Women, Punishment and Social Justice

Human Rights and Penal Practices

Margaret Malloch, Gill McIvor

• Publisher: Routledge
• Year: 2013
• Print ISBN: 9780415529839
• eBook ISBN: 9781136193705
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

The prison has often been the focus for concerns about human rights violations, and campaigns aimed at achieving social justice, for those with an interest in the criminalisation of women. To reduce the number of women imprisoned, a range of policy initiatives have been developed to increase the use of community-based responses to women in conflict with the law. These initiatives have tended to operate alongside reforms to the prison estate and are often defined as 'community punishment', 'community sanctions' and 'alternatives to imprisonment'. This book challenges the contention that improved regimes and provisions within the criminal justice system are capable of addressing human rights concerns and the needs of the criminalised woman.

This book aims to provide a critical analysis of approaches and experiences of penal sanctions, human rights and social justice as enacted in different jurisdictions within and beyond the UK. Drawing on international knowledge and expertise, the contributors to this book challenge the efficacy of gender-responsive interventions by examining issues affecting women in the criminal justice system such as mental health, age, and ethnicity. Crucially, the book will engage with the paradox of implementing rights within a largely punishment-orientated system.

This book will be of interest to those taking undergraduate and post-graduate courses that examine punishment, gender and justice, and which lend themselves to an international / comparative aspect such as criminal justice/criminology, (international) criminal justice courses; sociology as well as professional training for practitioners (criminal justice, social work, health) who work with women in the criminal justice system.

Part I

Introduction

1	Women, punishment and social justice
	Margaret Malloch and Gill McIvor

Introduction and background

In the last 20 years, there has been a growing international recognition that prison is an inappropriate response to women in conflict with the law; and a subsequent concern among academics, policy-makers and practitioners to reduce the number of women imprisoned (Sheehan, McIvor and Trotter 2011; Sudbury 2005). Across jurisdictions, lawbreaking by women differs in a number of important ways from lawbreaking by men: it is less common, less frequent and less serious. Women are typically convicted of relatively minor crimes that pose little public risk and, because they are usually convicted of offences that are less serious than those committed by men, the sentences they receive are also different: for example, women are less likely than men to receive sentences of imprisonment. However, female imprisonment has increased dramatically in most western jurisdictions over the last 15–20 years as evidenced by increases in the numbers of women given sentences of imprisonment, in daily female prison populations and in the rate of imprisonment of women (McIvor 2010). Moreover, because the rise in women’s imprisonment has outstripped parallel increases in the imprisonment of men, women now make up a greater proportion of prisoners. There is little evidence that more women are being imprisoned because of an increase in the seriousness of female offending: rather it appears that a complex range of factors are responsible including legislative changes and increasingly punitive responses to women in conflict with the law (McIvor and Burman 2011).

The prison has often been the focus for expressed concerns about human rights violations and campaigns aimed at achieving social justice, for individuals and groups with an interest in the criminalisation of women (Amnesty International 1999; UN Special Rapporteur 1999; Canadian Human Rights Commission 2003; Shaw 2003; Northern Ireland Commission on Human Rights [Scraton and Moore 2005, 2007]; Human Rights Watch 2006; Sandler and Coles 2008). There is little doubt that this attention is necessary and justified. Given the challenges that need to be overcome in addressing these entrenched and complex problems, it is little wonder that the prison retains the attention of those seeking change for women involved with the criminal justice system.

Despite a concerning growth in the number of older women being imprisoned, the majority of women in prison (around two-thirds) are mothers with children under 18 years of age. Imprisonment therefore impacts not just on women but also on the human rights of their children who will experience a variety of alternative (and often unstable) care arrangements while their mothers are serving a prison sentence and who may be unable to visit their mothers if they are imprisoned some distance from home (Caddle and Crisp 1994). Imprisoned women are subjected to intrusive searches and extensive surveillance that can exacerbate trauma associated with prior experiences of abuse and increase the risk of self-harm (Scraton and Moore 2007). Levels of self-harm and suicide are higher in female prisons than in male prisons, even though levels of suicide in the community are higher among men (Leibling 1992; Sandler and Coles 2008), and there are high levels of drug problems among women in prison (Malloch 2008). A high proportion of women who are imprisoned will lose their accommodation (and often their possessions) during their period of imprisonment, adding to the difficulties they experience resettling in the community on their release (Gelsthorpe and Sharpe 2007a; Morris, Wilkinson, Tisi, Woodrow and Rockley 1995). Community penalties offer clear benefits insofar as they avoid the separation of mothers from their children alongside other practical and emotional consequences of imprisonment. However, attempts to address the needs of children at the point of sentencing raise additional and complex concerns. While, arguably, the potential impact of imprisonment on children should be a key consideration for sentencers, this can potentially have deleterious consequences for women who do not have children, and for women presented in court as ‘unfit mothers’.

