Mothers in the Margins: Addressing the Consequences of Criminal Records for Young Mothers of Color
Mothers in the Margins: Addressing the Consequences of Criminal Records for Young Mothers of Color
This article, which was written by Jesse Krohn and CLS attorney Jamie Gullen, originally appeared in the University of Baltimore Law Review.
Introduction: What About the Boys?
As young women pull ahead of young men in higher education, the wage gap narrows, and young men continue to be arrested and incarcerated at higher rates than young women, there has been much discussion at the policy level and in the media regarding the need to concentrate resources on men and boys. President Barack Obama’s “My Brother’s Keeper” and “Responsible Fatherhood” initiatives typify this shift.
As legal aid lawyers who represent youth, many of whom have been involved in the juvenile and criminal legal systems, we are pulled into the debate and asked to answer with increasing frequency: “What about the boys?” While young men of color certainly face discrimination and hardships that are worthy of attention, any conversation about the impact of mass incarceration on communities of color that ignores the voices and experiences of young women of color is inherently misguided.
Individually and through our offices, we assist hundreds of clients each year in coping with the collateral consequences of criminal records, primarily with employment and family law issues. Contrary to popular expectations, the vast majority of our clients presented with these issues are female, and the barriers they face are unique to their gender.
In this article, we will explore a number of these gendered barriers. We begin with a discussion of the oft-gendered roots of criminal involvement for women, who are far more likely than men to be incarcerated for drug and property related crimes, and far less likely to be incarcerated for violent crimes. This includes the prevalence of substance abuse in women who have experienced domestic violence.
We continue on to explore the misconception that, because women with criminal records are more likely than men with records to have been arrested or convicted of low-level and non-violent crimes, their prospects for employment are less affected by the collateral consequences. We note that women are likely to be seeking employment in caregiving jobs for which even minor offenses are likely to preclude employment opportunities, and that women are likely to be viewed more harshly for criminal behavior than men due to their perceived gender aberrance.
We then link women’s struggles with employment to their struggles to maintain family stability by preserving their status as primary caregivers to their children. Women are more likely than their male counterparts to be serving as primary caregivers to children, and single mothers are likely to be poor, even before differentiating mothers with criminal histories. Poverty also increases the likelihood of child welfare involvement, and may perversely prompt a loss of custody to fathers whose non-custodial status has enabled them to reach financial stability. Mothers are harmed not only by the financial consequences of their criminal histories, but again by negative stereotypes of women with criminal records—stereotypes which often do not attach to men to the same degree. There may also be legal barriers enacted that present challenges for parents with criminal records., 
Due to gender stereotyping, low-income young women of color struggling to find employment and create stable homes for their children face unique challenges in coping with the collateral consequences of criminal conviction. Treating the impact of mass incarceration as solely a “men’s issue” is short-sighted and inaccurate, and allows many vulnerable young women of color and their children to fall through the cracks. We conclude with recommendations for how to best serve young women of color with criminal records as they strive to find employment and family stability.
. Kurt Bauman & Camille Ryan, Women Now at the Head of the Class, Lead Men in College Attainment, U.S. Census Bureau (Oct. 7, 2015), http://blogs.census.gov/2015/10/07/women-now-at-the-head-of-the-class-le... (noting that women are now more likely than men to hold a bachelor’s degree).
. Jena McGregor, Young Women Are Closing the Pay Gap, Wash. Post (Dec. 11, 2013), https://www.washingtonpost.com/news/on-leadership/wp/2013/12/11/young-wo... (observing that young women “have entered into the workplace at a place of near-parity” to their male counterparts) (internal quotation marks omitted).
. See E. Ann Carson, Prisoners in 2013, U.S. Dep’t Just., Bureau Just. Stat. 2 (Sept. 30, 2014), http://www.bjs.gov/content/pub/pdf/p13.pdf (showing that approximately ninety-three percent of federal and state prisoners are male).
. Remarks by the President on “My Brother’s Keeper” Initiative, 2014 Daily Comp. Pres. Doc. 121, 1, 2, 5 (Feb. 27, 2014) [hereinafter “My Brother’s Keeper”] (announcing the investment of approximately 200 million foundation dollars in research and advocacy for young men and boys of color who are “by almost every measure, the group that is facing some of the most severe challenges in the 21st century”).
. Remarks at a Father’s Day Event, 1 Pub. Papers 842, 843–44 (June 21, 2010) [hereinafter “Fatherhood Initiative”] (announcing the “nationwide Fatherhood and Mentoring Initiative”).
