How Women's Liberation Put Thousands Of Female Defendants Behind Bars

It may be coincidence that Hulu series The Dropout — the biopic about Elizabeth Holmes, former Silicon Valley phenom and founder of the fraudulent failed startup Theranos that promised 200 tests for one drop of blood — airs during the dropping of the second shoe: the trial of Holmes’ former romantic partner and Theranos Chief Operating Officer Ramesh “Sunny” Balwani.

Or it may be strategy. During her own courtroom showdown, Holmes raised an affirmative defense, alleging that Balwani abused her and exerted coercive control over her, influencing her decisions. Through his attorneys Balwani denies this, but we’re about to hear his side of the story. Ultimately, the jury invested little belief in the Theranos founder’s excuse. They rendered a guilty verdict in January, convicting Holmes of four of the eleven criminal charges.

She is set to receive her sentence in September and no one knows if she’ll be spared or not. Regardless of the result, Holmes’ case — specifically her defense of coercion by abuse — highlights the tension between women’s power and their culpability.
Approximately ten percent of all incarcerated populations — 231,000 as of 2019, according to the Prison Policy Initiative — are women. Even at that small percentage, the growth in the number is startling; it’s increased 700 percent in 40 years. Around 50 years ago, almost 75 percent of county jails didn’t hold any women at all.

It shouldn’t be that surprising. Until about 1980, women were not held responsible for many crimes they committed. A common law doctrine called coverture decreed a woman wasn’t really a legal entity and, as such, couldn’t really break the law because crimes are committed by persons and women were essentially property.

Coverture wasn’t limited to criminal defense; it allowed marital rape, a husband to take whatever property his wife had, and included a presumption of marital coercion when a married woman was charged with a crime. That presumption part is important; it basically required prosecutors to prove that a woman wasn’t under her husband’s control, a nearly impossible task since marriage, under this doctrine, subjugated the woman as a matter of course.

In fact, women were so subordinate that a state statute in Arizona directed authorities to hold the husband responsible if he caused his wife to commit a crime. Coverture didn’t license women to do just anything. The doctrine wouldn’t let her get away with murder or treason.

Between 1927 and 1956, 18 states repealed the statutes that absolved women of criminal liability by marital coercion. By the 1970’s, the defense made its way out of penal codes entirely.

Ironically, women’s liberation from coverture ended up incarcerating them. Marital coercion’s collapse coincided with the commencement of growth in women’s prisons; numbers of incarcerated women started to rise alongside a burgeoning women’s rights movement as these laws fell away.

The marital coercion doctrine was designed to prevent situations where liability exceeded culpability, but that’s what has happened since the defense went away; the pendulum of women’s liability has swung from virtually no responsibility for criminal acts to an equally unreasonable extreme whereby they’re overly responsible, liable for their own choices as well as others’.

Right now, more than half of women in federal prisons are sentenced for drug-related crimes. While possession is a federal crime, a dime bag or even a suitcase full of heroin for personal use would likely be pursued by state authorities. Women doing federal time for drug-related charges are probably connected to large scale drug operations run by men which means they’re usually convicted of conspiracy, which attributes criminal liability for another person’s actions. It’s a long way from coverture, altogether too far.

The United States is trying to find the exact equilibrium between determining women’s responsibility and an understanding of trauma. Many female defendants were boxed in by abuse. According to the Vera Institute for Justice, 86 percent of incarcerated women experienced sexual abuse, 77 percent had an intimate partner who was violent towards them, and 60 percent have histories of being “abused by caregivers,” which is social worker-speak for child abuse.

Knowing this, Congress has stepped in and continues to weigh how to best help women accused of crimes. Movements are underway advocating to release abused women from custody; activists believe abuse is so pervasive that incarcerating women amounts to criminalizing survival.

But as judges and advocates feel around for the right balance, a defense based on abuse presents an inevitable tradeoff: It entails a loss of agency. No girlboss says “He made me do it”; that’s a claim reserved for a Girl Friday. It may be that the more we understand trauma’s influence on crime, the more we concede women’s powerlessness.

I don’t know if the concession helps us in the long run. We can’t complain that power is so often unaccompanied by accountability and then try to escape consequences once we gain authority. That’s the societal flaw women are trying to fix — and it isn’t fair.

And sometimes judges view this lack of agency negatively. I had a cellmate who was convicted of conspiracy to manufacture a bomb and to commit arson. She drove the car as her husband and another woman threw Molotov cocktails into a bar after hours, following a dispute with its owner. When her attorney tried to explain how a history of abuse in her childhood and coercion by her husband had basically stripped her of her ability to make decisions, the judge replied: “That’s why she’s dangerous.”

Aya Gruber, professor of law at the University of Colorado School of Law and author of The Feminist War on Crime: The Unexpected Role of Women's Liberation in Mass Incarceration, sees my former cellmate’s situation as an outlier. Gruber thinks that offering the specifics of how a female defendant withstood abuse can mitigate sentences and won’t backfire in the long run.

“I really think that it's more likely to produce lower sentences than higher sentences,” Gruber said, and she may be right. Courts may move toward a more nuanced understanding of women’s relationships that ends up empowering them — and releasing them from confinement. But if history is any lesson, we should understand that if patriarchy exculpates women, then smashing it like Holmes did might indict us.

Chandra Bozelko did time in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent, and she later established a blog under the same name that earned several professional awards. Her columns now appear regularly in The National Memo.