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Alternatives to Custodial Sentences for Female Offenders

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Published: Mon, 12 Feb 2018

This dissertation questions the increase in the female prison population in recent years. It then goes on to outline some reasons against imprisoning women, looking at the alternatives to custodial sentences, and the past and upcoming policy. It suggests that alternatives should be considered over and above custodial sentences as these may be more appropriate for the needs of women.

(2) Introduction

In the last few years there has been a widespread concern for the numbers of women that are imprisoned. Between 1993 and 2003, the female population increased by almost 200% . Many have concerns about this, for example, The Howard League for Penal Reform published its submission to the United Nations Congress on Crime Prevention, expressing serious concern at the increase in the use of prison for women and the added problems they face in custody. The Howard League for Penal Reform research shows that 4,394 women were detained in 18prisons in England and Wales on 4 March 2005, almost treble the number held in 1993. The number of women experiencing prison over the year has increased by almost 3,000 as most women are sent to prison for only short periods. The number of women on remand has also increased by about a third.

This has meant that women’s imprisonment has come under the spotlight for both the public and academics alike. In response to the growing concerns for the unsuitability of custodial sentences for the majority of women there have been attempts to find alternatives to imprisonment that are more appropriate.

There has been much concern about the greater numbers of women being imprisoned for several reasons. In the past there has been a reluctance to see punishment as gender specific. As Carlen (2002:3) points out:

‘Theories of punishment are usually expected to be gender-neutral: the state punishes, the citizen submits and the legitimacy of the punishment is debated according to the jurisprudential principles of the time.’

But recently, for example, there has been increasing recognition that the criminal profile of women prisoners is different to that of their male counterparts, and the rehabilitative needs of these women are also different to imprisoned men. In addition the needs of the children of some of these incarcerated women are beginning to be recognised.

This dissertation will look at some of these issues that are of growing concern, firstly outlining the main reasons why the female prison population has increased in recent years, and then looking at how custodial sentences are inappropriate for the needs of women. It will then go on to consider a few alternatives to custody that may be more appropriate. In doing so it is necessary to take a look at the policy in this area to establish the problems and make recommendations for the future.

Pat Carlen puts forward some questions that are asked each time women’s imprisonment comes under the spotlight: Is it necessary to sends many women to prison? Are women treated differently to men by the police, the courts and the prisons? Why are so many poor, black and mentally ill women in prison? And so on (Carlen, 1998: 2). This dissertation will attempt to explore some of these questions and the issues that surround them. It aims to show that there is a vast disparity between the present system of women’s imprisonment and the needs of the women being sent to them, and in doing so will examine the alternatives to custodial sentences for women.

It is important to consider gender differentials at this point. Carlen (2002: 7) puts forward the question: ‘Are women punished differently to men?’ and in response suggests that there are six main bodies of literature that attempt to answer this question. Firstly, there is the historical literature which focuses on the quantity and quality of women’s punishments; Secondly, sociological literature which places the experience of women’s punishment within the wider framework of control, arguing that women appear less frequently in the courts as they are ‘more closely constrained by informal controls of family, factory, fashion, men and medicine’ (Carlen, 2002: 7).

Socio-legal studies endeavour to establish whether women are sentenced more or less harshly than men; criminological studies attempt to ascertain and assess the quality of the confinement experienced by imprisoned women. Also a campaigning literature is identified by Carlen, which argues fore variety of reasons that women receive a harsher punishment than that of their male counterparts; and, the literature that has responded to this criticism, for example that provided by the official Home Office Inspectorates.

It can be ascertained from the wide review of this literature that firm evidence that supports the fact that women are more severely punished than men is difficult to find, as Carlen points out, ‘In sum, the findings of all this research and scholarship suggest that there is no strong statistical evidence to support claims that women are sentenced more harshly than men.’(Carlen, 2002: 7). In addition to this it would be awkward to ascertain the gender-bias as separate from the bias relating to class or race.

