Neutralizing the gendered collateral consequences of the war on drugs

New York University Law Review

Volumn 86, Issue 1, 2011, Pages 280-315

  Lenox, Marne L ^a  

^a NEW YORK UNIVERSITY SCHOOL OF LAW   (United States)

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EID: 79955634126     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (369)

1. Sara Rimer, At Last, the Windows Have No Bars, N.Y. TIMES, Apr. 29, 2004, at F1, F10 (reporting on Elaine Bartlett).
2. JENNIFER GONNERMAN, LIFE ON THE OUTSIDE: THE PRISON ODYSSEY OF ELAINE BARTLETT 31 (2004) (quoting Couple Held in Cocaine Sale, TIMES UNION (Albany), Nov. 9, 1983, at B4).
3. Rimer, supra note 1, at F10.
4. GONNERMAN, supra note 3, at 82.
5. Id. at 174.
6. See id. at 232-33 (noting that Bartlett's drug conviction precluded her from residing
7. legally in public housing).
8. MARC MAUER ET AL., GENDER AND JUSTICE: WOMEN, DRUGS, AND SENTENCING POLICY 3 (1999), available at http://www.sentencingproject.org/doc/publications/dp_genderandjustice.pd f.
9. See Leslie Acoca & Myrna S. Raeder, Severing Family Ties: The Plight of Nonviolent Female Offenders and Their Children, 11 STAN. L. & POL'Y REV. 133, 134 (1999) (describing general characteristics of female prisoners).
10. Eda Katharine Tinto, Note, The Role of Gender and Relationship in Reforming the Rockefeller Drug Laws, 76 N.Y.U. L. REV. 906, 913-14 (2001).
11. CHRISTOPHER J. MUMOLA, BUREAU OF JUSTICE STATISTICS SPECIAL REPORT: INCARCERATED PARENTS AND THEIR CHILDREN 2 (2000), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/iptc.pdf.
12. The Supreme Court first articulated the disparate impact theory in the context of employment law in Griggs v. Duke Power Co., 401 U.S. 424 (1971).
13. Title VII "proscribes not only overt discrimination, but also practices that are fair in form, but discriminatory in operation. [G]ood intent or absence of discriminatory intent does not redeem [biased] employment procedures ";
14. Id. at 431-32.
15. See infra Part III (rejecting litigation strategy based on Equal Protection Clause as futile response to collateral-consequences legislation).
16. See infra Part III.A (discussing intermediate scrutiny standard of review for sex specific laws).
17. See generally, e.g., Lanette P. Dalley, Imprisoned Mothers and Their Children: Their Often Conflicting Legal Rights, 22 HAMLINE J. PUB. L. & POL'Y 1 (2000) (discussing Montana study of female prison population)
18. Kathleen Daly & Michael Tonry, Gender, Race, and Sentencing, 22 CRIME & JUST. 201 (1997) (comparing differing impacts of race and gender on criminal justice system);
19. Beaten by the System and Down for the Count: Why Poor Women of Color and Children Don't Stand a Chance Against U.S. Drug Sentencing Policy, 3 U. ST. THOMAS L.J. 462 (2006) (arguing War on Drugs disparately impacts children and poor women of color)
20. Ilene H. Nagel & Barry L. Johnson, The Role of Gender in a Structured Sentencing System: Equal Treatment, Policy Choices, and the Sentencing of Female Offenders Under the United States Sentencing Guidelines, 85 J. CRIM. L. & CRIMINOLOGY 181 (1994) (analyzing impact of federal sentening reform on female offenders)
21. Myrna S. Raeder, Gender and Sentencing: Single Moms, Battered Women, and Other Sex-Based Anomalies in the Gender-Free World of the Federal Sentencing Guidelines, 20 PEPP. L. REV. 905 (1993) (arguing that federal sentencing guidelines ignore factors critical to female offenders).
22. For the purposes of this Note, I have limited my discussion of collateral consequences to those affecting public assistance, housing, and foster care. 17 For a detailed discussion, see specifically infra notes 45-62 and accompanying text.
23. PBS, Thirty Years of America's Drug War: A Chronology, http://www.pbs.org/wgbh/pages/frontline/shows/drugs/cron (last visited Feb. 7, 2011).
24. Under the Anti-Drug Abuse Act, possession of 500 grams of powder cocaine warranted the same five-year sentence as possession of five grams of crack cocaine. 21 U.S.C. § 841(B) (2006). In 2004,
25. the U.S. Sentencing Commission concluded that "[t]his one sentencing rule contributes more to the differences in average sentences between African- American and White offenders than any possible effect of discrimination." U.S. SENTENCING COMM'N, FIFTEEN YEARS OF GUIDELINES SENTENCING: AN ASSESSMENT OF HOW WELL THE FEDERAL CRIMINAL JUSTICE SYSTEM IS ACHIEVING THE GOALS OF SENTENCING
26. REFORM 132 (2004), available at http://www.ussc.gov/15_year/15_year_study_full. pdf.
27. In 2010, President Obama signed legislation that reduces the sentencing disparity from 100-to-1 to 18-to-1;
28. now, a person convicted of crack cocaine possession gets the same mandatory prison term as someone with 18 times more powder cocaine.
29. Peter Baker, Obama Signs Law Narrowing Cocaine Sentencing Disparities, N.Y. TIMES (Aug. 3, 2010, 12:55 PM), http://thecaucus.blogs.nytimes.com/2010/08/03/obama-signs-law-narrowingc ocaine- sentencing-disparities.
30. DEVAH PAGER, MARKED: RACE, CRIME, AND FINDING WORK IN AN ERA OF MASS INCARCERATION 20-21 (2007)
31. HUMAN RIGHTS WATCH, COUNTRY SUMMARY: UNITED STATES 2 (2010), available at http://www.hrw.org/sites/default/files/related_material/unitedstates.pdf
32. The United States continues to have both the largest incarcer ated population and the highest incarceration rate in the world.
33. HUMAN RIGHTS WATCH, BACKGROUNDER: INCARCERATED AMERICA (2003), available at http://www.hrw.org/legacy/backgrounder/usa/incarceration/us042903.pdf
34. (Perhaps the single greatest force behind the growth of the prison population has been the national war on drugs. (internal quotation marks omitted)).
35. Gary Fields, White House Czar Calls for End to 'War on Drugs,' WALL ST. J., May 14, 2009, at A3.
36. In 1979, roughly 1 in 10 incarcerated women was serving a sentence for a drug conviction 1999, this figure was approximately 1 in 3.
37. Dana Sussman, Bound by Injustice: Challenging the Use of Shackles on Incarcerated Pregnant Women, 15 CARDOZO J.L. & GENDER 477, 484, 486 (2009).
38. OFFICE OF NAT'L DRUG CONTROL POLICY, NATIONAL DRUG CONTROL STRATEGY 18, 20-24 (1989) (recommending increased funding for street level enforcement).
39. The fiscal budget for drug control resources in 1989 indicates that treatment accounted for just 10% of the overall budget, while "Other Law Enforcement" amounted to nearly 50%.
40. Id. at 113.
41. Between 1980 and 2009, the number of females incarcerated in state or federal prisons rose from 12,300 to 114,979.
42. HEATHER C. WEST, BUREAU OF JUSTICE STATISTICS, PRISON INMATES AT MIDYEAR 2009-STATISTICAL TABLES 4 tbl.1 (2010)
43. Shimica Gaskins, Note, "Women of Circumstance"-The Effects of Mandatory Minimum Sentencing on Women Minimally Involved in Drug Crimes, 41 AM. CRIM. L. REV. 1533, 1533 (2004).
44. MAUER ET AL., supra note 8, at 5 tbl.1.
45. HE SENTENCING PROJECT, WOMEN IN THE CRIMINAL JUSTICE SYSTEM: BRIEFING SHEETS (2007), www.sentencingproject.org/doc/publications/womenincj_total.pdf.
46. Alida V. Merlo, Female Criminality in the 1990s, in WOMEN, LAW, & SOCIAL CONTROL 119, 126 (Alida V. Merlo & Jocelyn M. Pollock eds., 1995) (recognizing longheld view that drugs and poverty are "major factors" causing women to commit crimes).
