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CRJ14310.1177/1748895813495218Criminology & Criminal JusticeElaine Player
Article
Women in the criminal justice
system: The triumph of inertia
Criminology & Criminal Justice
2014, Vol. 14(3) 276­–297
© The Author(s) 2013
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DOI: 10.1177/1748895813495218
crj.sagepub.com
Elaine Player
King’s College London, UK
Abstract
This article explores why the government strategy for women offenders has failed to achieve
its key objectives despite extensive agreement about the need and direction of change and the
momentum generated by the Corston Report. It argues that although the women’s policy agenda
is supported by equality and human rights legislation, the operational context of the criminal
justice system inhibits its realization. The reforms recognize the need for differential treatment
in the pursuit of gender equality and reflect principles of distributive and non-distributive justice
that promote individual welfare and social inclusion. Paradoxically, they are advanced within a
criminal justice system that is predominantly concerned with the distribution of just deserts
and the management of criminal risk. The inherent contradictions reflect not only theoretical
differences but distinct ideological constructs that shape the ways in which concepts of equality,
rehabilitation and justice are interpreted and given practical effect. The agreed policy of equal
justice for women requires a culture of rights that undermines the present concepts of desert
and ‘less eligibility’ and replaces risk management with rehabilitative opportunities that provide a
reparative approach to social harm.
Keywords
Criminal justice policy, distributive and non-distributive justice, gender equality, women’s
imprisonment
There can be few topics that have been so exhaustively researched to such little practical effect
as the plight of women in the criminal justice system. The volume of material might lead one
to suppose that this is a highly controversial area, which might account in some way for the lack
of progress and insight in the way women continue to be treated. This is not the case. (Corston,
2007: para. 2.1)
The legacy of the previous Labour government promised important changes in the treatment of women offenders that were supported by the introduction of progressive equality
Corresponding author:
Elaine Player, Dickson Poon School of Law, King’s College London, Strand, London EC2R 2LS, UK.
Email: [email protected]
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and human rights legislation and a broad endorsement of the recommendations contained
in the Corston Report (2007). Yet despite a general consensus (see, for example, Fawcett
Society, 2009; HM Chief Inspector of Probation et al., 2011; Ministry of Justice, 2012a;
Prison Reform Trust, 2011) on both the need for change and the general direction in
which it should proceed, there has been, at best, only a marginal impact on key objectives, most notably in the scale, nature and consequences of women’s imprisonment.
This article endeavours to chart the recent development of government strategy for
women offenders and to expose some of the competing principles and objectives that
impede the process of change. Specifically it explores how the reform agenda interprets
the concept of gender equality and how it advances rehabilitative ideas that promote
social inclusion and social justice that run counter to a criminal process dominated by the
management of risk and the concept of ‘less eligibility’.
Strategic Policy for Women Offenders
Although it is true to say that penal policy across Europe has been developed predominantly in response to male offending, it is also true that contemporary policies for female
offenders, and specifically female prisoners, have recognized the importance of a differentiated response in the treatment of men and women. At the United Nations Fourth
World Conference on Women held in Beijing in 1995 a policy of gender mainstreaming
was established as a global strategy to prevent discrimination and to promote a positive
duty to treat men and women equally. In the UK the Equality Act 2006 embodied these
principles by imposing a specific gender equality duty on all public authorities which
differed from earlier legislative provisions in two important respects: by requiring public
authorities to be proactive in eliminating discrimination and harassment, rather than
reacting to complaints brought by individuals; and by requiring public authorities to
promote equality of opportunity as well as avoid discrimination. The Equal Opportunities
Commission made clear that this was to extend beyond procedural fairness to include
equality in the delivery of certain outcomes, ‘specific identifiable improvements in policies, in the way services are delivered, in the exercise of public functions and in outcomes for employees and service users’ (Equal Opportunities Commission, 2007: 3).
The Equality Act 2010 consolidated what had become a fragmented body of equality
legislation, and introduced a new Public Sector Equality Duty1 that covers all the protected characteristics.2
These measures have potentially radical implications for women’s treatment in the
criminal justice system and particularly for the imprisonment of women. They require
the police, courts, probation and prison services to avoid discrimination on grounds of
sex and to advance equality of opportunity by responding to gender-specific disadvantages experienced by women and by meeting their gender-specific needs.
But the duty to pursue gender equality is not only required by domestic legislation,
there is also a strong imperative from European institutions. The European Prison Rules
prohibit discrimination on grounds of sex and make clear that treating men and women
in an identical manner is not an appropriate response. Instead, the Rules emphasize
diversity and require member states to ‘pay particular attention to the requirements of
women’ when making decisions that affect any aspect of their detention (European
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Prison Rules 34.1). They specifically note that different ‘physical, vocational, social and
psychological needs’ of women prisoners call for a distinctive response, particularly in
relation to facilities for childbirth and treatment services for those women who have a
history of sexual, physical and psychological abuse (European Prison Rules 34.2–3).
In 2008 the European Parliament passed a resolution calling on EU member states to
incorporate gender equality into their prison policies, recognizing the specific needs of
women prisoners and the impact that the imprisonment of mothers can have on their
children (Committee on Women’s Rights and Gender Equality, 2008). The Parliamentary
Assembly of the Council of Europe (2009) similarly called for the reform of prisons and
criminal justice policies to ensure a more humane and effective system of justice for
women. The recommendations from both European institutions aimed to give effect to
human rights’ principles established in the European Convention on Human Rights, the
Universal Declaration of Human Rights and the Charter of Fundamental Rights of the
European Union.
