Women in the criminal justice system: The triumph of inertia

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 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 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 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 re-offending, 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 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 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 self-harming 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 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 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 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 (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 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 non-material 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 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 over-classification 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 non-distributive 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:

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 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. 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. 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.

Footnotes

Notes

Author biography

Elaine Player is Professor of Criminology at the Dickson Poon School of Law, King’s College, London.

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