Home » Side Event: Drugs and Criminal Justice: The Situation for Women in Prison

Side Event: Drugs and Criminal Justice: The Situation for Women in Prison

Marcela Jofre (HRI): The war on drugs has a disproportionate impact on women. The needs of women who use drugs are gravely under-addressed and they face higher barriers than men with a lack of tailored harm reduction services. Barriers include the intersecting forms of discrimination they face based on gender, race, class, stigmatisation, experiences of gender-based violence and access to sexual and reproductive rights. Women have less prevalence of drug use than men, but are greatly impacted by punitive drug policies. Men are 5x more likely than women to inject drugs, but women who inject drugs are 1.2x more likely to be living with HIV. Women also face a huge risk of human rights violations from law enforcement. These can include dehumanisation by police officers and prison staff, abusive searches, arbitrary arrest, physical and psychological harm and sexual abuse, and confiscation of essential health commodities.  Women have nowhere left to turn when they suffer this abuse. Those who nominally exist to protect and serve are the greatest threat. Women who use drugs face a higher risk of incarceration and harm. Poverty and punitive drug policies are a key contributor to the incarceration of women. Women and girls represent 7% of the prison population globally, but its population is increasing at a higher rate than of men – up to 60% since 2000 compared to 22% for men. Women are disproportionately affected by criminalisation and incarceration. 35% of women in prison worldwide are convicted of drug-related offences compared to 19% of men. A disproportionate number of women are on death row for drug offences compared to other crimes – in Thailand it is 92% of women on death row and in Malaysia it is 90%. Women who use drugs in prison settings face limited access to harm reduction which is exacerbated by discriminatory and stigmatising attitudes of prison staff. Women consistently report unsafe injection behaviour in prison in the absence of accessible sterile injecting equipment. To conclude it is clear that punitive drug policies reproduce and reinforce gender-based violence and discrimination by law enforcement and the criminal system in general. Any human rights approach to drug policy must consider the gender dimensions of drug control and put people who use drugs, particularly women, at the centre of policy making. We need to move from a prohibitionist response to drug use and take urgent measures to reduce mass incarceration of women for drug offences.

Marie Nougier (IDPC): Good morning everyone, and thanks so much for joining us so early in the morning! First of all thanks so much to UNAD for the invitation to participate in this event. Secondly, and before I start my presentation, in the name of many of our IDPC members, I would like to express solidarity with the Palestinian people as they face an unprecedented humanitarian catastrophe. We urge member states to uphold international law and prevent further bloodshed through concrete action, including an immediate permanent ceasefire, the delivery of humanitarian aid, the end of the occupation of Palestinian territories, the cessation of arms transfers, the release of those arbitrarily detained against international law on all sides, and credible commitments toward peace.

Today, I would like to present some of the key findings from a report that we launched as IDPC alongside the Washington Office on Latin America and Dejusticia in November last year. The report ‘Justice is setting them free: Women, drug policies, and incarceration in Latin America’ reviews about a decade of successes, challenges and lessons learned on our advocacy to reduce the incarceration of women for drug offences across Latin America. Our joint work on the issue started around 2014. At the time, through initial research by IDPC, WOLA and Dejusticia, we realised that there had been a huge increase in the female prison population (an increase that was much higher than for men), and that was mainly driven by punitive drug policies. The result of that was that between 50 and 75% of women incarcerated were in prison for drug offences in many Latin American countries. And this of course has a disproportionate impact on children, and entire families and communities because most of these women were single women, heads of household facing multiple layers of vulnerability and exclusion. And so we felt that we had to share those stories and the research we’d been conducting to put this issue on the political agenda. The first step was to put together a working group of women (from across Latin America, which included civil society experts, academics, human rights defenders, feminists, government officials and – more recently – formerly incarcerated women. We kept the composition of the Working Group flexible to make sure that we could benefit from new points of view, and of course we recognised very quickly that directly affected women had to be involved across the work of the Working Group and in our decision-making processes. The diversity of the working group facilitated the exchange of expertise, experiences and best practices, and enabled us to 1- bring the discussions to policy making spaces at national, regional and international level; and 2- it brought new players to the discussion, which diversified and enriched the drug policy reform movement and brought a new sense of solidarity with the feminist movement, the prison abolition movement and more. 

