Several countries have been adopting mass incarceration policies, despite experts pointing out that increasing prison sentences has no effect on reducing crime. Brazil has currently the third largest prison population in the world, since the sharp increase which started in the 2000s. Ranking first, the United States had a mass incarceration “boom” which started in end of the 1970s. In both cases, the proportional increase in the prison population continues to be higher among women.
Women represent about 7% of the global prison population, but female incarceration in the world increased by more than 50% between 2000 and 2017. In the same period, the male population increase was approximately 20%.
The United States account for 30% of the world’s female prison population, with an increase of 30% between 2000 and 2016 (compared to 8% increase in men’s incarceration). Recent initiatives to reduce the prison population in the United States appear to have little impact on women.

Brazil has become the fourth country in the number of incarcerated women, with an increase of more than 600% between 2000 and 2016.

Most women are arrested for non-violent crimes, while sentences for drug trafficking related offenses are becoming increasingly severe in several countries. They have a disproportionate effect on women, and the gender issue in the prison system is severely neglected, and too little has been done to address the specific needs and vulnerabilities of women in prison.
Adopted by the United Nations in 2010, the Bangkok Rules, were an important step in recognizing the specificities of protecting rights of women deprived of liberty. However, it is still difficult to obtain detailed information on female incarceration at national levels.

Data about women in conflict with the law are insufficient both in Brazil and the United States. Since 2014, the Brazilian prison administration (Departamento Penitenciário Nacional, DEPEN) publishes a specific report on women deprived of liberty: the Infopen Mulheres (Infopen Women). This recent initiative is an important step to monitor and guide public policies. It covers information gathered at national and federal levels, but the process is still fragile and the document has several gaps. For instance, the presence and number of children in prison with their mothers is documented only for a small portion of prisoners. The two-year gap between the collection of data and the publication of the report is problematic. In addition, prison units are not required to fill in forms, making the data collection inconsistent.
The same kind of challenges are noted in the United States. Prison Policy Initiative’s 2019 report on “Women’s Mass Incarceration” shows that the most recent official data available is from 2017. The decentralisation of the United States justice system increases the complexity of producing knowledge, since researchers need to adjust methodologies to gather data from both State and Federal systems.

In 2017, about 60% of women deprived of liberty in Brazil were accused of drug trafficking related offenses. Among men, this percentage was approximately 30% in the same year. In the United States, grouped data on local jails, state and federal prisons show that offenses related to drug use and trafficking were responsible for 23% of the 200,000 arrests of women (17% in local jails, 24% in State prisons and 44% in Federal facilities). As in Brazil, these percentages are lower among men. The two countries criminalise people who use drugs. Despite the legalisation of marijuana in some states, women in the United States continue to be disproportionately criminalised for drug use, according to the Drug Policy Alliance report “Women, Prison and Drug War”. In Brazil, users of drugs are frequently incarcerated, especially women. The legislation on drugs makes a distinction between users and dealers, but there is a lack of objective criteria to establish the difference. Longer sentences are now pronounced for small traffickers, increasing the vulnerability of women working as mules in an attempt to provide for their families.

The significant increase in female incarceration in Brazil is directly related to the drug policy adopted in 2006. This policy increased the existing racial bias, further criminalising black women. About 64% of women incarcerated are black, among which 48% self-identified as brown (pardas) and 15% as afrodescendents (pretas). The percentage of black women in the general Brazilian population is 52%. Indigenous people are reported to represent 0,28% of the women in prison, while this population counts more than 800,000 people. The scarcity of data by the criminal justice system suggests that the proportion may be underrated. The Drug Policy Alliance also reports racial bias in the United States prisons involving drug use and trafficking. Black women are almost twice as likely to be criminalised for drug-related offences than white women. Latinx women are 20% more likely to be penalized for such offenses than white women. The racial dimension is a fundamental issue in analysing the relation between female incarceration and drug trafficking in both countries.

In Brazil, more than 70% of women in prison are mothers. In the United States, more than 50% of incarcerated women have children. This percentage reaches 80% in local jails, which have the highest concentration of women prisoners. In both countries, most women tend to be the main and often only responsible for their children before imprisonment.

Serious violations of rights of the pregnant women are reported in the United States, such as the lack of prenatal care and the use of handcuffs during childbirth. In Brazil, the use of handcuffs during childbirth was an usual practice until recently. While it was banned in 2017, there are still reports of such practices.

Pregnant women in the Brazilian prison system face a severe lack of medical assistance, especially prenatal care.
The impact is also heavily felt on the children. The Legal Framework for Early Childhood (Marco Legal da Primeira Infância) was an important step by the Brazilian State to maintain family ties, despite its limitations and a certain resistance from judicial actors for its application. It provides that pre-trial detention can be replaced with house arrest for pregnant women, women with children up to 12 years of age or those responsible for people with disabilities. Similar measures in the United States were not identified by the ITTC researchers, at least not at national level. Certain local initiatives developed by civil society groups in partnership with the government aim to reduce the incarceration of women. For instance, the Women In Recovery project, carried out in the city of Tulsa (Oklahoma), is an alternative to the incarceration of women convicted for drug related offenses, including both using and trafficking.

ITTC’s comparative investigation presents only a starting point on the issues of gender and mass incarceration that cross national borders. The research highlights the importance of looking at female incarceration in Brazil and the United States with an intersectional approach, taking into account not only gender specificities with an emphasis on maternity, but also race and ethnicity. The role of drug policies in the increase in female incarceration is also crucial. It is essential for countries such as Brazil and the United States to have a standardised and periodic production of data on prison populations at national and local levels, with specific data on women, black people, migrants, and other vulnerable groups. Countless other difficulties faced by women deprived of liberty are reported, varying according to local specificities and legal systems of each country. These should be further analysed to provide possible good practices and most importantly to prevent the spread of ineffective rights-violating policies.