In the UK, The Government’s Strategy for Women Offenders acknowledged important
gender differences in patterns of offending and admitted that the ‘current system does
impact differently on women and men’ (Home Office, 2000: 1). The strategy advanced
five key messages: that policy should avoid the homogenization of women offenders and
reflect their diversity, in relation to age, ethnicity, specific needs and so on; that custody
should be avoided wherever possible; that efforts to reduce women’s offending should
not be limited to criminal justice agencies but should involve other areas of government;
that greater emphasis should be placed upon ‘throughcare’; and that research should
focus on broadening the evidence base on ‘what works’ with women offenders. To take
this forward the Women’s Offending Reduction Programme (WORP) was established in
2002 with the specific purpose of developing and implementing key Action Plans that
would be monitored and assessed annually. WORP was intended to co-ordinate work
across government departments and was presented as one part of the Government’s
wider policy towards gender equality (Squires and Wickham-Jones, 2004). A major
motivating factor in the development of the programme was the unprecedented growth
in the female prison population, which had increased by 183 per cent between 1992 and
2002.3 A clear priority of the first Action Plan published in 2004 was the reduction of
women’s imprisonment, particularly the diversion of those who were sentenced to short
periods of custody that afforded little or no access to offending behaviour programmes
and negligible public protection (Home Office, 2004).
A related priority of WORP was to make community interventions and rehabilitative
programmes more appropriate and accessible to women. Over time the relatively small
number of female offenders had inhibited the development of tailored provision and
sentencers avoided community disposals that they thought were inappropriate or irrelevant for women (Gelsthorpe, 2011; Howard League, 1999). To address this lack of provision, additional funding of £9.15 million was secured in 2005 for the development of a
‘national demonstrator’ project, the Together Women programme, which was to adopt
new multi-agency approaches to support community sentences. It was established in five
centres in the north of England, addressing the needs of women offenders and those
whose level of social exclusion put them at risk of offending. Referrals to the centres
could be made from community organizations as well as criminal justice agencies and all
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case-work was tailored to meet individual needs and take account of the women’s own
priorities.
Undoubtedly a major catalyst to change was provided by the Corston Report (2007)
on vulnerable women in custody. Her recommendations called for the replacement of the
existing prison estate for women with geographically dispersed, small, multi-functional
custodial centres and urged further development of community centres for women modelled on the ‘one-stop shop’ approach. For women suspected of having a mental disorder
there was to be access to timely psychiatric assessment and diversion from criminal
justice into mental health services. To facilitate these and other reforms Baroness Corston
proposed a strategic cross-departmental commission governed by a new inter-departmental
ministerial group incorporating all relevant government departments. Without this direction at a senior level, she argued, provision for women would continue to be a low priority in the criminal justice system and vulnerable to pressures generated by the male
majority.
The Government’s response to the Corston Report was selectively supportive, endorsing the ‘one-stop shop’ community centres and creating an Inter-Ministerial Group and
cross-departmental commission in the form of the Criminal Justice Women’s Unit
(Ministry of Justice, 2007). In addition it appointed a ministerial ‘Champion’ for women
in the Ministry of Justice, who would have responsibility for women in the criminal justice system and for driving forward the changes. The Government was more equivocal in
relation to the replacement of the women’s prison estate and subsequently concluded
that, although the principles underlying it were sound, the small units were neither feasible nor desirable.
In June 2008 the National Service Framework for female offenders was published, in
which its ‘headline aim’ was ‘to ensure that women coming into contact with the criminal justice system are treated appropriately so as to protect the public and reduce reoffending, whilst also meeting their specific and individual needs’ (Ministry of Justice,
2008: para.1.6). Specifically it aimed to reduce the number of women coming through
the criminal justice system and to ensure that, whenever they do so, community and
custodial sentences have the necessary facilities to meet their needs. The desired outcomes were fewer women being sentenced, fewer held in custody, a drop in re-offending
and improved well-being and reduced self-harm among the women in contact with criminal justice agencies.
At the end of 2009 the Ministerial Champion for Women in the Criminal Justice
System, Maria Eagle, reported on the progress made and set further targets for diverting
women from crime, from criminal prosecution and from custody (Ministry of Justice,
2009). A total of £15.6 million was allocated to services in the community for women
offenders and women at risk of offending, of which more than £9 million was allocated
to third sector providers to deliver ‘one-stop shop’ community projects.
The following year, the imperative to cut public expenditure under the Coalition
Government initially signalled a significant reduction in the use of imprisonment. The
Green Paper set out a series of measures that aimed to break the cycle of reoffending by
creating a ‘Rehabilitation Revolution’ (Ministry of Justice, 2010a). It stressed the need to
focus custody on the punishment of serious offenders and, although it did not impose
restrictions on short sentences, it did target a reduction in the numbers remanded in
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custody. The approach of the Coalition to working with women offenders has continued
to support a policy of differential treatment (Ministry of Justice, 2012a) and, supported
by a unique coalition4 of grant-making trusts and foundations (Kaufmann, 2011), has
ring-fenced £3.5 million from the National Offender Management Service (NOMS)
budget for 2012–2013 to invest in the women’s community centres. But future investment is not assured and will depend upon projects providing convincing data of a demonstrable effect on women’s pathways into crime (Gelsthorpe and Hedderman, 2012;
Ministry of Justice, 2010b).
Collectively, the gendered policies that have emerged in the 21st century reject the
liberal conception of strict egalitarianism and promote instead a form of distributive
justice that recognizes and responds to gender differences in the pursuit of equal treatment. Such theories of distributive justice argue that certain methods of apportioning
resources are morally preferable to others because of the beneficial outcomes they promote. They are principally rooted in John Rawls’ conceptualization of the ‘Difference
Principle’ which allows for the differential treatment of differently situated individuals
and groups in order to improve the life prospects of the least advantaged (Rawls, 1971).
But over the last 40 years competing claims have been advanced about the principles that
should guide and justify the method of such distribution. In England and Wales the
gender-specific treatment of women in the criminal justice system has been largely justified by the moral claim that women have distinct ‘needs’ that ought to be met in order to
counter the disadvantage that is caused to the individual if they are left unaddressed. Of
primary moral importance is the promotion of the individual’s welfare. But as will be
seen, this particular configuration or understanding of distributive justice currently runs
counter to, and is ultimately subordinated by, other more politically dominant expressions which rest not upon the advancement of individual welfare but upon the moral
principles of desert and the social utility of public protection.
