al., 2011; Kassotis et al., 2016; Stringfellow et al., 2017). An estimated 17 million people (roughly the population of state of New York) who live in primarily rural neighborhoods near areas containing oil and gas extractions are at a constant risk of exposure to hazardous spills (Czolowski et al., 2017; Maloney et al., 2017). A consequence of living in rural locations is that these areas commonly rely on unrestricted groundwater resources leading to possible exposure to contaminated drinking water (Elliott et al., 2018).  

Health and Economic Impacts: Notable Cases 

The environmental risks for residential areas near industrial refineries include soil pollution, water and air pollution, and hazardous waste that can cause detrimental health and financial impacts. Whereas government officials and petrochemical experts understand the risks imposed by the placement of these facilities, these risks are often not properly communicated to residents. As a result, residents are left out of conversations surrounding policy decisions (Janmaiimool & Watanabe, 2014). The nuanced understanding of environmental risks from refineries impacts risk-related decision-making and perceptions of risks. Risk perception of residents is important to understand environmental victimization, especially when residents are confronted with harmful situations and consideration of economic benefits (Paek & Hove, 2017). For example, a survey demonstrates that 56.3% of community members were willing to accept health risks associated with an industrial facility if it meant better job opportunities (Bullard, 2020). However, job availability or security is not guaranteed and does not always increase based on a facility being built and opened (Bullard, 2020). Therefore, understanding the risks and benefits of placing hazardous facilities in residential communities is important. Moreover, acknowledging the disproportionate placement of these facilities in minoritized communities is crucial to improving the health and economic outcomes of environmental victims.  

Cancer Alley 

Cancer Alley, an area along the Mississippi River from Baton Rouge to New Orleans, Louisiana, has over 150 petrochemical plants and refineries (Keehan, 2018). Within this region, approximately 46 per 1,000,000 individuals are at risk for cancer, with the national average around 30 per 1,000,000, a rate almost 1.5 times higher (Keehan, 2018). Since Louisiana, like Texas, has large concentrations of oil and natural gas, like Texas, the state also has the most petrochemical plants. Consequently, this area of the United States has the sixth-highest cancer mortality rate (Keehan, 2018). 

The siting of petrochemical plants in Cancer Alley traces back to Louisiana’s historical practices of redlining, which further exposed Black residents to hazards that exacerbated their health through the present day (Mizutani, 2019). Redlining and residential segregation became widespread during the industrialization of the South (Mizutani, 2019). Redlining occurs when institutions discriminate against certain areas or residents by refusing to extend loans or insurance to properties in economically disadvantaged neighborhoods. (Castellon, 2021). During Jim Crow in Louisiana, redlining was a defining policy of the time. In LA, White people forced Black people to move to poorly drained areas in New Orleans in the mid-1800s. The continuation of restrictive policies concerning residential areas and building permits in white neighborhoods caused Black people to reside in ill-fated to poorly constructed areas (Mizutani, 2019; Pastor et al., 2006). These policies and practices led to a geographical makeup of this area in Louisiana, where whites lived above sea level on elevated grounds, and Blacks lived in swampy areas. Further, living in swamp-like areas led Black people to contract diseases, such as typhoid and malaria, increasing deaths (Mizutani, 2019). This displacement of Blacks in this area continued past Jim Crow into modern day.²  

Most residents in Cancer Alley are socioeconomically disadvantaged Black individuals, comprising approximately 40% of the population, which is not a coincidence (James et al., 2012; Mizutani, 2019). The use of Jim Crow laws, discriminatory zoning and siting processes, and the unequal enforcement of environmental laws by the EPA allows for areas such as Cancer Alley to exist (Mizutani, 2019). Moreover, white flight has affected where petrochemical companies placed their refineries (Saha & Mohai, 2005). White citizens successfully advocated against petrochemical companies away from their communities; as a result, these facilities were relocated to minoritized communities. Their successfulness is attributed to their wealth and influence. Individuals in these minority communities are more likely to need jobs and are vulnerable due to the lack of support and limited resources from local governments (Mizutani, 2019). This systemic inequity highlights the urgent need for policy reforms and stronger advocacy to protect the health and well-being of residents in these marginalized areas.

When wealthy, predominantly white communities increase resistance against nearby facility siting, the petrochemical industry change strategies on the distribution of environmental hazards (Schelly & Stretesky, 2009). These companies relocate because wealthy communities have the financial and political influence to divert unwanted businesses from their areas. (Bullard, 1992). As a result, petrochemical corporations place their facilities near poor Black neighborhoods to avoid delays or expenses related to attempting to place the facilities in an affluent neighborhood (Mizutani, 2019).  

Cancer Alley mainly consists of unincorporated towns, in which there is a lack of governance, such as municipal corporations (Mizutani, 2019). Instead, these areas are governed by parishes (e.g., a county). Whenever a petrochemical company wants to add a new plant or refinery, parish officials are receptive to this. This often comes at the detriment of predominantly Black local communities, who have little input in the decision-making process – I think you need to explain here why Black residents aren’t usually parish officials… (Mizutani, 2019). For example, in St. John the Baptist Parish, which has a primarily white council, the parish council allowed for the rezoning of an unincorporated town, Wallace (95% Black), to allow for Formosa Plastics to build a new plant in 1990(Mizutani, 2019). However, the citizens of Wallace created a grassroots movement and succeeded in preventing the plant from being built, although rare, this shows the need for citizen input to stop environmental racism (Bullard, 2020). Not all small towns can successfully prevent the siting of such facilities. Morrisonville, Louisiana, a small town founded by formerly enslaved people, is one such example, and was displaced by Dow Chemical in the 1960s (Kelsey, 2022). 

Mossville, Louisiana 

Similarly to Cancer Alley, Mossville, Louisiana is a historic, small, Black, unincorporated town located near Lake Charles, Louisiana. The health effects of living near toxic waste sites in Mossville have been documented by scientists and scholars for over 20 years. In 1997, blood samples were collected by scientists from Mossville residents for a class action lawsuit to show proof of high dioxin levels. Mossville residents reported high rates of illness and health problems, which they believe were associated with the toxic emissions from the nearby industrial plants. These blood samples were sent to the EPA who then asked the Agency for Toxic Substances and Disease Registry (ATSDR) to start an investigation (Hines, 2015). The investigation began in 1998 with results showcasing that Mossville residents carried PCBs in their blood with an average of 2.8 times the total concentration average levels (Costner, 2000). Soil samples revealed that dioxin levels were 17 times higher than a control group and that mothers had elevated levels of dioxins and PCBs in their breastmilk and blood (Costner, 2000). After the ATSDR study concluded, no government assistance was offered, such as waste clean-up or pollution control efforts, despite Mossville residents suffering detrimental health effects (Cahill-Jackson, 2012). 

In 1999, the residents of Mossville organized and incorporated a new nonprofit org, the Mossville Environmental Action Now (MEAN). (Kelsey, 2022). MEAN performed air tests in Calcasieu Parish and revealed that more than 50% of blood samples in the ATSDR investigation were 2 to 230 times the standard dioxin levels set by the EPA (Cahill-Jackson, 2012).  Studies throughout the years demonstrate the negative environmental and health effects of nearby industrial facilities, with results revealing higher PCB levels of in the blood of Black residents compared to white residents (Wong et al., 2015); reports of contaminated tap water, skin peeling and behavioral disorders in children, heart disease, and reproductive health issues (Singer, 2011); and high levels of metal contamination in soil (Bussan et al., 2019).The presence of high dioxin levels and metals within this area is high enough to pollute water, soil, fish, and food, which may associated with health problems (Johnson, 2019). Further, the health effects of dioxin contamination include cancer, reproductive issues, immune system deterioration, neuro-behavioral development changes, and the passage of dioxin to infants via breastfeeding (Cahill-Jackson, 2012). Prior studies highlight the health disparities experienced by Mossville residents, but community members have found it difficult to successfully receive government assistance (Kelsey, 2022).  

In 2008, a petition was filed with the Inter-American Commission on Human Rights to draw attention to environmental racism occurring in Calcasieu Parish and to the lack of effective state and national policies for protection. This resulted in the supreme court case Mossville Environmental Action Now v. United States (Cahill-Jackson, 2012; Roberts, 2011). The case ends, after Mossville residents allowed a chemical companyto build a $21 billion industrial plant and buy the residents’ properties causing 500 residents to leave generations of living in the town behind (Kelsey, 2022; Rogers, 2015).  

CAPSTONE SPOTLIGHT: PORT ARTHUR, TEXAS/ SOUTHEAST TEXAS 

History 

Port Arthur, part of the coastal Southeast region of Texas, is a small, predominantly Black city that sits near the border of Louisiana, a key area for the energy system in the U.S. (Energy Information Administration, 2021; U.S. Census, 2020). oil and gas refineries have operated in this city Since the beginning of the Texas oil boom in 1901. It is now home to the largest refinery in the nation, Motiva Refinery, and six other petrochemical plants (Bruno & Jepson, 2018). Currently, Port Arthur residents are engaged in community action to improve their environmental quality and quality of life (Bruno & Jepson, 2018) with community advocates demanding better regulation, infrastructure, and buffer zones between communities and polluting facilities (Bruno & Jepson, 2018). 

Before the oil industry, Port Arthur was home to plantations and ranches that exported agricultural goods and was one the first places of legal slavery during Mexico’s reign of the area (Bruno, 2021; Campbell et al., 2010; Jefferson County, 2015). Historically, the west side of Port Arthur is deemed the Black side of town, in which the first refinery, Guffey Refinery, was built by J. M. Guffey Petroleum. This refinery employed Black laborers, who at the time dealt with segregation (Bruno, 2021). When the Black population grew along the Westside, they could not live past a street, aptly named Houston Ave. Racism and white supremacist ideology have facilitated the segregation between the white and Black communities, contributing to the current state of environmental injustice affecting Port Arthur (Bruno, 2021). After the end of legal segregation and the migration of Blacks to the east side of the town, whites moved further away, causing an economic downturn resulting in poverty and new unemployment patterns (Bruno, 2021). Despite Port Arthur’s petrochemical plants and refineries, which generate wealth for the city, the Black community is not receiving that wealth (Bruno, 2021). For instance, refinery workers often come from other areas in and outside of Port Arthur.  

Oil and Gas Today 

Motiva Refinery expanded in 2012, doubling barrel capacity of oil refined per day to 605,000 bpd (Seba, 2019). Other refineries with expansion plans include Total, one the largest emitters of benzene in the U.S., and Valero, one of the oldest refineries, which has begun extending its operations in the city and is buying properties in the historic Black side of town, West Port Arthur (Bruno, 2021; Eslinger, 2020). The buyout prices of these homes are not fair to residents as their property value decreases because of the refineries. Essentially, the residents are cheated by the companies, impacting the wealth that could be accumulated through the sale of their homes (Bruno, 2021).  

In recent years, oil/gas refineries and petrochemical plants in the Port Arthur area have succumbed to numerous lawsuits over harmful pollutants in the air and instances of dangerous work conditions for refinery workers. For example, many oil refinery workers were exposed to asbestos, insulation material that has been linked to cancers, such as mesothelioma and other diseases (Whitmire, 2023). Another instance of hazardous working conditions includes death. A refinery worker drowned in a scalding petroleum coke pit at a Total Port Arthur Refinery due to the company’s lack of urgency in repairing crane equipment. The workers used a bulldozer and a backhoe to maintain the pit due to damage to crane equipment (Besson, 2015). This bulldozer slid down the embankment causing the worker to drown.  Moreover, in 2019, the National Environmental Law Center (NELC), along with Texas Attorney General and Commission on Environmental Quality, filed lawsuits against the Valero Port Arthur oil refinery alleging more than 600 violations of Valero’s Clean Air Act permit from 2014 to 2019, causing almost 2 million pounds of unauthorized pollution to be released by the refinery in heavy polluted areas (NELC, 2019). Within a three-mile radius of this refinery sit five schools and 20 churches impacting over 36,000 people, with many residents fearing exposure to harmful pollutants, such as fine particulate matter and sulfur dioxide as the frequency in which Valero pushed pollutants into the air exceeds federal limits (NELC, 2019).  

 The Texas Attorney General announced a $1.4 million settlement in an environmental enforcement action against TotalEnergies Petrochemical and Refineries, Inc. for violating the Texas Clean Air Act. In the settlement, the Texas Attorney General cited that the refinery had experienced multiple, recurring instances of illegal emissions and permit violations caused by operator errors, equipment failures, and poor upkeep practices (Attorney General of Texas, 2023). Under the settlement, TotalEnergies agreed to pay $1.3 million in civil penalties and $100,000 in attorney’s fees. Additionally, TotalEnergies must implement a series of remedial actions to prevent further unauthorized pollution (Attorney General of Texas, 2023). Highlighting the past and ongoing lawsuits against petrochemical companies and the hazards of working in these industrial plants raises awareness of the environmental victimization and harm faced by affected communities. Additionally, it emphasizes that employees who depend on these companies for financial stability are also significantly impacted.

Methods 

Social and cultural perspectives are important to problematize and determine environmental victimization (Hall, 2013). To do this, understanding the perspectives of those affected by an environmental crime is important, as acknowledging how victims see, interpret, and assign meaning to their situation can provide crucial information for scholars, activists, and policymakers (White, 2011). The following study questions are asked: How do people who live near polluted areas, such as refineries and petrochemical plants, make sense of their experiences living in these areas? How are refinery workers impacted by the companies they serve(d)? How do citizens perceive health and economic impact as it relates to the presence of refineries? 

This study explores the lived experiences of Black residents and refinery employees in Port Arthur, Texas and Southeast Texas via narratives from administered surveys and semi-structured interviews conducted between December 28, 2023, and January 20, 2024. Two anonymous surveys were created by the researcher as they relate to both community members and current or former refinery workers. Recruitment was through direct contact with residents and through snowball recruitment, in which the researcher gathered more participants from recommendations from residents and refinery workers.  To qualify for this study, potential participants had to be (1) 18 years of age and older at the time of completion of survey; (2) identify as Black; and (3) have resided near or worked for a refinery in the area of study. For participants who completed the anonymous survey, an option to be interviewed was given. Interviews ranged from 10 to 30 minutes and were conducted via phone or Microsoft Teams. All participants gave verbal consent to be interviewed and recorded. All personal information has been de-identified to protect confidentiality. A total of 20 surveys were administered, and four interviews were conducted.  

Data Analysis 

Data analysis began with the transcription of interviews, transcribed within 24 hours of the scheduled interview, with full coding of interviews completed within 48 hours. The coding of open-ended survey questions was completed within 48 hours of a survey submission. The coding and analysis were driven by a six-step process: familiarization with data, coding, generation of initial themes, development and review of themes, refinement and naming of themes, and writing up results (Braun & Clark, 2006; 2022).  