. Jamie Gullen is a staff attorney in the Employment Unit at Community Legal Services of Philadelphia (CLS) and has worked extensively fighting barriers to employment for young adults with criminal records. At the time this article was written, Jesse Krohn was a Staff Attorney in the Family Law Unit at Philadelphia Legal Assistance (PLA) and advocated on behalf of teen parents. Both former teachers, Gullen and Krohn are also co-founders of the CLS/PLA Youth Justice Project initiative, which promotes the provision of comprehensive services to low-income youths, many of whom have been involved in the criminal justice system. We discuss many client stories in this paper, but all names have been changed and some identifying information has been slightly edited or omitted. Krohn’s views expressed herein are her own and do not reflect the views of PLA; her part of this work was not created with the support, financial or otherwise, of PLA or any other entity.
. See Carson, supra note 3, at 15 (showing that 24.6% of incarcerated women are incarcerated for drug offenses (compared to 15.4% of incarcerated men), and 28.2% of incarcerated women are incarcerated for property offenses (compared to 18.1% of incarcerated men), and, overall, only 37.1% of incarcerated women are incarcerated for violent offenses (compared to 55% of incarcerated men)).
. See Ann L. Coker, et al., Physical and Mental Health Effects of Intimate Partner Violence for Men and Women, 23 Am. J. Preventive Med. 260, 260, 264–66 (2002).
. See infra note 44 and accompanying text.
. See Employed Persons by Detailed Occupation, Sex, Race, and Hispanic or Latino Ethnicity, U.S. Dep’t Lab., Bureau Lab. Stat., http://www.bls.gov/cps/cpsaat11.pdf (last modified Feb. 10, 2016) (demonstrating that women comprise, for example, 88.5% of home health aides and 95.5% of child care workers).
. See, e.g., Scott H. Decker et al., Criminal Stigma, Race, Gender, and Employment: An Expanded Assessment of the Consequences of Imprisonment for Employment 57 (2014), https://www.ncjrs.gov/pdffiles1/nij/grants/244756.pdf.
. See Jonathan Vespa et al., America’s Families and Living Arrangements: 2012, Population Characteristics 14–15 (2013), https://www.census.gov/prod/2013pubs/p20-570.pdf (showing that less than 17% of single-parent homes are headed by men).
. More than two-thirds of female-headed single-parent households have incomes below 200% of the federal poverty guidelines. Id. at 14.
. Mothers with criminal records may also be plunged deeper into poverty when their access to public/subsidized housing and other vital public benefits are severed because of their records. See infra Section III.C. See generally Amy E. Hirsch et al., Every Door Closed: Barriers Facing Parents with Criminal Records (2002), http://www.clasp.org/resources-and-publications/files/every_door_closed.pdf (discussing the legal barriers that parents with criminal records encounter in providing for their families).
. The difficulty in distinguishing child neglect from poverty has been well-documented with studies showing that financial hardships increase a family’s risk of interaction with the child welfare system. See, e.g., Maria Cancian et al., The Effect of Family Income on Risk of Child Maltreatment (2010), http://www.irp.wisc.edu/publications/dps/pdfs/dp138510.pdf.
. See, e.g., Christa J. Richer, Note, Fetal Abuse Law: Punitive Approach and the Honorable Status of Motherhood, 50 Syracuse L. Rev. 1127, 1142 (2000) (observing, in the context of criminal prosecution, that “[t]he legal system, including its judges, has exercised a harsh review of women who depart from the norm of the ideal mother, especially when they commit ‘unfeminine crimes.’ Their defiance of gender roles is treated as deviance of a higher order.”) (footnotes omitted).
. In many jurisdictions, the attachment of a criminal record to a party in a child custody case is one factor to be considered in determining the best interests of the child. For example, in Delaware, a court must consider “[t]he criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.” Del. Code Ann. tit. 13, § 722(a)(8) (2009). In addition, courts also require consideration of “[e]vidence of domestic violence.” Id. § 722(a)(7). In other jurisdictions, criminal records are given heightened consideration. See infra notes 129–30 and accompanying text. Compare 23 Pa. Stat. and Cons. Stat. Ann. § 5329 (West Supp. 2016) (where criminal convictions for offenses enumerated on a lengthy list trigger a mandatory evaluation, with the court to consider whether the party with the conviction “pose[s] a threat of harm to the child before making any order of custody to that parent”), with 23 Pa. Stat. and Cons. Stat. Ann. § 5328(a)(2) (West Supp. 2016) (considering as one of a list of factors “[t]he present and past abuse committed by a party or member of the party's household”).
. This article does not focus on the population of parents whose parental rights have been terminated due to incarceration, often per the “15/22” mandate of the Adoption and Safe Families Act (ASFA). See generally Adoption and Safe Families Act of 1997, Pub. L. No. 105-89 § 103, 111 Stat. 2115, 2118 (requiring that states move—with exceptions—to terminate the parental rights of parents whose children have been in foster care for fifteen out of twenty-two consecutive months).