Strategic failure
Despite the unprecedented level of attention on women and their treatment in the criminal justice system, the furtherance of key objectives has been minimal, particularly in
relation to imprisonment (Corcoran, 2010). In its second report, the All Party
Parliamentary Group on Women in the Penal System (2011) listed specific achievements
in the development of the Corston reforms, but also recognized that there is still much to
be done to transform the nature and extent of custody. HM Chief Inspector of Prisons
(2012: 2) has also noted improvements in ensuring the safety and security of women in
custody but concluded that:
prisons – particularly as they are currently run, are simply the wrong place for so many of the
distressed, damaged or disturbed women they hold … the treatment and conditions in which a
small minority of the most disturbed women are held is – in relation to their needs – simply
unacceptable. I think – I hope – we will look back on how we treated these women in years to
come, aghast and ashamed.
While there has been a significant reduction in the volume of recorded crime over the
last five years5 and a reduction in the total numbers of men and women entering the
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criminal justice system,6 the treatment of those women who are proceeded against has
remained largely unchanged or, in some instances, has become more severe. Fewer
women received an out of court settlement and more were sentenced by the courts in
2011 than in 2007.7 Despite the strategic emphasis on tailored interventions to meet the
specific needs of female offenders, the use of community penalties did not increase but
represented a slightly smaller, rather than larger, proportion of sentences imposed on
women over this period.8 The aim to reduce custodial sentences was also undermined:
the proportionate use of immediate custody remained stable and the use of suspended
sentences progressively expanded.9 The average sentence lengths imposed on women
also increased for all categories of offence, except drugs offences.10 Hence, while the
size of the female prison population has reduced slightly since 2007, from 4283 to 4185
in 2011, this is a result of fewer women being held on remand rather than a reduction in
the sentenced population which rose from 3351 to 3446 over this period (Ministry of
Justice, 2012c). In relation to reoffending among women released from custody, there
again appears to be little progress: 19 per cent of the 2006 cohort compared with 18.8 per
cent of the 2010 cohort had a proven record of reoffending within 12 months of release
(Ministry of Justice, 2012b: 92). Within women’s prisons the number of individuals selfharming and the number of incidents per 1000 women prisoners have reduced slightly
since 2007, but the extent of self-harming still remains unacceptably high.11
This resilience to change cannot be attributed to a single cause but is arguably best
understood as a consequence of a political process in which different policies compete
for implementation and where the outcome of the contest is already weighted in favour
of certain ideas, values and beliefs rather than others. The ways in which sentencing policies have responded to the gender equality duty and how they relate to broader policy
developments in criminal justice, provide an illustration of how this process operates.
Equality in Sentencing
Arguably the most damaging failure of the Government’s policy for women offenders
has been its inability to persuade the courts to reduce their use and length of custodial
sentences for women. The Council of Europe (1992) and the United Nations (1990) have
both urged member states to use prison as a sanction of last resort. In the UK this sentiment has been reflected in the Criminal Justice Act 2003, which insists that a custodial
sentence should be passed only if a fine or a community sentence cannot be justified (s.
152(2)) and, where imprisonment is unavoidable, it must be for the shortest term that is
commensurate with the seriousness of the offence (s. 153(2)). While it is tempting to
blame the courts for their failure to apply these principles of moderation, it must also be
borne in mind that sentencers operate within a broader institutional context that presents
them with a number of competing messages from politicians, legislation and the media,
about the use of custodial sentences and about gender equality.
Irrespective of the existing legislation, politicians are disinclined to make pronouncements that favour fewer and shorter custodial sentences. Chris Grayling, following his
appointment as Minister of Justice in September 2012, stated: ‘Am I planning to reduce
the number of prison places? No I’m not. I do not want to set a target to reduce the prison
population.’12 The 2003 legislation, while issuing restraining guidance on the use of
imprisonment, simultaneously contains measures that inevitably increase the likelihood
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and the length of custodial sentences. The introduction of mandatory indeterminate sentences13 for specified sexual and violent offences and the introduction of statutory starting points in setting the minimum terms for murder,14 have inevitably inflated the size of
the long-term prison population. But the legislation also increases the risk of custodial
sentences for many women at the lower end of offence seriousness by requiring the
courts to treat previous convictions as factors that aggravate the seriousness of the current offence and justify increasingly severe sentences on grounds of persistence.15
The exercise of restraint in the use of custody has, however, been advanced in a number of judicial pronouncements16 and reinforced by the Sentencing Guidelines Council
(SGC):
Passing the custody threshold does not mean that a custodial sentence should be deemed
inevitable, and custody can still be avoided in the light of personal mitigation or where there is
a suitable intervention in the community which provides sufficient restriction by way of
punishment while addressing the rehabilitation of the offender to prevent future crime. (SGC,
2004: para. 1.32, emphasis in original)
Sentencing guidelines have also addressed the question of gender equality in sentencing
following the introduction of the Gender Equality Duty in the Equality Act 2006. In its
advice to the SGC, the Sentencing Advisory Panel (SAP) argued for a ‘gender neutral’
approach whereby the same principles of sentencing should apply to men and women
(SAP, 2010: 68). It made clear that defendants should not be sentenced on the basis of their
sex and that where mitigating factors applied equally to men and women they should have
a similar impact on the sentence. However, it did urge the courts to take account of the differential impact of sentences on women and recommended that custody should be imposed
only when financial and community penalties are inappropriate ‘because of the multiple
harms that are likely to result from incarceration’ (SAP, 2010: 75).
