of Diane Tucker and Victoria Banks. An intellectually disabled black woman living in Choctaw County, Alabama, Ms. Banks was accused of killing her newborn child even though police had no credible basis for believing she had ever been pregnant. Banks had allegedly told a deputy sheriff that she was pregnant to avoid time in jail for an unrelated matter. When she was seen months later with no child, police accused her of killing her infant. Disabled and without adequate legal assistance, Ms. Banks was coerced into pleading guilty to killing a child who had never existed along with her sister, Ms. Tucker. Because she was facing capital murder charges and a potential death sentence, she made a deal to accept a prison sentence of twenty years. Law enforcement officials refused to investigate her claims of innocence prior to sending her to prison. We won her freedom after establishing that she had had a tubal ligation five years prior to her arrest, which made it biologically impossible for her to conceive, let alone give birth to, a child.
In addition to unexplained deaths of infants parented by poor women, other kinds of “bad parenting” have also been criminalized. In 2006, Alabama passed a law that made it a felony to expose a child to a “dangerous environment” in which the child could encounter drugs. This “child chemical endangerment statute” was ostensibly passed to protect children living in households where there were meth labs or drug-trafficking operations. But the law was applied much more broadly, and soon thousands of mothers with children living in poor, marginalized communities where drugs and drug addiction are rampant were at risk of prosecution.
In time, the Alabama Supreme Court interpreted the term environment to include the womb and the term child to include a fetus. Pregnant women could now be criminally prosecuted and sent to prison for decades if there was any evidence that they had used drugs at any point during their pregnancy. Dozens of women have been sent to prison under this law in recent years, rather than getting the help they needed.
The hysteria surrounding bad mothers made a fair trial for Marsha Colbey very difficult. During jury selection, numerous jurors announced that they could not be impartial toward Mrs. Colbey. Some jurors indicated that they found allegations of killing a child so disturbing that they could not honor the presumption of innocence. Several revealed that they had such a close relationship with one of the state investigators—a key State witness who had been especially vocal about identifying bad mothers—that they would give him “instant credibility” and would “believe everything [he] said was credible.” Another juror admitted trusting law enforcement witnesses he knew to the point where he would “believe anything they say.”
The trial court allowed almost all of these jurors to remain on the jury panel despite defense objections. Ultimately, a jury who brought many presumptions and biases to the trial of Marsha Colbey was selected to decide her fate.
The jury returned a verdict of guilty on one count of capital murder. Prior to rendering a verdict, jurors expressed concerns about Mrs. Colbey being subject to the death penalty, so the State agreed not to pursue an execution if she was found guilty. This concession yielded an immediate conviction. The trial court sentenced Mrs. Colbey to life imprisonment without the possibility of parole, and a short while later she found herself shackled in a prison van heading to the Julia Tutwiler Prison for Women.
Built in the 1940s, Tutwiler Prison is situated in Wetumpka, Alabama. Named after a woman who promoted the education of prisoners and championed humane conditions of confinement, Tutwiler has become an overcrowded, dangerous nightmare for the women trapped there. Courts have repeatedly found the prison unconstitutionally overcrowded, with almost twice the number of women incarcerated as it was designed to hold. In the United States, the number of women sent to prison increased 646 percent between 1980 and 2010, a rate of increase 1.5 times higher than the rate for men. With close to two hundred thousand women in jails and prisons in America and over a million women under the supervision or control of the criminal justice system, the incarceration of women has reached record levels.
At Tutwiler, women are crammed into dormitories and improvised living spaces. Marsha was shocked by the overcrowding. As the only state prison for women, Tutwiler has no way to meaningfully classify and assign women to appropriate dorms. Women battling serious mental illness or severe emotional problems