However, based on the demographic characteristics of imprisoned women, Carlen (2002: 8) argues that although the majority of women are treated more leniently by the criminal justice system (for example see Lederman and Gels Thorpe, 1997, quoted in Carlen, 2002: 8), certain women, in particular those ‘who have been brought up in the states institutional care, have transient lifestyles, have their own children already in state guardianship, are living out with family and male-related domesticity, or are members of the of ethnic minority groups-are more likely to proceed through the criminal justice system and end up in prison.’ Although this argument does not contend with the argument that women are treated more leniently with men, it complements the argument of Lederman and Gels Thorpe:

The likelihood that female offenders may overall receive more lenient treatment than males does not rule out the possibility that individual women receive unusually harsh treatment.’ (Lederman and Gels Thorpe, 1994: 4)

As can be seen from the following chapter, gender influences are evident within all aspects of crime, criminality and the criminal justice system. Gender stereotypes can inform decisions as to whether person has committed a crime, whether they should be prosecuted and found guilty for a crime, and indeed, gender affects how a person might be punished and how this may affect the criminal and society. Criminal law tends to render women as passive victims, and when they appear as criminal they can either treated as irrational, acting under external factors or as unfeminine monsters (Nicolson, 2000:25). Despite this, it’s only recently that these gender dimensions have been considered, as Nicolson points out, ‘Traditionally criminal law has been analysed and taught as if it’s rules are gender blind and as if the gender of both the victims and perpetrators of crime is irrelevant’(from Nicolson and Bobbing’s, 2002: 1).

This gender-blind approach to crime and the criminal justice system has now been recognised and analysed by feminists and criminologists alike. Fox (2002) urges that it is crucial for both feminist scholars and students of criminal law to engage with the issue of punishment, as this offers a key to understanding substantive law issues, in the past, she suggests, literature has focussed on women who kill, for example, but has failed to put forward a suggestion for whether these women should be punished and how. This paper will attempt to redress this imbalance.

(3) Explanations of the Increase in the Female Prison Population

In looking at the explanations underlying the steep increase in women’s imprisonment in recent years, the study undertaken by Carlen(1998) offers some useful points to consider. She accumulated several opinions in her study which serve to add understanding. A female Prison Governor suggested that the number of prison sentences are higher despite no significant rise in the number of reported crime due to several reasons; firstly, she suggests that it could be andante-feminist approach that says, ‘well, if you women want equality, you’ve got to take it’; secondly, it could be due to the rising pressure on women in society to cope financially without a partner leading to more crime being committed; thirdly, she suggests, it could be that women in the past have been more likely to go down the route of being admitted to a mental hospital which has suffered cuts in funding. A Prison Officer put forward that women are still being sent to prison for trivial crimes, which is supported by prisoners comments.

Carlen summarises the responses given as thus: (1) more women are committing violent crimes; (2) more women who would not have previously gone to prison are going due to increasing involvement with drugs; (3)more black women are going to prison so racism may be the key; or (4)prison is being used to incarcerate the same social categories for women that it always has – the destitute, the most obviously gender deviant, and the mentally disturbed – but the numbers of women presenting themselves in these categories have increased with growing economic inequality (Carlen, 1998: 51).

Another explanation is that women are becoming more violent, indeed the proportion of female prisoners under sentence for crimes of violence against the person was indeed (at 20 per cent) only two present less than the proportion of male prisoners. Fletcher (1975, in Carlen, 1998: 52) supports this view: ‘It is undoubtedly the case that the level of convictions of violence against the person has increased among women.’ However, he also points out that, ‘the female prison population has … risen steeply whilst serious convictions have actually fallen’; suggesting that this may be due to longer sentences being served. As will be seen later, it is much more likely that it is the increase in more punitive sentencing for trivial crimes that is more likely to offer an explanation.

It is possible that racism is the key to increases in the female prison population, as the Home Office (1997) points out:

In June 1996, there were 10,200 people from ethnic minorities in Prison Service establishments. Ethnic minorities accounted for 18percent of the male prison population and 24 per cent of the female population compared with 6 per cent of the male and female populations of England and Wales (From Carlen, 1998: 54).