Given that the growth in women in prison internationally does not appear to be underpinned by an increase in crimes committed by women (Hedderman 2004; McIvor and Burman 2011) policy initiatives have been developed to increase the use of community-based responses to criminalised women. These initiatives have tended to operate alongside reforms to the prison estate and their integral role as a form of punishment is evidenced by the terms used to define them: ‘community punishment’, ‘community sanctions’, ‘community payback’, ‘alternatives to imprisonment’. These interventions are generally assumed to offer a more constructive and arguably more ‘cost-effective’ (New Economic Foundation 2008) response to lawbreaking by women; yet little is known about how different sanctions and measures are used with women across different jurisdictions and how they impact upon aspects of women’s lives.

Ongoing attempts have been made to increase the opportunities and format of community sanctions; making existing resources more suitable for women and developing others which are ‘gender-responsive’ in design and delivery (Bloom, Owen and Covington 2003). Recent policy and practice initiatives have focused on the development of integrated services for criminalised women such as the 218 Centre in Scotland (Easton and Matthews 2010; Loucks, Malloch, McIvor and Gelsthorpe 2006), Together Women in England and Wales (Hedderman, Palmer and Hollin 2008) and Inspire in Northern Ireland (Easton and Matthews 2011) often alongside other disadvantaged women as in the Asha Centre (Roberts 2002), enabling a wide range of needs to be met.

Three particular considerations arise in relation to community provisions. First, the ability to mobilise resources to meet women’s needs depends on the availability of the resources in the first place, and this is a particular challenge in the current economic climate with voluntary and public sector organizations facing funding cuts that compromise their ability to carry out vital functions that support criminalised women and their families. It is often an accumulation of events and experiences that result in women’s criminalisation, therefore agency collaboration that spans a wide range of social policy areas is vital to address the wider social and economic context of women’s circumstances and to tackle poverty, homelessness and other aspects of social disadvantage experienced by women. Thus while the developments taking place in relation to the introduction of community sanctions remain located within the criminal justice system, many of the factors associated with women’s lawbreaking are traceable to social, political and economic contexts. The absence of appropriate resources within communities, notably to address addiction, mental health problems, and gendered violence, leads to ongoing processes of criminalisation – and hence to an increase in the use of imprisonment.

Second, women often receive community penalties at an earlier point in their criminal careers than men and appear to face particular challenges in complying with community penalties as a result, among other things, of their responsibilities for children and other dependents. If these penalties are breached, then uptariffing is likely to arise as a result of the perception that they have exhausted the range of non-custodial penalties available to the courts. This suggests that enforcement practices need to be sufficiently flexible if high levels of breach (and resulting imprisonment) are to be avoided. Furthermore, while acknowledging that diverting women from prison is a central concern, diversion from community supervision for women convicted of minor offences is also important (particularly in relation to mental health issues and poverty) to prevent their unnecessary absorption into the criminal justice system.

Third, attention needs to be paid to the human rights implications of community sanctions. For example, women are more likely than men to receive additional requirements relating to medical/psychiatric/psychological treatment or drug treatment, raising questions about the potential intrusion into family life, the experience of undergoing random (observed) drug tests and the lack of drug, and other services, that are specifically tailored to women (Malloch and McIvor 2011a, 2011b).

In addition it is important to acknowledge that even the most innovative community sanctions can experience challenges as they operate within systems that remain geared to meet the disproportionate demands of the main users of criminal justice services who are men (Gelsthorpe and Sharpe 2007b; Malloch 2008; McIvor 2004). The introduction of the Gender Equality Duty in the UK and similar legislative obligations in place elsewhere, require that policies are subjected to a gender impact assessment to prevent discriminatory outcomes. Such requirements might be expected to impact on the treatment of women in the criminal justice system by requiring that programmes and interventions in prisons and in the community are planned specifically with women in mind, and are based on evidence of women’s needs and how relevant agencies will address the current lack of services to address these specific needs. Such measures are intended to ensure equality of treatment between men and women, which will not necessarily mean the same treatment. The importance of this distinction is evident (Bloom et al. 2003; Canadian Human Rights Commission 2003; Corston 2007) indicating the need to move from formal to substantive equality.