Acknowledging that the system has developed principally in response to male
defendants and that it may consequently lack sufficient sensitivity to the needs of
women offenders, the Panel encouraged a ‘constructive response’ to the prevalence of
mental health problems and high rates of sexual and violent victimization, irrespective
of their causal link to the current offence. Exactly how the courts are to use this information ‘constructively’ is not explained and it is presumably left to individual sentencers to mitigate the severity of the penalty to an extent they consider appropriate in the
individual circumstances of the case. In relation to non-custodial sentences, the Panel
acknowledged the limited range of specialized community sentences for women but
emphasized that the courts should not resort to custody because of a lack of community
provision or difficulty in identifying suitable community order requirements. It also
warned against ‘up-tariffing’ women on low incomes to a community penalty in order
to avoid a fine, reminding the courts of their duty to apply a penalty that is proportionate to the crime.
Although this guidance on equality does not directly contradict the Government’s published strategy for women offenders, it does, nonetheless, uphold a degree of universalism
that can eclipse consideration of important gender differences. Bosworth (2007:76) has
critically observed that ‘one of the hallmarks of “good management” … [is that] each person is subject to the same rules, regulations and treatment’. Hence, a powerful justification
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for the prevailing commitment to proportionality in sentencing is that it imposes punishment according to the seriousness of the offence and is inherently wary of the potential for
discrimination in drawing distinctions between the personal circumstances of offenders
and the differential impact of the sentence (Ashworth and Player, 1998).
The existence of these competing messages is not restricted to England and Wales.
Reflecting on developments in Canada, Kelly Hannah-Moffat (2010: 207) has also
observed that criminal justice practitioners typically face ambiguous messages about the
meaning of ‘gender’ and ‘gender-responsive punishment’, as well as ‘internal inconsistencies in the operationalization of gender policy’. In England and Wales the SAP guidance emphasizes the importance of taking account of gender when considering mitigating
circumstances and argues that the incidence of mitigation lowering culpability is likely
to be greater for women than for men.17 But the force of this argument is powerfully challenged by reports in the media that represent female criminality as increasingly indistinguishable from male crime and delinquency.18
In the United Kingdom the masculinization of women offenders has been depicted in
the ‘ladette culture’ and in reports of rising female involvement in crimes previously
associated almost exclusively with men. Following the conviction of Vanessa George in
October 2009 for sexual offences against children, the Observer newspaper reported
under the headline ‘Up to 64,000 women in UK are child-sex offenders’:
‘Child sex abuse by women is significantly more widespread than previously realised, with
experts estimating that there could be up to 64,000 female offenders in Britain’ (Townsend and
Syal, 2009).
In May 2009 the Daily Mail reported that ‘a quarter of all violent assaults in England and
Wales are now carried out by women’: ‘The shocking figures, police believe, can be put
down to binge-drinking and the so-called “ladette culture”. Officers say young women
are increasingly challenging their male counterparts when it comes to drunken yobbishness and booze-fuelled brawling’ (Hickley, 2009). And the Sun revealed ‘a sharp rise in
women who batter blokes’ claiming that ‘almost four times more women were convicted
of beating up their partners in 2008 than five years ago’ (Wilson, 2009). In the United
States, Meda Chesney-Lind (2006: 11) noted how the 1990s witnessed a stream of media
stories all conveying the same message, that has continued into the new millennium, that
‘girls are bad in ways that they never used to be’. Equal opportunities have thus been
portrayed as women having the freedom to act as men and, by implication, being subject
to the same criminal justice responses as men.
But the convergence of equal and identical treatment extends beyond the media and is
intrinsic in the history of equality legislation in the UK. Unlike many European jurisdictions where positive rights to equal treatment have been guaranteed in a written constitution, equal rights in the UK have traditionally assumed a negative form, focusing upon
the prohibition of discrimination. Hence, the Sex Discrimination Act 1975 made it
unlawful to discriminate on grounds of sex or marital status in relation to employment
opportunities and the provision of a range of other public goods and services. Although
these anti-discrimination principles applied to men as well as women, the ‘mischief’ the
legislation was intended to redress was discrimination against women, principally in the
workplace. In this context, sex equality was understood in terms of women being given
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access to benefits that men already enjoyed, and its achievement was largely conceived
as men and women being treated in the same way.19
Although the present equality legislation adopts a radically different position, the
political and legal culture in which it must operate has already established a concept of
sex equality based predominantly on the principle of universalism and aimed towards the
identical or undifferentiated treatment of men and women. In relation to sentencing, the
gender equality duty is also interpreted alongside a set of widely shared beliefs that
women are already treated more leniently than men. Media reporting on the guidance
issued to the courts on the differential treatment of men and women by the Judicial
Studies Board was critically interpreted as urging even greater leniency towards women
(Collins, 2010; Doughty, 2010).
This brief review of sentencing illustrates some of the ways in which the implementation of criminal justice policy involves a process of on-going negotiation between competing objectives. In this context, the marked failure of the Government’s policy to realize
key ambitions in the treatment of women offenders inevitably raises questions about the
causes of its apparent weakness in these political negotiations. The next sections therefore
seek some resolution by exploring more closely the ideological principles that have
informed gender-responsive policies and how these are out of step with other influential
ideas and principles that currently dominate the broader landscape of criminal justice.
Equality as Distributive Justice
As suggested earlier, the development of specific policies for the equal treatment of
women in the criminal justice system has been rooted in a conception of distributive
justice that aims principally to advance the welfare interests of individuals. It is evident,
however, that the broader context in which these policies must operate is dominated by
competing moral imperatives that justify the distribution of resources not on grounds of
welfare but on grounds of desert and public protection. The unequal weight that attaches
to these different rationales has profound consequences that substantially impede the
effective realization of the women’s policy agenda.