However, there may be other reasons underlying these numbers, and it’s impossible to disentangle issues of race, gender, and other forms of inequality. Unfortunately there is no time here to consider all the concerns that this issue deserves, except to say that it may be contributory factor to the increased numbers of imprisoned women, but this view is highly contentious.

Carlen (1998: 54) suggests that when women are being considered for tougher sentence rather than a milder sentence, they may be escalated up the tariff towards the custodial end more quickly than a male purely because the range of non-custodial facilities for women is narrower. However, although all these concepts will serve in some way to increase the numbers of female offenders serving custodial sentences, the most likely and supported factor is the economic and social status of women:

… despite exaggerated claims about increasingly violent and addiction driven female offenders, it appears that there is consensus amongst most analysts and commentators that the steep increases in the numbers of women received into British Prisons in the1990’s can best be explained by the increased numbers of women in the social categories of economic need and social deprivation who have traditionally been more vulnerable to imprisonment, and by the increased punitiveness of the courts towards female offenders in general. (Carlen, 1998: 56)

(4) Reasons Against Imprisoning Women

The Feminist Response

In looking at the feminist response to criminal justice for women, firstly it is important to look at the general models of punishment that exist today. Fox (2000: 51) points out that traditionally there are three main theories of punishment – retribution, deterrence and rehabilitation. The retribution model is concerned with the notion of vengeance, and balancing the punishment with the level of harm inflicted on the victim. Advocates of this ‘just desert’ approach(Clarkson and Keating ) claim that it ensures proportionality between crime and punishment, promises limited punishment, helps reduce sentencing disparity and protects rights by restoring due process.

However this approach is open to criticism due to its lack of consideration of individual factors such as poverty, unemployment, inequality and gender, assuming that every individual is an autonomous member of society. Similarly, the deterrence model focuses on rational autonomous action through its aim of discouraging crime through the threat and example of punishment, which like the latter model does not take into account individual differences, including the responsibility held by criminals.

Fox (2000: 53) suggests that the rehabilitation model appears more promising from a feminist perspective as it aims to secure conformity through inner positive motivation on the part of the individual(Clarkson and Keating ) and its focus on understanding rather than condemning the offender, through treatment. Although it has been debated as to whether this model can be characterised as punishment, but as Fox recognises, ‘treatment oriented approaches can involve punitive interventions under the guise of treatment’.

The criticism of this approach is similar to that of incapacitation theory whish aims for protective sentencing. By imposing longer or more severe punishments thee criminal may become unable to commit more crimes. Fox discusses that because of the special privations which prison sentences may inflict on female prisoners, it this may have greater impact on women. Therefore it is suggested that a new rationale for punishment that differs from the traditional frameworks to encompass gender differences is needed.

Howe takes the view that the definition of punishment needs to be expanded to incorporate broader social control mechanisms, son that it, ‘enables us to forge links between two critical projects: the masculinise one, of analysing the emergence of punishment regimes in the context of the States power to punish, and the feminist one, of mapping the differential impact of disciplinary power on lived female bodies.’(Howe, 1994, see footnote 5). This focus on the body as a means of criticising models of punishment is typical of some writers, for example, Wait who argues that the body is a vehicle for control, in regards to examples such as electronic tagging, the forced separation of parents from children and spouses from each other, as well as community service and probation orders that require the body to work in particular ways, he comments that:

The pain inflicted upon it may be less direct, the mark it makes and traces leaves less visible; but the exercise of coercive discipline over the body and a recognition of the anguish it is capable of experiencing are still at the heart of punishment’(Wait, 1996, from Fox, 2000: 58).

Fox puts forward that this can apply to other types of punishment too, namely, forced treatment for drug and alcohol dependency and the use of boot camps, chain gangs and capital punishment in the US. Focus on the body, she suggests, can make the diverse ways in which women are placed under surveillance, disciplined and punished more apparent, and that practices such as imprisoning pregnant women, handcuffing labouring women, separating mothers from their children and strip searching tend to force people to confront the reality of punishment. As can be seen a focus on the body can take forward feminist perspectives in its struggle against the patriarchal nature of the State’s criminal justice system.

