RECOMMENDATION 3
Expand charging and sentencing considerations
Recommendation
Courts should expand responses to and consideration of women’s distinct circumstances at charging and sentencing.
Rationale
Women who come into contact with the justice system are often grappling with complex circumstances that include trauma and interpersonal violence, economic insecurity, caregiving obligations, and behavioral health needs. Experiences of trauma and victimization do not override the need for accountability, but they often influence the dynamics that lead women into the justice system. Understanding how these factors affect criminal behavior creates vital opportunities to disrupt cycles of crime by providing opportunities for more effective interventions and allowing for a more accurate assessment of an individual’s risk to public safety.
Considerations for pregnancy status are particularly important, as correctional facilities often lack comprehensive reproductive and maternal health care.⁵⁵ Challenges include delayed transport for appointments, limited availability of specialists, and limited time for maternal-infant bonding, resulting in heightened risks to the mother and fetus.⁵⁶
Multiple alternatives to imprisonment exist that can account for women’s distinct risks, needs, and circumstances when they are facing charges and sentencing, including the use of diversion programs, problem-solving courts, and probation.
- Diversion Programs are widely available, though the design and eligibility criteria vary greatly. These programs often focus on rehabilitation and addressing the root causes of criminal behavior, allowing courts to focus resources on people whose risk cannot be reasonably managed in the community.⁵⁷ Prosecutor-led diversion programs, in particular, are typically designed for people with nonviolent or lower-level charges, resulting in a disproportionate number of women participants. Some diversion programs target specific offenses, such as crimes related to drug use or sex work, while others focus on the defendant’s circumstances, such as serious mental health or substance use disorders, domestic violence victimization, pregnancy, or caretaking responsibilities. Prosecutor-led diversion can happen pre-arraignment by declining to prosecute people who meet certain criteria and complete required interventions before their court date.⁵⁸ Research on prosecutor-led diversion programs show positive effects, such as reduced recidivism and increased use of community services. A 2018 National Institute of Justice evaluation of “high-volume” deferred prosecution programs found significant decreases in convictions, jail sentences, two-year re-arrests, and longer time to re-arrest, though the outcomes were not disaggregated by sex.⁵⁹ In addition, an evaluation of behavioral health jail diversion in Connecticut found that diverted women spent fewer days in jail and used more outpatient treatment services than non-diverted women.⁶⁰
- Problem-Solving Courts have also been established in many jurisdictions to address underlying issues that contribute to criminal behavior, such as mental health needs, substance use disorders, and human trafficking victimization. A third of adults who participated in treatment courts nationally in 2019 were female, totaling nearly 30,000 active female participants that year.⁶¹ While approaches vary across jurisdictions, the intent is the same: to offer collaborative alternatives to traditional incarceration and focus on rehabilitation, recidivism reduction, and community safety. In a rigorous multi-site evaluation, researchers found that treatment courts produced a 20% reduction in substance use and a 13% reduction in criminal behavior among participants.⁶² One evaluation of a drug court designed specifically for women found a 24% reduction in recidivism for those who were assessed as high-risk.⁶³ Treatment courts can also offer a cost-effective alternative to incarceration, yielding, on average, $2.21 in averted justice system and societal costs for every dollar invested.⁶⁴ Other studies have documented savings associated with reduced healthcare utilization and foster care placements, increasing the return on investments in treatment courts.⁶⁵ Family treatment courts, designed specifically for primary caregivers, have also demonstrated promising results. Multiple studies have found that these specialized courts are associated with higher rates of substance use treatment completion and family reunification, and reduced time in out-of-home placements for children.⁶⁶ On average, researchers found that the net cost savings associated with these programs ranged from $5,000 to $13,000 per family.⁶⁷ Researchers have also documented racial disparities in treatment court outcomes, however, including rates of admission into and graduation from such programs.⁶⁸
Treatment Courts Produced:
reduction in substance use
reduction in criminal behavior
- Probation is often used instead of imprisonment, especially for women. About 74% of women under correctional control are on probation, compared to about 49% of men.⁶⁹ Women are also more likely to be sentenced to probation and to receive shorter sentences than men when criminal history is taken into account.⁷⁰ This holds particularly true for drug and property crimes, where women are two to three times less likely to receive a prison sentence over deferred adjudication or probation.⁷¹ Probation can be an effective and cost-efficient alternative to incarceration. In one large urban county, researchers found that women sentenced to jail incarceration were 117% more likely to recidivate than those sentenced to probation, controlling for factors such as demographics, offense characteristics, criminal history, and risk levels.⁷² The consequences of incarceration were particularly substantial among women classified as high-risk, who were 4.2 times more likely to be rearrested when sentenced to jail versus probation.⁷³ The criminogenic effects of incarceration were more pronounced among high-risk women than their male counterparts, suggesting that the jail environment may be particularly detrimental to women.⁷⁴
In cases where a custodial sentence is required, judges often weigh mitigating factors to determine sentence length. These mitigating factors help ensure that sentences are fair and proportionate, taking into account individual circumstances that may reduce culpability or risk of reoffending. For women in particular, such factors can include histories of trauma or abuse, primary caregiving responsibilities, economic hardship, and unmet behavioral health needs. A growing number of states, for example, explicitly allow or require history of domestic violence related to the conviction to be considered as a mitigating factor at sentencing and in resentencing of past cases. The first such legislation was passed in Illinois in 2016, followed by New York in 2019, Oklahoma in 2024, and Georgia in 2025.⁷⁵ These bills have typically been adopted with bipartisan support. Other states, like North Carolina, have expanded sentencing guidelines that recognize the impact of coercion and control in abusive relationships and allow courts to consider how duress, threats, or compulsion may reduce culpability, even if they do not amount to a legal defense.⁷⁶ This approach can help ensure that women charged with offenses connected to their domestic violence are not punished as harshly for actions shaped by abuse dynamics beyond their control.