However, as previously noted, policy initiatives that have been developed to increase the use of community-based responses to criminalised women have tended to sit alongside reforms to the prison estate that are aimed at improving conditions in women’s prisons (Carlen 2002; Hannah-Moffat 2001). As the Canadian experience in particular demonstrates, ostensibly well-intentioned correctional policies easily become subverted by criminal justice agendas and may ironically serve to enhance rather than challenge the legitimacy of imprisonment as a response to female crime. This book aims to go beyond a critique of gender-responsive approaches in order to examine responses to women in terms of human rights and social justice; this necessitates understanding structural imperatives. Women, Punishment and Social Justice: Human Rights and Penal Practices draws upon presentations and discussions that took place in a series of three workshops during 2010 as part of a programme of work funded by the Institute for Advanced Studies (now known as the Scottish Universities Insight Institute). The programme, and subsequently this book, originated from a growing awareness that despite little evidence of an increase in crime committed by women, internationally the imprisonment of women had increased significantly in recent years, with its associated social, economic and personal costs. The chapters provide analyses from international experts on women and justice from countries across the UK and internationally, focusing on arguments for, and attempts to address, the ever-increasing female prison population through the implementation of community alternatives. By viewing these initiatives through the discourse of human rights and social justice, their impact is examined critically, with consideration given to the wider social, political and economic context in which women are increasingly criminalised and punitive mechanisms imposed.

The principal aim of the programme was to consider how the number of women imprisoned can be reduced through more effective use of non-custodial alternatives that are consistent with the protection of women’s human rights and promotion of social justice. The core objective was to draw upon international knowledge and expertise to critically assess cross cultural responses to lawbreaking by women and to provide a forum for academics, practitioners and policy makers to participate in the development of knowledge for policy, practice and research. Importantly, the programme also aimed to present a challenge to the increasing criminalisation of social circumstances that profoundly affect women. Through an examination of the contexts within which punishment is enacted, it is evident that social, political and economic structures determine the experiences of the most marginalised groups in society; this is clearly illustrated by considering the operation of punishment on indigenous women across the world and has consequences for penal practice in both prisons and the community.

As the contributions to this volume demonstrate, criminalised women are usually disadvantaged and victimised women who have been let down by the state, with increased penalisation of the welfare state having had a particular and pronounced impact on women. Prison may be perceived as capable of meeting the needs of women who have been ‘failed’ by the erosion of welfare services and often appears to be employed as a ‘welfare panacea’ or a form of respite for women with ‘chaotic’ lifestyles (Tombs and Jagger 2006). Thus while there have been some reported successes in reducing the use of custodial sentences for women through the development of gender-appropriate community-based resources, a significant and sustained reduction in female imprisonment appears to be unachievable in the absence of wider political and public commitment and socio-economic change that enables women’s needs to be met through mainstream, community-based service provision. The harms imposed by the imprisonment of women highlight the need for significant and radical penal reform and the need to recognise the relationship between criminal and social justice whereby existing social policies and their impact on health and other community services and resources result in the criminalisation of poverty and distress. Thus while meaningful change will require sentencing reform, wider social changes are also imperative to address many of the issues which result in women’s involvement with the criminal justice system.

As the contributions show, community penalties are often held up as the way forward for penal practices in relation to women, however, these interventions can be punitive in their own right, may extend women’s involvement with the penal system, and highlight that ‘gender-responsive programming’ is deeply problematic. The very concept of ‘community’ is widely contested and under-theorised. Notably, even the most therapeutic programmes, when introduced within a criminal justice context, have been shown to individualise what are actually social problems. Therapeutic interventions come to be prioritised over structural issues and power relations. By highlighting t...

Table of contents

• Cover Page
• Half Title page
• Series page
• Title Page
• Copyright Page
• Contents
• Acknowledgements
• Figures and Tables
• List of Contributors
• Part I Introduction
• 1 Women, punishment and social justice
• 2 Legitimacy, law, and locality: Making the case for change
• Part II The penal context
• Women's imprisonment in Northern Ireland Social exclusion, punishment and breaches of rights
• 4 Deaths of women in prison: The human rights issues arising
• 5 Researching the mental health needs of women in prison: Problems and pitfalls
• 6 Older female prisoners in the UK and US: Finding justice in the criminal justice system
• 7 A healing place?: Okimaw Ohci and a Canadian approach to Aboriginal women
• 8 Human rights in an institutional setting
• Part III Community sanctions, human rights and social justice
• 9 Prisons, gender responsive strategies and community sanctions: The expansion of punishment in the United States
• 10 Justice and community for women in transition in Victoria, Australia
• 11 Hostels and community justice for women: The ‘semi-penal' paradox
• 12 The 218 experience
• 13 An offending strategy: The state's response to women within the criminal justice system in Northern Ireland
• 14 Tracking the invisible: Young Gitana women and punishment in Andalusia
• Part IV Concluding thoughts
• 15 Women, punishment and social justice: Why you should care
• 16 Concluding reflections
• Index