47. Stephanie R. Bush-Baskette, The War on Drugs: A War Against Women?, in HARSH PUNISHMENT: INTERNATIONAL EXPERIENCES OF WOMEN'S IMPRISONMENT 211, 211 (Sandy Cook & Susanne Davies eds., 1999)
48. noting statistics that "have led some feminist criminologists to posit that [the] war on drugs has actually been a war on women"). Because of mandatory minimum sentencing and the ongoing War on Drugs, women have become the fastest growing population in the prison system.
49. Mariely Downey, Losing More Than Time: Incarcerated Mothers and the Adoption and Safe Families Act of 1997, 9 BUFF. WOMEN'S L.J. 41, 44-45 (2001).
50. Beth E. Richie, The Social Impact of Mass Incarceration on Women, in INVISIBLE PUNISHMENT: THE COLLATERAL CONSEQUENCES OF MASS IMPRISONMENT 136, 138 (Marc Mauer & Meda Chesney-Lind eds., 2002).
51. Id. at 138.
52. infra notes 40-47 and accompanying text (discussing gender-blind sentencing guidelines).
53. See Acoca & Raeder, supra note 9, at 133 (noting that, before War on Drugs, "women [were] an aberration in the criminal justice system")
54. Gaskins, supra note 24.
55. at 1533 (arguing that War on Drugs and mandatory minimum sentencing together account for dramatic increase in female prison population);
56. Ryan S. King, Moving Toward a Gender-Appropriate Response in the Criminal Justice System, 33 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 3, 7 (2007)
57. ("The 'war on drugs' has been the most significant explanatory factor for the growth witnessed in the female prison population."). While women's incarceration in state prisons for drug offenses rose 888% from 1986 to 1996, female confinement rates increased only 129% for offenses unrelated to drugs. THE SENTENCING PROJECT,
58. supra note 26, at 4.
59. The Nixon Administration created the Drug Enforcement Agency, which is "endowed with extraordinary powers to gather intelligence, to conduct wiretaps and warrantless searches, and to freeze the assets and confiscate the property of suspected traffickers.
60. Ruth C. Stern & J. Herbie DiFonzo, The End of the Red Queen's Race: Medical Marijuana in the New Century, 27 QUINNIPIAC L. REV. 673, 687-88 (2009).
61. Excerpts from President's Message on Drug Abuse Control, N.Y. TIMES, June 18, 1971, at 22.
62. Nixon's methadone treatment program cut recidivism rates for enrollees and reduced overall crime rates. Eric Blumenson, Recovering from Drugs and the Drug War: An Achievable Public Health Alternative, 6 J. GENDER RACE & JUST. 225, 231 (2002).
63. PBS, supra note 18;
64. Dana Adams Schmidt, President Orders Wider Drug Fight; Asks $155-Million, N.Y. TIMES, June 18, 1971, at 1, 22 ("Of the new funds requested by the President, $105 million is to be used solely for treatment and rehabilitation of addicts.").
65. Kenneth B. Nunn, Race, Crime and the Pool of Surplus Criminality: Or Why the 'War on Drugs' Was a 'War on Blacks,' 6 J. GENDER RACE & JUST. 381, 389 (2002) (noting that National Institute on Drug Abuse surveys in 1982 indicated substantial decline in illegal drug use).
66. Michael M. O'Hear, Federalism and Drug Control, 57 VAND. L. REV. 783, 799 (2004)
67. ("With the emphasis on law enforcement, antidrug publicity, and new international interdiction programs, treatment received little consistent support from Washington.").
68. Nunn, supra note 37, at 389-90
69. ("[W]idespread public support [of Reagan's antidrug proposals] explains the political value of the War on Drugs."). Pub. L. No. 98-473, 98 Stat. 1987 (codified at 18 U.S.C. § 3553 (2006)).
70. Nagel & Johnson, supra note 15, at 191.
71. In United States v. Booker, 543 U.S. 220, 245 (2005), the Court held that sentencing guidelines are advisory, rather than determinate. Regardless, absent "exceptional circumstances," judges continue sentencing defendants within the guideline range to avoid congressional scrutiny of judicial decisions.
72. Nekima Levy-Pounds, Can These Bones Live? A Look at the Impacts of the War on Drugs on Poor African-American Children and Families, 7 HASTINGS RACE & POVERTY L.J. 353, 361 (2010)
73. King, supra note 32, at 8-9 (noting that, post-Booker, "courts [have been] operating as they did pre-Booker"). Indeed, "[d]iscretionary mandatories. are largely used as bargaining chips for plea negotiation.
74. Stephen J. Schulhofer, Rethinking Mandatory Minimums, 28 WAKE FOREST L.REV. 199, 213 (1993).
75. Nagel & Johnson, supra note 15, at 192.
76. Two years after Reagan signed the Anti- Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207 (codified at 21 U.S.C. § 801 (2006)), Congress passed the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181 (codified at 21 U.S.C. § 1501 (2006)).
77. UNIV. OF ILL. AT CHI. HEALTH RESEARCH & POLICY CTRS., ILLICIT DRUG POLICIES: SELECTED LAWS FROM THE 50 STATES 8 (Jan. 2002), available at http://www.impacteen.org/generalarea_PDFs/IDTchartbook032103.pdf ("The vast majority of states use. [sentencing statutes that] specify a minimum and/or maximum fine and jail sentence associated with each drug and each offense."). Individual states also developed mandatoryminimum sentences targeting drug offenses.
78. Alfred Blumstein & Allen J. Beck, Reentry as a Transient State Between Liberty and Recommitment, in PRISONER REENTRY AND CRIME IN AMERICA 50, 53-54 (Jeremy Travis & Christy Visher eds., 2005).
79. SUSAN C. BOYD, FROM WITCHES TO CRACK MOMS: WOMEN, DRUG LAW, AND POLICY 222-23 (2004).
80. MARY WELEK ATWELL, EQUAL PROTECTION OF THE LAW? GENDER AND JUSTICE IN THE UNITED STATES 109 (2002).
81. Phyllis Goldfarb, Counting the Drug War's Female Casualties, 6 J. GENDER RACE & JUST. 277, 285, 291-93 (2002) (discussing gendered effect of patriarchal drug economy).
82. Myrna S. Raeder, Gender Issues in the Federal Sentencing Guidelines and Mandatory Minimum Sentences: "Gender Neutral" Sentencing Wreaks Havoc in the Lives of Women Offenders and Their Children, 8 CRIM. JUST. 20, 21 (1993).
83. 83 U.S. 130, 141 (1872) (holding that refusal to admit women to practice law does not violate Constitution).
84. J.B. v. A.B., 242 S.E.2d 248, 253 (W. Va. 1978) ("From a strictly biological perspective, children. are accustomed to the warmth, softness, and physical affection of the female parent.").
85. But cf. Stanton v. Stanton, 421 U.S. 7, 14-15 (1975) ("No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas.").
86. Despite the burgeoning recalibration of gender roles at the time of J.B. v. A.B., the court held that "the primary responsibility for the maintenance of the house and the care and upbringing of minor children in this society still rests with the woman." J.B., 242 S.E.2d at 252
87. see also infra notes 212-14 and accompa nying text (noting that mothers, as presumptive caretakers, were automatically granted custody over their children in divorce proceedings).
88. Laura T. Kessler, The Attachment Gap: Employment Discrimination Law, Women's Cultural Caregiving, and the Limits of Economic and Liberal Legal Theory, 34 U. MICH. J.L. REFORM 371, 378-79 (2001).
89. Meda Chesney-Lind, Imprisoning Women: The Unintended Victims of Mass Imprisonment, in INVISIBLE PUNISHMENT: THE COLLATERAL CONSEQUENCES OF MASS IMPRISONMENT.
90. supra note 29, at 79, 88-89 (arguing that sentencing guidelines and mandatory minimums "distinctly disadvantage women" and noting that "women tend to be working at the lowest levels of the drug hierarchy").
91. Goldfarb, supra note 46, at 291-92 ("[W]omen do not hold income-generating positions in the drug trade.").
92. Raeder, supra note 15, at 977-78.
93. Stephanie S. Covington & Barbara E. Bloom, Gendered Justice: Women in the Criminal Justice System, in GENDERED JUSTICE: ADDRESSING FEMALE OFFENDERS 3, 9 (Barbara E. Bloom ed., 2003) (arguing that gender-neutral sentencing laws fail to recognize distinction between major and ancillary players in drug organizations).
