Public Interest Law

Ellen Barry is a respected prison rights activist, lawyer, and organizer who speaks out about the crucial issues facing women in U.S. jails and prisons. Barry works with Legal Services for Prisoners with Children and in the Critical Resistance prison movement.     

Barry has devoted much of her life to challenging America's rapidly expanding prison system and to bringing the darkest prison abuses to light. She has brought California's notorious Department of Corrections to court on more than one occasion, helping to bring about significant, hard-won improvements to the state prison system.

TALVI: What initially drew you toward public interest law and then, more specifically, toward the issues facing women in prison? You were, quite frankly, addressing prison abuses when not many people were focusing on these issues.

BARRY: I started working with women in prison in the mid-1970s. I [got a fellowship] to attend New York University law school in the public interest law program, and I was really fortunate to have a mentor, Barbara Schwartz, who had started the women's prison clinic. We would go up to the women's prison in Bedford Hills, New York every week. We taught a “know your rights” class and also worked on individual cases for women. I was also working with South Bronx Legal Services doing class action litigation. I had a very compelling experience.

What motivated you toward that kind of law practice so early on? It's not exactly a moneymaking field.

My father was a laborer and raised 10 kids on an assembly line factory salary and hated every day that he had to work. I've always felt that loving your work is a privilege and not something that everyone does. I grew up in a working-class community in Somerville, Massachusetts and several of my brothers ran into trouble with the law. I saw, first-hand, the effects of being on the streets and being picked up, the effects of abusive cops on kids on the street. I also have a number of brothers and sisters who are now in recovery. That makes a big difference and it's really important within our family; it's something that makes my work feel very personal.

I know you went on to organize the National Network for Women in Prison and that you still serve as the co-chair. Can you tell me more about that?

My primary affiliation, of course, is Legal Services for Prisoners with Children (LSPC). The National Network got off the ground in the mid-1980s. Our office convened the first national conference to focus on women in prison, which happened in New York City in 1985. We had progressively larger and more geographically representative conferences over the next four years. It's a loosely connected network of advocates and organizations working with women and girls in prison. It has been a struggle to keep the network afloat, financially and otherwise. Most of the groups in our arena are hanging on by their fingernails.What are some of the more pressing issues or cases that LSPC is focusing on right now?

LSPC is a very unusual organization in that we combine litigation, advocacy, community organizing, and individual work with families and prisoners—every strategy that we can think of to challenge the prison industrial complex. Half of our staff were formerly incarcerated. According to our bylaws, one-third of our board must be formerly incarcerated or family members of prisoners, although right now it's higher than that. We have a very feminist and anti-racist perspective and those are issues that are very embedded in the work that we do. Right now, we're working on a few different projects, [including continuing investigation of the] abusive conditions faced by women prisoners at Valley State Prison for Women. We're [looking at the] medical conditions suffered by women, sexual abuse, and assault from a systemic perspective. By that I mean not just isolated incidents of abuse, but day to day abuses, intrusive pat searches, strip searches done with only male guards present, a climate of sexual terror, constantly abusive language. All of this is completely denied by the Administration.     It's so improbable that there wouldn't be [offensive and derogatory] language by some people. For them to say, “That wouldn't happen. We punish people.” It's so ludicrous. Women are constantly subjected to a barrage of “Bitch, Whore, Slut” and racial epithets from the loudspeakers, even.

From the loudspeakers?

Yes. It's constant. It creates a climate that is so degrading. A third area that we are very concerned about are the ways women are being treated in the punitive segregation units. The general public would be quite surprised to know about the level of degrading, hostile, and violent treatment that women are subjected to, particularly women who are mentally ill or fragile mentally. For example, we worked with a battered woman who killed her abuser and who has done very hard time and has been really deteriorating. She may not have started with a mental health diagnosis.

But she has one now?