Each interview or survey was coded individually by hand using Microsoft Word and Excel. A line-by-line reading of the transcripts and answers was used to generate initial codes, and these codes were then refined, and new codes were added as needed. Broader patterns emerged throughout the coding process with the aim that such coding reflects that of the research questions posed. Given that the study’s focus was to examine lived experiences of individuals within the region relating to environmental victimization, themes were developed with this in mind. To ensure that the contextualization of the themes generated were accurate, quotations used in the analysis were re-read to guarantee credible interpretation of words (Braun & Clark, 2013; 2022). 

Results 

Twenty surveys and four semi-structured interviews with Black residents and refinery employees in Port Arthur, Texas were included in the final analysis. To address the study’s research questions, narrative themes are presented as they pertain to environmental victimization and racism, health and financial impacts, and experiences working and living within a refinery/petrochemical industrial complex. Selected quotes along with pseudonyms for survey and interview participants (see Appendix) are used to highlight common themes shared among Black residents and their lived experiences.  

Participant Characteristics 

Approximately 75% of the study participants were between the ages of 65 and 74 and 60% identified as male. Most participants were retired at the time of the study (80%) with 85% having some college to graduate education. The average time worked for participants at a refinery was 34 years. Approximately 65% of participants’ annual income was $75,000 or more in salary with 75% of participants being current or former refinery employees (see Table 1). Additionally, community residents lived in Port Arthur for over 30 years.  

Themes curated for the analysis with a frequency of each component showcasing the number of times the theme was seen throughout the interviews and survey responses are presented (see Table 2). The findings of the analysis are divided into seven major themes. The first theme, financial, highlights the financial impact that refinery placement has on community members and employees. The second and third themes, environmental effects and health, emphasize the impact of refineries on the local communities. The fourth theme, environmental victimization/racism spotlights the perception of environmental victimization by community members and employees and the subsequent effects on health due to environmental and work conditions. Theme five and six, resource awareness and community efforts, focus on community knowledge of health and employment resources and the communities’ (local and state) efforts to support its constituents. Finally, community growth features citizens’ viewpoint on the current state of the community and where improvements are necessary.  

Financial  

Understanding socioeconomic impacts of refinery placements in communities requires acknowledging how these major industrial complexes influence the communities they surround. By starting with the financial implications of having refineries, these implications allow for a deeper understanding of the risk perception as it relates to environmental victimization. Furthermore, using Black resident accounts centers their experiences in their reality.  

Most participants expressed that the refinery was great financially with many saying, “it was rewarding pay wise” and “provided a living to support the family.” The refineries were a way of life in Port Arthur. Interviews reveal that there were not many options concerning employment. Some participants note that they had a long line of family members, spouses, and friends that worked or currently work for a refinery.  

Lois: My father was an employee at the refinery…[he] provided financially for the family                         [six children]. My youngest brother was employed at the refinery. My husband worked at             the refinery for a while and presently my son is working for [a refinery]. 

Emma: My father-in-law worked at the refinery, my husband worked at the refinery, and              it was a way of living. [The only jobs were] a refinery and education. 

Further, participants describe how the refinery was not all positive as layoffs or strikes could occur disrupting family stability. Raymond explained that some employees were laid off because of behavior or not meeting work standards. Other participants, such as Emma, explained that strikes impacted the community significantly. Glenda noted layoffs while working at a refinery.  

Emma: It wasn’t mostly layoffs…when they would go on strike, when they wanted more               pay…You get behind on your bills, some folks lost their homes. We had to stand in the          line and try to get unemployment. Sometimes the strikes would last maybe a month or           two. So that set everybody behind, even with their kids because you wasn’t able to do   anything, you know, but try to keep up with your bills and stuff to get food to eat. [After      the strikes] the layoffs when they was shutting down all kind of departments in the       refineries. That’s what really made it hard.  

Glenda: [Before I retired at each of the refineries I worked for] there were layoffs or a reduction   in staff. 

Participants noted that many refinery jobs were outsourced to people living outside of Port Arthur, which impacts the community growth and sustainability.  

Emma: You had people coming in from out of town working at the refineries and from Louisiana              and Texas.  

Raymond: A lot of these folks [from outside communities] are being employed by these                                 refineries [and not] employing people from the community.  

Clarence: The city seems to be going out of its way to not hire city citizens even though the city      has an agreement with the refineries in the area but is not enforcing it.   

While the placement of refineries in Port Arthur provided substantial financial stability for the community, especially employees of these refineries, with the refineries having generational influence on some families, strikes and layoffs also negatively affected families. Additionally, the outsourcing of work outside the community in which the refineries were placed alienates the local community from receiving employment opportunities.  

Environmental Effects and Health 

Working and living near refineries and petrochemical plants can cause communities to feel the brunt of environmental toxins released from refineries. Participants noted that many people were concerned about “air quality and chemicals being released into the air and water.” Life-long residents of the area, such as Lois, described growing up with refineries nearby.  

Lois: We lived three or five minutes away from the Gulf refinery. We did see a lot of smoke        from the stacks that were at the refinery. There were times you could see burning gas          flares…There were sometimes when you could get a smell from the refineries, and       I think [it] was because they were letting some of the chemicals out…I do believe that a lot of             medical conditions that people had from the West side were contributed because of those          refineries. I do remember growing up and in our area many people had contracted                                     cancer. 

Emma: All we see is black smoke and stuff…Some people say the main people that go to              Houston and stuff to these hospitals comes from around in this area with cancer…We     don’t know [about health effects] because nobody went to the doctor for that particular           thing until they go sick…we really couldn’t say. 

Many participants, specifically refinery employees, noted that having refineries in the area was not good for the environment and the health of the community. Robert stated that the refineries were “bad environmentally because it was a hotbed for cancer.” Joseph described how he had “two to three friends who have gotten cancer from working and living near refineries.” Other participants noted direct health effects related to working with the refinery, Raymond stated:  

Now there was a guy that when we first hired him, he worked in the refining part of the                facility outside the yard…and he got exposed to some H2S, which is gas hydrogen             sulfide, but it’s bad for you to inhale and he got very sick, and he actually end up passing        from it.  

The environmental and health effects of the placement of the refineries and plants can be detrimental to local communities. The consequence of these environmental hazards may lead to environmental racism and subsequent environmental victimization. 

Environmental Victimization/Racism 

The idea of Risk perception is crucial in community input and corporation placement of refineries. If citizens do not perceive or understand that they are victims of environmental crimes, they will not pushback against increased refinery presence. Further, citizens may perceive that having refineries has an economic boost and weigh the risks and benefits. Participants’ perception of environmental victimization was mixed. Some participants said they did not believe that environmental victimization impacted them. Participants, such as Raymond and Emma, noted that refineries may not have been placed in the minoritized areas on purpose; the communities surrounding the refineries being mainly Black is coincidental.  

Raymond: The refinery was there but it happened to be where the Blacks end up residing,            basically mostly all of those little, small towns like Port Arthur was majority white and        then once the Blacks move there in the neighborhood, [the whites] moved out and that’s           how the Blacks end up dominating the West side…It is intentional or not, I couldn’t say.  

Emma: No, I don’t think [the refineries are intentionally placed]. That’s just where everybody      fell in that area and stuff because mainly on the West side that’s where we live and that’s       where the refineries was closer too…That’s just where, you know, Black people moved         and had their own little area.  

Others, such as Clarence, Joseph, and Ethel believed that they or know of others experienced some form of environmental victimization noting that various health conditions in their families and neighborhoods and the placement of the refineries.  

Clarence: It seems that these kinds of companies are always minority communities and that is      totally wrong, and the reason is that companies don’t value the minority communities.  

Joseph: Cancer among my family and mental illness is very high and is directly related to the       environment due to the quality of air and the drinking water in the area… The majority of           Caucasians are on the outside of Port Arthur in Nederland and Port Neches…I guarantee   you, [it’s] because of the environmental conditions. They knew [and] they moved. They        knew more about the effects of the emissions in the area, and they had more information           at the time than we did…So they moved away from the refineries and the chemical          plants. 

Ethel: As a young girl growing up in Port Arthur, I was exposed to two local refineries close        within my neighborhood. 

Residents’ perceptions in the study varied. However, understanding that an individual’s living and working conditions can influence perspectives on the placement of hazardous waste sites is important. Moreover, acknowledging the reality of these residents provides better awareness of what resources can be provided to them.  

Resource Awareness 

Community insight on available resources is important as knowing what is accessible allows for proper advocacy and knowledge. Most participants were unaware of any community resources available to them that were associated with environmental factors. Some participants described Port Arthur’s local watch group, The Port Arthur Community Action Network, and the Texas Commission on Environmental Quality (TCEQ), as well as a “STAN SYSTEM [that] keeps us informed through telephone calls and online information” as Edna noted. Participants, like Herman and James, noted that they knew very little about potential resources. 

Herman: Very few resources are provided to the community.  

James: [The community is notified] only when [something] makes the news and citizen                            complaints. 

The lack of knowledge surrounding community resource availability may be directly tied to what the city and state are doing to notify citizens of what is happening around them concerning refineries. If the city, state, or refinery corporations are not providing residents with information unless sought out, this then causes ambiguity involving environmental concerns. 

Community Efforts 

Many community members described that they are not aware of any environmental risks until something bad happens. Nolan said that the city is doing “very little [and] you have to stay informed and ask questions.” Other participants also describe not knowing of community efforts in place and stating that they are not being notified as they should.  

Clarence: The city or county is not doing anything for the community [especially concerning                   employment and] as far as health access, the state really don’t do anything for the             area, when the refinery is fined for a chemical release, the state gets the fine but                       don’t return it to the city. 

Ethel: I don’t believe we are being notified when there are different problems within the               refineries or chemical plants. When it affects our environment, it affects us.  

Community partnerships and resources are important for the growth of areas such as Port Arthur.  These participants underscore that not much is known about what the city is doing for its constituents, which is detrimental to them. The lack of notifications to community members may cause community decline and inhibit growth as inaction on city leaders’ part can lead to citizens leaving. 

Community Growth 

participants noted that the current state of Port Arthur is in decline, with some, such as Emma, noting there are no improvements that can help the community. The main concern among participants was the lack of local community employment, old equipment, and lack of notifications. 

Emma: There’s no improvement… the environment is bad over here. Port Arthur is [an] old                community coming up with the refineries and anything that’s damaged now, I                    don’t see any improvement…They can go out there and clean out all those tanks. I                don’t think it [will] happen now it might, but like I say the Saudia Arabians are              in charge of the refineries, so they don’t have to pay taxes or anything.  

Raymond: The money [is] not going back into Port Arthur. It is going back to other                            communities, like Lumberton…A lot of these folks are being employed by these                refineries and the city itself is not getting the benefit that it should get by                                            employing people from the community. 

Lois and Joseph expressed the need to improve the healthcare system and access to employment in Port Arthur. They stated:  

Lois: I think the [health department] can do better. I see sometimes we as Blacks in this area or in this town or sometimes I hear about things that come about pertaining to health.           That maybe a slight on communications…I think working with the medical branch from     the refineries and our city branches would work out better for our community.  

Joseph: I always thought that giving as many people in those areas like a physical or annual   physical and looking at the results. If they were allowed to give free evaluations,                                    physicals every year, a certain percentage of people in the area, that would help out a lot. 

Further, Raymond said that the Port Arthur community is declining: 

The community itself seemed to have died in Port Arthur you know, the population has    dwindled so much from when it was sixty something thousand to now maybe forty or    fifty something thousand…Hire more people from this area [the Golden triangle] and Port    Arthur. I believe that would benefit a whole lot because it’s paying jobs and it seems as         though we’re not benefiting from it as a people, as Black people as we should. 

The comments by the residents showcase a need to improve the health infrastructure of Port Arthur. Lois did note that the health department has hired new personnel which may improve the healthcare system. Others’ comments, such as Raymond’s on bringing the money back to Port Arthur echoes earlier sentiments on the outsourcing     of jobs and the need to grow the local community.  

The participants surveyed and interviewed demonstrated the importance of their perception and centering citizen accounts in their lived experiences as both social and cultural processes. Participants expressed both positive and negative impacts of having refinery placements, such as financial stability and instability and witnessing environmental hazards, such as black smoke and oil leaks. The perception of environmental victimization is important to note as this perception influences how communities advocate for themselves or whether they are content with their current situations. As previously mentioned, community members view the placement of refineries as great economic opportunities and ways to provide for families, outweighing the environmental risks associated with them. Other residents perceive the refineries as health hazards that need to be addressed, but not at the cost of causing an economic downturn for the city. Further, delving into the community resources and efforts revealed that community members knew of few services available to them. The experiences of these Black residents are valuable for acknowledging how simple placements of refineries and petrochemical plants can illustrate financial and health implications, risk perception as it relates to environmental victimization, and community awareness, which can inform local government officials, community groups, federal agencies (i.e., EPA), and Congress on ways to better improve these areas.  

Policy and Practical Recommendations 

These policy recommendations aim to foster community development, improve healthcare access, protect the environment, and empower grassroots efforts for positive change. Implementing these measures will contribute to a more sustainable and inclusive future for the community. 