94. United States v. Brigham, 977 F.2d 317, 318 (7th Cir. 1992) (Mandatory minimum penalties. create a prospect of inverted sentencing. The more serious the defendant's crimes, the lower the sentence-because the greater his wrongs, the more information and assistance he has to offer to a prosecutor.
95. Gaskins, supra note 24, at 1544 ("[D]efendants most knowledgeable are best placed to negotiate sentences while those who play minor roles with little knowledge or responsibility end up with far more severe sentences.").
96. For example, in 1994, Kemba Smith, who had no prior criminal record, pled guilty to conspiracy to distribute crack cocaine because her boyfriend at the time, unbeknownst to Kemba, was the leader in a $4 million crack cocaine ring and one of the FBI's Fifteen Most Wanted. In 1989, Serena Nunn, with no prior criminal record and a minor role in her boyfriend's drug ring, was sentenced to more than fifteen years in prison.
97. The Sentencing Project Featured Stories-Women, SENT'G PROJECT, http://www.sentencingproject.org/template/page.cfm?id=135 (last visited Feb. 7, 2011). For case studies detailing the effects of the War on Drugs on twelve different women, see Goldfarb.
98. supra note 46, at 281-91.
99. Tinto, supra note 10, at 929-36 ("[W]omen offenders often lack sufficient information to merit a [downward sentencing] departure based on substantial assistance [to the government]."). For a more in-depth discussion concerning the effect of the substantial assistance provision on women
100. Nekima Levy-Pounds, From the Frying Pan into the Fire: How Poor Women of Color and Children Are Affected by Sentencing Guidelines and Mandatory Minimum, 47 SANTA CLARA L. REV. 285, 310-14 (2007).
101. BOYD, supra note 44, at 219-20 (noting that poor women are especially likely to be subject to harsh sentences for drug crimes due to their inability to provide information to prosecutors).
102. The unintended gender inequities generated by the War on Drugs's "gender-neutral" sentencing scheme merit comprehensive discussion but are beyond the scope of this Note. For a more in-depth discussion on this topic,
103. see generally Raeder, supra note 47.
104. Beth E. Richie, Challenges Incarcerated Women Face as They Return to Their Communities: Findings from Life History Interviews, 47 CRIME & DELINQ. 368, 369 (2001).
105. For an extensive discussion on the intersection of race, class, gender, and the War on Drugs, see generally Antoinette Greenaway, Note, When Neutral Policies Aren't So Neutral: Increasing Incarceration Rates and the Effect of the Adoption and Safe Families Act of 1997 on the Parental Rights of African-American Women, 17 NAT'L BLACK L.J. 247 (2004).
106. Goldfarb, supra note 46, at 293.
107. Julie B. Ehrlich, Breaking the Law by Giving Birth: The War on Drugs, the War on Reproductive Rights, and the War on Women, 32 N.Y.U. REV. L. & SOC. CHANGE 381, 387-88 (2008).
108. Michele Goodwin, Prosecuting the Womb, 76 GEO. WASH. L. REV. 1657, 1741 43 (2008).
109. Susan Okie, The Epidemic That Wasn't, N.Y. TIMES, Jan. 27, 2009, at D1. Research shows alcohol is more dangerous to the fetus than any other substance a pregnant woman may ingest.
110. Kate Bagley & Alida V. Merlo, Regulating and Controlling Women's Bodies, in WOMEN, LAW, & SOCIAL CONTROL,
111. supra note 27, at 64, 70.
112. Further, a pregnant woman's tobacco use and second-hand smoke exposure correlate with low birth weight and Sudden Infant Death Syndrome. Id.
113. While South Carolina is the only state that currently criminalizes a pregnant woman's use of illicit drugs, other states capitalize on child abuse and neglect laws to remove newborn babies from their mothers.
114. Bagley & Merlo, supra note 64, at 66.
115. 66 The use of crack cocaine by pregnant women has long given rise to significant public outcry and corresponding responses from law enforcement. By 1992, more than 160 women in 24 states were arrested for delivering drugs to their newborns through the umbilical cord while pregnant.
116. Tamar Lewin, Mother Cleared of Passing Drug to Babies, N.Y. TIMES, July 24, 1992, at B7. Notably, "[the] reaction to the mothers [of so-called crack babies was] completely guided not by the toxicity, but by the social meaning" of crack cocaine,
117. kie, supra note 64, which was commonly linked to women's "sexual degradation." E.g.,
118. Jane Gross, A New, Purified Form of Cocaine Causes Alarm as Abuse Increases, N.Y. TIMES, Nov. 29, 1985, at A1, B6. In 2004, a cohort of doctors, scientists, and psychologists protested use of the term "crack baby" as it "lack[s] scientific validity": There is no scientific evidence of a "crack baby" syndrome or condition.
119. Bagley & Merlo, supra note 64, at 68.
120. The War on Drugs precipitated pregnant women's prosecution for exposing their fetuses to crack cocaine.
121. See Okie, supra note 64.
122. Some public hospitals created policies specifically designed to detect and prosecute pregnant cocaine users. In Ferguson v. City of Charleston, 532 U.S. 67 (2001), the Court considered a South Carolina public hospital policy to involuntarily drug test female patients receiving prenatal treatment, ultimately determining that the policy violated the Fourth Amendment. Because such drug testing policies occurred more in public hospitals that serve low-income communities of color, a disproportionate number of women of color were charged with drug offenses.
123. Tiffany Scott, Note, Repercussions of the "Crack Baby" Epidemic: Why a Message of Care Rather than Punishment Is Needed for Pregnant Drug-Users, 19 NAT'L BLACK L.J. 203, 209-10 (2005).
124. Due to its impact on women and communities of color, the War on Drugs soon became known as the War on Crack.
125. Timothy Egan, War on Crack Retreats, Still Taking Prisoners, N.Y. TIMES, Feb. 28, 1999, at 1.
126. MUMOLA, supra note 11, at 4 (comparing numbers of mothers versus fathers that were primary caretakers of children prior to incarceration).
127. Id. at 6 tbl.7
128. (noting that 35.1% of mothers in state and 73.9% of mothers in federal prison were serving time for drug offenses). Categories of offenses include violent offenses, property offenses, drug offenses, public order offenses, and other or unspecified offenses. Violent offenses include: homicide, sexual assault, robbery, assault, and "other violent." Id. Property offenses include: burglary, larceny, motor vehicle theft, fraud, stolen property, and "other property." Id. Drug offenses include: possession, trafficking, and "other drug." Id. Public order offenses include weapons and "other public-order." Id.
129. Id. (noting 66.7% of fathers in federal prison were serving time for drug offenses as opposed to only 23% in state prison, where 45.4% of inmate fathers were serving time for violent offenses).
130. Id. at 2 tbl.1 (finding approximately 65% of female and 55% of male state prisoners, and 59% of female and 63% of male federal prisoners, reported having minor children).
131. Id. at 4 (finding 46% of state and 51% of federal inmates who are mothers, and 15% of state and 14% of federal inmates who are fathers, reported living with their children in month prior to arrest). Prior to incarceration, nearly one-third of mothers in prison lived alone with their children compared to only 4% of incarcerated fathers. Id.
132. Raeder, supra note 47, at 20.
133. See supra notes 40-47 and accompanying text (discussing "gender-neutral" sentencing guidelines). For a general discussion of the effects of parental incarceration on children, see Julie Poehlmann, Children of Incarcerated Mothers and Fathers, 24 WIS. J.L. GENDER & SOC'Y 331 (2009).
134. Christopher Uggen et al., Work and Family Perspectives on Reentry, in PRISONER REENTRY AND CRIME IN AMERICA,
135. supra note 43, at 209, 222 (noting that sentencing guidelines disparately impact offenders who are primary caretakers of children).
136. Prior to the guidelines, judges often sentenced mothers to probation rather than prison, particularly in cases where suitable relatives were unavailable to care for the children. Id.