Although greater numbers of women continue to receive custodial sentences, proportionally more women offenders in both the US and Receive probation, or absolute or conditional charges. Pat Carlen(1985, quoted in Fox, 2000: 60) puts forward a potential reason for this:

‘…the majority of women … in trouble are much more likely to be in receipt of medical, psychiatric or welfare regulation than caught up in the machinery of criminal justice, which accounts for the court’s readiness to require social and medical reports for female offenders, particularly where the offence is unnatural or violent’

The Specific Needs of Women

This section will outline some of the identified needs of female offenders focussing on those needs associated with family and mental health issues.

Family

It could be argued that women’s identity as mothers is critical in sentencing practice. Fox (2000:62) argues that those women who conform to the traditional stereotype as mothers can more easily avoid being labelled as criminal, whilst conversely, women who do not conform to this stereotype compare unfavourably, and women who are judged to fails wives or mothers, such as young single women who commit offences as members as gangs, for example, are treated relatively harshly.

This highlights how gender roles can have an effect on criminal procedure in general, and sentencing. The Home Office report offered by Lederman and Gels Thorpe confirm that this is the case, reporting that the degree to which a female offender conforms to traditional gender roles, especially regarding her marital status, is the most influential factoring how she is regarded by the courts. Therefore it seems that the discrimination faced by women in society carries over to the criminal justice system.

Carlen (1998: 74) in her study looked at the different experience of women in prison compared to that of their male counter parts. She found that the most resounding response related to women’s role within the family both in terms of ideology and function. This was described mostly in terms of women’s role as mothers, although, also included their roles of primary care-giver to other family members, including the dependency that men had upon them. For example, male staff recognised that a powerful mix of biological ties, emotional bonds and family ideologies can affect a woman’s prison experience (Carlen, 1998:74).

One respondent in particular commented that, in 99 per cent of cases when a man comes to prison he has the knowledge that his children are being looked after and the rent will be paid by the DSS, however women tend to lose their homes, and often their children to foster care. Another commented that the females have a closer bond to their children and it affects them far more.

In regards to remand, one respondent suggested that, ‘If a woman has a baby while she is on remand in custody, social services will be contacted and the baby would be taken off her. She’s being denied the right to bond with that baby at such a vital stage… Another problem that we have is that if they are sentenced we initiate the procedure for applying for a Mother and Baby Unit, but there are not enough mother and baby spaces for them to go to.’ (A Prison Officer, from Carlen, 1998: 79)

Contemporary Criminal Justice policies can have a detrimental impact on families, in terms of both the impact of a mother’s imprisonment on their children and the impact upon the mothers. With the striking increase in numbers of women serving custodial sentences the effect that this can have on the children that a proportion of these women have needs to be taken into consideration. Ideology that contends with the view that female offenders do not deserve privileges such as regular contact with their children has a lack of regard of the fact that this also penalizes the children, Clarke (1995) refers to these children as the ‘unseen victims of a mother’s incarceration’.

Although removing a child from the criminality associated with their mothers is often considered to be in the best interests of the child, this removals harmful in itself. Snyder-Joy and Carlo (1998), in their review of some of the research carried out that look at the effects of the child, found that incarcerating mothers may produce serious negative effects for the children.

They found that the forcible separation and lack of close contact between mother and child may cause psychological and behavioural problems for the children, such as aggression, poor school performance, attention deficit, anger, poor social skills, depression, and sleep disruptions. In addition to this, children of incarcerated parents area risk of also ending up in the criminal justice system. In fact, Barnhill and Dresser’s 1991 research notes that, ‘children of inmates are five to six times more likely than their peers to become incarcerated themselves’ (Snyder-Joy and Carlo, 1998: 132).

It can be hard to ascertain whether it is the actual imprisonment of mothers that has these effects, rather than say, the economic and social factors that may also affect their mothers, or the general way in which they have been brought up, however the research findings should not be disregarded and the potential effects of custodial sentences of mothers on children should certainly be considered when debating women’s imprisonment.

