Who We Fail to Protect: Coalition Building in Oklahoma Women’s Prisons

What do we mean when we say we want to protect?

One of the first things that comes to mind is the ever-familiar saying, “to protect and to serve”. We see it emblazoned on the sides of the police cars that cruise around our towns and cities; we watch shows on television networks where officers are the heroes who save the day and take down mastermind criminals to maintain law and order; we honor heroes who have fallen in the line of duty with parades and medals of honor. Day after day, we hear political speeches about the rising wave of criminality and the need to bolster police budgets in order to keep America safe.

But after three women sued the District of Columbia and individual members of the Metropolitan Police Department for negligent failure to provide adequate police services in the case of a brutal series of rapes and beatings that went on for over fourteen hours after the police were called—and came to the location several times—the Supreme Court determined in 1981’s Warren vs District of Columbia, that police are “under no specific legal duty to provide protection to the individual” (Brett, 2022). 1989’s DeShaney vs Winnebago County saw that “a state’s failure to protect an individual against private violence does not constitute a violation of the Due Process Clause, because the Clause imposes no duty on the State to provide members of the general public with adequate protective services.” This was in response to a suit brought in March 1984 by the mother of a four-year-old child that had been beaten so severely by his father that he fell into a life-threatening coma. Emergency brain surgery revealed a series of hemorrhages caused by traumatic injuries to the head inflicted over a long period of time. The brain damage the child had suffered was so severe that he was expected to spend the rest of his life confined to an institution for the profoundly mentally disabled. His father had been under mandatory Department of Social Services monitoring and visits, all of which reported suspicion of further child abuse, but no actions were ever taken. After the father was tried and convicted of child abuse, he served less than two years in jail (DeShaney, 1988). By 2005, the Supreme Court ruled in Castle Rock vs Gonzales that the police department of Castle Rock, Colorado would not be held responsible “for failure to enforce a restraining order against respondent’s husband, as enforcement of the restraining order does not constitute ‘a property right’” (Brett, 2022). This was the court’s judgment on the murder of Jessica Lenahan-Gonzales’ three children at the hands of her estranged husband after he’d kidnapped them, even though she reported the crime as a violation of her restraining order against him. Police have no obligation to protect (or arrest, or intervene), even when there is a protective order in place or a law mandating arrest if an abuser violates the order (Greenhouse, 2005). Simon Gonzales was killed in a shoot-off at the police station while the bodies of her children lay in the bed of his truck.

“There are instances when we do require people to intervene in order to warn, protect or rescue, but rarely are those people police officers. In 1976, in Tarasoff v. Regents of University of California, the Supreme Court of California ruled that mental health professionals have a “duty to protect” people who are being threatened with harm by a patient. Therapists can notify the police or the intended victim to discharge this duty. As of 2014, 27 states had a mandatory duty to warn statue and nine other states allow mental health professionals to break privilege to warn possible victims. Of course, if police don’t follow up on the warnings, this law doesn’t do much good…Survivors of a school massacre already unsuccessfully tried to sue police for not acting after the Parkland shooting. A US district judge ruled that neither the police nor the sheriff’s deputies had a duty to protect the students from the shooter because the students were not in the state’s custody.” (Brett, 2022)

If we can’t expect the police to help us, to protect us, even when they know there is active danger to us, then who should we turn to? Mandated reporters? Therapists, social service workers, teachers, nurses, or doctors? And more importantly, who should we blame when something goes wrong, when our children are hurt or killed?

In August of this year, I came across an article on Twitter. The headline was sensational enough that it immediately caught my eye. “She never hurt her kids. So why is a mother serving more time than the man who abused her daughter? Failure-to-protect laws are incarcerating women all over the country—for other people’s violence.” Usually, when I see headlines like this, I wonder what the author is trying to hide. Maybe the mother had hurt her children, or maybe she’d perpetuated the violence in some way. We’ve all read or seen too many stories about parents who abuse their children together, even when only one person perpetuates the act of physical violence itself. But then I saw that the article was by Mother Jones, a source that I find to be reputable and trustworthy in their politics and reporting, so I opened it to read. It was the first time I learned about “failure to protect” laws, and what they really mean to those who are charged and convicted under them.