• Increase community outreach. The citizens of Port Arthur are a predominantly aging group, which requires more effort in community outreach, such as phone calls, home visits, and increased town hall meetings. To do so, there should be the development and implementation of more programs aimed at Port Arthur citizens that allow them to engage in the decision-making processes. These programs can consist of: 
  • Educational workshops: Tailored to older residents covering topics such as air quality, refinery emissions, and their effects on health with guest speakers including experts, such as environmental scientists, health professionals, and city officials to provide insight and answer questions. Additionally, providing residents with resources on reducing their exposure to harmful emissions and advocating for environmental protections.  
  • Community forums: Residents can voice their concerns, share experiences, and propose ideas for addressing environmental challenges with facilitation of discussions on specific issues related to refinery emissions, such as regulatory compliance, monitoring efforts, and community impact assessments. Further, encourage collaboration between residents and local organizations to develop action plans and initiatives for promoting environmental stewardship.  
  • Informational campaigns: Launch a multimedia campaign to disseminate accurate and up-to-date information about refinery emissions and environmental initiatives with the development of educational materials, including brochures, fact sheets, and digital resources, translated into multiple languages for accessibility. Additionally, using social media platforms, community newsletters, and local media outlets to reach a wide audience and encourage engagement. 
  • Feedback mechanisms: Establish feedback mechanisms, such as surveys, focus groups, and online forums, to gather input from older residents on environmental issues. Regularly assess the effectiveness of outreach efforts and adjust strategies based on community feedback and evolving needs, and ensure transparency and accountability by sharing outcomes, progress reports, and action plans with the community and stakeholders. 
• Use of state and federal funds for healthcare support. Funding should be directed towards the healthcare infrastructure in communities, such as Port Arthur, that have aging populations and are predominantly racial minorities to accommodate growing healthcare needs. The increase in funding can help with the establishment of programs to address health disparities, with an emphasis on preventative care and education. These components include: 
  • Healthcare facility upgrades, such as upgraded equipment and technology to enhance the delivery of quality services. 
  • Ensuring that facilities are accessible and culturally sensitive to the needs of the minority aging populations, by incorporation language services and culturally competent care practices. 
  • Establishment of targeted programs aimed at addressing health disparities focusing on chronic disease management, mental health support, and preventative screenings.  
  • Providing resources and support for community health workers to engage directly with residents, offering lifestyle guidance and assistance with navigating the healthcare system.  
  • Implementation of initiatives aimed at preventative care and wellness practices and encouragement for regular health check-ups and screenings via outreach campaigns. 
• Calls to reduce reliance on oil deposits, mitigate refinery impacts, and transition to renewable energy. The initiative aims to reduce reliance on oil deposits, mitigate refinery impacts, and facilitate a transition towards renewable energy sources while simultaneously creating job opportunities and improving work conditions for residents. To do so, this includes: 
  • Introduce and enforce policies aimed at reducing the use of oil deposits and accelerating the adoption of renewable energy sources, such as solar, wind, and hydroelectric power. 
  • Collaborate with industry stakeholders, research institutions, and community organizations to identify viable pathways for transitioning away from fossil fuels while ensuring energy affordability and reliability.  
  • Conduct regular monitoring and inspections to ensure compliance with emission standards, imposing penalties for non-compliance and incentivizing investment in cleaner technologies.  
  • Establish transparent reporting mechanisms to provide residents with real-time daily information on refinery emissions and pollution levels. 
  • Foster sustained partnerships between refineries and city officials to create local employment opportunities and prioritize hiring residents from oil-dependent communities. 
  •  Develop workforce development programs, vocational training initiatives, and apprenticeship opportunities to equip local residents with the skills and knowledge needed to succeed in the renewable energy and clean technology sectors. 
  • Implement targeted recruitment and retention strategies to promote diversity, equity, and inclusion in the workforce, ensuring that underrepresented groups have equal access to employment opportunities and advancement. 
  • Provide resources and support for refinery workers to access healthcare services, mental health counseling, and financial assistance programs, addressing the holistic needs of the workforce and promoting job satisfaction and retention. 
  • Increase enforcement of regulations that ensure safe working conditions, competitive pay, and benefits for refinery employees, prioritizing worker health and well-being 
• Pass the Protection from Cumulative Emissions and Underenforcement of Environmental Law Act of 2023 to strengthen environmental regulations. This legislation (H.R. 1673) was introduced during the 118^th Congress (2023-2024) by Representative Diana DeGette (D-CO-1) and would direct the Environmental Protection Agency to address cumulative public health risks associated with multiple environmental stressors and recommend steps to reduce the number of violations of environmental law in minoritized, low-income, and tribal/indigenous communities that have high risks of being affect by environmental and health effects.  

Conclusion 

This study highlights the pressing issue of environmental victimization, emphasizing its emergence as a significant aspect of environmental justice. Minoritized and low-income communities bear the brunt of environmental hazards, particularly due to the strategic placement of hazardous facilities, such as refineries and petrochemical plants. The placement of these facilities may lead to adverse effects on both the environment and public health and exacerbate financial challenges within these communities. Centering the lived experiences of Black residents and refinery workers in Port Arthur, their narratives showcase a range of impacts, including financial burdens and health concerns. Their stories shed light on the perceptions of environmental victimization and underscore the need for heightened community awareness and proactive efforts. To address these challenges and promote environmental justice, the study brings forth a comprehensive set of policy and practical recommendations. the study advocates for a collaborative and multifaceted approach to environmental harms involving local, state, and federal agencies and stresses the urgency of taking concrete steps to improve quality of life in communities that have long endured the detrimental effects of environmental stressors, often at the expense of corporate interests. By implementing the proposed recommendations, there is an opportunity to foster positive change and advance environmental justice for these communities. 

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Appendix 

The post Environmental Victimization: Lived Experiences of Black Residents Residing Near Oil/Gas and Petrochemical Refineries appeared first on Congressional Black Caucus Foundation.

The goal of the Congressional Black Caucus Foundation’s (CBCF) National Racial Equity Initiative (NREI) is to combat systemic injustice and advance racial inequity. With this understanding, NREI recognizes the importance of addressing the Prison Litigation Reform Act (PLRA) using a racial equity lens. However, very little research has been done to amplify the PLRA’s impact on Black inmates experiencing sexual assault. While this Capstone briefly touches on the subject matter, there is a research gap to fully make a compelling case.

As a Foundation, we hope that this Capstone project will encourage further exploration into the PLRA by lawmakers and researchers and, ultimately, its adverse effects on Black inmates.

After a number of years in the prison system, Ivory Mitchell finally tells his story. Mitchell—a Black man—was an inmate and victim of rape being held in a Texas prison facility for more than 25 years. During his time, he worked closely with the staff as an administrative porter. Mitchell noticed advances from a female staff member after working in the unit for a short period. One day, when he was alone during his shift, the staff member made a physical gesture towards Mitchell by kissing him and holding him close. Mitchell pleaded for her to stop. Though she did stop, Mitchell feared retaliation and/or further advances.

Mitchell reported the incident to the unit supervisor and was met with no regard for his safety or security. Later, he was once again approached by the same female staff member who made the original advances. Noticeably angry from his incident report, she forced him to perform oral sex. Traumatized by the incident, Mitchell again attempted to report her; however, in retaliation, he was transferred to a new unit and received a major disciplinary infraction—the only infraction he received during his prison stint. The staff member was eventually charged for improper sexual acts with “someone in custody,” but it is unclear if her charge was related to Mitchell’s report. After his transfer and the staff member’s charge, Mitchell continued to be retaliated against by other staff members as well as suffered mental and emotional stress for the duration of his time in prison.

Mitchell recently stated in a report by Just Detention International (2014) that “I was locked up in Texas, but that does not mean I didn’t have the right to be safe.”

Ivory Mitchell’s story serves as a reminder that prisoners who experience mental and emotion distress as a result of sexual assault deserve equal protection and the right to fair justice. In fact, Mitchell’s story is not an isolated event. The Prison Policy Initiative (2017) reported that from 2011-2012, 1 in 4 inmates experienced psychological distress in prisons or jails. Without the obstacles created by the Prison Litigation Reform Act, Mitchell may have been able to bring a claim and recover damages for the injustices he endured in prison, potentially deterring further improper behavior from occurring. His story emphasizes the impact of this legislation and its need to be amended.

Introduction

The most common and frequently litigated clause under the 14^th Amendment is the Equal Protection Clause. The clause explicitly states,

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States… nor deny to any person within its jurisdiction the equal protection of the laws” (U.S. Const. amend. XIV).

The clause was established to provide protection and ensure equal treatment for all citizens. However, the Equal Protection Clause fails to protect incarcerated individuals—specifically inmates suffering from mental or emotional distress due to sexual assault, misconduct, or harassment— from bringing civil rights claims.

According to the World Prison Brief (2021), the United States has the highest incarceration rate and has the largest number of people behind bars. The Sentencing Project (2021) also reports that there are 2 million people incarcerated in the nation’s prison system, an overall 500% increase in the last 40 years. In addition to incarceration and isolation from society, inmates face challenges such as neglect, environmental factors (such as isolation, excessive force, or harsh treatment), and sexual abuse. In 2018, the Bureau of Justice Statistics (2021) reported that there were approximately 27,826 allegations of sexual assault or victimizations within U.S. prisons. Today, the rate of sexual assault in prisons shows no sign of slowing as it has continued to significantly increase since 2015. This does not account for the number of incidents that go unreported every day. Inmate victims[1] are often left with little recourse from the U.S. court system due to provisions set forth in the Prison Litigation Reform Act.

The Prison Litigation Reform Act (commonly known as the “PLRA”) was enacted by President Bill Clinton on April 26, 1996. It was originally designed to 1) “end perceived judicial micromanagement of correctional facilities” and 2) serve as an efficient case-management system for prisoner civil rights cases, reducing the number of frivolous claims brought by prison inmates (Branham, 2001, p. 487). It largely applies to cases brought by prisoners regarding prison treatment or conditions. However, an unintended consequence of the PLRA is that it deters and, at times, prevents prisoners from filing legitimate civil suits in federal court for cases involving mental or emotional distress, specifically those who have experienced sexual misconduct or assault during incarceration.

Inmates are required to meet certain provisions detailed throughout the PLRA. Often, these provisions, such as an increase in filing fees, limitations on attorney’s fees, and a three strikes rule[2] impose obstacles to filing a claim.  The two specific provisions that affect incarcerated victims of sexual assault in bringing mental or emotional claims (or civil actions for deprivation of rights[3]) are: 1) the Exhaustion Provision and 2) the Physical Injury Provision.  The PLRA states that an inmate must exhaust all administrative remedies (42 U.S.C. § 1997e(a)) before bringing a claim and must demonstrate physical injury or proof of commission of a sexual act (42 U.S.C. §. 1997e(e)) to recover compensatory damages, which consequently presents an unjust and unfair burden. These two provisions illustrate the difficulty that inmate victims have bringing, winning, and settling civil rights cases—in turn making it difficult for courts to enforce policy changes.

This report analyzes the severity of the Prison Litigation Reform Act for prisoners bringing a mental or emotion distress claim for sexual assault, misconduct, or harassment through its exhaustion and physical injury provisions. Further, it addresses the race-based policy implications of the PLRA on U.S. prisons and serves as a call to action for legislation to amend the PLRA.

Legislative History

Between 1980 to 1995, the prison population more than tripled due, in large part, to the War on Drugs, creating what seemed to be an influx in prisoner litigation in federal courts.  As a result, advocates, lobbyists, and the National Association of Attorney Generals instituted a campaign to restrict prisoners from certain rights and the ability to access the federal court system. Additionally, they lobbied to limit the federal court system from remedying constitutional violations, alleging the heavy burden of civil rights cases introduced by prison inmates (Wright, 1996).

In Congress, Republican lawmakers also acted. Former Senator Spencer Abraham, a sponsor and supporter of the PLRA, stated,

[C]onvicted criminals, while they must be accorded their constitutional rights, deserve to be punished. I think virtually everybody believes that while these people are in jail they should not be tortured, but they also should not have all the rights and privileges the rest of us enjoy, and that their lives should, on the whole, be describable by the old concept known as hard time (Golden, 2006, p.97).

The belief that prisoners should maintain basic rights but be denied court access was the foundation of many lawmakers’ support for the PLRA. In 1995, H.R. 3- Taking Back Our Streets Act[4] was introduced, encouraging members of Congress to amend H.R. 10- The Civil Rights of Institutionalized Persons Act[5] (Rymza, 2014). This bill also focused on preventing “abusive prisoner lawsuits” and prohibited prisoners from bringing civil action until all administrative remedies were exhausted. Additionally, H.R. 2076 – Department of Commerce and Related Agencies Appropriations Act, 1996 – was introduced in Congress in 1995, inciting harsh statements made by lawmakers sensationalizing prisoner claims with the goal of minimizing the burden on courts (Anand et. al., 2021). Although neither legislation was signed into law, these bills served as precursors to the PLRA.

The Prison Litigation Reform Act (Title VIII), attached as a “rider[6]” of H.R. 3019 – Omnibus Consolidated Rescissions and Appropriations Act of 1996[7], was successfully introduced on March 05, 1996, by Representative Bob Livingston (R-LA). It narrowly passed the Republican controlled, House of Representatives with a 209-206 vote. It passed the U.S. Senate with an overwhelming 79-21 vote. Later, H.R. 3019 was signed into law on April 26, 1996, by President Bill Clinton, with no pushback.

Complications of the PLRA

Since the PLRA’s passing in 1996, the goal of reducing frivolous prisoner litigation has been met, but at the expense of decreasing the rate of successful civil rights lawsuits filed by incarcerated individuals. The Prison Policy Initiative (2021) reported that in 2018 there were 25,533 total filings for Federal District Court with a prison population of 2,107,681 compared to the 39,053 filings that occurred in 1995 with a prison population of 1,597,044 —a 1.2% drop.

While total filings have decreased, meritorious claims are slipping through the cracks, leaving prisoners to remain in potentially hostile and hazardous conditions. The data illustrates that all prisoners are at risk of being negatively impacted by the PLRA, however, inmate victims of sexual assault who wish to bring a claim for mental or emotional distress[8] are at a severe disadvantage.

The PLRA’s provisions make it practically impossible for these prisoners to 1) file a claim and 2) recover compensatory damages. Specifically, the two following provisions significantly impact inmate victims:

1. Exhaustion Provision: 42 U.S.C. § 1997e(a) states, “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted” (The Prison Litigation Reform Act, 1996)  
2. Physical Injury Provision: In addition to the exhaustion provision, 42 U.S.C. § 1997e(e) states “No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act” (as defined in section 2246 of Title 18) (The Prison Litigation Reform Act, 1996).

Exhaustion Provision

The requirement that victims must first exhaust administrative remedies before they can make a claim is an unfair and unconscionable barrier. Although seemingly harmless, many prisons and correctional facilities’ administrative remedy requirements are difficult to access (Schlanger & Giovanna, 2008). Because there is no federal standard or oversight on what “administrative remedies” should look like for all facilities, they are often unique to individual prisons and can widely vary. Some examples of administrative requirements include 1) short filing deadlines, 2) unavailable requisite forms, or 3) a lengthy appeals process. Exhausting these remedies are especially detrimental to inmate victims because they may: 1) fear retaliation, 2) miss the grievance deadline due to traumatization, and/or 3) receive delayed medical services (Schlanger & Giovanna, 2008). The Human Rights Watch (2009) explains that due to the often technical, time consuming, and complex reporting procedures, prisoners are often discouraged or denied from bringing a claim.

Court Interpretation. Initially some courts provided grace or exceptions to the exhaustion provision due to estoppel[9] or special circumstances. However, six years after the PLRA’s passage the Supreme Court ruled that even meritorious claims cannot succeed if the inmate has failed to meet their individual facility’s technical requirements for the grievance system (Schlanger & Giovanna, 2008).  Consequently, if a prisoner makes a minor technical error or misses a deadline when filing a claim within the grievance system, a judge cannot, and will not consider a claim even for sexual assault, harassment, or misconduct.

Legal practitioners have found that since the Supreme Court’s decision to uphold the “no exception” rule, prison administrators are incentivized to implement large obstacles that deter prisoners from filing a claim. The higher the hurdle the less likely the prison or its staff members will be subjected to a lawsuit and potential damages. Scholars also note that “by cutting off judicial review based on an inmate’s failure to comply with his prison’s own internal, administrative rules— regardless of the merits of the claim—the PLRA exhaustion requirement undermines external accountability” (Schlanger & Giovanna, 2008).