137. See 28 U.S.C. § 994(e) (2006) (noting that "family ties and responsibilities" should not be considered in determining defendant's sentence)
138. see also State v. Crawford, 908 P.2d 638, 640 (Kan. Ct. App. 1995) (noting that sentencing leniency may not be based solely on defendant's status as parent of minor children);
139. State v. Sherwood, 341 N.W.2d 574, 577 (Minn. Ct. App. 1983) (same)
140. State v. Hodges, 855 P.2d 291, 293 (Wash. Ct. App. 1993) (holding that fact that defendant who sold drugs to feed family, lived on public assistance, and was needed by her children, did not justify downward departure)
141. Uggen et al., supra note 75, at 222.
142. 907 F.2d 31, 33 (4th Cir. 1990) (asserting that "[a] sole, custodial parent is not a rarity in today's society" and therefore does not merit downward departure). But see United States v. Johnson, 964 F.2d 124, 129 (2d Cir. 1992) (noting that sentencing single parent to prison "wreak[s] extraordinary destruction on dependents who rely solely on [their single mother] for their upbringing")
143. United States v. Pena, 930 F.2d 1486, 1494-95 (10th Cir. 1991) (upholding downward departure decision for single mother responsible for raising two infants).
144. United States v. Concepcion, 795 F. Supp. 1262, 1282 (E.D.N.Y. 1992) (noting that "almost all" male relatives in female defendants' families "have renounced any connection with or obligation to the children").
145. JEREMY TRAVIS ET AL., THE URBAN INST., FROM PRISON TO HOME: THE DIMENSIONS AND CONSEQUENCES OF PRISONER REENTRY 38 (2001), available at http://www.urban.org/pdfs/from_prison_to_home.pdf.
146. MUMOLA, supra note 11.
147. at 4 ("Ninety percent of the fathers in State prison reported that at least one of their children was in the care of the child's mother. [They also reported] that they had a minor child in the care of either grandparents (13%) or other relatives (5%).").
148. TRAVIS ET AL., supra note 80.
149. at 38 (finding 53% of mothers in state prison reported child's grandparent as caretaker and 26% reported other relatives). In federal prison, 31% of mothers reported their child's father as the current caretaker, with 45% in the care of grandparents and 34% with other relatives. MUMOLA, supra note 11, at 4. Because an incarcerated parent's children may not all reside with the same caretaker, the percentages may not total 100%.
150. Id. at 38.
151. During the time their mother is in prison, children often move at least once and live with at least two different caretakers. CORR. ASS'N OF N.Y., IMPRISONMENT AND FAMILIES FACT SHEET (Apr. 2009), available at http://prisonpolicy.org/scans/Families_Fact_Sheet_2009_FINAL.pdf; cf. Levy-Pounds.
152. supra note 41, at 366-68 ("When [female drug offenders] are prosecuted, their children become doubly vulnerable, as their mothers may have been the last line of defense in protecting their children from spending their childhoods in the foster care system."). For a more in-depth discussion of foster care
153. see infra Part II.B.
154. GONNERMAN, supra note 3, at 10.
155. 8Nora V. Demleitner, "Collateral Damage": No Re-entry for Drug Offenders, 47 VILL. L. REV. 1027, 1032 (2002). Such consequences may attach automatically to conviction or may be controlled by a governmental agency operating beyond the direct authority of a given judge. Michael Pinard & Anthony C. Thompson, Offender Reentry and the Collateral Consequences of Criminal Convictions: An Introduction, 30 N.Y.U. REV. L. & SOC. CHANGE 585, 608 (2006) (discussing general lack of knowledge about collateral consequences by defense attorneys, prosecutors, and judges).
156. Demleitner, supra note 85, at 1032-33.
157. Id. at 1033-34.
158. See generally U.S. DEP'T OF JUSTICE, FEDERAL STATUTES IMPOSING COLLATERAL CONSEQUENCES UPON CONVICTION (2000), available at www.justice.gov/pardon/collateral_consequences.pdf (enumerating and discussing collateral consequences imposed by federal law upon conviction of felony offense).
159. For a discussion of the myriad collateral sanctions imposed on drug offenders, see generally Demleitner, supra note 85. 89 While I recognize that many of the collateral sanctions imposed on drug offenders have the potential to disparately impact women, I have, for the purposes of this Note, limited my discussion of collateral consequences to their impact on public assistance, foster care, and housing.
160. ADMIN. FOR CHILDREN & FAMILIES, U.S. DEP'T OF HEALTH & HUMAN SERVS.
161. TEMPORARY ASSISTANCE FOR NEEDY FAMILIES (TANF) EIGHTH ANNUAL REPORT TO
162. CONGRESS ch. X (2009), available at http://www.acf.hhs.gov/programs/ofa/data-reports/annualreport8/chapter10 /chap10.htm. In 2009, 38.5% of single-mother families lived in
163. poverty. Press Release, Nat'l Women's Law Ctr., NWLC Analysis of New Census Data Shows Substantial Increase in Women's Poverty, Decline in Health Insurance Coverage, No Improvement in Wage Gap (Sept. 16, 2010), available at http://www.nwlc.org/press-release/nwlc-analysis-new-census-data-shows-su bstantial-increase-womens-povertydecline-health. Factors such as caregiving, parenthood, and gender discrimination have led to a society in which women experience poverty at higher rates than men.
164. JOEL F. HANDLER & YEHESKEL HASENFELD, BLAME WELFARE, IGNORE POVERTY AND INEQUALITY 39-40 (2007) (discussing factors causing higher poverty rate for women).
165. Muller v. Oregon, 208 U.S. 412, 421 (1908) (upholding state protective labor legislation limiting hours employers could require women to work).
166. Dorothy E. Roberts, Racism and Patriarchy in the Meaning of Motherhood, 1 AM. U. J. GENDER & L. 1, 16-22 (1993) (discussing how historic and current labor systems disadvantage women, particularly women of color).
167. JOAN WILLIAMS, UNBENDING GENDER: WHY FAMILY AND WORK CONFLICT AND WHAT TO DO ABOUT IT 27 (2000). Although women with young children today are twice as likely to be employed than they were thirty years ago, women continue to constitute a very small percentage of managers and officials.
168. EEOC Notice 915.002, Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities (2009), available at http://www.eeoc.gov/policy/docs/caregiving.html.
169. Victoria Shannon, Equal Rights for Women? Survey Finds: Yes, But., INT'L HERALD TRIB., July 1, 2010, at 1 ("In [the United States], women seem stymied by a lack of real progress. ";).
170. CATHARINE A. MACKINNON, WOMEN'S LIVES, MEN'S LAWS 137 (2005)
171. WILLIAMS, supra note 94, at 24.
172. WILLIAMS, supra note 94, at 1.
173. MUMOLA, supra note 11, at 9.
174. Id. at 10.
175. Barbara Owen, Differences with a Distinction: Women Offenders and Criminal Justice Practice, in GENDERED JUSTICE: ADDRESSING FEMALE OFFENDERS,
176. supra note 54, at 25, 35-36
177. Acoca & Raeder, supra note 9, at 138 ("[I]nadequate educational and vocational options for incarcerated women fail to give them the practical tools they will need to survive crime-free once they are released.").
178. SHERYL J. GRANA, WOMEN AND (IN)JUSTICE: THE CRIMINAL AND CIVIL EFFECTS OF THE COMMON LAW ON WOMEN'S LIVES 171 (2002)
179. (noting that "women's work" includes cosmetology, cooking, and clerical work) (internal quotation marks omitted). Women's work also has historical underpinnings: In 1905, women represented only 20% of the paid workforce, 60% of whom were employed either as domestics in private households or home-based workers providing lodging, laundering, or sewing services. SUPREME COURT DECISIONS AND WOMEN'S RIGHTS: MILESTONES TO EQUALITY 16 (Clare Cushman ed., 2001).
180. PATRICIA ALLARD, THE SENTENCING PROJECT, LIFE SENTENCES: DENYING WELFARE BENEFITS TO WOMEN CONVICTED OF DRUG OFFENSES 17-18 (2002), http://www.sentencingproject.org/doc/publications/women_lifesentences.pd f (referring to fields such as childcare, social work, nursing, dentistry, health, and accounting).
181. The twenty leading occupations for women in 2008 include: secretaries and administrative assistants, receptionists, nurses, teachers, childcare workers, cooks, and home health aids. BUREAU OF LABOR STATISTICS, U.S. DEP'T OF LABOR, 20 LEADING OCCUPATIONS OF EMPLOYED WOMEN: ANNUAL AVERAGES 1 (2008), http://www.dol.gov/wb/factsheets/20lead2008.pdf.
182. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 42 U.S.C. § 601(a)(1) (2006).