Multiple alternatives to imprisonment exist that account for women’s distinct risks, needs, and circumstances when they are facing charges and sentencing, including the use of diversion programs, problem-solving courts, and probation.
Although some courts and jurisdictions have enhanced their consideration of women’s distinct circumstances at charging and sentencing, there is opportunity for more comprehensive and strategic implementation. These interventions vary widely and are highly localized. Few of these alternatives to incarceration are tailored to the risks and needs of women, and evaluations on the outcomes for women or resources for other states considering diversionary models are scarce. Additionally, the extent to which mitigating factors, such as histories of trauma and abuse, caregiving responsibilities, behavioral health needs, and risk profiles, are considered in sentencing decisions varies greatly. Research on the Risk-Need-Responsivity model underscores the importance of matching the intensity and type of interventions to a person’s assessed risk and needs to avoid increasing costs, straining resources, and even heightening the likelihood of future system involvement.⁷⁷ Better accounting for and prioritizing community-based diversion models that address women’s distinct needs, risks, and circumstances in charging and sentencing decisions can improve individual outcomes and reduce system costs.
Implementation Steps
1
Prosecutors should offer diversion when risk can be managed without custodial sentences.
2
Court systems should expand the use of problem-solving courts and tailor these courts to circumstances that distinctly impact justice-involved women, including treatment courts for women with substance use or mental health disorders.
- The federal government should encourage the establishment, expansion, and evaluation of problem-solving courts through grant programs from the Department of Justice and the Department of Health and Human Services.
- State legislatures should appropriate sufficient funding to expand and sustain problem-solving courts.
3
Courts should expand alternatives to incarceration for women whose risk to the community can be mitigated with less restrictive means and whose personal and familial needs would be better served outside of confinement.
- State legislatures should allow for the use of sentencing alternatives for women who are pregnant and postpartum, which may include deferred or community-based sentences in lieu of incarceration.
- Diversion programs should provide well-tailored wraparound support to address participants’ immediate and longer-term risks and needs and reduce barriers to participation, which might include housing and employment assistance, family supports, childcare, trauma and behavioral healthcare, and victim services.
- Researchers should rigorously evaluate court diversion programs, with a focus on assessing outcomes for women.
- Programs should be designed to promote accountability and rehabilitation, while avoiding overly burdensome requirements for participation that undermine success and result in high rates of technical violations, revocations, and incarceration. The requirements and conditions of such programs should facilitate long-term individual success.
4
Federal and state sentencing guidelines should incorporate mitigating factors such as pre- or post-partum status, primary caregiving responsibilities, and history of domestic violence or abuse.
5
Courts should more comprehensively consider unique or more commonly found variables and risk profiles when making sentencing decisions for women. Such factors should include family/parenting ties and obligations, pregnancy, role in crime, likelihood of recidivism, victimization, age, and mental health. In particular, state legislatures should:
- Mandate that domestic violence victimization, when related to the conviction, is considered as a mitigating factor at initial sentencing and give authority and guidance to judges to sentence outside of mandatory minimums for all charges. This should allow for reduced culpability if there is evidence that coercion, duress, or exploitation resulting from that victimization occurred; and
- Allow for the resentencing of currently incarcerated people for whom a history of domestic violence was a significant contributor to the original conviction but was not taken into account at initial sentencing.
6
Judges, prosecutors, defense counsel, and court personnel should receive training and education to:
- Better understand the impact of an individual’s unique trauma and circumstances on criminal behaviors and consider these factors during court processes;
- Increase awareness of available alternatives to incarceration; and
- Mitigate practices that can contribute to racially disparate access to and outcomes in diversion programs.
Data Gaps and Opportunities
Data on the following indicators, disaggregated by sex and race, are critical to expanding diversion and sentencing options that address women’s experiences and circumstances:
- Outcomes of problem-solving courts, including rates of technical violations, re-arrest for new charges, service uptake and utilization, successful program completion, and cost effectiveness
- Characteristics of individuals served by problem-solving courts, and of those who are determined ineligible or decline to participate
- Assessed needs to be met in diversionary programs (caregiving responsibilities, history of trauma, history of domestic violence, behavioral health needs, etc.)
- Length and terms of sentences for primary caregivers and pregnant or post-partum women
- Characteristics of individuals applying for sentence reductions or resentencing under survivors justice legislation, and outcomes of those cases