There have been some attempts to liberate the exhaustion provision specifically for inmate victims. In 2003, the Prison Rape Elimination Act (commonly known as the PREA) was passed to enforce a zero-tolerance policy for sexual misconduct in federal, state, and local correctional facilities for both prison officials as well as fellow inmates and require data collection from the Bureau of Prisons (The Prison Rape Elimination Act, 2003).  Provisions within the PREA also include:

1. prohibiting prison facilities from imposing a time limit to file a grievance on cases involving sexual assault,
2. denying facilities the ability to informal grievance procedures to resolve matters involving staff as alleged perpetrators, and
3. allowing family members to and/or third parties to assist an inmate victim to file a grievance with respect to the abuse (Dorfman, 2018). 

While the intention behind this effort is laudable, implementation across the United States has been slow and subjected to unique policy practices in individual prisons. Further, these regulations only alleviate some of the burden set forth by the PREA for inmate victims filing grievances; however, this does not excuse them from the exhaustion provision altogether. For instance, in Ross v. Blake (2016) the Supreme Court ruled that the exhaustion requirement does not have a “special circumstances” exception, particularly for sexual assault. The Court did clarify, however, that plaintiffs may potentially succeed if – and only if – there is lack of availability of administrative remedies. While this may provide hope for some inmate victims, it is very rare for this to occur. By keeping this provision in place (with no exceptions) inmate victims of sexual assault will continue to be deterred or, sometimes, even precluded from bringing a claim.

In Minix v. Pazara (2007), the plaintiff, a juvenile inmate, filed a mental/emotional claim for sexual assault alleging he was beaten and raped by several inmates at his facility. The court held, however, that the plaintiff failed to exhaust administrative remedies set forth by the individual prison facility. Because the plaintiff’s guardian filed the grievance on his behalf — as opposed to the plaintiff himself —after the alleged incident, the claim was dismissed. Similarly in Hawes v. Bowden (2009), the plaintiff, filed a claim against a prison staffer alleging sexual assault and misconduct and seeking to hold defendant liable for pain and suffering resulting from her actions. However, the court ruled against the plaintiff due to failure to exhaust an administrative remedy — failure to be incarcerated at facility when complaint was filed. Inmate victims looking to bring a claim for mental/emotional suffering are bogged down by unnecessary obstacles needed to file a report or grievance.  The courts are mainly aligned on the exhaustion provision, often ruling in favor of the defendant if, and when, the plaintiff has failed to meet the arbitrary requirements set forth by the individual prison facility.

Physical Injury Provision

Even if inmate victims can meet the administrative requirements and are eligible to bring forth a claim, they face the hurdle of the physical injury provision. This provision leaves more questions than answers. It states that an inmate alleging mental or emotional distress cannot recover compensatory damages unless they have also shown an accompanying physical injury or the commission of a sexual act. However, the law fails to properly constitute a physical injury, define the severity of the physical injury, or address whether rape constitutes a physical injury, leaving the courts split and prisoners unsure if their case is actually worth merit (Filler & Greenfield, 2020, p. 260).

The original version of 42 U.S.C. § 1997e(e) excluded the term “sexual act” and only stated that

No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury

Shortly after the PLRA’s passage, practitioners noticed that the circuit courts remained split on whether rape or sexual abuse constituted a physical injury and whether a victim could receive compensatory damages for a constitutional violation of a coerced sexual act. This ambiguity left many legal scholars and litigators baffled and, therefore, committed to advocating for the reformation of the PLRA to include rape and/or sexual abuse as a physical injury (Belitz, 2018, p. 293). In 2004, advocate Deborah Golden (2006) proposed the following amendment to the language of 42 U.S.C. § 1997e(e)

No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury, sexual assault or abuse (p.105).

In February 2013, as part of the Violence Against Women’s Act, Congress amended the language to include “commission of a sexual act.” Although amending the language broadened the scope for abuse, courts remain divided on the issue (Belitz, 2018, p. 294).

Court Interpretation. 18 U.S.C. § 2246 provides a narrow definition of a “sexual act.” According to the Harvard Civil Rights Civil Liberties Law Review, a “sexual act” only covers “genital, oral, anal, or digital intercourse (Belitz, 2018, p. 295). This statute illustrates that specific sexual abuse (as defined) is worthy of compensation. However, those who experience sexual misconduct or harassment—also defined in this statute as the “intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person” (Definitions for 18 U.S.C. § 2246)—are often precluded from the definition of a “sexual act” and find that a court may or may not rule in their favor.

For instance, in Smith v. Shady (2007), the inmate plaintiff, filed a mental/emotional claim for sexual harassment alleging that an officer grabbed his penis and held it in her hand. The court ruled that this did not, in fact, constitute a physical injury or the commission of a sexual act, and, therefore, the plaintiff could not recover compensatory damages. Similarly in Hancock v. Payne (2006), the plaintiff, filed a mental/emotional claim for sexual assault alleging fondling, sexual battery by sodomy, and other related assaults. The court held that the physical injury requirement was not met because the plaintiff failed to claim, “physical injury beyond the bare allegation of sexual assault” (Colgan, 2012). Inmate victims hoping to recover damages from those sexual acts not narrowly defined by 18 U.S.C. § 2246—such as sexual misconduct or harassment—are less likely to recover compensatory damages for the lack of an accompanying physical injury. In cases of rape or sexual abuse, some courts have ruled in favor of inmates when the abuse is narrowly defined by the statute. If the sexual act falls outside of this scope, however, inmates are still left to wonder if their claim will succeed.

Why the PLRA Matters

The potential impact of this legislation is substantial. According to the Bureau of Justice Statistics (2021) of the roughly 27,000 allegations of sexual assault or victimization within U.S. prisons, approximately 45 percent were alleged to be perpetrated by inmates and approximately 55 percent by prison officials or staff.  Further, the rate of assaults has continued to increase since 2015 and shows no signs of slowing. Specifically, The Marshall Project (2018), a prisoner advocacy group, reported a 180 percent increase in prisoner allegations from 2011 to 2015.  This increase strongly suggests that the issue of sexual assault in prisons may worsen. This issue is further exacerbated when analyzing race in today’s prison system.

Race as a Prison Construct

According to the Federal Bureau of Prisons (2022), 38.8% of the nation’s prison population is Black despite accounting for 13.4% of the nation’s total population. The endemic racism within the prison and justice system is nothing new. In fact, the racial disparity has been ongoing since the end of chattel slavery in the U.S. However, the Prison Litigation Reform Act’s exhaustion and physical injury provisions are more likely to adversely affect inmate victims of color. This disproportionality stems from the racial disparity set forth by excess force and punishments within the prison facility.

The Southern Poverty Law Center (2000) reported that in six states guards have been accused of race-based threats, beatings, and appearing in mock Klan attire. In 2015, a northern California prison was criticized by state investigators for perpetuating an “entrenched culture” of racism after prisoner complaints of excessive force and assaults made by prison guards (Lefkowitz, 2018, p. 210). The investigative report cited that the issue of racism in the prison was a serious problem, noting that majority of inmates were minorities and majority of prison officers were white.

The New York Times (2016) found a correlation between the racial makeup of inmates and racial makeup of prison staff:

At Clinton, a prison near the Canadian border where only one of the 998 guards is African American, [B]lack inmates were nearly four times as likely to be sent to isolation as whites, and they were held there for an average of 125 days, compared with 90 days for whites.

This racial disparity illustrates the disproportionate treatment received by Black inmates when there is a larger number of white prison staff. However, this racial disparity appears to dissipate when the racial composition of prison staff diversifies.

Although legal scholars have yet to directly address and show evidence of the disparate impact of race on the Prison Litigation Reform Act, one can infer that inmate victims of color are at a severe disadvantage if the exhaustion and physical injury provisions remain intact. Both provisions serve as unnecessary hurdles that likely affect inmate victims of color more than white inmate victims. This provision limits remedies for Black and Brown inmates and most likely deters them more from bringing a claim. Further, the physical injury provision precludes Black and Brown inmate victims from recovering damages and becoming “whole” again. It also allows prison facilities to continue the “culture of racism” and prevents them from taking accountability for their deeply rooted racist systems. It is imperative that lawmakers seek to amend the PLRA’s provisions, but also legal researchers and scholars evaluate civil suits under the PLRA using a racial equity lens.

Qualified Immunity Standards

In addition to acknowledging the racial implications of the PLRA, an amendment to these provisions would likely decrease the overall potential for abusers to raise the qualified immunity standard. Qualified immunity is a legal doctrine that shields government officials or officers from being held personally liable for constitutional violations unless they violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” (Golden, 2004, p. 58). Deborah Golden (2004) has noted that these attempts are generally unsuccessful in cases of rape or sexual assault, however, prison officials often assert this doctrine in most claims brought for mental/emotional suffering for sexual assault—asserting they were unaware rape or sexual assault as a violation of prisoner’s rights.

For plaintiffs to succeed against the qualified immunity doctrine they must show that the law protecting their rights is well established. This can be especially difficult for inmate victims bringing a claim of rape or sexual assault. Because the language of the PLRA is ambiguous for the physical injury requirement and courts are split on what is defined as a physical injury or “sexual act,” it may be difficult to show that the law is well established.

Further, the systematic foundation of the qualified immunity standard perpetuates mistreatment of inmate victims of sexual assault. Prison officials may feel entitled to operate within their own best interests and have very little remorse for their behavior towards prisoners. By amending these provisions, officials will be incentivized to act in the prisoner’s best interest rather than their own.

Revisions to the PLRA will not only allow prisoners access to justice but provide a larger social good. By amending both provisions to exempt victims of sexual assault, misconduct, and/or harassment, lawmakers would be bringing attention to the looming issue of sexual assault. This amendment would act as a zero-tolerance policy (re-emphasizing the PREA’s mission) and drive forward much needed policy standards for rape within prisons. Inmate victims would likely be incentivized to bring claims and recover damages to be “whole” again. Additionally, this amendment may encourage increased clarity for the PLRA’s language and urge a straightforward definition for the physical injury requirement that the courts can use to rule effectively on these cases (Golden, 2004, p. 57).

Attempts to Rectify the PLRA

The Prison Litigation Reform Act has garnered the attention of both practitioners and lawmakers alike. Since its passage in 1996, members of Congress have worked to mitigate the effects of the PLRA, but their efforts have failed to consider the unique experiences of inmate victims of sexual assault, particularly victims of color.

In addition to the 2003 Prison Rape Elimination Act, Representative Mary Gay Scanlon (D-PA) introduced H.R. 961 – The Justice for Juveniles Act on February 11, 2022, with bipartisan support from Representative Kelly Armstrong (R-ND-At Large) and Representative Van Taylor (R-TX). If signed into law, this bipartisan legislation will protect young people from abuse within the incarceration system by exempting them from the strict requirements of the PLRA and the physical injury requirement. This legislation, in turn, could have larger policy implications both internally for inmates and externally for prisons. This legislation mirrors the call-to-action necessary for inmate victims of sexual assault in prisons. The bill passed the House of Representative on June 23, 2021, and is awaiting review in the Senate.

Policy Recommendations

To mitigate the challenges posed by PLRA exemptions, policymakers and legal scholars must make the following policy recommendations:

• Analyze the disparate impact of race on the PLRA by researching and reporting on the number of mental/emotional claims brought by inmate victims (of sexual assault) of color.
• Amend the PLRA’s exhaustion provision to allow inmate victims of sexual assault to bring a claim without first meeting the [often] onerous and technical grievance requirements set forth by their individual prison
• Amend the physical injury provisions to allow inmate victims of sexual assault to recover compensatory damages without showing an accompanying physical injury and without ambiguity from the “commission of a sexual act” clause.

These amendments would create an exemption for prisoner civil rights claims involving sexual assault, harassment, and misconduct. As such, it will still allow for the original goals of the PLRA.

Conclusion

While the original goal of the Prison Litigation Reform Act was to decrease the number of frivolous claims brought into federal courts, it has precluded claims of merit as well. The PLRA’s exhaustion and physical injury provisions have created unjust burdens on inmate victims, especially victims of color, seeking to bring a claim and recover compensatory damages for mental or emotional claims. Ivory Mitchell’s story illustrates the potential racial implications of the PLRA. Not only are Black and Brown inmate victims more likely to be assaulted or punished in prison, but they are less likely to bring a claim or recover damages because of the insurmountable barriers exacerbated by the Prison Litigation Reform Act’s two provision. These hurdles further the racially systemic issues within the U.S. prison system.

References

American Civil Liberties Union. (2002, November). Know your rights: The prison litigation reform act (PLRA). ACLU. Retrieved from https://www.aclu.org/sites/default/files/images/asset_upload_file79_25805.pdf

American Civil Liberties Union. (2021, April 27). The unhappy 25^th birthday of two tough-on-crime era laws that have deadly consequences for incarcerated people. ACLU. Retrieved from https://www.aclu.org/news/capital-punishment/the-unhappy-25th-birthday-of-two-tough-on-crime-era-laws-that-have-deadly-consequences-for-incarcerated-people

Anand, E., Clark, E., & Greenfield, D. (2021). How the prison litigation reform act has failed for 25 years. The Appeal. Retrieved from https://theappeal.org/the-lab/explainers/how-the-prison-litigation-reform-act-has-failed-for-25-years/

Belitz, H. (2018). A right without a remedy: sexual abuse in prison and the prison litigation reform act. Harvard Civil Rights-Civil Liberties Law Review, 53(1). 291-336. https://harvardcrcl.org/wp-content/uploads/sites/10/2018/05/Belitz.pdf

Branham, L, S. (2001). The Prison Litigation Reform Act’s enigmatic exhaustion requirement: What it means and what Congress, courts, and correctional officials can learn from it. Cornell Law Review, 86(3), 485-547. https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=2837&context=clr

Civil Rights of Institutionalized Persons Act, H.R.10, 96^th Congress (1979) https://www.congress.gov/bill/96th-congress/house-bill/10

Colgan, B. (2012). Public health and safety consequences of denying access to justice for victims of prison staff sexual misconduct. UCLA Women’s Law Journal, 18(1), 196-237. https://escholarship.org/content/qt9zn6g8tc/qt9zn6g8tc_noSplash_efd2fec1da4de5b9a31e2c5b43d27ccf.pdf

Criminal justice facts. (2021, June 3). The Sentencing Project. Retrieved from https://www.sentencingproject.org/criminal-justice-facts/

Department of Commerce and Related Agencies Appropriations Act, H.R.2076, 104^th Congress (1996) https://www.congress.gov/bill/104th-congress/house-bill/2076

Dorfman, D.A., (2018, June 18). Application of the Exhaustion Requirements of Prison Litigation Reform Act in JJ Facilities and the Implications of Ross v. Blake, 136 S.Ct. 1850 (2016) [PowerPoint slides]. Tascnow. Retrieved from https://www.tascnow.com/wp-content/uploads/2019/04/19__2018_CPR_Powerpoint_on_Exhaustion_and_PLRA_in_Juvenile_Cases.pdf

Federal Bureau of Prisons. (2022, April 22). Inmate Race. The Federal Bureau of Prisons. Retrieved from https://www.bop.gov/about/statistics/statistics_inmate_race.jsp.

