Reducing female admissions to custody: Exploring the options at sentencing

Abstract

Although women represent a small minority of the prison population in all nations, it has long been a concern that custody is overused with respect to female offenders. Reducing the number of women in prison has therefore emerged as a policy priority in many Western nations, including the United Kingdom. This article evaluates a range of sentencing strategies to reduce the number of women in prison, on the grounds that their experience of the sanction is disproportionately severe. The challenge is to achieve a reduction in women's imprisonment without compromising the fundamental sentencing principles of equity and proportionality. Although no jurisdiction has launched a sentencing initiative with this specific aim, the international sentencing literature offers insight into the most effective methods by which reductions may be achieved. Informed by the principle of equal impact, which underpins gender-specific sentencing, we explore policy options in two principal domains: (i) statutory provisions to eliminate or restrict judicial discretion to imprison female offenders, and (ii) sentencing guidelines to structure judicial discretion in gender-sensitive ways. We conclude by considering the likelihood of implementing the options.

Introducing a gender-sensitive approach to pre-trial assessment and probation

“…Roberts and Watson (2017: 546–67) explored the idea of creating ‘parallel gender-specific guidelines’ for sentencing in the UK, with the expressed aim of achieving equality at sentencing, and thereby contributing to a reduction in the female prison population. They explain that there are normative issues with this approach as gender is only relevant ‘when it is linked to legally relevant factors such as risk of reoffending, sole or primary caregiver status, equality of impact or some other legitimate consideration at sentencing’ (Roberts and Watson, 2017: 546–67). They conclude, however, that amendments to sentencing guidelines highlighting factors that distinguish female offenders are preferable.…”

Gendering the carceral web: Public sector reform, technology and digital (in)justice

“…This could mean that many ‘gendered’ crimes will become ‘gender-blind’ in the sense that prosecuting authorities will no longer be able to ‘capture interactions between agency, structure and context, which are central to feminist theories and research about women's criminalisation’ (Hannah-Moffat, 2010: 204). Such developments risk running counter to the requirements of international and domestic equality legislation and the hard-fought gender-responsive strategies relating to diversion (Ministry of Justice, 2019), policing (in the form of increased cautions; Easton et al, 2010), sentencing (Roberts and Watson, 2017; Sentencing Advisory Panel, 2009) and probation (investment in women's-only provision in the community; Goldhill, 2015; Ministry of Justice, 2018a). The remainder of this article considers how the four elements of the court modernisation agenda that encompass the online courtroom (online pleading and automated online convictions, the SJP and the expansion of virtual hearings) are already having a negative impact on marginalised female users of the justice system.…”

The Sentencing Principles of Equality and Proportionality from a Feminist Perspective: Exploring Positive Gender Discrimination at Sentencing

“…The great feminist legacy in the field of sentencing is the understanding that equality and proportionality are not the only relevant considerations for courts and sentencing judges. Feminist perspectives focused on the idea of difference usually defend the possibility of modified rules for sentencing women, through the following arguments: 1) low risk to society, both in qualitative terms (in relation to the seriousness of the crimes committed) as quantitative (in relation to the probability of reoffending); 2) disproportionate impact of prison on women's lives (distance between home and prison, making visitation difficult; primary care for children; violation of women's reproductive rights; and history of mental health problems and sexual abuse in prisons); and 3) impact of imprisonment on others, especially young children (Bagaric & Bagaric, 2016;Carlen, 2000;Roberts & Watson, 2017). The creation of specific rules for sentencing women seeks to equalize the impacts of punishment for men and women.…”

“…In a scenario of worldwide increasing female incarceration (Walmsley, 2017), gender-differentiated sentencing regimes have been discussed, aiming at reducing prison sentences (Bagaric & Bagaric, 2016;Roberts & Watson, 2017). This discussion is complex for at least two reasons: first, there is possibly no consensus among feminist criminology(ies) about the suitability of a gender-differentiated sentencing regime.…”