Gabel (1992, taken from Snyder-Joy and Carlo, 1998: 132) sums up this situation for some prisoners and their families:

Separations … are likely to have been preceded by family turmoil, conflict, and dysfunction in many cases relative to family functioning in intact families … Many of these families and children are vulnerable even more to further problems and behavioural disorders subsequent tithe separation itself. The latter may increase social, financial, or personal difficulties with which already dysfunctional families cannot cope.

As can be seen, the act of removing children from their mothers my produce social, personal and emotional problems for the child. In addition to this the problems that originate during the imprisonment of their mothers, and that may exist prior, will be further compounded if the relationship between mother and child is so damaged that the child may be looked after by the state after release. This in itself is associated with affecting the personal social and emotional development of children and where possible should be avoided where possible. The suggestions made later when alternatives to imprisonment are considered.

Imprisonment has adverse effects on women who are mothers even beyond other considerations that have been made in this paper. It has been found that incarcerated mothers report depression, anxiety and fears about their children’s safety while they are apart, as well as feelings of guilt and inadequacy in addition to concerns about returning to the family structure that existed prior to imprisonment.(Snyder-Joy and Carlo, 1998: 135)

Punishment is compounded for many female prisoners when they are separated from their children. The majority of incarcerated women are mothers – estimates range from 60-80%, and most of these women were providing the primary means of family support prior to imprisonment(research outlined by Dodge and Pogrebin, 2001), Rasche (2000) commented that the harshest single aspect of being imprisoned may bathe separation of mother and child.

Mental Health

The assumption that women are more likely to require psychological assessment is evident in the recommendations made by the Home Office, which urges sentences to pay particular attention to the treatment of female criminals. Feminists may argue that this emphasis serves to undermine women, for example Carlen and Worrall argue that the normal women’s body could be perceived as intrinsically ‘abnormal. Menstruation, pregnancy, childbirth and the menopause result in ‘hormone imbalance’ which suggests that the women may be imbalanced at these times (From Fox, 2002: 60). However it is argued that this disposition to consider female defendants as medically unsound underpins the trend towards a treatment approach for these women, rather than a custodial sentence which would be deemed as inappropriate for their needs. A further consideration of the mental health issues and needs of female offenders can be seen later.

The Efficacy of Prison

Carlen (1998: 102) found that overcrowding in prisons meant that the system was unable to care effectively for those inmates that pose special problems of need, danger and risk. In fact it was found that the general consensus of staff working in the prison service was that the most prisons can hope to achieve, due to the combination of overcrowding and increasingly restrictive security measures, was ‘damage limitation’ rather than equipping inmates to lead good and useful lives when they are discharged. (Carlen, 1998: 149)

‘…the incapacitation effect of current levels of imprisonment is not great … A general increase in the use of imprisonment, either by increasing the proportion sentenced to custody, increasing the sentences imposed or increasing the proportion of the sentence that offenders spend in custody, would not affect crime levels by any substantial amount.’ (Tarring, 1993, quoted in Prison Reform Trust1993, in Carlen, 1998:151)

The problem with arguing towards a reduction in custodial sentencing for female offenders is that it can be considered a sexist response that is discordant to the attempt of the criminal justice system to treat all equally, and encouraging women to be unlawful without fear of punitive sentence. However, supported by other researchers, Carlen offers a response to this question. She argues that: firstly, the economic, ideological and political conditions in which women break the law are different to those in which man commit crime; secondly, the logic of sentencing tends to be rooted in oppressive and outmoded assumptions about the ‘proper’ role of women in society; and thirdly, that women who appear before the courts usually will have been subject to informal and ‘anti-social’ controls (not suffered by their male counterparts) which would already have affected their opportunities for full citizenship, meaning they suffer a ‘double regulation’(Carlen,1998: 153).