Fenster, A. & Schlanger, M. (2021, April 26). Slamming the courthouse door: 25 years of evidence for repealing the prison litigation reform act. Prison Policy Initiative. Retrieved from https://www.prisonpolicy.org/reports/PLRA_25.html

Filler, M. & Greenfield, D. (2020). A wrong without a right? Overcoming the prison litigation reform act’s physical injury requirement in solitary confinement cases. Northwestern Law Review, 115(1), 257-272. https://scholarlycommons.law.northwestern.edu/nulr/vol115/iss1/6/

Golden, D. M., (2004). It’s not all in my head: the harm of rape and the Prison Litigation Reform Act. Cardoza Women’s Law Journal, 11(1), 37-60. http://www.washlaw.org/pdf/The_Harm_of_Rape.pdf

Golden, D. M., (2006). The prison litigation reform act- a proposal for closing the loophole for rapists. American Constitution Society, 1(1), 95-105. https://www.acslaw.org/wp-content/uploads/2009/06/Golden-Prison-Litigation-Reform-Act-June-2006-Advance-Vol-1.pdf

Hancock v. Payne, No. Civ.A.103CV671MRJMR, 2006 WL 21751, (S.D. Miss. Jan. 4, 2006).

Hawes v. Bowden, No. 2:08cv930-TMH (M.D. Ala. Jan. 13, 2009)

Highest to lowest – prison population rate. (2021). World Prison Brief. Retrieved from https://www.prisonstudies.org/highest-to-lowest/prison_population_rate?field_region_taxonomy_tid=All

Human Rights Watch. (2009, June 19). No equal justice: The prison litigation reform act in the United States. Retrieved from https://www.hrw.org/report/2009/06/16/no-equal-justice/prison-litigation-reform-act-united-states

Just Detention International. (2014). Action Update. https://justdetention.org/wp-content/uploads/2015/10/au0914.pdf

Lefkowitz, R. (2018). Prisoner’s dilemma – Exhausted without a place of rest(itution): Why the Prison Litigation Reform Act’s exhaustion requirement needs to be amended. The Scholar: St. Mary’s Law Review on Race and Social Justice, 20(2), 190-215. https://commons.stmarytx.edu/cgi/viewcontent.cgi?article=1001&context=thescholar

Mitchell, I. (n.d.). Survivor Stories. Just Detention International. https://justdetention.org/story/ivory/?pageno=2

Minix v. Pazera, N. 3:06-CV-398RM (N.D. Ind. Nov. 28, 2007)

Ominibus Consolidated Recissions and Appropriations Act, H.R.3019, 104^th Congress (1996) https://www.congress.gov/bill/104th-congress/house-bill/3019

Reams, B.D., & Manz, W.H., (1997) A legislative history of the prison litigation reform act of 1996. Library of Congress Catalog, 1(1),v-xvi. https://www.law.umich.edu/facultyhome/margoschlanger/Documents/Resources/Prison_Litigation_Reform_Act_Legislative_History/A_Legislative_History_of_the_Prison_Litigation_Reform_Act_of_1996_Vol_1.pdf

Ross v. Blake 578 U.S. __ (2016)

Rymsza, E.J., (2014). The contract with America: the crystallization of the GOP’s racial agenda. CUNY Law Review, 1(48), 481-505. http://www.cunylawreview.org/wp-content/uploads/2014/09/contract-with-america.pdf

Santo, A. (2018, July 25). Prison rape allegations are on the rise. The Marshall Project. Retrieved from https://www.themarshallproject.org/2018/07/25/prison-rape-allegations-are-on-the-rise

Schlanger, M. (2015). Trends in prison litigation, as the PLRA enters adulthood. University of California Irvine Law Review, 5(153), 153-178. https://www.law.uci.edu/lawreview/vol5/no1/Schlanger.pdf

Schlanger, M. & Giovanna, S. (2008). Preserving the rule of law in America’s jails and prisons: the case for amending the prison litigation reform act. University of Pennsylvania Law Review. https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1146&context=jcl

Schwirtz, M., Winerip, M., Gebeloff, R. (2016, December 3). The scourge of racial bias in New York State prisons. The New York Times. Retrieved from https://www.nytimes.com/2016/12/03/nyregion/new-york-state-prisons-inmates-racial-bias.html?smid=fb-nytimes&smtyp=cur&_r=1.

Smith v. Shady, No. 3:CV-05-2663, 2006 WL 314514 (M.D. Pa. Oct. 25, 2007)  

St. John, P. (2015, December 16). State investigators cite culture of abuse, racism by High Desert State Prison guards. The Los Angeles Times. Retrieved from https://www.latimes.com/local/politics/la-pol-abuse-california-prison-20151216-story.html

The Prison Litigation Reform Act of 1996, 42 U.S.C. § 1997 e et seq. (1996).

The Prison Rape Elimination Act of 2003, 42 U.S.C. § 15601 et seq. (2003).

The Southern Poverty Law Center. (2000). Allegations of racist guards are plaguing the corrections industry. The Southern Poverty Law Center. Retrieved from https://www.splcenter.org/fighting-hate/intelligence-report/2000/allegations-racist-guards-are-plaguing-corrections-industry

U.S. Const. amend. XIV

U.S. Department of Justice: Bureau of Justice Statistics (2017). Indicators of Mental Health Problems Reported by Prisoners and Jail Inmates, 2011-12. Retrieved from https://bjs.ojp.gov/content/pub/pdf/imhprpji1112.pdf

U.S. Department of Justice: Bureau of Justice Statistics (2021). Sexual victimization reported by adult correctional authorities, 2016-2018. Retrieved from https://bjs.ojp.gov/sites/g/files/xyckuh236/files/media/document/svraca1618.pdf

Wright, P. (1996, July 15). Prison litigation reform passed. Prison Legal News. Retrieved from https://www.prisonlegalnews.org/news/1996/jul/15/prison-litigation-reform-act-passed/

[1] The term inmate victims refer to prisoners who have alleged sexual assault, sexual misconduct, or sexual harassment while incarcerated. These victims are not subjected to the “sexual act” language narrowly defined by 18 U.S.C. § 2246.

[2] 28 U.S.C § 1915(g) prevents an inmate from bringing a suit if that inmate has had three or more prior suits dismissed for being frivolous, malicious, or failed to state a claim. After three strikes you cannot bring another suit in forma pauperis i.e. an inmate cannot file unless they pay the whole court filing fee upfront.

[3] 42 U.S.C. § 1983 – A Civil Action for Deprivation of Rights states “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.”

[4] This bill and many of its kind were part of the Newt Gingrich “Contract with America.” This contract was signed by many Republican Congressional candidates running for a seat in the 104^th Congress who pledged to support an anti-crime agenda (as seen in H.R. 3 – Taking Back Our Streets Act) in the first 100 days.

[5] Federal law meant to protect the rights of those confined to state, federal, or locally operated institutions. This can include correctional facilities, nursing homes, or mental health facilities.

[6] A rider is an additional provision added to a bill or piece of legislation often having little connection with the subject matter of the bill.

[7] Title VIII of H.R. 3019 – Omnibus Consolidated Rescissions and Appropriations Act of 1996, introduces the Prison Litigation Reform Act and its provisions. This bill made appropriations for the Departments of Commerce, Justice, and State, the Judiciary, and related agencies for the fiscal year ending in September 1996, and for other purposes.

[8] Some interpret mental or emotional distress as mental suffering as an emotional response to an experience that arises from the effect of a particular event, occurrence, or patterns of occurrences. This can include symptoms of anxiety, depression, inability to perform tasks, or physical illness. However, Courts are still split on what constitutes a mental or emotional injury.

[9] Estoppel refers to the legal principle that prevents someone from arguing something that contradicts what they previously stated. This principle is meant to prevent someone from being unjustly wronged by an inconsistency of someone else’s words.

The post Access Denied: Amending the Prison Litigation Reform Act’s Administrative Remedy and Physical Injury Provisions for Cases of Sexual Assault appeared first on Congressional Black Caucus Foundation.

Between 1980 and 2019, there was a more than 700% increase in the U.S. women’s prison population.[1] Forty years ago, there were approximately 26,000 women in prison,[2] but today there are more than 1.2 million women under correctional supervision.[3]

While the increase in incarceration has impacted women of all backgrounds, Black women have disproportionately shouldered the burden of this trend. For example, in the five years between 1986 and 1991, there was an 828% increase in the number of Black women incarcerated for a drug offense.[4] Today, despite making up 13% of the U.S. women’s population, Black women represent 30% of all women incarcerated in the United States.[5]

This disparity between Black women and other women in the incarcerated population has had an overwhelming impact on young people under the age of 18. According to the Bureau of Justice Statistics, 60% of women who are incarcerated in state prisons have a minor child.[6] While 2% of all U.S. children have an incarcerated parent, 7% of Black children have a parent in prison.[7] Here we see that like their parents, the children of incarcerated Black women are also bearing the brunt of this upward trend in women’s incarceration.

During their time in prison, many Black women leave their children at home or in the care of a loved one. However, for Black women who are single parents, the primary breadwinners in their families, and/or disconnected from familial support, this is not always an option, and their children often end up in the foster care system.

The Women in Prison Project of the Correctional Association of New York says that “social, emotional, and economic harm to families and communities is a defining legacy of female imprisonment.”[8] This analysis, however, contends that for incarcerated Black women with children in foster care, the defining legacy of imprisonment is to suffer two degrees of punishment:

1. The loss of many of their basic, civil, and constitutional rights; and
2. The loss of the opportunity and agency to mother their children as they see fit.

Over the last two and a half decades, this double-punishment of incarcerated Black women has been facilitated by Public Law 105-89, the Adoption and Safe Families Act of 1997 (“ASFA”).[9] While many of its provisions sit at the intersection of the child welfare and criminal justice systems, the provisions that most directly impact incarcerated Black women and their families are ones that set arbitrary timelines for family preservation, dictate who can care for their children in their absence, and use language that leave them vulnerable to racist biases and differences in state attitudes towards their parenting practices.

In the years following the implementation of the Adoption and Safe Families Act, the federal government, academic institutions, and child welfare policy stakeholders dedicated their resources to answering the following questions:

• How many children live in families that the criminal justice system has intervened in? [10]
• What happens to foster-involved children as their parents move through various phases of the criminal justice process (ex. arrest, sentencing, incarceration, release)?[11]
• How, if at all, are incarcerated parents able to participate in child welfare court proceedings?
• What are the needs and issues confronting children of arrested/incarcerated parents and how do they differ from those of other children who are involved in the child welfare system?[12]

While investigating these queries has given us a better understanding of what happens to families caught at the intersection of the child welfare and criminal justice systems, this inflection point in women’s incarceration demands a recommitment to scholarship, legislation, and cross-systems collaboration to mitigate the negative impact the Adoption and Safe Families Act continues to have on incarcerated Black women and their children.  

Through a thorough analysis of the provisions outlined in the Adoption and Safe Families Act, extant legislation aimed at protecting the rights of incarcerated parents, and best practices for engaging with families involved in both the child welfare and criminal justice systems, this study presents a 21^st century take on the harm incarcerated Black women experience as a result of the Adoption and Safe Families Act and updated recommendations for how to honor the dignity of Black mothers serving time in prison.

Intersectionality and Black Women’s Entrance into the Criminal Justice System

In her 1989 article “Demarginalizing the Intersection of Race and Sex,” professor Kimberlé Crenshaw introduced her theory of intersectionality to describe the ways in which race and gender interact to shape Black women’s employment experiences.[13] More than thirty years later, the perspective of intersectionality has been applied by feminists, prison reform advocates, and criminologists to understand how the intersections of multiple oppressions impact Black women’s decisions to engage in crime.[14]  

Studies show that 1 in 18 Black women can expect to go to prison at some point in their lifetime, while only 1 in 111 white women can expect the same.[15] Scholars contend that this disparity exists because “structural and systemic impediments to protection have placed Black women at a greater risk for violence and abuse conditions related to increased instances of incarceration.”[16] For example, in 1999, 57% of female state prisoners were victims of abuse prior to their confinement, 46.5% had been physically abused, and 39% had been sexually assaulted.[17] In 2011, 85 to 90% of incarcerated and justice-involved women reported a history of domestic and sexual violence, as opposed to 22.3% of women nationally.[18]  

Whether they are subjected to “dual arrests”[19] for defending themselves against intimate partner violence; pushed out of school and criminalized for offenses that constitute normal teenage behavior; or arrested and ushered into the sexual abuse-to-prison pipeline for supporting themselves through sex work,[20] these histories with gender- and race-based oppression make it such that before a Black woman has ever been convicted of a crime, she carries vulnerabilities that make her less likely to have her needs met within the context of the criminal justice system than women who are racially privileged.[21]  This is because, as Crenshaw so eloquently put it in her 1990 article “Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color”: “…[I]ntersectional subordination need not be intentionally produced; in fact, it is frequently the consequence of the imposition of one burden that interacts with preexisting vulnerabilities to create yet another dimension of disempowerment.”[22] In other words, by virtue of being Black, identifying as women, and experiencing other forms of social inequality, incarcerated Black women are primed to experience the absolute worst elements of parenting behind bars.  

The Adoption and Safe Families Act

The Adoption and Safe Families Act [P.L. 105-89], commonly referred to as “ASFA”, was signed into law on November 19, 1997. At the time, it was celebrated as the most comprehensive overhaul of federal child welfare law since the Adoption Assistance and Child Welfare Act of 1980 [P.L. 96-272]. The decade leading up to its passage was marked by an increase in out-of-home/foster care placements, but little to no increase in the number of children who were being adopted out of care.  In 1985, 276,000 children were in the foster care system.[23] By 1999, this number had more than doubled to 568,000 children.[24]  There are many hypotheses surrounding the increase in foster care caseloads between 1985 and the implementation of ASFA, but the most widely cited causes are the crack cocaine and HIV/AIDS epidemics of the 1980s and 90s.

ASFA’s 1980 predecessor encouraged states to replace the costly[25] and disruptive out-of-home placements that dominated child welfare practice at the time, with preventive services[26] and family reunification programs.[27] However, its critics argued that this approach to addressing instances of child abuse and neglect exacerbated the rising numbers of children in foster care, encouraged the return of many children to blatantly abusive homes[28] and robbed even more of the opportunity to grow up in safe and loving adoptive families. These critiques of the Adoption Assistance and Child Welfare Act of 1980 and other federal family preservation policies were heavily biased and not entirely true. However, under the Adoption and Safe Families Act, the 1980 child welfare law was amended, and states were directed to make the health and safety of children in foster care their main priority, with a goal of doubling the number of children adopted annually by 2002.[29]

The most salient provisions aimed at facilitating these adoption goals are outlined below.