I’ll admit that from the moment I started reading this article, there was no way I could go back. I read the next article in the series, “An obscure law is sending Oklahoma Mothers to prison in droves. We reviewed 1.5 million cases to learn more” and then found earlier reporting from February, “Her boyfriend killed her baby while she was at work. Oklahoma is sending her to prison: hundreds of women in the state have faced similar charges”. I felt obsessed, drawn to this silent epidemic, in a way I couldn’t fully comprehend. It wasn’t enough to just read and retweet these articles—I felt compelled to do something more, something that would actually change things. I couldn’t stop the questions racing around my mind, so I continued to dig deeper, to find out as much as I could, to reach out to the authors of those Mother Jones articles, to the Oklahoma ACLU, to defense attorneys, to figure out why this was happening at such an unprecedented rate in this state. I’d never thought of Oklahoma as particularly right or left, and it’s not even in the top 10 of what I would consider a “bible-thumping” state, but hundreds of women had been sentenced under these laws, and I had to figure out why.

Oklahoma, among most other states in the union, has had a so-called “failure to protect” law—House Bill 2037, state statute 843.5(B)—in effect since 2000 (Herrera, 2020). Here, “Failure to protect” is defined under Oklahoma Statuses’ Title 10A. Children and Juvenile Code as a “failure to take reasonable action to remedy or prevent child abuse or neglect, and includes the conduct of a non-abusing parent or guardian who knows the identity of the abuser or the person neglecting the child, but lies, conceals, or fails to report the child abuse or neglect, or otherwise take reasonable action to end the abuse or neglect” (OKDHS). “Failure to protect” may include, but is not limited to,

“(1) leaving the child in the care of an inappropriate caretaker or with a caretaker with whom the [parent or person responsible for the child] PRFC does not have a long-standing relationship and abuse or neglect is perpetrated on the child by the caretaker; (2) allowing the child to be left with a caretaker who previously harmed a child, the PRFC had knowledge of the previous abuse or neglect, and an incident of abuse or neglect is perpetrated on the child by the caretaker; (3) remaining in an environment with the child where the child is or was abused or neglected by another caretaker; or (4) permitting abuse or neglect to occur at the hands of another PRFC or caretaker.” (OKDHS)

In Oklahoma, this more often than not leads to a conviction of the mother, with harsher penalties imposed against her than even the perpetrators of the crime itself (Little, 2022). Jill Webb, [former] legal director for the ACLU of Oklahoma, explains the “gross injustice” of Oklahoma’s failure to protect laws: “It’s really indicative of why we have so many women in prison here, why it’s twice the national average, and it has been since 1990…It’s not specifically because of this statute, but it is because of this attitude. It is because of this blame-the-mother-first that is just so contrary to reality and so without mercy or any sort of understanding about what the lives of these women are like” (Slipke, 2019). Penalties in Oklahoma for violators of “failure to protect” laws are often harsher than in other states: “In six states—Oklahoma, Missouri, Nebraska, Nevada, South Carolina and West Virginia—non-offending parents face potential life sentences for failure to protect charges, and in Texas the maximum penalty is 99 years” (Brico, 2019). There is an inherent need to punish in these cases, to get revenge for the child that has been hurt or killed, regardless of who actually perpetuated the violence.

“Most states have similar laws, opening the door to anywhere from a few years to decades behind bars as a punishment. But Oklahoma, which incarcerates more women for all crimes than almost any other state, has one of the harshest penalties: Moms can be sent to prison for life for their supposed failure to protect, with no exception for women who were abused themselves. The ACLU estimates that Oklahomans convicted of the offense receive an average sentence of about a decade behind bars.” (Michaels, 2022)

In these places, it’s not enough to understand. To see the mitigating factors around abuse—poverty, intimate partner violence, childhood trauma, low job rates, no social services or support—isn’t enough. There must be someone punished, even if that person never abused or harmed a single person. More often than not, that person is the mother. We see mothers as protectors, as superheroes who can lift cars off of their babies or fight armed perpetrators to save their children. But we fail to understand, too, that women are oftentimes victims of the same abuse their children face—victims who are unable to intervene or act, or even who just sometimes have no idea what’s going on at all, because of secrets being kept.