Ideological impediments
The courts’ distribution of state punishment is principally justified on retributive grounds,
determining equal treatment according to the principle of desert. What each offender
deserves is narrowly defined in relation to her criminal behaviour, taking account of the
harm that she caused or risked and her degree of culpability. Significantly, her welfare
needs are largely irrelevant to this process of assessment. Alongside the promotion of
‘just deserts’ contemporary sentencing policy has also attributed increasing priority to
the purpose of public protection, advancing preventive and rehabilitative sentencing
practices that again accord a low priority to the welfare needs of offenders. Unlike the
rehabilitative ambitions that dominated the mid-20th century, those of the contemporary
‘rehabilitation revolution’ stem not from the benefits that accrue to offenders but from
the enhancement of public protection that is promised through the reduction of reoffending. One logical and well-documented consequence of this new approach to rehabilitation is that offenders’ welfare ‘needs’ become conflated with their ‘risks’ of recidivism
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(Maurutto and Hannah-Moffat, 2006). Reconfigured in this way, the emphasis is naturally placed upon strategies and interventions that control and discipline a population
who threaten the security of others: the goal is ‘to transform risky subjects to make them
less risky’ (Maurutto and Hannah-Moffat, 2006: 446). In this context, rehabilitation
becomes a form of targeted governance (Valverde and Mopas, 2004) matching the type
and level of intervention to the criminogenic need posed by the offender. Rehabilitative
practices take the form of accredited correctional programmes that focus on the reduction of specific risk factors. Attending to the non-criminogenic needs of offenders tends
to fall outside of this schema and, although programmes may present as opportunities for
empowerment and social inclusion, their operational principles are part of a model of
governance that depends upon the segregation and exclusion of those who represent an
unacceptable level of risk. Reflecting on the use of actuarial methods of risk assessment
in the development of gender-responsive penal policy, Kelly Hannah-Moffat (2010: 204)
warns that it prioritizes ‘only those aspects of a woman’s life that are empirically shown
to contribute to offending, recidivism or institutional incidents (ie escapes or violent
outbursts)’. The strategic plan for female offenders that took shape after the Corston
recommendations does not fit comfortably within this framework. The model it adopts is
essentially holistic, recognizing the interconnected nature of women’s needs and the
importance of women themselves playing an active part in their identification.
Practical impediments
In addition to the competing ideological priorities that affect the realization of penal
policy for women, there are also empirical realities that shape the ways in which resources
and opportunities are distributed and policy objectives outmanoeuvred. The fiscal crisis
and the consequent cuts in public expenditure have undoubtedly provided a discouraging
and obstructive context for the development of gender responsive initiatives. First, the
necessary joint-working across government departments has been diminished by budget
cuts and departmental restructuring, and although a new Minister for Women in the
Criminal Justice System has been appointed, accumulated expertise has been lost.20
Second, the current funding framework undermines the stability of programme delivery.
The sustainability of the current network of community centres is threatened by the
uncertainty of future investment by NOMS and by the perpetual struggle that engages
individual organizations in piecing together funding from a number of different sources.
Gelsthorpe and Hedderman (2012) have argued convincingly that these existing uncertainties are likely to be exacerbated by a commissioning market operating a system of
payment by results. Third, there are financial disincentives for some agencies to engage
in joint working with the criminal justice system. For example, the cost of a woman’s
prison sentence is financed directly by central government and so, for the duration of her
sentence, the local authority is relieved of its duty to provide her with services. The
operation of discrete budgets and the lack of pooled resources can therefore, result in
financial savings accruing not to the organization investing in the reform but to the benefit of another agency. In response to what it described as a ‘crisis of sustainability’ in the
criminal justice system, the House of Commons Justice Committee (2010), proposed a
strategy of ‘Justice Reinvestment’ shifting resources away from a discrete and centrally
funded system, and from the expansion of prisons in particular, to local community
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services that exist outside of the criminal justice system and which tackle the underlying
causes of crime. The Prison Reform Trust has repeatedly emphasized the need to identify
counterproductive financial arrangements and to use financial inducements to encourage
more effective collaboration:
There is currently no incentive for investment in projects such as these women’s centres as
custody costs are resources from central government budgets. A custodial sentence can therefore
be thought of by local authorities as a free good and something which will not impact on their
ability to deliver other services to their communities. (2011: 7)
Use of pooled local budgets and the justice reinvestment model recommended by the Justice
Committee, allow agencies to work together and eliminate the problem of prison being seen as
a free good and encourage accountability. (2012: para. 22)
Equality as Non-Distributive Justice
Although the concept of distributive justice provides a useful framework for exploring
the ideological conflict in contemporary penal policy, there are drawbacks to conceptualizing the women’s policy agenda and the pursuit of gender equality solely in distributive
terms. Its major limitation is that it overlooks the social structures and processes that are
responsible for generating unequal treatment in the first place. Although close attention
to the distribution of resources is fundamental to the realization of equal opportunities,
so too is some consideration of the social, political and institutional conditions that enable or inhibit their operational effectiveness. These, it is argued, cannot be absorbed into
a distributive programme of reform but require separate analytical and practical interpretation. Iris Marion Young (1990: 25) has been particularly critical of attempts to extend
the distributive paradigm beyond the disposition of material resources to include nonmaterial goods such as, power, rights, duties and opportunities:
‘Applying a logic of distribution to such goods produces a misleading conception of the issues
of justice involved. It reifies aspects of social life that are better understood as a function of
rules and relations than as things.’
Addressing the gendered needs of women in the criminal justice system raises questions not only about the distribution of material opportunities but also about their functional viability. Women’s access to opportunities is shaped in part by their tangible
existence and in part by the conditions that enable or inhibit their realization. According
to Young (1990: 26), opportunities only exist if a person is not constrained from doing
things and ‘lives under the enabling conditions for doing them’. Injustice, she argues,
prevails when opportunities cannot be realized because institutional constraints inhibit
an individual’s self-development and self-determination.