Provision # 1: The Adoption and Safe Families Act of 1997 established exceptions to the requirement that states make “reasonable efforts” to avoid placing children in foster care and to reunite them with their families if they are removed.[30]

Under the Adoption Assistance and Child Welfare Act of 1980, states were required to make “reasonable efforts” to provide child welfare-involved families with the services they need to either prevent their children from entering foster care or have them returned to the home if they spent time in placement.[31] Under the 1997 child welfare law, states are no longer required to make efforts to preserve or reunify a family if a parent has: 

1. Killed another of his or her children, 
2. Committed felony assault against the child or a sibling, or 
3. Had his or her parental rights to another child terminated.[32]

Additionally, ASFA allows states to bypass the reasonable efforts requirement if the court finds that a parent has subjected their child to “aggravated circumstances” that are only vaguely defined in the federal legislation.[33]

Provision # 2: The Adoption and Safe Families Act requires states to conduct criminal background checks for all prospective foster or adoptive parents.

If any prospective foster or adoptive parents are convicted of felony child abuse or neglect, spousal abuse, a crime against children, or a violent crime such as rape, sexual assault, or homicide, states are required to deny their approval to care for child welfare-involved children. Under this provision, states are also required to deny approval to anyone with a felony conviction for physical assault, battery, or a drug-related offense, if it occurred within the past five years.[34]  

Provision # 3: The Adoption and Safe Families Act requires states to initiate termination of parental rights (TPR) proceedings for foster-involved youth who have been in care for 15 of the most recent 22 months (about 2 years).

Commonly referred to as “the 15 of 22 provision” or “the 15/22 rule,” this provision requires federally funded child welfare agencies to initiate termination of parental rights (TPR) proceedings for foster-involved youth who have been in care for 15 of the most recent 22 months. Written in response to concerns about the number of children who were remaining in foster care for extended periods of time and who were unlikely to be reunified with their families,[35] this provision outlines the timeline and conditions for initiating a termination of parental rights. Children in foster care cannot be placed for adoption if their parents maintain their parental rights, so at the bare minimum ASFA requires these proceedings to be initiated in cases where the court finds that a parent has:

1. Lost parental rights to that child’s sibling. 
2. Killed another of their children; 
3. Committed felony assault against the child or a sibling;  
4. Subjected the child to aggravated circumstances; or  
5. Were recognized under state law as having abandoned their infant. 

What makes this provision especially significant is the fact that prior to the Adoption and Safe Families Act of 1997, no similar process for terminating a parent’s rights to his or her children existed in federal law.[36] 

Provision # 4: The Adoption and Safe Families Act requires that permanency hearings occur within 12 months of the date that a child entered foster care.

Under previous federal family preservation policies, child welfare agencies were required to provide foster-involved youth with a “dispositional” hearing, within 18 months of their placement in care to determine next steps regarding their care.[37] This ASFA provision “fast tracked” or expedited this permanency planning and required that foster parents, pre-adoptive parents, and relative caregivers are informed and provided the opportunity to be heard at case reviews and permanency hearings.[38]  

Provision # 5: The Adoption and Safe Families Act established a program of incentive payments to states to increase the number of young people who are in foster care or living with special needs who are adopted.

Under this provision, payments equal to $4000 were given to states for each foster-involved young person whose adoption was finalized over a certain base level and payments of up to $6000 were given for each adoption of a child living with a special need above the base level.[39] The intent behind this provision was to increase state accountability for the performance of their child welfare programs. 

The Adoption and Safe Families Act and Incarcerated Black Women

While the intent behind the Adoption and Safe Families Act of 1997 was to prevent children who could not be reunified with their families from lingering in foster care, this policy has produced a federal child welfare landscape wherein incarceration and the loss of parental rights are concordant experiences for Black women whose children enter foster care due to their incarceration.

In 2018, The Marshall Project conducted an analysis of approximately 3 million child-welfare cases nationally. In this study, they found that for incarcerated parents who have a child placed in foster care, but who do not have a history of child abuse, neglect, endangerment, or substance abuse, the likelihood of having their parental rights terminated is greater than it is for parents who physically or sexually assault their children.[40]According to an analysis of records maintained by the U.S. Department of Health and Human Services between 2006 and 2016, they also found that in approximately 12.5% of child welfare cases, incarcerated parents lose their parental rights regardless of the seriousness of their offense.[41]

Grounded in Kimberlé Crenshaw’s theories of intersectionality and intersectional insubordination, this section examines how the main provisions of the Adoption and Safe Families Act are a mismatch for the specialized needs and unique burdens that incarcerated Black women carry.

When the oppression that Black women face at the intersection of race and gender is compounded with byproducts of the flaws of capitalism, it becomes impossible for them to maintain their parental rights within the 12-to-15-month time frame mandated by the Adoption and Safe Families Act.

The Adoption and Safe Families Act of 1997 requires federal child welfare agencies to begin permanency hearings within 12 months of the date that a child enters foster care.[42]The underlying belief behind this 12-month grace period is that a year gives child welfare-involved families with more than enough time to strengthen their parenting, address presenting issues, and render their homes safe enough for their children’s return.

While the law allows parents to engage in family reunification services during this period, incarcerated Black women, many of whom suffer from substance abuse disorders, homelessness, mental health conditions, and other byproducts of the flaws of capitalism,[43] are primed to not be able to meet these requirements. For example, in informational materials given to the families of individuals considering substance abuse treatment, the Substance Abuse and Mental Health Services Administration reinforces the idea that because substance use disorders affect every part of a person’s life, treatment needs to impact every part of a person’s life for it to be successful. Stopping the use of drugs and alcohol is merely the beginning of a recovery process that can take weeks, months, and even years to complete even when it’s done in conjunction with support groups, detoxification programs, mental health counseling, and other proven therapeutic approaches.[44]

In their 2014 study titled, “Risk Profile and Treatment Needs of Women in Jail with Co-Occurring Serious Mental Illness and Substance use Disorders”, researchers found that 1 in 5 of the women in their multi-site jail study met the DSM-criteria for having both a current serious mental illness and a current substance use disorder. Only 29% of these women had received treatment for both a serious mental illness and a substance use disorder, while another one-third had received no treatment from a doctor or health professional in the past year.[45]

This example of incarcerated women who are suffering from mental illness and substance use disorder shows us that the issues that many incarcerated women enter prison with are complex and can take years to remedy. Commencing a permanency hearing and making decisions that impact an incarcerated Black woman and her children, 12 months into a recovery process, is premature and incongruent with what addiction specialists, mental health professionals, and other types of counselors have told us about this process. 

When Black women spend a long time in prison due to unjust sentencing practices, reuniting with their children within 15 months of their entrance into foster care becomes an unattainable vision.

People who have committed federal crimes typically serve sentences that are longer than one year. Data shows that women convicted of a statute carrying a mandatory minimum penalty [46]receive an average sentence length of 60 months and those who are not convicted of a statute carrying a mandatory minimum penalty receive an average sentence length of 17 months.[47]Women of color are commonly tied to the heavy sanctions associated with drug trafficking, fraud, embezzlement, and immigration offenses. However mandatory minimum sentencing limits judicial discretion in considering their prior criminal history and family responsibilities.[48]

 For example, in determining the sentence for a drug offense, judges assign mandatory minimum penalties based on the quantity of drugs and the size of the conspiracy, versus the offender’s role in the conspiracy.[49] This means that if a young woman of color with no prior criminal history is arrested for delivering 6.854 grams of cocaine base, mandatory minimum sentencing would subject that woman to a minimum term of five years versus the 51-63 month imprisonment range outlined in the Sentencing Guidelines.[50] This is because mandatory minimum sentencing requires the judge to use the weight of the drugs as the basis for calculating the sentence.[51]

Additionally, many Black women associate with men who commit federal crimes, such as drug trafficking because they are involved in intimate or familial relationships and gain economic support from the crime. However, receiving a mandatory sentence for trusting or being economically dependent on these men is not proportionate to the crime that was committed.[52]Nonetheless, these women who might otherwise receive a more modest sentence or even probation are left to serve lengthy sentences for their minimal involvement in trafficking drugs. The Honorable J. Spencer Letts, U.S. District Judge for the Central District of California states: “Statutory mandatory minimum sentences create injustice because the sentence is determined without looking at the particular defendant…It can make no difference whether he is a lifetime criminal or a first-time offender.”[53]

To avoid a permanency hearing and/or prevent her parental rights from being terminated, an incarcerated Black mother with a mandatory minimum sentence for drug trafficking would need to:

1. Have her sentence reduced,
2. Acknowledge her own history of victimization and how it might be impacting the way she nurtures, raises, and provides for her children,[54]
3. Put an end to her involvement in intimate or familial relationships with men who commit federal crimes, to prevent herself from returning to prison, and
4. Acquire a means of establishing and/or sustaining her economic independence.

Mandatory minimum sentences bar judges from showing mercy and considering an individual’s criminal history and family responsibilities. This places the idea of getting a reduced sentence outside of the realm of possibility for many incarcerated Black women serving a mandatory minimum sentence. Additionally, recovery from economic stability can require numerous steps such as finding housing, entering substance abuse treatment, mental health counseling, employment, medical care, and family support systems, the likelihood of women in this position having an environment that eliminates the risk of child welfare involvement is also very slim.[55]

For incarcerated Black women with children in foster care, the impact of serving a mandatory minimum sentence in the years following the enactment of the 1997 Adoption and Safe Families Act is as follows: Because the Adoption and Safe Families Act does not outline any exceptions to the mandate for TPR proceedings to begin 15 months after a child has entered foster care, this group of women can only make futile attempts to act within the federal window within which they are allowed to defend their parental rights. This causes their relationship with their children to be further fragmented amidst this tension between policy and reality.

Allowing states to determine which “aggravated circumstances” exempt them from making a reasonable effort to reunify a child welfare-involved family, exposes incarcerated Black women to differences in outcomes depending on their state of jurisdiction.

Under the Adoption and Safe Families Act, child welfare agencies that receive federal funding must begin termination of parental rights (TPR) proceedings for all children who have been in care for 15 of the most recent 22 months. Although the statutory frameworks for terminating parental rights are highly varied and oftentimes more extensive than federal laws,[56] ASFA does not standardize the types of behaviors that allow child welfare agencies to bypass the 15-month grace period and move directly to termination.

In his 2011 study “State Law and the Termination of Parental Rights”, University of Washington School of Social Work Professor William Vesneski, conducted a content analysis of state laws authorizing the termination of parental rights. In it, he compares the termination criteria adopted across the country to the termination criteria and examples of “aggravated circumstances” outlined in the Adoption and Safe Families Act of 1997. Professor Vesneski’s study illuminates the following about state interpretations of the 1997 law:

• Most states allow termination for circumstances listed in the Adoption and Safe Families Act such as abandonment (51 states), murder (51 states), serious bodily injuries (51 states), and sexual abuse.[57]
• However, many states also allow termination for vaguely defined conditions and behaviors that are not listed in the Adoption and Safe Families Act such as neglect (35 states), emotional/mental abuse (20 states), parents’ failure to assume responsibility for their children (31 states), the failure to respond to reasonable efforts (28 states), and the failure to provide financial support (23 states).[58]

Additionally, some of the qualifying aggravated circumstances defined in state legislatures are defined by parental conduct, while others are defined by judgements of the effect of the parental behavior on the child.[59] In even more state legislatures, reasonable effort exemptions consider both parental conduct and the effect of those actions on the child.[60] For example, in Missouri no reasonable efforts to reunify are required if the parent “has subjected the child to a severe act or recurrent acts of physical, emotional, or sexual abuse toward the child.” [61] However, in Nevada, no reasonable efforts are required only when the parent “caused the abuse or neglect of the child… which resulted in substantial bodily harm to the abused or neglected child.”[62] Here we see that the difference between two state’s decisions to apply resources to preserving a child’s relationship with his or her family depends on state attitudes surrounding the purpose of child welfare interventions: Some states are concerned with punishing parents for causing harm to their children, while others are concerned with the impact abuse and neglect has on the child or children in question.

Giving states the authority to deny reasonable efforts to reunify a family in instances where family preservation is neither safe nor viable was a meaningful attempt to keep children who are at risk for abuse and neglect safe from harm. However, the ambiguity of the “aggravated circumstances” provision, scholars argue, leaves these same children and their families susceptible to life-altering decisions that could be arbitrary, discriminatory, and/or made in poor judgement.

When coupled with a constitutional framework that allows states to create, implement, and regulate their own laws, the vague discussion of “aggravated circumstances” outlined in the Adoption and Safe Families Act leaves incarcerated Black women vulnerable to the race- and gender-based bias that exists in their state of jurisdiction.

From  slavery to the present, controlling images and identities such as the “Jezebel” and the “Mammy”, have been used to portray Black women as subhuman beings, with uncontrollable sexual desires, who are fully content with being relegated to subservient and dependent positions within the American framework.[63] With issues of welfare, the culture of poverty, and crack cocaine taking center stage in political debate, during the 1980s and 90s (the decade leading up to the passage of the Adoption and Safe Families Act of 1997), images of the “welfare queen” and the “crack whore” were added to the anthology of narratives employed to proliferate misguided characterizations of Black women and justify their persecution via federal injunctions.[64] Like stereotypes, these controlling images had and continue to have the power to sustain harmful and incorrect beliefs about this group and their fitness for motherhood.

The “Jezebel” image promotes the belief that Black women are promiscuous, have insatiable sexual desires, and cannot be survivors of sexual abuse and assault because they enjoy sex under any circumstance.[65] As it pertains to motherhood, this image portrays Black women as a class of people that is incapable of making responsible decisions regarding their reproduction, and morally incapable of caring for the children they produce.

The “Mammy” image promotes the belief that Black women are lazy, stupid, and incapable of performing well in “respectable” employment positions.[66] As such, they are portrayed as content with paternalistic systems “taking care” of them and are happy to remain submissive[67] in situations where the government and local law enforcement/regulation agencies infringe upon their rights to parent their children as they see fit.

 The “welfare queen” reinforces the idea that Black women are innately cunning and seeking to take advantage of the state’s “goodwill”.[68] And lastly, “the crack whore” image contends that Black women who suffer from addiction and other consequences of social inequality, will do anything to satiate their addictions, including engaging in greater degrees of sexual promiscuity, abusing their own children, and raising a class of offspring that is poised to do the same.[69]

While these stereotypes might have been created a long time ago, they continue to be reinforced through media, entertainment, and journalism. Contemporary films that portray Black women using these tropes include, but are not exclusive to Raising Isaiah, The Help, Precious, and Girls Trip. By failing to provide more concrete definitions of the types of behavior that warrant the termination of parental rights, the Adoption and Safe Families Act leaves it to judges in states with varying degrees of exposure to racial and ethnic difference, to lay their conscious and unconscious personal biases to the side and not allow these images to influence how they understand Black womanhood. This can prove to be especially challenging given stereotypes of this magnitude do not exist for non-Hispanic white women. This difference automatically positions incarcerated Black women’s attempts to maintain their right to parent, in accordance with the provisions outlined in the Adoption and Safe Families Act and their state companions, to be (mis)understood in ways that their white counterparts’ are not.

