Built on Their Backs: How the Criminal Justice System Systematically Harms Women

The Numbers the System Does Not Want Read Together

The incarceration of women in the United States is a crisis produced through the systematic operation of institutions that were designed without women in view and that have never been retrofitted to account for the distinct pathways through which women enter the legal system. The data, when read together rather than in the siloed reports that individual agencies produce, describe something that should be impossible to misread.

From 1980 to 2022, female incarceration grew by 585%. More than 172,000 women are currently incarcerated, comprising approximately 10% of the total incarcerated population. More than 800,000 women are on probation or parole. Nearly two-thirds of incarcerated women are mothers of children under 18. The majority were the primary caregiver in their household before their incarceration.

Now read those numbers alongside this one: research documented in a 2025 submission to the UN Universal Periodic Review found that among women in applicable jails, 86% had experienced sexual violence and 77% had experienced intimate partner violence. A study cited across multiple credentialed research bodies found that up to 99% of women in surveyed prisons had histories of domestic or sexual violence. The Sentencing Project has documented that the incarceration rate for women has grown explosively while most incarcerated women report histories of abuse, at rates significantly higher than non-incarcerated women.

A system incarcerating people at that rate, with that demographic profile, is not primarily catching dangerous criminals. It is catching survivors.

The Abuse-to-Prison Pipeline: How It Works

The criminalization of domestic violence survivors is not a side effect of the legal system. It is a foreseeable outcome of policies enacted without adequate consideration of how abuse functions. The pathways are documented and specific.

The first is self-defense. Most state laws impose significant barriers on survivors who attempt to assert self-defense claims after using force against an abusive partner. When a woman who has been subjected to sustained, escalating violence responds with force, the legal standard applied does not account for the history of abuse, the pattern of coercive control, or the accumulated threat that informed her decision. She is evaluated as though she acted in a single isolated moment, by a standard designed around a confrontation between strangers. That standard does not describe her situation. The gap between the standard and the situation produces convictions that no honest reading of the facts would support.

The second pathway is economic. Domestic abuse routinely includes financial abuse: controlling a partner’s access to money, sabotaging employment, accumulating debt in a partner’s name, and destroying credit. Women who leave abusive relationships frequently do so with no savings, damaged credit, and no housing. Survival crimes committed in that condition, including theft, fraud, and drug offenses undertaken to meet basic needs or cope with trauma, are prosecuted without reference to the conditions that produced them.

The third pathway is policy-generated. Mandatory arrest laws, enacted in the 1980s and 1990s as a response to documented police inaction on domestic violence calls, require officers to arrest someone when responding to a domestic violence incident. The intent was to remove discretion that had historically resulted in abusers never being charged. The effect, in many jurisdictions, has been the arrest of the survivor. In Los Angeles and Maryland, the number of women arrested for domestic violence tripled after mandatory arrest policies were enacted. In documented dual-arrest cases in New York City, 66% of women arrested alongside their abusers were Black or Latina, and 43% were living below the poverty line.

Careers Built on Conviction: The Prosecutor and Judge Problem

The actors most directly responsible for individual charging and sentencing decisions, prosecutors and judges, operate within incentive structures that reward volume and severity, not accuracy or fairness. Understanding that structure is essential to understanding why the system’s treatment of women is not a series of individual errors but an output of deliberate design.

Prosecutors are elected officials in the vast majority of U.S. jurisdictions. Their political viability depends on conviction rates, charge severity, and the ability to credibly claim a tough-on-crime posture to voters. Research on prosecutor elections documents that competitive DA races produce higher incarceration rates at the county level, driven by reduced use of alternative sentences and diversion. The political reward for diverting a domestic violence survivor into treatment is zero. The political reward for a felony conviction is measurable and reproducible.

Judicial elections, where they exist, operate on similar logic. Judges who grant downward departures for domestic violence survivors, who exercise discretion to impose non-custodial sentences, or who formally recognize a survivor’s history of victimization as a mitigating factor risk being characterized as soft on crime in the next election cycle. The result is that many judges apply the law as written rather than as justice would require, even when the law as written produces an outcome that the judge knows is unjust. Several participants in documented accounts of survivor sentencing proceedings have described judges who acknowledged privately the injustice of a sentence they were about to impose, then imposed it anyway.

Where judges do have discretion, the exercise of that discretion is shaped by the same gender biases that operate throughout the system. Research has documented that gender-based stigma and stereotypes affect judicial outcomes at every stage of criminal legal contact. Women whose behavior does not conform to expectations of femininity, who are perceived as insufficiently remorseful, who have substance use histories, or who belong to communities that the court views as less credible, face outcomes that reflect those perceptions rather than the facts of their cases. Black women, in particular, receive less of whatever protection judicial paternalism provides. The chivalry that some researchers have identified as producing leniency for white women is not distributed across race.

The Financial Punishment That Outlasts the Sentence

The direct harm of incarceration is not the only harm the system imposes. Legal financial obligations, a category that includes fines, court fees, restitution, probation supervision fees, electronic monitoring costs, mandatory drug testing fees, and public defender reimbursement charges, extend the system’s reach into a person’s financial life for years or decades after any custodial sentence ends.