Yes. She has literally been driven crazy. We're looking at half a dozen cases where women started out in considerably better shape than they are now. Basically, you lock someone up for 23 hours a day with no contact. You use their need and their desire for a cellmate against them and refuse to allow them that contact. Women do their time differently from men. I don't want to ever imply that conditions for men are better or that conditions for women are worse. Those are meaningless dichotomies. For men the isolation is horrendous and people literally go nuts being so isolated. For women I would argue that it takes on an even more significant dimension because of the way that gender differences play out in society. Women often turn to each other for support and basic survival in ways that men don't do as often. The isolation issue takes on an even deeper [dimension] for women.

Can you address the difficulty of these kinds of situations for the women's family members who aren't allowed visitation rights or are allowed them very infrequently?

In my mind, this is a horrendous situation. I've seen many examples where children have just been baffled—not just the tiny ones—I know of one situation where a client of mine was required to visit with her three-year-old daughter. They were separated by a wooden partition in county jail. She did what any kid of that age would do, she reached up and went for her mother. The guard harshly reprimanded the child, not the mother. My client said, “It wasn't her fault, it was mine. Why did she yell at my daughter?” I said, “It really wasn't your fault, either. It's an inhuman situation.” I think kids, even teenagers, can't handle not being able to touch and hold their mothers in these situations.     

I had another client, I was representing him and his sister in the juvenile court, and he described what it was like to visit with his mother behind glass. This is a tough, little street-wise Chicano kid. And he was describing how he said good-bye to her: “She puts her hand on top of the glass and then I put mine on top of hers, and then we thump our hands so that we can feel the vibration.” And he started crying.   

I don't ever see this work as easy. I grew up in a family with drug and alcohol abuse and I know how hard that can be for families, and I'm not minimizing the personal responsibility for those who have taken actions that are difficult for their families to deal with. [But] some of these women in California, many of them are facing life sentences for long histories of petty theft with prior charges with underlying drug and alcohol histories and under that, sexual and physical abuses. It doesn't make sense to take these women and lock them up for life or long periods of time.

Can you talk about some of the alternatives to this kind of punitive system?

In the late 1970s, our office and a few others started to advocate for programs in lieu of incarceration. We first sued the DOC and later tried to get our clients into a program that was set up by statute called the Community Prisoner Mother-Infant Care Program. It's actually not unique now, I'm glad to say. At the time it was. It's a program that requires the creation of residential halfway house treatment programs and women can have as much as six years to serve on their sentences and can bring their children into their program and do their time in lieu of incarceration. It's not a diversion program.     

In 1978, the program had just been created and so we monitored for a few years the failure of the DOC to do anything with the program. In the 1980s we brought a lawsuit, Rios vs. Roland, and the lawsuit basically challenged the department failure to implement this very effective program. At the time we sued there was barely one functional program, and they were about to close their doors because the DOC refused to give them more than two or three women at a time. After we settled the lawsuit, we went from that to seven functional programs. There are about 100 beds for women now, and 100 for kids. I've followed a number of the kids through their childhood and early teen years and you can see the difference it makes.     

 When I started working in California in 1978, we had approximately 1,000 in the women's state prison at the time. We now have over 16,000 in the state system. I'm not saying that the mother infant program isn't great. But 100 bed spaces in 1978 is very different from 100 bed spaces in 1999.

LSPC has done the litigation and sued the DOC over pregnant women, vocational training, and we've sued some Orange County jails around those issues. We've moved to the point where we feel compelled to take a much broader strategy because the litigation is just a piece of what needs to be done. Several co-workers of mine joined with Angela Davis and a number of [San Francisco] Bay Area activists to form the Critical Resistance campaign. We put on a national conference in September of 1998. We ended up with close to 3,500 people.

Tell me about the book that you're working on with Angela Davis.