The requirement that states conduct criminal background checks on all prospective foster and adoptive parents, disproportionately disqualifies Black people from serving as foster parents to children in their families and communities.

Under the Adoption and Safe Families Act states are required to conduct criminal background checks on all prospective foster and adoptive parents. While the intent behind the inclusion of this provision was to ensure children entering out-of-home placements were being cared for by people who would not harm them, the reality is that it currently disqualifies many Black people from caring for foster-involved youth in their families and communities.

For example, in 2021 the Legal Aid Society filed a lawsuit in federal court against the New York State Governor, the Commissioner of the New York State Office of Children and Families, and the city of New York because people were applying to serve as foster parents to relatives and were routinely being rejected due to past convictions, and sometimes charges and allegations.[70] The cocktail of state, federal, and city policies that were used to disqualify these individuals, Legal Aid argues, go against the city’s efforts to place more children with family members as opposed to with  unfamiliar guardians in out-of-home placements.[71]

In their November 2021 article titled “They Wanted to Foster Their Great-Grandson. Why Did New York Say No?”, authors at the New York Times tell the stories of New Yorkers who have had strong relationships with child welfare-involved children in their families but were being denied the opportunity and the resources to care for them.

 For example, in 2019, a 59-year-old woman, identified in the Legal Aid case as Michelle, applied to foster her 14-year-old granddaughter who had a history of running away and was a survivor of sexual abuse. Michelle has a master’s in community health education, was employed at a nonprofit organization that assists New Yorkers who have chronic illnesses, and 30 years of success with sobriety.  However, because she had been arrested on loitering and prostitution charges in the 1980s and 1990s during her addiction to crack cocaine, the child welfare agency rejected her application to care for her granddaughter.[72] 

New York City has an official list of almost 300 crimes that automatically disqualify potential foster parents.[73] This list[74] includes but is not exclusive to, crimes outlined in ASFA (felony child abuse or neglect, a crime against children, a violent crime such as rape, sexual assault, or homicide etc.), marijuana charges, and having an adult in the household who has  ever been charged with a crime or has been the subject of a somewhat credible child maltreatment report.[75] The city’s Administration for children and Families also has a tendency of disqualifying prospective foster parents who had child neglect cases that were closed as “unfounded.”[76]

While this section highlights New York as a case study, it speaks to the larger trend of stigmatizing people of color in the United States who have come in contact with the criminal justice and child welfare systems. For incarcerated Black mothers, the implications of these practices are that they limit the number of people in her support system who could prevent her children from feeling the disconnection that comes with entering the foster care system, and perhaps also spare her from the pain associated with having her parental rights terminated.

Incarcerated Black Mothers and the Battle to Maintain their Parental Rights

Although the Adoption and Safe Families Act does not align with the specialized needs of incarcerated Black women and their families, to preserve parent-child relationships and maintain their right to parent, many still try to adhere to the restrictions outlined in the law. In trying to do this they encounter the following challenges:

Limited contact and visitation with their children

In the 12 months before federally-funded child welfare agencies are required to initiate permanency hearings for young people living in foster care, parents are expected to maintain meaningful and frequent contact with their children.[77] While this is not a difficult requirement for people are healthy, able-bodied, and/or living as free citizens, this is challenging for incarcerated Black women because their ability to stay in contact with people outside of prison is almost entirely outside of their control.

Visitation depends on the willingness and ability of their children’s caretaker(s) to arrange and provide transportation for their children to come spend time with them in prison. It also depends on their readiness to work within the timeframe and restrictions governing prison visitation and endure the atmosphere of prison visiting rooms.[78] For incarcerated women whose children are in the care of friends and family members, the challenge of adhering with their child welfare case plans and maintaining contact with their children also depends on the health, personal finances, and concerns of their children’s caretaker.

For example, the travel expenses associated with visiting incarcerated people can be insurmountable for individuals that are struggling with financial instability and are living in poverty.[79]And when money isn’t the issue, often times the long distances can be extremely taxing on young children and the older relatives that sometimes care for them.[80] And when distance isn’t the issue, sometimes the environment in prison can be so unwelcoming to children and such a hostile ground for personal and intimate interactions that caretakers do not make the effort to visit.[81] As a result, more than half of all mothers in prison receive no visits from their children.[82]

While visitation can be difficult when incarcerated women’s children are living with friends and family, the challenges to visitation are even greater when children are living with nonrelative foster families and their visits depend on arrangements made by caseworkers associated with child welfare agencies.[83] These individuals often have heavy caseloads, are not provided with adequate information about prison visitation procedures, have difficulty scheduling visits due to the number of children they have to transport, and find themselves uncomfortable with some of the humiliating searches and procedures that they have to be subjected to.[84] Additionally, many caseworkers have to endure long travel times to visited incarcerated mothers. While all of these experiences make facilitating prison visits challenging, there are real life implications for not supporting incarcerated Black women’s efforts to maintain contact with their children: They are made vulnerable to allegations of abandonment and neglect, both of which are offenses that can result in the termination of their parental rights.[85]

Outside of visitation, many incarcerated parents struggle to simply speak with their children because they only have access to collect calls. These calls can be very expensive and as a result, many foster care agencies, foster families, relatives and friends do not and are not able to accept them. In the 2000s, New York state prisons had an exclusive contract with Verizon which charged exorbitant fees for prison calls: Families, caseworkers, and children of incarcerated women had to pay $3.00 to initiate a call from a parent in prison, and then 16 cents per minute.[86]At that time, members of the general public were only paying 5 cents per minute for a long-distance call. At this rate, prison calls were 630% more expensive than a similar non-prison call, so when families couldn’t accept this rate, many incarcerated Black women lost their lifeline to their children and their opportunity to adhere to this aspect of their reunification plan.

Insufficient Access to Family Reunification/Preservation Services

In addition to having visitations and maintaining contact with their children, incarcerated mothers are also required to participate in family preservation and reunification services as a means of adhering to their child’s case plan. Depending on the needs of the family, services include, but are not exclusive to parenting classes, job training, drug and alcohol rehabilitation programs, and other services that help them address the issues that contributed to their children being placed in foster care.[87] While in an ideal setting, these services would give women the tools they need to better support themselves and their families, these programs are not easily accessible to incarcerated Black women. Almost all state Departments of Correctional Services claim to offer parenting classes in at least one of their women’s facilities, but upon further investigation scholars have found that these programs are small and serve fewer women than the number who wish to participate.[88] This limits incarcerated mothers’ opportunities to fulfill the requirements of their child’s case plan.

Inadequate Opportunities to Participate in Case Planning

Many incarcerated Black women with children in foster care struggle to participate in planning meetings with their children’s caseworker. This is because sometimes they are not transported to Family Court hearings where they would have the opportunity to meet their children’s lawyer, caseworker, and the judge. Additionally, they are given limited access to legal representation. Incarcerated women might be assigned counsel in Family Court proceedings during one phase of their case, but there is no guarantee that they will have the same lawyer during another phase. And for the mothers who do keep their lawyer throughout the 12 months leading up to the permanency hearing, many have little or no time to discuss their case prior to appearing before the judge[89] for reasons similar to ones that make it difficult for them to keep up with visitation and contact requirements.

Attendance in a hearing is dependent on a mother being notified of the hearing, being given approval from the prison to attend, and receiving transportation arrangements.[90] Even though these actions are extremely important for incarcerated women who are trying to remain in their children’s lives, surveys show that 28% of women in New York state prisons weren’t notified of upcoming court hearings, and more than half reported that they would not know how to make the necessary transportation arrangements.[91]

Poor cross-systems collaboration between corrections departments, child welfare agencies, and the courts

Despite the duty to support incarcerated Black women and their families, pressures inside of the criminal justice and child welfare systems often make it difficult for either system to effectively serve this population.[92] Child welfare case workers often describe how frustrating it can be to arrange visits or contact a mother in prison and their criminal justice counterparts often complain about how difficult it is to contact the assigned caseworker and access appropriate child welfare services for the mother and her family.[93] As a result, without appropriate cross-systems exchange of information, families receive duplicate or unnecessary interventions, while the interventions they need to adhere to their case plan are not provided.[94]

Discussion and Policy Recommendations

This analysis of the Adoption and Safe Families Act shows that the 1997 decision to shift away from a federal commitment to family preservation and towards adoption as the primary solution to rising child welfare caseloads was severely misaligned with the specialized needs of incarcerated Black women and their children. It codifies policies that do not strike enough of a balance between protecting children’s safety, respecting the integrity of their families, and preserving their parents’ rights to remain in their lives.[95] The values preserved in this policy opened and continue to widen the door to government interventions in families, the removal of children from parents who, with some additional support, can care for and nurture their children, and the imposition of unnecessary trauma associated with removal on children who are already vulnerable.[96] Without novel legislation that seeks to rectify the harm that has already been done to incarcerated Black women and their children, and prevent additional trauma at the intersection of the child welfare and criminal justice systems, we run the risk of continuing to facilitate the permanent separation of children from families that might have been preserved with adequate state resources and/or alternative custody arrangements. 

These section highlights opportunities for legislation that will help us to better serve and honor the dignity of incarcerated parents.

Empower incarcerated Black women to protect their parental rights

Studies have shown that incarcerated women who are able to participate in making placement decisions for their children, tend to be more satisfied with their living conditions than women who are not.[97] As such, honoring the dignity of incarcerated Black mothers requires us to create as many opportunities as possible for them to be advocates for their children and active participants in reunification efforts. On the most basic level, this means that representatives from the child welfare system need to make weekly, bimonthly, or monthly visits to detention centers to answer inmates’ questions about their children’s care.[98] Policy should include a pathway for caseworkers to bypass the regular visiting routine that friends and family members are subjected to, to ensure their clients have access to the individuals who can help them adhere to their case plans.

On a more comprehensive level, this looks like enhancing incarcerated Black women’s capacity to represent themselves legally. Law librarians within prisons and jails should be equipped with resources that mothers can access to work with their legal counsel to protect their parental rights.[99]Having meaningful access to law and legal resources enables incarcerated Black women to hold their counsel accountable. It would make them more alert to whether the strategies that are being employed in efforts to maintain their parental rights conflict with their child welfare case, their criminal case, or both.[100] It would also make them more aware of the state’s obligations to support their families, positioning them to hold the agency accountable for including them in case planning and rehabilitative services.[101]

Establish more holistic defense offices and develop academic programs that would attract law students to pursue careers in holistic defense.

It is important that lawyers charged with serving incarcerated Black women understand the systems of oppression these women encounter at the intersection of the child welfare and criminal justice system. They need to be equipped to provide trauma-informed, anti-racist, and culturally congruent care.[102]This can best be done via multidisciplinary legal teams that have social workers, peer parent advocates, and other professionals with experience in child welfare case management.[103] With all of these skillsets on the team, some individuals would be responsible for navigating the barriers to communicating with incarcerated clients and others would work on ensuring aspects of the case progress towards the goal of family reunification.[104]

Examples of defense offices that have adopted the legal defense model include, but are not exclusive to: the Bronx Defenders, Maryland Office of the Public Defender, Defender Association of Philadelphia, and Still She Rises, which is the first holistic defense office in the country dedicated to representing mothers in the criminal and civil legal systems.[105]As was mentioned earlier in this investigation, there are several controlling images that impact the way our society views Black mothers in the United States. Having a team that has taken the time to learn their clients’ history, observe the heart they have towards their children, and listen to their desired outcomes for both the child welfare and criminal justice case, could help bring color to the women’s criminal histories and offer a more complete image of their parenting.[106]

End Mandatory Sentencing and Continue the Hard Work of Reforming Prison Sentences

As discussed earlier in this investigation, mandatory minimum sentences have a detrimental impact on women and people of color. They eliminate judicial discretion, and they prevent judges from considering an individual’s background and the circumstances of their offenses when determining their sentence.[107] This sentencing practice causes people who commit federal crimes to serve sentences that are much longer than what would be recommended under the Sentencing Guidelines; And they have produced lasting harm in communities across the country with doing little to nothing to curb drug use and crime.[108]

To honor the dignity of incarcerated Black mothers and put an end to the use of this War on Drugs-derived punishment-based approach, it is important that policymakers sponsor and support legislation that would put an end to mandatory sentencing. Listed below are some of the most comprehensive solutions introduced at the federal level:

• The Fair Sentencing Act: Passed in 2010, this bill reduced the disparities between the mandatory penalties for crack and powder cocaine from 100:1 to 18:1.
• Mandatory Minimum Sentence Reform Act of 2017: If passed, this bill would repeal all mandatory minimums for federal drug crimes.
• The First Step Act of 2018: This bill made the Fair Sentencing Act of 2010 retroactive, and it expanded the federal safety valve for allowing a sentencing court to disregard minimum sentences for low-level nonviolent defendants. It reformed and reduced the three-strike mandatory minimum sentence from life to 25 years and eliminated the practice of stacking, which allowed consecutive sentences for gun charges stemming from an incident committed during a drug or violent crime.

For justice-involved Black women, the elimination of mandatory minimum sentences has the potential to reduce their representation in the prison population and reduce the sentences they serve if they are not able to avoid incarceration.

Conclusion

While the Adoption and Safe Families Act of 1997 was designed to address contemporary concerns around the rising numbers of children in foster care and state interpretations of their responsibility to preserve and reunify families, for incarcerated Black women, it has been the mechanism by which they have experienced two degrees of punishment at the intersection of the child welfare and criminal justice systems. Since policies are the culmination of the public perceptions and best practices for addressing a social problem, at a particular point in time, it is possible that Black women who are living at the intersection of these two systems could experience a world where this is no longer the case. Honoring their ability to parent behind bars would require legislation that reforms prison sentencing, produces better processes for cross-systems collaboration, and infuses the value of having a multidisciplinary team legal education. This is not an easy lift, but it is what needs to be done until we can collectively agree that the child welfare and criminal justice systems are not the best way to remedy the social problems that exist in our communities and our families.

[1] Sawyer, W. (2018) “The Gender Divide: Tracking Women’s State Prison Growth”. Prison Policy Initiative. Retrieved from https://www.prisonpolicy.org/reports/women_overtime.html

[2] Id.

[3] The term correctional supervision includes those on probation or parole or currently being held in jails or prisons.

[4] Bush-Baskette 1998 in Gross, K.N. (2015) African American Women, Mass Incarceration, and the Politics of Protection. The Journal of American History, 102(1), 25-33. Retrieved from https://academic.oup.com/jah/article/102/1/25/686630?login=true

[5] American Civil Liberties Union. (n.d.). Facts About the Over-Incarceration of Women in the United States. Retrieved from https://www.aclu.org/other/facts-about-over-incarceration-women-united-states.

[6] Glaze, L.E., and Maruschak, L.M. (2009). Parents in Prison and Their Minor Children. Bureau of Justice Statistics. Retrieved from https://bjs.ojp.gov/content/pub/pdf/pptmc.pdf

[7] Id.

