Many of us will celebrate Mother’s Day over the weekend by remembering or being present with women who raised us, or with our families. But for the more than 190,000 women incarcerated in the United States this weekend, there will be no celebration.

Close to 60 percent of these women serving prison sentences were the primary caregiver of their minor children before sentencing. All too often, a prison sentence tears them from their family connections and contact with their children, while severing their children from a vital source of emotional and financial support. State women’s prisons are often located in rural areas, with limited modes of transportation, and families struggle to visit.

As a result, families have very few in-person visits, and must rely on postal mail, or pay inflated prices for telephone calls and video contacts. Compounding the lack of connection, women in many state prisons cannot even hold in their hands and cherish a card or drawing sent by their children. Many prisons have done away with real mail, and now use vendors to intercept, scan, and destroy all postal mail, delivering poor quality printouts of the original letter to the incarcerated recipients weeks later for a fee.

In addition to women sentenced to prison, more than 2.4 million women spend at least one day in jail each year, and 80 percent of them are mothers of children under the age of 18. And more than 60 percent of women in our nation’s jails are presumed innocent and awaiting trial, jailed due to poverty and an inability to purchase their freedom by posting bail.

Children with mothers incarcerated in local jails often fare no better than those whose mothers are in state prisons: Some jails have completely banned in-person visitation to require all visits be done by paid video, not because of COVID, but to boost their bottom line. A 2015 study found that 74 percent of jails had banned in-person visits after putting video visits into place. Even when women are able to have in-person visits with their children, jail visits are often done through a plexiglass barrier. Women cannot hold, hug, touch, or kiss their children.

Although many more men are incarcerated than women in the U.S., women’s rate of incarceration has grown twice that of men in the past 40 years. Since 2009, while the overall number of people in prisons and jails has decreased, women have fared worse than men in 35 states. Women and families of color are disproportionately affected by this increase. Black and Native American / Alaska Native women are incarcerated at double their share of the population of women in the United States.

Women in Prison

The ACLU works in courts, legislatures, and communities to defend and preserve the individual rights and liberties that the Constitution and the...

Source: American Civil Liberties Union

Women often become entangled with the criminal legal system due to trying to cope with poverty, limited access to child care, underemployment or unemployment, unstable housing, and physical and mental health challenges. They get thrown into a legal system that criminalizes survival behaviors such as selling drugs or sex work, and policies that charge and arrest persons for being present when crimes are committed by others, “aiding and abetting” others, or fighting back against domestic violence. A study in California found that 93 percent of women incarcerated in state prison for a homicide of a partner were abused by the person they killed, and in two-thirds of those cases, the homicide occurred while attempting to protect themselves or their children.

Incarcerated women have high rates of histories of physical and sexual abuse, trauma, and mental health and substance use disorders. While incarcerated, women are more likely than incarcerated men to face sexual abuse or harassment by correctional staff, and they experience serious psychological distress due to incarceration and the conditions in prisons. Treatment in prisons or jails for mental health conditions, substance use disorders, and trauma is often nonexistent. Health care for physical medical conditions or pregnancy often is limited at best: Last year, through our lawsuit, we learned the Arizona Department of Corrections was inducing the labor of pregnant incarcerated people against their will. This came after we documented inadequate prenatal and postpartum care of women in Arizona prisons in 2019, including a woman with serious mental illness who gave birth alone, in the toilet of her cell, at a maximum custody unit.

So what can we do to honor incarcerated women and families? First, we can financially support the incredible work of community-based bail funds that help free mothers and bring them home to their children and families. Second, we can support criminal legal reform policies to stop mass incarceration.

The National Bail Out is a Black-led and Black-centered collective of organizers and advocates who are working to abolish pretrial detention and mass incarceration. They have coordinated with a variety of other groups, including Southerners on New Ground (SONG), to create the tactical mass bail out of #FreeBlackMamas to acknowledge the reality that incarceration of women disproportionately affects Black women. They work with partner organizations to post bail for incarcerated women year-round, but especially before Mother’s Day. This year, instead of (or in addition to) sending flowers to your favorite mothers, you can donate to National Bail Out or the 18 Black-led organizations they are working with across the country to help #FreeBlackMamas.