183. The birth of welfare in the United States contributed to the creation of a separate sphere of child caretaking, to which women were traditionally relegated. To relieve impoverished mothers who had been abandoned or widowed by their husbands, state programs established "mothers' pensions," which effectively subsidized childrearing and promoted traditional norms of motherhood in the absence of men.
184. Jill Duerr Berrick, From Mother's Duty to Personal Responsibility: The Evolution of AFDC, 7 HASTINGS WOMEN'S L.J. 257, 258-60 (1996).
185. 2010, despite increased federal support for subsidized childcare, most states have been unable to keep pace with rising demand, leading some to slash childcare subsidy programs altogether.
186. Child Care Subsidy Thwart More Job Seekers, N.Y. TIMES, May 24, 2010, at A1. Without this subsidy, many parents are unable to work. Id. One such parent captured the essence of this vicious cycle, stating, "I can't work without child care, and I can't afford child care without work." Id. (internal quotation marks omitted).
187. 42 U.S.C. § 601.
188. Id. § 607;
189. ALLARD, supra note 102, at 1.
190. See generally NAT'L WOMEN'S LAW CTR., Poverty Among Women and Families, 2000-2008: Recession Deepens Poverty Sept. 2009, http://www.nwlc.org/sites/default/files/pdfs/WomenPoverty2000-2008.pdf (noting that women and children continue to be disproportionately impacted by poverty despite increase in male poverty rate).
191. Those experiencing the highest poverty rates include: female-headed families with children; women over 65 years old who live alone; and black, Latino, and Native-American women and children.
192. Id. at 1.
193. WILLIAMS, supra note 94, at 1.
194. See Roberts, supra note 93, at 17 (";Although most mothers now engage in wage labor, they must limit their work commitments to accommodate their child-care duties.").
195. PRWORA recognizes that 89% of children receiving AFDC benefits do not live with their father. 42 U.S.C. § 601 (2006).
196. 42 U.S.C. § 601 ("Marriage is an essential institution of a successful society which promotes the interests of children."). At least one feminist scholar argues that "marriage reinforces patriarchy by labeling families outside the husband-wife structure as deviant and unhealthy and by encouraging women to become dependent on men."
197. Angela Onwuachi-Willig, The Return of the Ring: Welfare Reform's Marriage Cure as the Revival of Post- Bellum Control, 93 CAL. L. REV. 1647, 1652 (2005).
198. Judith E. Koons, Motherhood, Marriage and Morality: The Pro-Marriage Moral Discourse of American Welfare Policy, 19 WIS. WOMEN'S L.J. 1, 10 n.48 (2004) (quoting Robert Kuttner, Ron Brown's Party Line, N.Y. TIMES MAG., Dec. 3, 1989, at 126).
199. WILLIAMS, supra note 94, at 1 (discussing domesticity as centuries-old entrenched gendered system that traditionally relegates women to caretaker role). Despite the common perception of gender equality, women in the United States continue to do 80% of the childcare and 66% of the housework.
200. Id. at 2.
201. See Goodman, supra note 105 (discussing recent state cuts to childcare subsidies and noting that "low-income families are being denied resources required to enable them to work").
202. Controlled Substances Act, 21 U.S.C. § 862a (2006). An individual convicted under federal or state law of any felony that has as an element the possession, use, or distribution of a controlled substance shall not be eligible for (1) assistance under any State program funded under part A of Title IV of the Social Security Act, or (2) benefits under the food stamp program (as defined in section 3(h) of the Food Stamp Act of 1977) or any State program carried out under the Food Stamp Act of 1977. Id. Under section 115 of the Controlled Substances Act, individuals with felony drug convictions remain eligible for the following federal benefits: emergency medical services under Title XIX of the Social Security Act; short-term, noncash, in-kind emergency disaster relief; public health assistance for immunizations; prenatal care; job training programs; and drug treatment programs. Id.
203. Id. § 862a(d)(1).
204. ALLARD, supra note 102, at 1 (documenting first national analysis of impact of lifetime welfare ban on women and their children).
205. Demleitner, supra note 85, at 1033.
206. See supra notes 33-36 and accompanying text (noting that treatment was initial aim of War on Drugs).
207. ALLARD, supra note 102, at 1.
208. Cynthia Godsoe, The Ban on Welfare for Felony Drug Offenders: Giving a New Meaning to "Life Sentence,"; 13 BERKELEY WOMEN'S L.J. 257, 258 (1998). The bill's legislative sponsor in California, Democratic State Senator Adam Schiff, stated, "[I]f we're going to [spend] welfare dollars on those with drug convictions, that means less money [for] those who are probably.better [positioned to] plac[e] into jobs.
209. Id. at 258-59 (internal quotation marks omitted).
210. ALLARD, supra note 102, at 1.
211. Reply Brief of Appellants at 2-4, Turner v. Glickman, 207 F.3d 419 (7th Cir. 2000) (No. 99-1923) ("[T]here is certainly no reason to believe that murderers are more honest than drug felons and are therefore less likely to commit food stamp fraud.").
212. Turner, 207 F.3d at 431.
213. THE SENTENCING PROJECT, supra note 26.
214. Women's unemployment may be explained not only by their lack of significant work history and skills, but also by the social stigma related to their substance abuse and criminal records. PATRICIA O'BRIEN, SAFER FOUNDATION, COUNCIL OF ADVISORS TO REDUCE RECIDIVISM THROUGH EMPLOYMENT (C.A.R.R.E.), REDUCING BARRIERS TO EMPLOYMENT FOR WOMEN EX-OFFENDERS: MAPPING THE ROAD TO REINTEGRATION 5 (2002), http://www.saferfoundation.org/docs/womenspolicypaper.pdf
215. Amy Fettig, Women Prisoners Altering the Cycle of Abuse, 36 HUM. RTS. 2, 5 (2009).
216. ALLARD, supra note 102, at 8-9.
217. Catherine J. Ross, The Tyranny of Time: Vulnerable Children, "Bad" Mothers, and Statutory Deadlines in Parental Termination Proceedings, 11 VA. J. SOC. POL'Y & L. 176, 215 (2004).
218. Owen, supra note 100, at 37.
219. See supra notes 80-83 and accompanying text (discussing limited childcare role of incarcerated fathers compared to incarcerated mothers).
220. Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115 (codified at 42 U.S.C. § 1305 (2006)). On the other hand, Martin Guggenheim, a leading advocate in the family preservation movement, argues that "we do best by the majority of children by keeping them with their parents, even when we have reason to be concerned about a parent's adequacy of caregiving.
221. "; Interview by PBS's Frontline with Martin Guggenheim, Professor, New York University School of Law, available at http://www.pbs.org/wgbh/pages/frontline/shows/fostercare/inside/guggenhe im.html (transcript) (last visited Feb. 7, 2011).
222. 42 U.S.C. § 675(5)(C) (2006). The permanency plan includes whether and when the child will be returned to the parent, referred for legal guardianship, or placed for adoption- at which point the state files for termination of parental rights.
223. Id. § 675(5)(E). States have reacted differently to the enactment of ASFA. See generally Maryann Zavez, ASFA at 15/22 Months for Incarcerated Parents, 34 VT. B.J. 49 (2008) (discussing Child Welfare League of America report on effect of ASFA on termination of incarcerated parents' rights). Seventeen states modified their TPR statutes, some with specific concern about how ASFA would affect incarcerated parents.
224. Id. at 49.
225. Colorado, for instance, added an exception to the TPR filing timeline if a child remains in foster care due to circumstances beyond parents' control, such as "incarceration of the parent for a reasonable period of time." COLO. REV. STAT. § 19-3-604(2)(k)(IV) (2010).
226. A few states, including Nebraska and New Mexico, expressly preclude incarceration as the sole basis for bringing a TPR petition at the point when a child has been in foster care for 15 of the most recent 22 months.
227. Zavez, supra, at 49.
228. MUMOLA, supra note 11, at 6 tbl.8 (noting average estimated total time inmates who are mothers will serve on current sentence is 49 months in state and 66 months in federal prison).
229. In 1989, nationwide data on terminations of parental rights in black families revealed that incarcerated parents account for 12-18% of all TPRs. Katherine Gabel & Denise Johnston, Incarcerated Parents, in CHILDREN OF INCARCERATED PARENTS 15 (Katherine Gabel & Denise Johnston eds., 1995).