“Parents who experience intimate partner violence also face a number of other complexities that caseworkers and judges don’t always take into consideration when charging these parents as culpable for traumatizing their kids by proxy. For example, one study found that 99 percent of domestic violence survivors had also been subject to economic abuse, a form of financial control that can leave them stranded without the resources necessary to secure independent housing or provide for their children’s basic needs. Because lack of appropriate shelter, clothing, and food also fall under the child services maltreatment category of “neglect,” this leaves many non-abusive partners trapped between the crosshairs of a failure to protect and a failure to provide charge. Either way, they’re ending up on the maltreatment registry for neglect.” (Brico, 2019)

When we fail to look at all the circumstances surrounding a woman’s “complicities” in “failing” to protect their children, when we lump all women and all instances of criminal negligence under the same set of mitigating conditions, we’re doing exactly what legal scholar Kimberle Crenshaw accused the legal system of doing in her seminal 1989 paper on intersectionality:

“This focus on the most privileged group members marginalizes those who are multiply-burdened and obscures claims that cannot be understood as resulting from discrete sources of discrimination. I suggest further that this focus on otherwise-privileged group members creates a distorted analysis of racism and sexism because the operative conceptions of race and sex become grounded in experiences that actually represent only a subset of a much more complex phenomenon.” (Crenshaw, 1989)

Oklahoma is a state where only 8% of the total population is black, but 19% of those found guilty under the state’s failure to protect statue are black (Michaels, 2022). This is a blatant face of racism in our justice system. For countless decades, black crimes have been disproportionately reported on in the news, black and brown children have been more highly scrutinized and punished in schools by resource officers and administrators, and stereotypes like that of the “welfare Queen” have predisposed white people to black lawlessness and criminality (Quillian and Pager, 2001; Ghandnoosh, 2014; Smiley and Fakunle, 2016). This perception allows predominantly white juries in Oklahoma to look at black and brown mothers and assume their guilt, no matter the extenuating circumstances surrounding their lives. It doesn’t matter that they were abused, impoverished, uneducated, and forgotten by society at large.

Tondalao Hall, a mother released from custody in 2019, was sentenced to 30 years in prison for failing to protect two of her children from their abusive father. Robert Braxton Jr., who broke the legs, ribs, and toe of their three-month-old daughter as well as the femur and 12 ribs of their 20-month-old son, admitted to the crime, but didn’t go to prison. He received probation and two years already served in jail while awaiting trial. Tondalado served fifteen years before being released in 2019. Although her sentence was commuted, she is still a registered felon (Slipke, 2019).

Kerry King, who was abused for more than a year by then-boyfriend John Purdy and forced to shoot heroine, was sentenced to two concurrent terms of 30 years in prison over the abuse of her daughter at Purdy’s hands. Because of his abuse, Kerry was terrified and unable to call 911 quickly enough for her jury’s liking. He received 18 years. She is still behind bars for his crimes. Her oldest children were sent to live with their biological father, a man convicted and sent to prison for domestic violence and substance abuse. Her youngest was adopted by a friend of Purdy who has refused all contact with her (Michaels, 2022).

Clorinda Archuleta received three life sentences for two counts of child neglect and one count of permitting child abuse by injury after bringing her son to the hospital immediately after noticing something wrong with his leg. He was found to have fractures on both legs, a fracture on his arm, a fracture on the right part of his skull and bleeding in the brain; her other son had similar injuries upon investigation. Joshua Wray, the co-defendant and perpetrator in the case, received 25 years for the exact same charges. She believes that she was sentenced harsher because of her demeanor while on trial. Her emotional demeanor was described as “flat” by the district attorney and reinforced by media coverage (Herrera, 2020).