[8] Margolies, J.K. and Kraft-Stolar, T. (2006). When Free Means Losing Your Mother: The Collision of Child Welfare and the Incarceration of Women in New York State. Women in Prison Project of the Correctional Association of New York. Retrieved from https://repositories.lib.utexas.edu/bitstream/handle/2152/15159/When_Free_Rpt_Feb_2006.pdf?sequence=2

[9] Adoption and Safe Families Act of 1997. Pub. L 105-89, 111 Stat. 2115 (1997). https://www.congress.gov/105/plaws/publ89/PLAW-105publ89.pdf

[10] Phillips, S.D. and Gleeson, J.P. (2007). Children, Families, and the Criminal Justice System. University of Illinois at Chicago. Retrieved from https://citeseerx.ist.psu.edu/viewdoc/download;jsessionid=04520DD02B790B800F87D386D3A9914C?doi=10.1.1.523.6538&rep=rep1&type=pdf

[11] Id.

[12] Id.

[13] Crenshaw, K. (1989). Demarginalizing the Intersection of Race and Sex. University of Chicago Legal Forum 1(8). Retrieved from https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1052&context=uclf

[14] Brown 2010; Burgess-Proctor 2006 in Gueta, K. (2020). Exploring the promise of intersectionality for promoting justice-involved women’s health research and policy. Health and Justice 8(19). Retrieved from https://healthandjusticejournal.biomedcentral.com/track/pdf/10.1186/s40352-020-00120-8.pdf

[15] Goodwin, M. (2020). The New Jane Crow: Women’s Mass Incarceration. Just Security. Retrieved from https://www.justsecurity.org/71509/the-new-jane-crow-womens-mass-incarceration/

[16] Gross, K.N. (2015). African American Women, Mass Incarceration, and the Politics of Protection. The Journal of American History 102(1). Retrieved from https://www.jstor.org/stable/pdf/44286133.pdf?refreqid=excelsior%3A2cf7c4e543ad8373d5e788b8519e221f&ab_segments=0%2Fbasic_search_gsv2%2Fcontrol&origin=

[17] See note 15 in Gross 2015

[18] Id.

[19]  “Dual arrest” is a practice where police responding to a domestic violence call cannot determine which person is the “primary aggressor”, so they arrest both the victim and the perpetrator. This practice has been associated with an increase in the number of Black women arrested during domestic violence calls; Shinde, R. (2021). Black Women, Police Brutality, and The Violence Against Women Act: How Pro-Arrest Policies Facilitate Racialized and Gendered Police Violence. Georgetown Journal of Gender and the Law. 22(2). Retrieved from https://www.law.georgetown.edu/gender-journal/black-women-police-brutality-and-the-violence-against-women-act-how-pro-arrest-policies-facilitate-racialized-and-gendered-police-violence/

[20] Supra note 1

[21] This includes non-Hispanic white women, women who are perceived as white, and other women who benefit from white privilege.

[22] Crenshaw, K. (1990). Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color. Stanford Law Review, 43, 1241.

[23] Figure 1 in Swann, C.A. and Sylvester, M.S. (2006). The Foster Care Crisis: What Caused Caseloads to Grow. Demography 43(2). Duke University Press. Retrieved from https://www.jstor.org/stable/pdf/4137200.pdf?refreqid=excelsior%3A22e02de325f4d419b5ecf07d4e7eded1&ab_segments=&origin=&acceptTC=1

[24] Id.

[25] At the time, the federal government reimbursed state and local governments for foster care expenses for children whose families received payments or were eligible for payments from cash welfare programs such as Aid to Families with Dependent Children (AFDC) under Title IV-E of the Social Security Act. For children who did not qualify for Title IV-E payments, the responsibility for paying for their care fell on state and local governments. See note 7 in Swann and Sylvester 2006.

[26] Preventive services are programs and activities that are designed to give families in crisis the support they need to parent their children, improve family functioning, and keep young people in their care safe from child abuse and neglect. Examples of preventive services include, but are not exclusive to parent support groups, anger management, substance abuse treatment and rehabilitation, and home visiting programs for parents of newborns and young babies; Children’s Bureau. (2019). What Prevention/preservation services are available for children and families in crisis?. Office of the Administration for Children & Families. Retrieved from https://www.acf.hhs.gov/cb/faq/cw1;  For additional information, visit https://www.childwelfare.gov/topics/preventing/prevention-programs/

[27] Family reunification programs are rooted in the understanding that separating children from their families and communities due to child welfare involvement can be traumatic and lead to long-term emotional and relational damage. As such, family reunification programs provide child-welfare involved families with services that help them improve their parenting and family functioning while keeping the children in their care safe. Usually, a caseworker helps the family identify strengths, needs, and areas of concern and provides them with a case plan for addressing their goals; Children’s Bureau. (n.d.) Introduction to Family Support and Preservation. Retrieved from https://www.childwelfare.gov/topics/supporting/introduction/

[28] See note 116 in Bean, K.S. (2009). Aggravated Circumstances, Reasonable Efforts, and ASFA. Boston College Third World Law Journal 29(2). Retrieved from https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1037&context=twlj

[29] Congressional Research Service. (2004). Child Welfare: Implementation of the Adoption and Safe Families Act (P.L.105-89). Retrieved from https://www.everycrsreport.com/files/20041108_RL30759_96784ee8d3d99882a9c887e9da08de67ee99e872.pdf

[30] Id.

[31] Id.

[32] Id.

[33] The term “aggravated circumstance” is written, but not explicitly defined in the Adoption and Safe Families Act of 1997. The legislation provides examples of aggravated circumstances such as abandonment, torture, chronic abuse, and sexual abuse. However, state legislatures are given the freedom to decide which additional child welfare cases do not require the state to expend resources to reunite a child with their parents. Some states have chosen to define “aggravated circumstances” using the model provided in the federal policy. Others have chosen to define “aggravated circumstances” using very specific and niche terms. For example, in Utah law, parental rights can be terminated without reunification efforts if “the parent permitted the child to reside… at a location where the parent knew or should have known that a clandestine laboratory operation was located.”; See notes 36-42 in Bean 2006.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Id.

[40] Hager, E. and Flagg, A. (2018). How Incarcerated Parents are Losing Their Children Forever. The Marshall Project. Retrieved from https://www.themarshallproject.org/2018/12/03/how-incarcerated-parents-are-losing-their-children-forever

[41] Id.

[42] Supra note 8

[43] Central to the liberal paradigm is the belief that social problems do not sit squarely on the shoulders of individuals, their families, or their communities of origin. It accepts the fact that economic markets fail, and these failures have made it difficult for the contemporary family to meet needs that families might have been able to meet in the past. These imperfections of the capitalist market cause social problems for some people (ex. Domestic violence, substance abuse & addiction, propensity for abusing their children and others in their care etc.); George & Wilding 1976 in Dupre, M. & Mullaly, R.P. (2018). The New Structural Social Work: Ideology, Theory, and Practice.

[44] Substance Abuse and Mental Health Services Administration. (2014). What is Substance Abuse Treatment? A Booklet for Families. United States Department of Health and Human Services. Retrieved from https://store.samhsa.gov/sites/default/files/d7/priv/sma14-4126.pdf

[45] Nowotny, K. M., Belknap, J., Lynch, S., & DeHart, D. (2014). Risk profile and treatment needs of women in jail with co-occurring serious mental illness and substance use disorders. Women & health, 54(8), 781-795.

[46] “The term ‘mandatory minimum penalty’ refers to a federal criminal statute requiring, upon conviction of a federal criminal offense and the satisfaction of criteria set forth in that statute, the imposition of a specified minimum term of imprisonment”; Note 20 in United States Sentencing Commission. (2017). Overview of Mandatory Minimum Penalties in the Federal Criminal Justice System. Retrieved from https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2017/20170711_Mand-Min.pdf

[47] United States Sentencing Commission. (2014). Quick Facts: Women in the Federal Offender Population. Retrieved from https://www.ussc.gov/sites/default/files/pdf/research-and-publications/quick-facts/Quick_Facts_Female_Offenders.pdf.

[48] Gaskins, S. (2004). “Women of Circumstance”- The Effects of Mandatory Minimum Sentencing on Women Minimally Involved in Drug Crimes. The American Criminal Law Review. Retrieved from https://www.proquest.com/docview/230349984/fulltextPDF/E40149BE6DE94585PQ/1?accountid=35803

[49] Id.

[50] Id.

[51] Id.

[52] Id.

[53] Id.

[54] Davis 1990 in Katz, P.C. (1998). Supporting Families and Children of Mothers in Jail: An Integrated Child Welfare and Criminal Justice Strategy. Child Welfare 77(5). Retrieved from https://www.proquest.com/docview/213810098?fromopenview=true&pq-origsite=gscholar

[55] Bussey et al. 1995 in Katz, P.C. (1998). Supporting Families and Children of Mothers in Jail: An Integrated Child Welfare and Criminal Justice Strategy. Child Welfare 77(5). Retrieved from https://www.proquest.com/docview/213810098?fromopenview=true&pq-origsite=gscholar

[56] Id.

[57] Vesneski, W. (2011). State law and the termination of parental rights. Family Court Review, 49(2), 364-378.

[58] Id.

[59] See note 45 in Bean, K.S. (2009). Aggravated Circumstances, Reasonable Efforts, and ASFA. Boston College Third World Law Journal 29(2). Retrieved from https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1037&context=twlj

[60] Id.

[61] See note 46 in Bean, K.S. (2009). Aggravated Circumstances, Reasonable Efforts, and ASFA. Boston College Third World Law Journal 29(2). Retrieved from https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1037&context=twlj

[62] See note 50 in Bean, K.S. (2009). Aggravated Circumstances, Reasonable Efforts, and ASFA. Boston College Third World Law Journal 29(2). Retrieved from https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1037&context=twlj

[63] Windsor, L.C., Dunlap, E., & Golub, A. (2011). Challenging Controlling Images, Oppression, Poverty, and Other Structural Constraints: Survival Strategies Among African-American Women in Distressed Households. Journal of African American Studies 15(3). Retrieved from https://link.springer.com/article/10.1007/s12111-010-9151-0

[64] Id.

[65] Collins 2000 in ⁶⁰ Windsor, L.C., Dunlap, E., & Golub, A. (2011). Challenging Controlling Images, Oppression, Poverty, and Other Structural Constraints: Survival Strategies Among African-American Women in Distressed Households. Journal of African American Studies 15(3). Retrieved from https://link.springer.com/article/10.1007/s12111-010-9151-0

[66] Windsor, L.C., Dunlap, E., & Golub, A. (2011). Challenging Controlling Images, Oppression, Poverty, and Other Structural Constraints: Survival Strategies Among African-American Women in Distressed Households. Journal of African American Studies 15(3). Retrieved from https://link.springer.com/article/10.1007/s12111-010-9151-0

[67] Collins 2000; West 1995 in Windsor, L.C., Dunlap, E., & Golub, A. (2011). Challenging Controlling Images, Oppression, Poverty, and Other Structural Constraints: Survival Strategies Among African-American Women in Distressed Households. Journal of African American Studies 15(3). Retrieved from https://link.springer.com/article/10.1007/s12111-010-9151-0

[68] Hays 2003; Limbert & Bullock 2005; Quadagno 1996; Roberts 2002 in Windsor, L.C., Dunlap, E., & Golub, A. (2011). Challenging Controlling Images, Oppression, Poverty, and Other Structural Constraints: Survival Strategies Among African-American Women in Distressed Households. Journal of African American Studies 15(3). Retrieved from https://link.springer.com/article/10.1007/s12111-010-9151-0

[69] Dunlap & Johnson 1992; Reinarman & Levine 1997 in Windsor, L.C., Dunlap, E., & Golub, A. (2011). Challenging Controlling Images, Oppression, Poverty, and Other Structural Constraints: Survival Strategies Among African-American Women in Distressed Households. Journal of African American Studies 15(3). Retrieved from https://link.springer.com/article/10.1007/s12111-010-9151-0

[70] Newman, A. (2021). They Wanted to Foster Their Great-Grandson- Why Did New York Say No. The New York Times. Retrieved from https://www.nytimes.com/2021/11/10/nyregion/foster-care-lawsuit-nyc.html

[71] Id.

[72] Id.

[73] Id.

[74] New York State Office of Children and Family Services. (2022). Criminal History Record ASFA Review Standards. Retrieved from https://ocfs.ny.gov/main/policies/external/OCFS_2016/ADMs/CRIMINAL-HISTORY-RECORD-ASFA-REVIEW-STANDARDS.pdf

[75] Supra note 72

[76] Id.

[77] Halperin, R., & Harris, J. L. (2004). Parental rights of incarcerated mothers with children in foster care: A policy vacuum. Feminist Studies, 339-352.

[78] Id.

[79] Supra note 8

[80] Id.

[81] Supra note 79

[82] Id. at note 10

[83] Supra note 79

[84] Id.

[85] Supra note 8

[86] American Civil Liberties Union. (n.d.). Words from Prison: Women’s Incarceration and Loss of Parental Rights. Retrieved from https://www.aclu.org/other/words-prison-womens-incarceration-and-loss-parental-rights

[87] Supra note 79

[88] Note 15 in Halperin and Harris 2004

[89] Supra note 8

[90] Supra note 79

[91] Id. at note 7

[92] Katz, P.C. (1998). Supporting Families and Children of Mothers in Jail: An Integrated Child Welfare and Criminal Justice Strategy. Child Welfare 77(5). Retrieved from https://www.proquest.com/docview/213810098?fromopenview=true&pq-origsite=gscholar

[93] Women’s Prison Association 1996a, 1996b supra note 94

[94] Id.

[95] Golden, O., Macomber, J.E., and Additional Authors (2009). Intentions and Results: A Look Back at the Adoption and Safe Families Act. The Urban Institute. Retrieved from https://www.urban.org/research/publication/intentions-and-results-look-back-adoption-and-safe-families-act

[96] Id.

[97] Henriques 1982 supra note 94

[98] Supra note 94

[99] Laroche, C. (2022). The New Jim and Jane Crow Intersect: Challenges to Defending the Parental Rights of Mothers During Incarceration. Columbia Journal of Race and Law, Forthcoming. Retrieved from https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4043102

[100] Id.

[101] Id.

[102] Gerber et al. 2019 in Laroche 2022

[103] Supra note 101

[104] Id.

[105] Id.

[106] Finck 2017 supra note 101

[107] McCurdy, J. and Cook, S. (2021). Undoing the Damage of the War on Drugs: A Renewed Call for Sentencing Reform. Statement before the United States House of Representatives Committee on the Judiciary Subcommittee on Crime, Terrorism, and Homeland Security. Retrieved from https://civilrights.org/resource/undoing-the-damage-of-the-war-on-drugs-a-renewed-call-for-sentencing-reform-june-17-2021/

[108] Id.

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