In terms of what we managed to achieve, I’d like to highlight 3 things:

The first key success we had with our joint advocacy was that we managed to put the topic onto the political agenda of governments and at the UN. The first output from our Working Group was a Drug Policy Guide with key recommendations on how to reduce the incarceration of women. The production of this Guide coincided with unprecedented debates in Latin America that questioned of the punitive paradigm on drugs leading up to the 2016 UNGASS on drugs. The Guide was produced in partnership with the InterAmerican Commission on Women and launched at the Organization of American States a few months before the UNGASS was set to take place. The topic definitely caught the attention of various government champions, including Mexico, Colombia, Uruguay and Costa Rica, and the OAS itself! So the dialogue had started, and continued to gather pace, with a resolution presented at the CND in 2016 on mainstreaming a gender perspective in drug policy which was in part inspired by our Guide. Since then, it has become common practice to include language on women and gender in CND resolutions. We also made strides in Geneva, with an increasing number of UN human rights experts issuing guidance and recommendations on how to reduce the disproportionate impacts of drug policies on women (e.g. the OHCHR report on human rights in drug policy)


Our second success related to national level reforms. Various members of the working group worked closely with governments and brought our recommendations to the decision-making table. And although this is not only due to our own advocacy, we have seen Bolivia issuing a series of amnesties and pardons for women incarcerated for minor drug offences. In Costa Rica, the government eliminated criminal records for women in situation of vulnerability, following up from a 2013 reform that enabled such women to benefit from alternatives to incarceration and social support instead of prison for certain drug offences. And more recently, Colombia reformed its laws to allow access to alternatives to incarceration for women in situations of vulnerability, including for drug offences. 

And our third success, which for IDPC was absolutely essential: we created a space for formerly incarcerated women to share their stories with policy makers  and present their own recommendations for reform. Formerly incarcerated women brought their own perspectives to our work over the years, and we were also able to support nascent networks as they started engaging in advocacy. 

But there are also difficult challenges that we have to overcome:

  • Importantly, and despite the reforms that took place in various countries, the reality is that the number of women incarcerated across Latin America (and in other parts of the world as well) is not reducing. So we need to do more to ensure that our end goal is actually achieved. We are also very concerned over discourses focused on the securitisation of drug policies, as this would inevitably lead to higher rates of incarceration. 
  • Secondly, we’ve realised that some of the alternatives to incarceration we had initially promoted at the start of our project were not helpful, and sometimes were counterproductive. For instance, while house arrest sounds like a good idea in principle, research we conducted jointly with the working group showed that very strict rules for house arrest that did not allow the woman to go to work, go grocery shopping or even bring her kids to school did little more than to add hardship to the woman’s life and that of her family. And this is where it is absolutely critical to hear the voices of the women who have been directly affected: to truly understand how best they think they should be supported.
  • Thirdly, there continues to be a huge amount of stigma and discrimination against women incarcerated for drug offences during criminal proceedings, while in prison and after their release. Criminal records have a long-term impact on their lives and only serve to push them further into cycles of poverty and marginalisation. This also includes self stigma. And this makes it all the more important for women with similar experiences to have a safe space to meet and share their experiences without fear of judgement. 
  • Fourth, there continues to be very little visibility on the disproportionate impacts of drug policy on the LGBTQI+ community. With the working group, we conducted research alongside various transgender women from across the region on the incarceration of transgender women for drug offences, but we need more information on the specific issues they are facing and how to help address them. 
  • And finally, overall there is a need for civil society to continue to investigate this issue, to bring data to the decision making table, to elevate the voices and stories of those most affected, and to call for much-needed reforms to have a real impact on incarceration rates and on the lives of affected women. 

Pedro Quesada (Spain): To be speaking today about prison and drugs I didn’t expect so many attendees in the room. At the beginning we looked at the international approach with Marcela, then the regional approach from Latin America from Marie, and I would now offer the national reality of women with addictions in Spanish prisons. These results can be similar for the rest of Europe. This is the result of 2 years of work with universities, Spanish prisons, and Catalan prisons. 839 men and 347 women were interviewed in 18 penitentiaries and from this we produced a report with a gender perspective. The average profile was of a 41 year old white Spanish woman with a basic level of education, in 70% of cases their partner was also in prison. 