“The ACLU of Oklahoma looked at data from the Oklahoma State Courts Network from some of the state’s largest counties and found that over a nine-year period, from 2009 until 2018, there were 45 cases similar to Archuleta’s, where huge sentencing disparities exist between men and women. “The data shows that 1 in 4 women will receive a longer sentence for failure to protect than the actual child abuser,” explained Megan Lambert, [current Legal Director of the ACLU of Oklahoma], explained in an email. The data show that 93% of people convicted of failure to protect are women and that at least 25% of women convicted for this charge are also victims of domestic violence at the hands of the man who abused their children, according to Lambert.” (Herrera, 2020)

Kelly Fairchild was found guilty of first-degree murder for the death of her 18-month-old son, while Gregory Miller, Jr. was found not guilty of first-degree murder, but of child abuse, even though he was the one who fractured the child’s skull, leading to his death (Michaels, 2022).

Rebecca Hogue was convicted of first-degree murder and sentenced to 16-months in prison after her boyfriend beat her 2-year-old son to death while she was away at work. He killed himself before he could be arrested and charged, but carved “Rebecca is Innocent” into a tree next to where his body was found. The judge did not allow this to be admitted into evidence, and the jury recommended she go to prison for life with the possibility of parole. Officers in her case didn’t want to arrest her or press charges, but the district attorney’s office charged her against their recommendation (Michaels, 2022).

Ashley Garrison received a 20-year sentence for child. Neglect following the SIDS (Sudden Infant Death Syndrome) death of her infant child. The man who abused and raped her throughout their relationship, and who admitted to putting his leg over the baby that night, was sentenced to 10. Her other two children were given back to her ex-husband, who had also been abusive throughout their relationship, and who has refused contact from Ashley. Her youngest child, who she gave birth to while in shackles, was taken away hours after birth and placed for adoption, and her parental rights were terminated (Noble, 2019).

“In Oklahoma, failure to protect is the only child abuse charge levied predominantly against women, and it is disproportionately charged against women of color. People charged with the crime there are less likely to have a previous felony record than defendants in firsthand child abuse cases—a sign of just how much more dangerous abusers are than those accused of failing to stand in the way of their abuse. Since 2009, when the latest version of the state’s law went into effect, at least 139 women have been imprisoned solely for failure-to-protect charges. At least 55 are still incarcerated… Of all Oklahomans charged with failure to protect, 2 out of 3 were women. Using only the cases we verified, we found that 9 in 10 were women.” (Little, 2022)

Simply put, these women are being disproportionately punished for crimes they did not commit. They aren’t being judged by their actions, they are being judged by the preconceived notions and societal norms we don’t even hold ourselves accountable to: ““Women are judged by what their partner does in a way that men aren’t,” [Alexandra Chambers, an adjunct professor at Vanderbilt who is tracking failure to protect cases in Tennessee] says. “And it can be seen as a moral failing that she didn’t have the moderating influence” to stop the abuse” (Michaels, 2022).

How can we expect victims to know everything, to be responsible for the actions of someone else? How can we do that to any of these women? Women who were used, abused, and thrown away by the systems that are supposed to be in place to help them. Who, ultimately, are we protecting, with these laws? And who, most importantly, are we failing every time we allow innocent mothers to be charged under them?

During the process of gathering this information, doing this research, and contacting as many people as I could to find out more, I realized that it wasn’t enough to just know. It wasn’t even enough to put this information to page and show people far and wide the injustices being wrought against these women. I needed to do more. I decided that I wanted to create something that would center not only these women, but their stories. Not just in a retelling of their personal tragedies—the stories that actually made them them. I wanted to curate a living exhibition of their humanity, something that is so often forgotten and thrown to the sidelines in cases like these. I thought that proposing a special issue for journal publication, centering these community voices while also inviting academic scholarly discussion into the injustices of the prison-industrial system, would be the best way to highlight their stories and begin to build a coalition of community surrounding this issue. As Sara Ahmed says in her book, Living a Feminist Life:

“When a life is what we have to struggle for, we struggle against structures. It is not necessarily the case that these struggles always lead to transformation (though neither does one’s involvement in political movements). But to struggle against something is to chip away at something. Many of these structures are not visible or tangible unless you come up against them, which means that the work of chipping away, what I call diversity work, is a particular kind of work. The energy required to keep going when you keep coming up against these structures is how we build things, sometimes, often, from the shattered pieces.” (Ahmed)

I want to struggle against the overwhelming public silence in the face of these cases. I want judges, juries, politicians, and everyday citizens to look into these women’s hearts, hear their words, and understand the fact that they are not monsters. They are human. They are mothers. They are victims of a society that dismisses the lives and pain of people of color, of the poor and marginalized. I want readers of this special issue to do what feminist scholar Patricia Hill Collins says in the introduction to her 2021 book, Contemporary Political Thinking:

“Intersectionality is a narrative of our times that was made possible by the loosening of political and intellectual borders of all sorts…IACST [Intersectionality as Critical Social Theory] prescribes a different kind of reading that rejects the assumption that readers extract meaning from the text through prescribed reading conventions. Instead, IACST proposes a dialogical reading where the connection between the text and the reader is crucial. What we bring to these contributions in terms of what questions are meritorious, what counts as evidence, what constitute appropriate methodologies, and the ways in which these contributions speak to us is crucial to interpretation.” (Collins, 2021)

If readers can put aside their inherent biases when faced with these women’s “crimes”, if they can truly understand their stories as human stories, they can see these women as human themselves. They might vote differently when on juries for the next “failure to protect” case. They might vote for judges who advise non-criminal penalties. They might vote for politicians who aren’t “tough on crime” because that’s what their base has been manipulated to believe they want. Maybe that’s a naïve hope, too big an expectation to put onto the shoulders of a project such as this, but it’s something I have to believe is possible. I have to believe that this way of looking at people, of being mindful of their voices and their stories, is the only way we can truly affect change.

This will not be an easy process for some readers. Setting aside our implicit biases, biases that have been instilled in us through our media, our judicial system, and our politicians, will be hard. It will require real work from people who don’t traditionally fall under the umbrella of restorative justice and equity work. As Jacqueline Jones Royster and Gesa Kirsch remind us in their 2012 book, Feminist Rhetorical Practices: New Horizons for Rhetoric, Composition, and Literacy Studies though:

“This process of paying attention, of being mindful, of attending to the subtle, intuitive, not-so-obvious parts of research has the capacity to yield rich rewards. It allows scholars to observe and notice, to listen to and hear voices often neglected or silenced, and to notice more overtly their own responses to what they are seeing, reading, reflecting on, and encountering during their research processes. Strategic contemplation asks us to take as much into account as possible but to withhold judgment for a time and resist coming to closure too soon in order to make the time to invite creativity, wonder, and inspiration into the research process. In effect, as a method of scholarly inquiry, strategic contemplation allows us to pay attention to two different parts of the research process, to two different journeys. One is an outward journey in real time and space, more in keeping with traditional notions of fieldwork, as researchers go to the archives, the historical sites, the city or country where a historical subject worked or lived. This outward journey slows down the research process so that researchers can collect data—in looking up, down, under, and around the rhetorical situation in order to take in the sights (e.g., walking the streets, seeing the buildings, examining the scale of things), carefully collecting details, information, experiences, all of which can help researchers better understand a historical period, a place in time and context, a particular rhetorical figure, or a specific practice as it exhibits rhetorical effects.” (Royster and Kirsch, 2012)

This work is necessary. These women’s voices deserve to be heard. They deserve to be seen, not just as the single worst moment of their lives, but as full people who have lived, suffered, loved, and been unjustly punished for crimes they did not commit. In speaking with just two of the women who I’ve mentioned in this essay so far, I’ve already seen the terribly fragile humanity these women hold onto in the carceral system. I know that their stories can connect so many more people, if only they were given the chance to tell them.