Empirical research over several decades and across a number of European jurisdictions has accumulated compelling evidence of the oppression experienced by female
offenders. Their economic marginalization, particularly among women in prison, is evident from their lack of participation in the labour market as well as from their preceding
histories of failure and exclusion within the education system (Barry and McIvor, 2008;
Carlen, 1988; Commission on Women Offenders, 2012; Hedderman, 2004; Quaker
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Council for European Affairs, 2007; Social Exclusion Task Force, 2009; Social Exclusion
Unit, 2002). However, their status of powerlessness is not limited to conditions of economic exchange. Opportunities for self-determination are severely impaired for women
offenders who are disproportionately victimized by male violence and sexual assault
(Quaker Council for European Affairs, 2007; Social Exclusion Task Force, 2009; Social
Exclusion Unit, 2002). There is increasing recognition of how such trauma contributes to
both physical and mental health problems, inflicting harms beyond their immediate injuries, lowering women’s self-confidence and self-esteem and their capacity to exercise
choice (Corston, 2007; Fossey and Black, 2010; Malloch and McIvor, 2011; World
Health Organization, 2012). The health status of female offenders is typically much
poorer than that of other women and is frequently linked to lives of social deprivation,
substance misuse and neglected health care (Covington, 2007; Palmer et al., 2010;
Plugge et al., 2006; Van Den Bergh et al., 2009).
The minority status of women in the criminal justice system further exacerbates
their oppression by subjecting them to what Young describes as ‘cultural imperialism’,
which arises when a dominant group establishes its own interests and perspectives as
universal norms and projects ‘their own experience as representative of humanity’
(Young, 1990: 59). This is evident in contemporary risk management of women in
criminal justice, which relies upon actuarial tools of assessment developed for male
offenders. Based upon an ostensibly objective methodology, the process is said to be
indifferent to gender and concerned only with morally neutral assessments that predict
the statistical probability of certain outcomes. Such claims to gender neutrality in the
construction of risk categories have, however, been vigorously challenged for failing
to take adequate account of women’s experiences and the context of their offending
(Belknap and Holsinger, 2006; Hannah-Moffat, 2006, 2009; Taylor and Blanchette,
2009). Even where gender-responsive assessments have been used, the statistically
based risk framework has been criticized for its ‘focus on individual deficits’ and its
failure to ‘capture interactions between agency, structure and context, which are central to feminist theories and research about women’s criminalisation’ (Hannah-Moffat,
2010: 204).
Objections to the operation of risk technologies include concerns about the overclassification of the risks posed by women offenders, particularly those convicted of a
violent offence, and the consequent over-estimation of the degree of protection required
for public safety (Holtfreter and Cupp, 2007; Kemshall, 2004; Morton, 2009; Shaw
and Hannah-Moffat, 2001). The introduction of the Indeterminate Sentence for Public
Protection (IPP)21 provides a clear example of the inequality and injustice that can
result from a ‘gender blind’ approach to risk-based punishments. HM Chief Inspectors
of Prisons and Probation (2008: 7) concluded that particularly vulnerable women have
been disproportionately affected by this sentence, to the extent that in more than half
the cases studied ‘the level of risk was overestimated’. In written evidence to the Home
Affairs Select Committee, Simon Creighton (2007: para. 14) illustrates how nondistributive issues of inequality inherent in the concept of ‘cultural imperialism’ can
exacerbate existing distributive inequalities – in particular, women’s access to offending-behaviour programmes and their transfer to prisons located long distances from
their homes:
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The prison system has not been in a position to invest in the specialist assessment, treatment
and support necessary for women serving life sentences. The direct consequence is that women
who receive IPP sentences with short tariffs are the group least likely to be released on tariff
expiry.
The importance of responding to non-distributive issues of inequality and adopting a
broader social-harms approach was highlighted by an evaluation of the Together Women
programme:
the way in which a lack of self-esteem promotes offending and inhibits desistance may not be
fully understood by those developing offending behaviour programmes, … it is understood to
affect the style of delivery rather than the substance of the assistance provided. However, if a
lack of self-confidence is an offending-related need for women in its own right, those working
with women who have offended need to do more than address a lack of confidence as a delivery
style issue. They may also need to consider how this permeates and interacts with other aspects
of a woman’s life to increase her risk of offending by limiting the development of both human
and social capital. (Hedderman et al., 2011: 10)
Staff in the centres most commonly identified feelings of low self-worth as the single
most important feature that undermined their work with female offenders, largely
because it inhibited the women’s confidence that change was achievable. Put simply,
there is little point in providing educational programmes to counter skills deficits among
women in prison and in the community, if the oppressive conditions that affect their
incentives to engage with these facilities and their ability to exercise choice and control
over their lifestyles are ignored.
Equality, Harms and Rights
Arguably the greatest impediment to policies of distributive and non-distributive equality for women offenders is the concept of ‘less eligibility’. Rooted in liberal notions of a
contractual relationship between the individual and the state, the non-compliance of
offenders is held to justify a reduction in their entitlement to the legitimate expectations
enjoyed by other citizens. Their diminished social status is made most explicit in the
context of imprisonment where prisoners’ claims to the legal recognition and protection
of their human rights have been persistently contested. Depicting offenders as undeserving and unworthy, and juxtaposing them against a hard-pressed but law-abiding majority,
inevitably undermines the legitimacy of treating their experiences of exclusion and inequality as ‘special needs’ that justify policies to promote their welfare.
However, the imposition of a social contract that distributes life’s burdens and benefits according to the moral principle of desert does not inevitably function against the
welfare interests of offenders. Arguably, an analysis of the contractual relationship
between the individual and the state can instigate a series of other questions that establish
a different normative framework for the assessment of what is ‘deserved’. For example,
it can scrutinize the assumed universality of the contract: whether everyone is offered the
social contract on identical terms and whether everyone is equally placed to fulfil its
specific terms and conditions. It also justifies enquiries into the nature of the State’s
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obligations and whether state institutions have upheld their side of the deal. This more
nuanced appraisal enables the needs of women offenders to be conceptualized not as
‘risks’ that diminish entitlement but as ‘harms’ that justify a reparative response (Hillyard
and Tombs, 2007). The distribution of resources as a reaction to social harm as opposed
to criminal risk, redefines the political identity of the offender, removing her status of
less-eligibility and establishing instead a rights-bearing citizen with legitimate claims to
resources based on a concept of desert. From this perspective the needs of women offenders are understood not only as symptoms of personal vulnerability but as indices of social
harm and of the failure of state institutions to provide equal and adequate protection to
all contracting parties.