We've done some outlining and thinking about it, but both of us have been insanely busy with CR. We've also been doing a lot of work on the international campaign to challenge the abusive conditions faced by women in the U.S. It's taken several different forms. First the UN actually created an effort to investigate conditions of confinement and various other conditions in this country. They focused on four different issues: Death penalty, police abuse, abuse of immigrants and refugees, and abuse of women in prison. A woman named Radhika Coomaraswamy came to the U.S.

She was the UN fact-finder who came to the U.S. and was refused entrance to visit both California's Valley State's Security Housing Units and Michigan State Prison.

Yes. I really admire her.     [The report was released in Geneva on March 31, 1999. In her report to the U.N. Human Rights Commission, Coomaraswamy found that sexual misconduct by guards in the U.S. is commonplace within some women's prisons, and highlighted the growth of drug-related arrests and incarcerations of poor women and women of color in U.S. prisons.]     Then there's Human Rights Watch's research—“All too Familiar: Sexual Abuse of Women in U.S. State Prisons.” Robin Levi who co-authored the report is now on our board. The third piece [of this international effort] is Amnesty International. Their effort is focused on states that have not yet criminalized sexual contact by guards, with women. I think that's a good effort although I've done some training with them and we've all tried to encourage them to take it further. 

One of the steps we're hoping they'll take [regards] one of our individual cases. I've worked with a woman named Sherrie Chapman who is at the California Institution for Women. Sherrie was convicted of a murder she didn't commit and is doing a life sentence. She went in when she was in her late teens and in the mid-1980s she discovered a lump in her right breast. Several years later she discovered a lump in her left breast and it took over 10 years of her asking and begging for help for her to finally get the lump examined and biopsied.     

By the time in 1995 that the lump was biopsied, it was protruding from her breast so that you could actually see it through the skin. Once the mammogram was done there was an even further delay in getting the biopsy done; a six-month delay. We're in litigation now, but this is unconscionable behavior by the doctor. She has recently had a hysterectomy and the DOC is refusing to give her a palliative painkiller. She is taking Tylenol for the pain of metastasized breast cancer.

Are there any hopeful signs of positive change in our country's approach to crime and punishment, or are we mainly headed down a dangerous road of the normalization of incarceration as a way of life for the societally marginalized?

I think there's something to be optimistic about because I believe that many people throughout the country and world are starting to realize that we've made some deep, deep mistakes in terms of building prisons to the detriment and exclusion of building up our educational systems. Developing punitive programs for teens instead of focusing on programs that will really benefit and advantage our children.     The hard thing for me is this: Even if we are able to turn this ship around, there will still be hundreds of thousands of people who are currently serving time who shouldn't be. There will be many other people who will be incarcerated before we can put a stop to mandatory minimums and Three Strikes and this over-incarceration of people particularly with drug and alcohol problems.  So what are we going to do about that? Are we just going to have those people sit there? I think about the women that I've been working with—the vast majority are not serving time for violent charges—some of them have already gotten second strikes. [There are] scenarios where they have petty theft charges, they have “wobbler” charges.

Wobbler charges?

Meaning the [charges] can be considered to be felonies or misdemeanors. In some cases they can count as a third strike so that they are faced with life sentences for basically being drug addicts who started out being sexually and physically abused. In California, it's approximately 78-80 percent of women who are doing time for non-violent crimes. If you look at the additional 20 percent, within that percentage a significant number of those women have killed their abusers in self-defense.     How are we going to deal with the fact that so many of these women really should have amnesty of some kind? I think we need to look at launching an amnesty campaign for prisoners who are being sentenced under these punitive laws and who don't deserve to spend the rest of their lives in prison and who will without some form of clear recognition that we, societally, have made a mistake. Several of us are starting to talk about launching an amnesty campaign for women and men who are serving time for non-violent charges. We're also talking about reactivating the effort to insist on clemency for battered women who have killed their abusers.                                                   Z

Silja J.A. Talvi is a Seattle-based journalist who has written about prison/jail issues for publications including the MoJo Wire, In These Times, Prison Legal News and the Christian Science Monitor. A version of this interview first appeared in Sojourner.