230. JEREMY TRAVIS, BUT THEY ALL COME BACK: FACING THE CHALLENGES OF PRISONER REENTRY 128 (2005).
231. Kenosha County Department of Human Services v. Jodie W., 708 N.W.2d 692 (Wis. 2005), an ex-offender and mother had been the sole caretaker of her son for the first two years of his life, prior to her incarceration in 2002. The child's father never assumed responsibility for his son.
232. re Max G.W., 716 N.W.2d 845, 848-49 (Wis. 2006). The lower court terminated the mother's parental rights, finding her to be unfit because of her inability to find suitable housing for her son-a direct consequence of her incarceration.
233. Id. at 851-52.
234. Although the incarcerated mother had arranged for the child's grandmother to care for her child while she was imprisoned, the grandmother later informed social services that she could not care for the child.
235. Id. at 849.
236. reversing, the Supreme Court of Wisconsin held that a parent's incarceration may not be the sole basis for termination of parental rights.
237. Id. at 861.
238. Arlene F. Lee et al., The Impact of the Adoption and Safe Families Act on Children of Incarcerated Parents, in INTERRUPTED LIFE: EXPERIENCES OF INCARCERATED WOMEN IN THE UNITED STATES 77, 81 (Rickie Solinger et al. eds., 2010).
239. Philip M. Genty, Damage to Family Relationships as a Collateral Consequence of Parental Incarceration, 30 FORDHAM URB. L.J. 1671, 1678 (2003). In contrast, before ASFA, between 1992 and 1996, the number of TPR cases involving incarcerated parents rose only 30%. Id.
240. R. Anna Hayward & Diane DePanfilis, Foster Children with an Incarcerated Parent: Predictors of Reunification, 29 CHILD. & YOUTH SERVICES REV. 1320, 1330 (2007).
241. The Center was founded to increase documentation on and demonstrate model services for children with incarcerated parents. CTR. FOR CHILD. INCARCERATED PARENTS, The CCIP Story, http://e-ccip.org/about_us.html (last visited Feb. 7, 2011).
242. ROSLYN MURASKIN, IT'S A CRIME: WOMEN AND JUSTICE 180 (3d ed. 2003); Gabel & Johnston, supra note 138 (citing DENISE JOHNSTON, CHILDREN OF OFFENDERS (Pacific Oaks Center for Children of Incarcerated Parents, 1992). In 1992, the Children of Offenders Study studied 58 children of criminal offenders. These children received schoolbased therapeutic services.
243. CTR. FOR CHILD. INCARCERATED PARENTS, CCIP Client Publications, http://www.e-ccip.org/publication.html (last visited Feb. 7, 2011).
244. Hayward & DePanfilis, supra note 142, at 1325.
245. ANTHONY C. THOMPSON, RELEASING PRISONERS, REDEEMING COMMUNITIES: REENTRY, RACE, AND POLITICS 55 (2008)
246. TRAVIS ET AL., supra note 80, at 13 (noting that mother inmates are on average 160 miles farther away from their children than are incarcerated fathers).
247. ALLEN J. FISHBEIN & PATRICK WOODALL, WOMEN ARE PRIME TARGETS FOR SUBPRIME LENDING: WOMEN ARE DISPROPORTIONATELY REPRESENTED IN HIGH-COST MORTGAGE MARKET 3 (2006), available at http://www.consumerfed.org/elements/www.consumerfed.org/file/housing/Wom enPrimeTargetsStudy120606.pdf.
248. Erik Eckholm, A Sight All Too Familiar in Poor Neighborhoods, N.Y. TIMES, Feb. 19, 2010, at A14 (reporting findings of not-yet published research on gender patterns in Milwaukee inner-city rentals).
249. MUMOLA, supra note 11, at 9.
250. In 2000, women headed 79% of households in public housing nationally. HUD USER DATA SETS, A Picture of Subsidized Households, 2000, http://www.huduser.org/picture2000/index.html (last visited Feb. 7, 2011) (follow "Click Here to Start a Query" hyperlink
251. Then select "U.S. total"; then select ";Total for all HUD programs";; and then select "pct_female_head"). 152 42 U.S.C. § 11901(3) (2006).
252. 42 U.S.C. § 1437d(l)(6) (2006).
253. The term "public housing" includes both projectbased public housing and programs such as the Section 8 Tenant Based Housing Assistance Program, § 1437a, which pays private landlords the difference between the contract price of a unit and affordable rent for a tenant with limited income. 24 C.F.R. § 880.501(d)(1) (2009).42
254. U.S.C. § 1437d(l)(6).
255. The Act allows PHAs the authority to access (1) criminal records of the applicant or current tenant and (2) records from drug treatment facilities where that information is solely related to whether the applicant is currently engaging in the illegal use of a controlled substance.
256. Id. § 1437d(s)-(t).
257. 42 U.S.C. § 1437d(l)(6) ("Each public housing agency shall utilize leases which.provide that.any drug-related criminal activity on or off such premises, engaged in by a public housing tenant, any member of the tenant's household, or any guest or other person under the tenant's control, shall be cause for termination of tenancy."). Public housing authorities may now evict tenants for drug-related criminal activity occurring "on or off [the] premises," rather than on or near the premises.
258. TRAVIS, supra note 139, at 232. For an in-depth discussion of the ";One Strike"; provision,
259. Jason Dzubow, Fear-Free Public Housing?: An Evaluation of HUD's "One Strike and You're Out" Housing Policy, 6 TEMP. POL. & CIV. RTS. L. REV. 55 (1996).
260. TRAVIS, supra note 139, at 232.
261. Id. In 1997, the "One Strike" ban affected 43% of those denied public housing. Id.
262. Melissa A. Cohen, Vindicating the Matriarch: A Fair Housing Act Challenge to Federal No-Fault Evictions from Public Housing, 16 MICH. J. GENDER & L. 299, 300 (2009).
263. Dep't of Hous. & Urban Dev. v. Rucker, 535 U.S. 125, 128 (2002).
264. Id. at 130.
265. Id. at 130, 136.
266. Women in the general population represent nearly 80% of all single-parent families with minor children. Bureau of the Census, U.S. DEP'T OF COMMERCE, LIVING ARRANGEMENTS OF CHILDREN: 2004, at 5 (2008), available at www.census.gov/prod/2008pubs/p70-114.pdf;
267. supra notes 49-51 and accompanying text (discussing women's historical family caretaking role).
268. Hoyt v. Florida, 368 U.S. 57, 62-63 (1961) (holding that because women were "still regarded as the center of home and family life," states could relieve women of jury duty for their "special responsibilities"),
269. overruled by Taylor v. Louisiana, 419 U.S. 522 (1975)
270. Goesaert v. Cleary, 335 U.S. 464 (1948) (upholding law prohibiting women from being employed as bartenders unless their husbands or fathers owned establishment),
271. verruled by Craig v. Boren, 429 U.S. 190 (1976)
272. Frontiero v. Richardson, 411 U.S. 677, 684 (1973) ("There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination. Traditionally, such discrimination was rationalized by an attitude of 'romantic paternalism' which, in practical effect, put women, not on a pedestal, but in a cage.";).
273. 404 U.S. 71, 76 (1971) (examining whether underlying objective was consistent with Equal Protection Clause of Fourteenth Amendment).
274. Id. at 73 (holding unconstitutional Idaho code stating that among "several persons claiming and equally entitled.to administer [decedent's will], males must be preferred to females" (internal quotation marks omitted)).
275. Craig v. Boren, 429 U.S. 190, 197 (1976).
276. Kirchberg v. Feenstra, 450 U.S. 455, 456 (1981) (holding unconstitutional statute giving husband, as "head and master" of jointly owned property with wife, right to dispose of property without spouse's consent);
277. Orr v. Orr, 440 U.S. 268, 271 (1979) (holding unconstitutional statutory scheme authorizing obligation of alimony upon husbands but not upon wives);
278. Califano v. Goldfarb, 430 U.S. 199, 201-02 (1977) (holding unconstitutional Social Security provision under which widows were entitled to survivor's benefits based on deceased husband's coverage regardless of dependency but widower entitled to benefits only if he received at least half of his support from his deceased wife)
279. Weinberger v. Wiesenfeld, 420 U.S. 636, 637-39 (1975) (holding Social Security Act provisions restricting survivor's rights to female widows to be unconstitutional gender distinctions).