References

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Ahmed, Sara. Living a Feminist Life. Duke University Press, 2017. JSTOR, https://doi.org/10.2307/j.ctv11g9836.

Brett, Mia. “The Supreme Court Has Ruled That Cops Have ‘no Specific Legal Duty to Individuals.’ We Need Better Laws – Alternet.org.” Alternet.org, 3 June 2022, www.alternet.org/2022/06/supreme-court-cops-protect-individuals.

Brico, Elizabeth. “State Laws Can Punish Parents Living in Abusive Households.” Talk Poverty, 25 Oct. 2019, talkpoverty.org/2019/10/25/failure-protect-child-welfare.

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Ghandnoosh, Nazgol. “Race and Punishment: Racial Perceptions of Crime and Support for Punitive Policies.” The Sentencing Project, Sept. 2014, www.sentencingproject.org/app/uploads/2022/08/Race-and-Punishment.pdf.

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Herrera, Allison. “How an Oklahoma Law Meant to Protect Children Fails Mothers | Pulitzer Center.” Pulitzer Center, 21 Feb. 2020, pulitzercenter.org/stories/how-oklahoma-law-meant-protect-children-fails-mothers#:~:text=The%20law%20enabling%20child%20abuse,the%20Oklahoma%20legislature%20in%202000.

Herrera, Allison. “Women’s Excessive Sentencing in Oklahoma Prove Need for Criminal Justice Reforms, Advocates Say | Pulitzer Center.” Pulitzer Center, 19 Feb. 2020, pulitzercenter.org/stories/womens-excessive-sentencing-oklahoma-prove-need-criminal-justice-reforms-advocates-say.

Little, Ryan. “An Obscure Law Is Sending Oklahoma Mothers to Prison in Droves. We Reviewed 1.5 Million Cases to Learn More. – Mother Jones.” Mother Jones, 9 Aug. 2022, www.motherjones.com/mojo-wire/2022/08/failure-to-protect-data-oklahoma.

Michaels, Samantha. “Her Boyfriend Killed Her Baby While She Was at Work. Oklahoma Is Sending Her to Prison. – Mother Jones.” Mother Jones, 10 Feb. 2022, www.motherjones.com/crime-justice/2022/02/child-abuse-mothers-sexist-failure-to-protect-law-rebecca-hogue-oklahoma.

Michaels, Samantha. “Why Is a Mother Serving More Time Than the Man Who Abused Her Daughter?” Mother Jones, 9 Mar. 2022, www.motherjones.com/crime-justice/2022/08/failure-to-protect-domestic-abuse-child-oklahoma-women-inequality-prison.

Noble, Mary. “Woman Erased | Mary-noble | tulsapeople.com.” TulsaPeople Magazine, 20 Mar. 2019, www.tulsapeople.com/the-voice/writers/mary-noble/woman-erased/article_ffa24059-10c8-5526-aa5f-421b3411a643.html.

Quillian, Lincoln, and Devah Pager. “Black Neighbors, Higher Crime? The Role of Racial Stereotypes in Evaluations of Neighborhood Crime.” American Journal of Sociology, vol. 107, no. 3, University of Chicago Press, Nov. 2001, pp. 717–67. https://doi.org/10.1086/338938.

Royster, Jacqueline Jones, and Kirsch, Gesa E. Feminist Rhetorical Practices: New Horizons for Rhetoric, Composition, and Literacy Studies. Southern Illinois UP, 2012.

Slipke, Darla. “Groups Take Aim at ‘Failure-to-protect’ Laws.” The Oklahoman, 14 July 2019, www.oklahoman.com/story/news/politics/state/2019/07/14/groups-take-aim-at-failure-to-protect-laws/60445843007.

Smiley, Calvin John, and Fakunle, David. “From “brute” to “thug:” the demonization and criminalization of unarmed Black male victims in America.” Journal Of Human Behavior In The Social Environment, vol. 26, 3-4 (2016), 350–366. https://doi.org/10.1080/10911359.2015.1129256

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