But despite the presence of the Human Rights Act 1998, the functioning of the contemporary welfare state is out of step with this perspective. Like offenders, claimants
have become subjects of suspicion and the targets of restrictive and punitive strategies to
flush out those who break the rules. Indeed, Chunn and Gavigan (2004: 220) have
claimed that public discourse has reconfigured ‘welfare fraud’ as ‘welfare as fraud’.
Wacquant’s (2009) argument that welfare and penal interventions have become increasingly merged is of critical importance in understanding the current contradictions in
penal policy for women. In reviewing Wacquant’s analysis in relation to women,
Gelsthorpe (2010: 380) concludes that their ‘penal treatment … is often indistinguishable from “welfare” treatment’.
The current strategy to develop community centres for women offenders and for women
at risk of offending, illustrates the fusion of services to manage women who are socially
and economically marginalized. That they potentially expand the capacity of the State to
control and regulate women’s behaviour is evident from a recent review of the Together
Women programme which reported that almost half of those supported by the centres had
either self-referred or had been referred by agencies outside the criminal justice system
(Jolliffe et al., 2011). Interviews with sentencers revealed that they were generally not well
informed about the centres and rarely used them to divert women from custody. Magistrates
in particular, were ‘concerned about how non-offenders might be affected by mixing with
offenders; and they questioned the appropriateness of sentencing women to an option that
was freely available to non-offenders’ (Jolliffe et al., 2011: 23).
The failure of the various strategies to reduce the numbers of women in prison will not
surprise those who have warned against ‘carceral clawback’ (Carlen, 2002) and the rise
of vengeance as a response to gender equality in criminal justice (Chesney-Lind and
Pollock, 1995). Yet it is unlikely that the voluntary organizations engaged in the Together
Women programme would associate their own work with these outcomes or identify their
ambitions in ways that chime with Wacquant’s conception of the State’s penal containment of the poor. They could legitimately point to their holistic and women-centred
approach that aims to tackle non-distributive as well as distributive sources of inequality.
Feedback from service users testify to the emphasis placed upon autonomy and empowerment through individualized and client-led interventions (Hedderman et al., 2011). But
the sharks have begun to circle.
Systemic forces already at work are reconfiguring the role of the women’s centres,
revising their purpose or, in the face of resistance, preparing to replace them with alternatives that fit more appropriately within the institutional framework of risk management.
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The focused evaluation of the Together Women project commissioned by the Ministry of
Justice at the end of the three year demonstration period identifies the discontinuities that
exist between the competing models of rehabilitation (Jolliffe et al., 2011). First, there
was a narrow conception of valued outcomes. Rigid quantitative measures of criminogenic risk factors and levels of reoffending excluded any qualitative appreciation of service users’ perspectives and evidence of incremental progression. Yet it is precisely this
type of information that ‘is essential if the Together Women model is to be properly
understood’ (Hedderman et al., 2011: 5). Second, the lack of standardization across the
Together Women projects in relation to the services provided, the definition of priorities
and the assessment of change has meant that they have not collected the data required to
allow firm conclusions to be drawn about proven reoffending or other indices of risk
(Jolliffe et al., 2011: vi). Yet it is this type of evidence that will determine their sustainability. Government policy has made clear that investment in rehabilitative programmes
will be based on a system of payment by results whereby service providers will be paid
according to their proven success in reducing recidivism (Ministry of Justice, 2010a).
As things stand, the survival of existing community support services for women inevitably depends on the extent to which they can realign their priorities to match those of
the statutory criminal justice system and reconceptualize rehabilitation as the reduction
of criminal risk rather than the reduction of social harm. As processes of institutionalization bed-in, the working principles of the participating organizations must conform with
and become incorporated into the official discourse of risk management. Elements of
public sector managerialism will ensure that their sustainability is tied to the achievement of specific goals, judged according to specific evaluations and enforced by a culture of payment by results.
Conclusion
In principle, the argument for a distinct approach to the treatment of women in the criminal justice system has been won and incorporated into official penal policy. Yet agreed
objectives, most notably the reduction of women’s imprisonment, have not materialized.
This article has attempted to explore some of the factors that contribute to this lack of
progress, arguing that there are systemic inhibitors that arise from fundamental differences in the way key concepts of equality, rehabilitation and justice are understood and
interpreted.
In relation to sentencing, some uncertainty remains about the meaning of gender
equality and the extent to which this demands a differentiated approach, for example to
mothers of young children, or an identical approach where women appear to be adopting
male patterns of offending behaviour. The Government’s strategy for the treatment of
women in the criminal justice system has rested upon a specific model of distributive
justice that aims to respond to the specific needs of women offenders by providing them
with greater access to rehabilitative services that promote their welfare. Although these
have met with some practical set-backs, particularly in relation to the consistency of
funding streams, there are other less visible impediments that arise from competing concepts of rehabilitation. The dominance of risk management in contemporary programmes
tends to direct attention to social harms that are pre-configured as criminogenic risks.
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Neo-liberal conceptions of the social contract similarly limit the reach of penal welfare
by operating a competing model of distributive justice based upon principles of moral
desert, which hold female offenders responsible for their choices, while ignoring the
failure of the welfare state to protect them from a wide range of social harms.