280. Heather Nelson, "Fatal in Fact"?: An Examination of the Viability of Affirmative Action for Women in the Post-Adarand Era, 21 WOMEN'S RTS. L. REP. 151, 156 (2000).
281. United States v. Virginia, 518 U.S. 515, 533-34 (1996) (citations omitted) (quoting Califano, 430 U.S. at 320)
282. Cal. Fed. Sav. & Loan Ass'n. v. Guerra, 479 U.S. 272, 280 (1987) (holding that Pregnancy Discrimination Act does not prohibit employment practices that favor pregnant women).
283. Washington v. Davis, 426 U.S. 229, 242 (1976) (holding that absent proof of invidious intent, facially neutral legislation does not violate Equal Protection Clause simply because it disparately impacts minorities).
284. The Court has named evidentiary places to look for discriminatory intent, noting that disparate impact on a protected class is probative but not dispositive of discriminatory intent. Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-68 (1977).
285. Pers. Adm'r v. Feeney, 442 U.S. 256, 279 (1979) (noting that although severe underrepresentation of women veterans directly resulted from Armed Services' longstanding exclusionary practices, legislation favoring veterans is valid absent showing "gender-based discriminatory purpose").
286. See supra note 167 and accompanying text (noting that intermediate scrutiny standard applies to sex-based legislation).
287. Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 487-88 (1955) ("[T]he law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.").
288. Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 STAN. L. REV. 1111, 1141 (1997).
289. But cf. Grutter v. Bollinger, 539 U.S. 306, 343 (2003) (holding admissions program was narrowly tailored to serve its compelling interest in diversity and did not violate Equal Protection Clause).
290. See supra Part II (discussing collateral consequences of felony drug convictions).
291. The Fourteenth Amendment bars only "invidious discrimination" or classifications that are patently arbitrary [and] utterly lacking in rational justification.
292. Gruenwald v. Gardner, 390 F.2d 591, 592 (2d Cir. 1968) (citing Flemming v. Nestor, 363 U.S. 603, 611 (1960)) (holding fact that women are treated more favorably than men in computing social security benefits does not constitute invidious discrimination and does not violate Due Process or Equal Protection Clauses). According a historically subordinated group favorable treatment does not necessarily violate the Equal Protection Clause.
293. See Nguyen v. INS, 533 U.S. 53, 64 (2001) ("Just as neutral terms can mask discrimination that is unlawful, gender specific terms can mark a permissible distinction.")
294. Nelson, supra note 169, at 156 (";Laws [that] treat women differently from men are not necessarily illegitimate if the differential treatment can be justified by reference to past discrimination and current disadvantage.").
295. But see Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725 (1982) ("[I]f the statutory objective is to exclude or 'protect' members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate.").
296. United States v. Virginia, 518 U.S. 515, 531 (1996)
297. see id. at 533-34 ("Sex classifications may be used to compensate women 'for particular economic disabilities [they have] suffered,' to 'promot[e] equal employment opportunity,' to advance full development of the talent and capacities of our Nation's people." (alterations in original) (internal citations omitted)).
298. supra notes 164-66 and accompanying text (noting that until 1971, sex-based legislation received only rational basis review).
299. See supra notes 48-50 and accompanying text (discussing historical underpinnings of gender roles)
300. Frontiero v. Richardson, 411 U.S. 677, 684-86 (1973) (acknowledging that paternalism is "firmly rooted in our national consciousness" and, thus, "women still face pervasive, although at times more subtle, discrimination in our educational institutions, in the job market and, perhaps most conspicuously, in the political arena").
301. MACKINNON, supra note 96, at 136 (discussing childrearing, often considered women's "biological destiny," as source of gender inequality and women's subordination).
302. In a 2005 New York Times article documenting the trend of women abandoning their careers to raise families, one Yale University undergraduate student with plans to become an attorney remarked, "My mother's always told me you can't be the best career woman and the best mother at the same time.You always have to choose one over the other." Louise Story, Many Women at Elite Colleges Set Career Path to Motherhood, N.Y. TIMES, Sept. 20, 2005 at A1 (internal quotations omitted).
303. Martha Albertson Fineman, Cracking the Foundational Myths: Independence, Autonomy, and Self-Sufficiency, 8 AM. U. J. GENDER SOC. POL'Y & L. 13, 21-22 (2000) (explaining that personal choice is constrained by social conditions including ideologies, history, and tradition);
304. WILLIAMS, supra note 94, at 37 (arguing that mothers' marginalization reflects discrimination instead of merely choice). Women who leave the workplace as a result of maternal bias or because of their husbands' expectations are not voluntarily "opting out" of work rather, they are pushed out because of sex discrimination.
305. JOAN C. WILLIAMS ET AL., UNIV. OF CAL., HASTINGS COLL. OF LAW, "OPT OUT" OR PUSHED OUT?: HOW THE PRESS COVERS WORK/FAMILY CONFLICT: THE UNTOLD STORY OF WHY WOMEN LEAVE THE WORKFORCE 49 (2006), available at www.uchastings.edu/site_files/WLL/OptOutPushedOut.pdf.
306. When women today who work full-time rely upon others to serve the primary caretaking role, their childcare providers are typically women-whether hired or family-and the work is unpaid or low paying.
307. M. M. Slaughter, The Legal Construction of "Mother," in MOTHERS IN LAW: FEMINIST THEORY AND THE LEGAL REGULATION OF MOTHERHOOD 73, 81 (Martha Albertson Fineman & Isabel Karpin eds., 1995).
308. "Historically, denial or curtailment of women's employment opportunities has been traceable directly to the pervasive presumption that women are mothers first, and workers second. This prevailing ideology about women's roles has in turn justified discrimination against women when they are mothers or mothers-to-be."
309. 538 U.S. 721, 736 (2003) (internal citation omitted). Further, current studies reveal that motherhood accounts for the increasing wage gap between the sexes.
310. Joan C. Williams & Nancy Segal, Beyond the Maternal Wall: Relief for Family Caregivers Who Are Discriminated Against on the Job, 26 HARV. WOMEN'S L.J. 77, 77 (2003) (describing phenomenon of "maternal wall" as hindrance to women's workplace achievement).
311. 42 U.S.C. § 2000e-2 (2006) (outlawing employment discrimination on basis of sex).
312. Califano v. Webster, 430 U.S. 313, 314-16 (1977) (per curiam) (upholding provision of Social Security Act that resulted in greater monthly old-age benefits for retired women workers to compensate women for past economic discrimination);
313. Schlesinger v. Ballard, 419 U.S. 498, 510 (1975) (upholding regulation requiring honorable discharge of Navy men who were twice passed over for promotion, while allowing their female counterparts at least thirteen years of service without promotion before such discharge)
314. Kahn v. Shevin, 416 U.S. 351, 353 n.4 (1974) (noting that in 1970, while 70% of working men earned over $7000, 73.9% of working women earned less than $7000). In 1972, two years before Kahn was decided, the median income for women working full-time was only 57.9% of men's median income.
315. Id. at 353 n.5. The Court determined that, "[w]hether from overt discrimination or from the socialization process of a male-dominated culture,"; a widow seeking employment will encounter greater obstacles than a widower, as she will likely have fewer skills to offer.
316. Id. at 353-54.
317. Orr v. Orr, 440 U.S. 268, 283 (1979) (citations omitted). Indeed, Justice Scalia's dissent in United States v. Virginia, 518 U.S. 515, 596 (1996), cautioned that, "for sex-based classifications, [the Court's] redefinition of intermediate scrutiny. makes it indistinguishable from strict scrutiny."
318. See supra note 187 (listing cases in which Court upheld efforts to protect women's rights).
319. O'BRIEN, supra note 127, at 6.
320. NAT'L INST. OF JUSTICE, DEPT. OF JUSTICE, 2005 ANNUAL REPORT 26, available at www.ncjrs.gov/pdffiles1/nij/213267.pdf.
321. Kahn, 416 U.S. at 355 (upholding Florida state law providing valuable property tax exemption for widows, but not widowers).
322. Catherine Rampell, Women Earn Less Than Men, Especially at the Top, N.Y. TIMES ECONOMIX BLOG (Nov. 16, 2009, 5:25 PM) http://economix.blogs.nytimes.com/2009/11/16/the-gender-pay-gap-persists -especially-for-the-rich/ (noting that gender gap is related to fact that women and men tend to do different jobs).