The MDPI research on gender and the financialization of the criminal justice system documents the specific way these obligations land on women. Women enter the legal system with lower incomes than men. They carry greater caregiving responsibilities. They are more likely to be single parents. They have less financial margin to absorb mandatory monetary penalties. And yet the research found that fewer than half of the women studied reported that a court had assessed their ability to pay before imposing financial penalties. Fifteen of twenty women studied were punished for nonpayment. The amounts owed ranged from $300 to $129,000, with a median of $4,000.

The consequences of nonpayment include mandatory court appearances that require taking time off work, driver’s license suspensions that threaten employment, additional late fees that compound the original debt, probation extensions that prolong system contact, arrest warrants for missed court dates, and reincarceration. Reincarceration for failure to pay is technically unconstitutional under the Supreme Court’s 1983 ruling in Bearden v. Georgia, which held that incarcerating a person for being too poor to pay violates the Fourteenth Amendment. Courts work around this by incarcerating for “failure to appear” or “failure to comply” at court dates that were scheduled because of the unpaid debt, accomplishing the same outcome through a relabeled charge.

Michigan passed the first law in the nation, in 1984, to charge inmates for the costs of their incarceration. That was not an accident of geography or progressive reform. It was the beginning of a national model that shifted the cost of running the carceral system from the public tax base, which includes everyone, to the individuals inside the system and their families. That shift was racially and economically targeted from the start. Its impact on women, particularly mothers and caregivers, has been documented for forty years. The reform response has been partial and slow.

When Men Are Incarcerated, Women Pay the Bill

The financial harm the system imposes on women is not limited to what happens when women themselves are defendants. When a man is incarcerated, the people who absorb the economic consequences are overwhelmingly women: partners, mothers, sisters, daughters. This is not incidental. It is structural. And the scale of it has been hiding in plain sight because researchers have historically studied the incarcerated person, not the household left behind.

A 2025 study published in Science Advances using original data from the Family Incarceration Costs Survey found that nearly two-thirds of families with an incarcerated member reported contributing to their loved one’s direct expenses, including phone calls, commissary accounts, and designated financial support for goods and services. American families collectively shoulder close to $350 billion annually in costs tied to incarceration, according to a 2025 Stateline report. Researchers project that if incarceration rates remain steady, cumulative family financial losses over the next decade could reach $3.5 trillion.

The burden falls along both gender and racial lines. The CFPB has documented that women, and specifically Black women, disproportionately shoulder these costs, sometimes spending up to a third of their income on phone calls, commissary, and court debt for incarcerated family members. Black families report spending an average of $8,005 per year supporting an incarcerated loved one, 2.5 times more than white families, who average $3,251. One in five families with an incarcerated member reported being forced to move. One in three children of incarcerated parents experienced a residential disruption.

Those numbers land on households where women are already doing the majority of economic lifting. In 2023, more than four in ten working mothers were the sole or primary breadwinner for their family. Among mothers living below the federal poverty level, that figure rises to 77%. Black mothers are breadwinners in 69% of their households. When a partner or co-parent enters the criminal legal system, the income he contributed disappears. The costs of his incarceration are added. The woman who remains is expected to absorb both sides of that equation while raising children, maintaining housing, and managing her own employment, often in a labor market that pays her less for the same work.

The price tag is not abstract. Commissary items are marked up as much as 600% above retail prices. A 15-minute phone call from a jail can cost five dollars or more, while the incarcerated person earning prison wages of twelve to forty cents an hour would have to work forty hours to pay for it. The woman on the outside pays instead, on top of rent, childcare, food, and whatever legal debt she is managing on her own. One woman documented in a 2022 investigation had spent more than $32,000 over time on phone calls, bail bonds, commissary contributions, and probation fees for partners and family members. At one point she was spending close to $2,000 a month to support an incarcerated husband, on top of the full cost of her household.

This is the full architecture of the harm: women are criminalized when they survive abuse. They are financially bled through fees when they are defendants. And they are the unpaid infrastructure of the entire carceral system when the men in their lives are incarcerated. At no point in that cycle does the system ask what this is costing them. It is designed not to ask.

What Institutional Misogyny Looks Like in Legal Architecture

The word misogyny tends to prompt arguments about intent: did this judge intend to harm this woman, did this prosecutor know she was a survivor? Those arguments miss the point. Institutional misogyny is not primarily about what individuals intend. It is about what institutions produce, consistently, systematically, and without correction.

A legal system that grew by 585% in female incarceration in four decades without once triggering a mandatory gender-impact review is a system that does not treat that growth as a problem requiring explanation. A prosecution culture that counts survivor convictions the same as any other conviction is a culture that has decided survivorship is legally irrelevant to accountability. A fee structure that imposes mandatory fines on indigent defendants without ability-to-pay hearings is a structure that has decided poverty is not a relevant condition to assess. Each of these decisions was made. Each of them produces harm to women at scale. None of them requires intent to function.

The Council on Criminal Justice’s Women’s Justice Commission, in its October 2025 report, documented that policies and practices across the nation’s criminal justice systems are failing to address the distinct factors that bring women into the system, and in doing so are harming families and undermining public safety. That report called for individualized responses, investment in prevention and treatment, and recognition that the current approach does not work on its own terms, not merely on grounds of fairness.

The argument from fairness is sufficient. The argument from institutional self-interest is also available. A system that incarcerates survivors does not reduce abuse. It removes the people abuse has already harmed, separates them from their children, and returns them to communities stripped of financial stability and parental standing. The abuser, in many of these cases, remains. The system chose which problem to address. That choice reflects a value hierarchy that has been in operation for decades and has never been formally named for what it is.