We also need to address the root causes of the incarceration of women in this country, which is often due to poverty. While drug or property offenses account for about half of the charges for which women are incarcerated, policies must also focus on reducing so-called “violent” offenses that women commit often in response to violence and abuse.

When we incarcerate women, we are causing irreparable damage to them, their families, and all of our communities.

A lot of people are surprised to hear they may not get a lawyer at their first bail hearing: “Don’t I have a right to an attorney?”

You should – that’s what the ACLU has argued in court in Galveston, North Carolina, Oklahoma, Oregon, Pennsylvania, and Utah. But half of U.S. states do not guarantee counsel at first appearance. In these states, first appearance is typically a rushed proceeding where magistrates (limited-purpose judges) rubber-stamp detention orders without entertaining arguments to let people out of jail. This “hearing” often takes place inside the jail with no means of public access. Without defenders present to fight on behalf of arrestees, and without the check of public accountability, the gross unfairness resulting from the lack of counsel can be lost on even the most well-meaning public officials.

Our most recent investigation in Travis County, Texas, documents what we commonly observe when we scratch the surface of these lawyer-less bail hearings. The ACLU of Texas organized volunteer law students to observe hundreds of first appearances in the first quarter of 2024. The results, digested by the ACLU’s data and analytics team, support our most recent lawsuit on counsel at first appearance and demonstrate why counsel at first appearance is so important. Here is what we found:

Travis County Sued Over Denying Right to Legal Counsel

Source: American Civil Liberties Union

Magistrates order detention but tell arrestees that down the line, a lawyer might make a persuasive argument for release. This practice effectively punts the real release decision until after a lawyer is appointed and the case is assigned to the trial judge – jailing the arrestee in the meantime. The numbers bear this out: we observed magistrates require cash bail at significantly higher rates than Travis County claims over the total duration of criminal cases. Our observation confirms what magistrates are owning up to from the start: after lawyers are appointed, the lawyer’s advocacy secures release without cash bail and gets more people out. The days that people wait in jail for their lawyer matter. Beside the fact that any time jail is inherently harmful, people lose their jobs and can’t be home to take care of their families. And even a few days in jail without a lawyer increases the chances that people plead guilty and accept harsher sentences, because they’re fighting their cases on an uneven playing field.

It’s natural for people to try to argue for their release: 29 percent of arrestees we observed made potentially harmful statements about their cases. People without legal training can’t realistically make a strategic choice about waiving the right to silence or deciding what to say. Even statements that are not outright confessions can limit strategies for the defense. It’s impossible to know from court observation alone how harmful these statements are in the scheme of each person’s criminal defense. But the harm of some statements, including those documented in our subsequent lawsuit, is painfully obvious:

• It happened a long time ago
• I have no choice but to be in that area (site of alleged trespass)
• Oh . . . well, I guess it was a crime
• If I could do it all over again, I would

In the absence of counsel at first appearance, court and jail personnel begin to regard first appearance as an empty formality rather than a meaningful hearing on release. First appearances conducted by video reinforce this dynamic: magistrates see arrestees as images on a screen, rather than human beings whose freedom is on the line. In Travis County, we documented communication problems resulting from video feeds in 10 percent of first appearances. Respect for the purpose of first appearance had eroded so dramatically that magistrates conducted the hearing through a camera pointed at the meal tray slot on cell doors, forcing arrestees to communicate by bending over to talk through the narrow slot. When the magistrate and arrestee could not communicate, the magistrate relied on jail staff to relay what the arrestee was saying and whether it appeared they could hear. Follow-up reporting by the Austin Chronicle documented additional instances of this practice, leading a retired federal judge to comment on the importance of counsel at first appearance.

Many officials – even in progressive Austin, Texas – try to convince themselves that counsel at first appearance is a luxury rather than a necessity. These findings show the need for counsel at first appearance.