323. O'BRIEN, supra note 127, at 6.
324. DORIS J. JAMES, BUREAU OF JUSTICE STATISTICS, PROFILE OF JAIL INMATES, 2002, at 9 (2004), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/pji02.pdf.
325. O'BRIEN, supra note 127, at 20.
326. See supra notes 100-02 and accompanying text (noting that ex-felons are typically foreclosed from jobs requiring skills taught in female prison vocational training programs).
327. Chesney-Lind, supra note 52, at 92 (noting stronger nexus between substance abuse and women's crimes than substance abuse and men's crimes).
328. id. (discussing need for gender distinctions in rehabilitation and drug treatment programs).
329. NAT'L INST. OF JUSTICE, supra note 191, at 27.
330. Gwen Rubinstein & Debbie Mukamal, Welfare and Housing-Denial of Benefits to Drug Offenders, in INVISIBLE PUNISHMENT: THE COLLATERAL CONSEQUENCES OF MASS IMPRISONMENT,
331. supra note 29, at 37, 42 (noting TANF ban denies women benefit of room, board, and institutional pathways into treatment).
332. Id. at 43.
333. See supra notes 115-30 and accompanying text (discussing felony drug provision of PRWORA).
334. O'BRIEN, supra note 127, at 9.
335. See Nguyen v. INS, 533 U.S. 53, 78 (2001) (O'Connor, J., dissenting) ("[T]he availability of sex-neutral alternatives to a sex-based classification is often highly probative of the validity of the classification.");
336. Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 151 (1980) (invalidating sex-based classification where sex-neutral alternative achieves same goals); supra note 168 and accompanying text (listing cases).
337. In Personnel Administrator v. Feeney, the Court upheld a facially neutral statute that implicitly disadvantaged women by privileging veterans (98% of whom were men) for state civil service jobs. 442 U.S. 256, 274-75, 281 (1979)
338. see id. at 284 (Marshall, J., dissenting) (noting this point). Until the years immediately preceding the Feeney decision, married women or women with dependent children were ineligible for service in the Armed Forces; similarly situated men were not
339. . Id. at 283 n.1 (Marshall, J., dissenting). The Court reasoned that since men comprised significant numbers of nonveterans, and male and female nonveterans were equally disadvantaged, the statutory distinction between veterans and nonveterans was not a pretext for sex discrimination. Id. at 275 (majority opinion).
340. Similarly, the Court in Geduldig v. Aiello, 417 U.S. 484, 497 (1974), held that the exclusion of pregnancy-related disabilities from a state-administered disability insurance plan did not constitute sex-based discrimination in violation of the Equal Protection Clause. Because the program categorized potential recipients by pregnancy status-distinguishing between pregnant persons and non pregnant persons rather than between men and women-the Court reasoned it did not qualify as sex discrimination. Id. at 496 n.20 ("The fiscal and actuarial benefits of the program.accrue to members of both sexes.").
341. 538 U.S. 721 (2003). The FMLA, 29 U.S.C. §§ 2601-54 (2006), entitles eligible employees-both male and female-to take up to twelve weeks of unpaid leave annually for the birth of a child or a "serious health condition" in an employee's spouse, child, or parent, among other reasons.
342. Id. § 2612(a)(1)(C).
343. Id. § 2601(a)(5)-(6). By ensuring the option to take unpaid leave for family medical emergencies was available to both male and female employees on a "gender-neutral basis," Congress intended to "minimize[ ] the potential for employment discrimination on the basis of sex" "in a manner.consistent with the Equal Protection Clause of the Fourteenth Amendment." § 2601(b).
344. Hibbs, 538 U.S. at 736. Assumptions that women will engage in family caretaking responsibilities entrench gender-based discrimination by fostering employers' stereotypical views about women's commitment to work and their value as employees.
345. See id. at 730-31 (noting widening gender gap in eligibility for parental leave despite overall increase in such eligibility).
346. Id. at 736.
347. J.B. v. A.B., 242 S.E.2d 248, 253 (W. Va. 1978) (reaffirming, in divorce proceeding presumption, that mother is natural caretaker of children).
348. S.E.2d 357, 362-63 (W. Va. 1981) (employing sex-neutral primary caretaker standard for custody determinations based on best interests of child). The primary caretaker rule is significant in determining a child's best interest.
349. Katharine T. Bartlett, Preference, Presumption, Predisposition, and Common Sense: From Traditional Custody Doctrines to the American Law Institute's Family Dissolution Project, 36 FAM. L.Q. 11, 17-24 (2002) (discussing American Law Institute's "Principles of the Law of Family Dissolution").
350. The "best-interests" standard arguably has its own gender bias concerns, favoring mothers based on traditional stereotypes and penalizing them for failure to conform to gender role expectations. See generally Susan Beth Jacobs, The Hidden Gender Bias Behind the "Best Interests of the Child" Standard in Custody Decisions, 13 GA. ST. U. L. REV. 845 (1997) (arguing that best-interests standard results in harmful consequences of gender bias).
351. In practice, however, some argue the primary caretaker standard operates under a guise of sex-neutrality by disadvantaging women with inferior earning capacity, effectively reinforcing enduring social biases against working mothers. See Rena K. Uviller, Father's Rights and Feminism: The Maternal Presumption Revisited, 1 HARV. WOMEN'S L.J. 107, 108-09 (1978) (arguing that primary caretaker standard is premature given existing gender norms).
352. 42 U.S.C. § 601(a) (2006).
353. Rubinstein & Mukamal, supra note 201, at 48 (noting increased difficulty of family reunification caused by public housing ban and laws requiring states to terminate parental rights absent regular parental contact with children).
354. Siegel, supra note 176, at 1145-46 ("Today, government rarely classifies by race or gender, but it conducts a 'war on drugs,' regulates education and residential zoning, responds to 'sexual assault' and 'domestic violence,' and makes policy concerning 'child care,' 'family leave,' 'child support,' and the 'welfare' of 'single-headed households' in ways that often perpetuate, or aggravate, historic patterns of race and gender inequality.";).
355. Because the breadwinner role is culturally linked with masculinity, men have implicit permission to pursue wage labor.
356. WILLIAMS supra note 94, at 210
357. Frontiero v. Richardson, 411 U.S. 677, 681-82 (1973) (noting that District Court decided Congress could "reasonably have concluded that, since the husband in our society is generally the 'bread-winner' in the family-and the wife typically the 'dependent' partner-'it would be more economical to require married female members claiming husbands to prove actual dependency than to extend the presumption of dependency to such members'";
358. (quoting Frontiero v. Laird, 341 F. Supp. 201, 207 (M.D. Ala. 1972))). While feminists have challenged the relegation of women to the home, men's obligation and entitlement to work outside the home has yet to be genuinely questioned. WILLIAMS, supra note 94, at 210.
359. WILLIAMS, supra note 94, at 209. Research demonstrates that early infant and childhood experiences foster a "gendered life" for women. DOROTHY MCBRIDE-STETSON, WOMEN'S RIGHTS IN THE USA: POLICY DEBATES AND GENDER ROLES 50 (3d ed. 2004).
360. For most women, the capacity to become a mother forms the foundation of the discrimination and inequality they experience. Insofar as gender-neutral legislation neglects social constructions of gender, formal equality reinforces social hierarchies.
361. Id. at 52-53.
362. Acoca & Raeder, supra note 9, at 135;
363. Covington & Bloom, supra note 54, at 3, 5-7 (noting that equalization approach applies male standard).
364. See Siegel, supra note 176, at 1113 ("[S]tatus-enforcing state action evolves in form as it is contested.";).
365. See supra note 207 (discussing case).
366. K.G. Jan Pillai, Neutrality of the Equal Protection Clause, 27 HASTINGS CONST. L.Q. 89, 97 (1999).
367. See id. at 101 (discussing effect of facially neutral law in Feeney).
368. The Equal Protection Clause should respond not only to intentional discriminatory policies and practices, but also to those that unintentionally reinforce gender subordination in our society.
369. Jordan Steiker, American Icon: Does it Matter What the Court Said in Brown?, 81 TEX. L. REV. 305, 317 (2002) ("[A]ny distinctions among groups that tend to subordinate are inconsistent with a commitment to equality." (emphasis omitted)).