But the purpose and content of rehabilitation is also significantly narrowed by the
failure of existing policies to recognize and engage with non-distributive issues of inequality. Directing attention to the conditions that oppress women offenders may be disputed on the ground that penal policy cannot be expected to respond to all of life’s
injustices. Conversely, however, the role that women’s oppression plays in shaping their
ability to respond to rehabilitative initiatives, in particular the meaning they attach to
specific opportunities and the perception they have of their own capacity for change, is
fundamental to their effectiveness.
Arguably the contradictions that presently underpin penal policy for women are not
due to inadvertent human error but are the logical and coherent outcomes of a process in
which reforms rooted in principles of social inclusion and social justice are pursued
within a broader penal context grounded on principles of ‘less eligibility’ and exclusion.
The degraded status ascribed to offenders, and especially to prisoners, denies their entitlement to social welfare on grounds of desert and facilitates a powerful culture of resistance to the development of a human rights discourse in relation to offender rehabilitation.
Swimming against this tide inevitably makes for slow progress and questions the viability of reform. There are undoubtedly many dangers in linking access to welfare with the
punitive controls of criminal justice, yet empirically, many women report significant
gains from interventions provided both in custody and the community. Precisely how
these benefits can be advanced while inhibiting the oppressive consequences of punitive
state control is the key question. The conclusion of this article is that any such approach
must be built upon a culture of rights in the criminal justice system that would undermine
the concept of ‘less eligibility’ and encourage a discourse of social inclusion. It would
require the replacement of risk management with a rehabilitative response that attended
to social harm and operated according to a principle of entitlement.
Notes
1. Equality Act 2010 Schedule 19 specifies Government Departments (with limited exceptions)
as public authorities subject to the Duty.
2. The protected characteristics comprise age, disability, gender reassignment, pregnancy and
maternity, race, religion or belief, sex, sexual orientation. Equality Act 2010 s. 149(7).
3. The female prison population rose from 1555 in 1992 to 4394 in 2002. The male population
increased from 45,277 to 66, 824 (Home Office, 2003).
4. The Corston Independent Funders’ Coalition.
5. Criminal statistics record a reduction of 18 per cent to 20 per cent in the total number of all
crimes from 2007–2008 to 2011–2012 (Office for National Statistics, 2012).
6. The numbers arrested fell by 13 per cent for women and 7 per cent for men and the numbers
proceeded against dropped by 10 per cent for women and 22 per cent for men between 2007
and 2011 (Ministry of Justice, 2012b: 38 and 46).
7. Between 2007 and 2011, the number of Penalty Notices for Disorder (PNDs) issued to females
decreased by 34 per cent, from 45,545 to 30,272 and cautions administered to females reduced
by 42 per cent, from 94,241 in 2007 to 54,809 in 2011. The number of females sentenced by the
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courts increased by 3 per cent between 2007 and 2011, while the number of males sentenced
decreased by 15 per cent across the same period (Ministry of Justice, 2012b: 48–49).
8. Community sentences represented 10.6 per cent of all sentences imposed on women in 2007
and 9.6 per cent in 2011; and 38.3 per cent and 33.9 per cent respectively for indictable
offences in 2007 and 2011 (Ministry of Justice, 2012c).
9. Immediate custody represented 2.7 per cent of all sentences imposed on women in 2007
and in 2011; and 14.6 per cent and 14.7 per cent respectively of all sentences for indictable
offences. Over the same period suspended sentences rose from 1.9 per cent to 2.5 per cent
of all sentences; and from 9.6 per cent to 12 per cent of sentences for indictable offences
(Ministry of Justice, 2012b: 57–58).
10. The average custodial sentence imposed on women increased from 10.6 months in 2007 to
11.6 months in 2011 (Ministry of Justice, 2012b: 74).
11. The number of women prisoners self-harming per 1000 population was 306 in 2007 and 294
in 2011. The number of incidents per 1000 women prisoners was 2608 in 2007 and 2104 in
2011 (Ministry of Justice, 2012d).
12. Reported in the Guardian, 20 September 2012. Available at: http://www.guardian.co.uk/politics/2012/sep/20/chris-grayling-take-hardline-prison (accessed 2 January 2013).
13. Criminal Justice Act 2003 s. 225. Amended by Legal Aid, Sentencing and Punishment of
Offenders Act 2012 s. 122.
14. Criminal Justice Act 2003 Schedule 21.
15. Criminal Justice Act 2003 s. 143.
16. Mills [2002] 2 Cr App R (S)229; Seed and Stark [2007] 2 Cr App R(s) 436; Attorney General’s
Reference No. 11 of 2006 [2006] Cr App R 705.
17. The UK has signed up to the UN Bangkok Rules 2010 which require women’s childcare
responsibilities to be considered as part of the sentencing decision.
18. The link between ‘female emancipation’ and increased criminality has survived across jurisdictions due to widespread corroboration by the media that portray certain women offenders
as masculine and violently predatory. See, for example, in the USA, Chesney-Lind and Irwin
(2004), Lewis (1992) and Scelfo (2005); in Canada, Sacheli (2010) and Stewart (2008); in
Australia, Clayfield (2005).
19. This perspective was not novel but reflected historic practice in relation to the extension of
women’s legal rights, evident for example in laws on women’s suffrage and married women’s
property rights. See Representation of the People Act 1928; Married Woman’s Property Act
1870 and 1882
20. ‘The Inter-Ministerial Group on Reducing Re-offending and its sub-group on Women
Offenders have both been disbanded following the change of government, and the Criminal
Justice Women’s Policy Team no longer has staff seconded to it from departments outside of
the Ministry of Justice’ (Prison Reform Trust, 2012: para.15). Yet respondents to the Justice
Select Committee’s inquiry into women offenders repeatedly emphasize the centrality of
inter-departmental working for the achievement of strategic goals.
21. Criminal Justice Act 2003 s. 225 amended by Criminal Justice and Immigration Act 2008 s.
47 and Schedule 8.
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Author biography
Elaine Player is Professor of Criminology at the Dickson Poon School of Law, King’s College,
London.
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