Carlen recommends that unless women have committed very serious crimes, or pose a danger to public which means they must be incarcerated as a matter of public protection, no good can come from imprisoning women, ‘Almost certainly they will require help of some description – but always of a kind that no prison can provide. Imprisonment can only damage them further, and make them more likely to break the law in the future. (Carlen, 199: 153)

In response to evidence and theories presented by researchers and academics the Government have stated that, ‘Imprisonment is not the most effective punishment for most crime. Custody should be reserved as punishment for very serious offences.’ (Home Office 1988, taken from Worrall, 1997: 28). However, as can be seen later, government policy has not always reflected this view.

(5) Alternatives to Custodial Sentences for Female Offenders

As can be seen from the theory and evidence put forward previously, there is increasing support for the majority of custodial sentences for female offenders to be replaced with an alternative method of punishment or control. Alternatives to imprisonment may also supply a better medium for therapeutic intervention than the current prison system. The Howard League for Penal Reform leads the way in alternative thinking in the Criminal Justice System:

The Howard League for Penal Reform is today recommending that prison custody for women should be virtually abolished so that only those women who are convicted of serious and violent offences and who represent a continuing danger to the public should be held in custody. For other women offenders community based interventions that make amends for the wrong done and encourage women to change their lives offer the best change of creating a safer society. (Frances Cooke, Speaker for The Howard League, 2005).

In the main, alternatives to custodial sentences involve a type of community punishment, in the form of probation, fines, and electronic tagging, for example, or specialist units. Some examples of these alternatives, and their use for female offenders, will be looked at in this chapter. Firstly, though it is important to identify the main barriers to community punishment alternatives, in order to gain a better understanding of the more specific sentences.

Worrall identifies many obstacles to community punishment (1997: 13).Firstly she identifies the obstacle of public and media perception that imprisonment is the only way to punish people accordingly, with other punishments viewed as inferior. Secondly, there is the obstacle of ‘unfair’ or inconsistent sentencing, in that community sentences tend to be reserved for those who can pay, or deemed to be able to benefit from supervision which leaves certain disadvantaged groups in prison.

Thirdly, there is the concept of ‘net-widening’ based on the assumption that alternatives to custody will, rather than defer offenders form prison, draw more people into the criminal justice system that may otherwise have been diverted to another agency. Fourthly, is the problem of enforcement, it is much easier not to comply with on-custodial sentences, and some believe that without the backup of threats of incarceration, community alternatives are not viable. However, despite these drawbacks it is important to consider the benefits of using alternatives to custody.

Electronic Monitoring

Sections 12 and 13 of the Criminal Justice Act (1991) introduced electronic tagging as a method of supervision and control and could offer a valuable commodity in the criminal justice system. However, electronic tagging systems have had a quite a number of starting up problems, and in some cases offenders under this system have requested to be put into custody as this was deemed preferable, despite Tom Stacey, founder of the Offenders Tag Association suggesting that opposition to tagging was based on wilful ignorance of the appalling nature of prison conditions (Worrall, 1997: 31). The tagging system was criticised for leaving families with very little income due to the restraints upon offenders, and for malfunctioning. According to the Prison Reform Trust (1990) by January 1990, only 46 defendants had been tagged on contracts which cost the tax payer £564,706. Of these 24 had breached the conditions of their bail, been arrested for further offences, or absconded (Worrall, 1997: 32).

However, if these problems can be overcome and the system used effectively, electronic monitoring may be recognised as a flexible and cost effective alternative to prison, which may be appropriate for female offenders who have been convicted of less serious, less violent and less harmful crimes. It could provide for effective monitoring and control, whilst being used alongside a programme of support and will allow for family and social ties to be retained to a greater degree than imprisonment

Special Units for female offenders who are mothers

As can be seen in previous chapters a need for specialist provision for female offenders with children is widely supported. In many cases affine, probation, or a curfew order, monitored by electronic tagging, for example, may be appropriate, however specialist units may also be successful in overcoming some of the problems associated with incarcerating mothers. These would supply an opportunity for female offenders to be punished and monitored without the separation of children from their mothers, whilst also providing supp


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