We must speak about the triple discrimination they face as women, as they use drugs, as they are imprisoned. Mostly they are in prison for drug trafficking. Looking for solutions we should know their circumstances, only 7% of the total prison population are women. They have less opportunity to go to a prison close to their families. In Spain there are 92 prisons with only 5 women’s prisons. There are less specific activities for women and no specific pathologies for women. Security measures for women are generally less stringent as they accept rules more peacefully. Regarding maternity there is a lack of specific areas for children in prison. Women representing a minority makes it difficult to get equal access to various activities as they are mostly designed for men. The more people in projects in prisons, the more social and political impact of the project – thus these are designed for men to “maximize” benefit. Women stand out in statistics in most mental conditions outside from aggressiveness and associated violence. 75% of women suffered violence in their life, 45% of women and 7% of men have suffered sexual violence. However, this is underreported as many people struggle to recognize that they suffered this sexual violence. This issue should be monitored in prison so we can work to improve this in coordination with other resources. Prison is a very masculinized environment and the alternative to women’s prisons is mixed prisons – but these are really prisons for men. Needs to be gender sensitive training for prison staff. 80% of women in prison have children, children under 3 can stay in prison with their mothers but if they are older they need to leave the prison. There is a clear need for an open prison system for cases of women with children over 3. We need more specific prisons for children and they shouldn’t be obligated to travel long distances from their home and families. Real gender perspective training for prison staff and specific security measures for women. Addictions should be treated in prison in the same way they are treated out of prison. Special protections from forms of violence. 

Helene Trigoudja (OHCHR): I have a few remarks and a question, if time allows. We have mentioned a specific topic of transgender women but I will go back to this question. In the report of the OHCHR there is a section on women, stigma, discrimination, and the specific vulnerabilities of women. Marcela mentioned women in all their diversity so there is clearly a huge problem to discuss how international human rights organisations work with these different vulnerabilities or specificities of women. Especially as Pedro mentioned, vulnerabilities to different forms of violence and especially gender and sexual based violence. Normally in international treaties is not listed as a factor of discrimination but it is clear that in all countries the use of drugs is clearly a huge factor of vulnerability. The topic of your work is to make the factor of this discrimination much more visible. What should we do in terms of international obligations and what can be said by human rights organisations? There are some key recommendations to have a differentiated approach to detention – to my knowledge this is the first time an international body has noted the different features and vulnerabilities. States have to adopt public policy based on human rights but also based on the needs of the person. It is also based on the needs of the individual, it is not only for men but also for women. I like this differentiated approach of women as it goes beyond the statutes. It is meant in a positive way to ensure states are proactive in public policy. I was not aware that we have less prisons for women so in terms of private life and the distance between the institution and the home of the women is going to be different than for men. When we discuss drugs and criminal justice we do not only talk about non discrimination but also about public policies being tailored to the needs of the person. 

Question: Anton said let’s discuss from a feminist approach but in Latin America and many regions we have a struggle between feminist approach and transgender women’s rights. There has been a ruling that we cannot treat women as transgender women – these are not the same categories, that we cannot grant them the same rights as women. There is a perception that transgender women are below women, even more discriminated against than women. 

Marcela Jofre: As you said transgender women are women, they should have the same rights. There are no second class humans and this is something we should have very clear. However, being trans adds another layer of discrimination. In the context of prison this is more complex. My experience in Chile, there was a discussion with prison staff trying to get them to recognize the name and gender of a transgender woman. The discussion started from there and then it transitioned to where transgender women should be, in which prisons. Many orgs campaigned to prison staff to move transgender women that were in male prisons to female prisons. This was without considering the voices of them so there were some cases that they didn’t want to be transferred as they felt safer, had access to more programs. One is to recognize that transgender women are people who deserve the same treatment and human rights and also recognizing their needs and their voices regarding policy making and harm reduction in prisons or any other measure that may apply to them.

Marie Nougier: Everyone has the right to be recognized as a woman. We call for a reduction in incarceration of women, we don’t call for more prisons. When we say women tailored prisons that doesn’t mean more prisons. With the huge levels of vulnerability trans women experience, the research should be driven by trans women as they are experts but there was disagreement among themselves as to what recommendations we should put in that paper. It depends on the person and is very complicated. It is certain that prisons are not good for protecting human rights, they are unable to access gender affirming healthcare, they are facing a variety of issues on top of the issues facing women. We didn’t face push back from feminist movement but it is clear we need to talk to the feminist movement about drug use, about drug trafficking. In Latin America most women are in prison for engaging in the supply side.We need to make sure we reach out to these feminist organisations. 

Pedro Quesada: We have a Spanish law about trans women and the official law is that they are the same as the rest of the women and this shouldn’t be discussed. There is a parallel debate in the country between feminist groups and “neo” feminist groups who have different opinions. In Spain we have it clear enough, while some people may have issues with it and it needs time to be perfect it can provide solutions. 

Zaved Mahmood (OHCHR): I want to mention two things coming up in the Geneva setting – there was a resolution from Canada on women and girls in prisons to inform this process and there is a regional consultation. There is another initiative from Costa Rica to tackle social integration of formerly incarcerated prisoners, so this is a good chance to engage with Costa Rica and other partners. This will be tabled in September so I encourage you to engage with these processes in Geneva. 

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