Females In Contact With The Criminal Justice

Introduction

When criminalised women come into contact with criminal justice system, they are liable for the same treatment and punishment as male offenders, including incarceration for crimes that are punishable by punishment. However, recent feminist theory literature has pointed out at specific concerns with female incarceration, which put females at peculiar disadvantage, due to which they propose responses that are specifically aimed at female incarceration (Willison & O’Brien, 2017; Chadwick & Clarke, 2017; Sheehan, McIvor, & Trotter, 2013). This is even more significant with respect to maternal incarceration, which has implications not just for the female prisoners but also their dependent children. This essay discusses the issue of female incarceration and the specific problems that are related to it, as well as the feminist approach to this issue and the alternatives to incarceration that are proposed to mitigate these effects and problems.

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The Feminist Approach to Incarceration

Feminist theory has at the forefront of the discourse on female incarceration (Boyd, 2016). The issue of interaction between female offenders and the criminal justice system has received attention also in the context of maternal incarceration (Boyd, 2016). The overarching argument by feminist theory on this point is that criminalised women cannot be treated at par with their male counterparts because incarceration impacts female offenders more and in ways that are more intensive as compared to male counterparts (Boyd, 2016). Due to this, the feminist theory posits instead of a strict approach from the criminal justice system, focus should be on developing anti-oppressive orientation to such women, keeping in mind the peculiar problems that are associated with female incarceration (Willison & O’Brien, 2017). Therefore, it is argued that instead of a punitive approach, restorative justice must provide the alternatives to female incarceration.

An important point that is also made in this regard is that female incarceration has spill-over effects, which relate not just to the women but also to their children and these should also be considered in the criminal justice responses to criminalised women (Hagan & Foste, (2012)). Some of these spill-over effects were explained in an important report on this point, the Corston Report, which found that spill-over effects of female incarceration include loss of home, loss of custody of children, trouble with depression, alcoholism and recidivism (Corston, 2007). Corston Report was issued in the United Kingdom; however, its central message is also applicable in Australian context. This central message is that of more intensive impacts of prison sentences on women considering their peculiar circumstances. This is supported by the findings of a report published in Australia, which considered the impact of short term prison sentences on criminalised Aboriginal mothers and found that such impacts included loss of rental property, loss of custody of children and recidivism ( Human Rights Law Centre and Change the Record Coalition, 2017).

The reports mentioned above support the contention found in feminist literature, which stresses on the need to move away from incarceration to alternatives to incarceration for criminalised women, especially those who are mothers with dependent children (Chadwick & Clarke, 2017). Therefore, feminist approach emphasises on alternatives to incarceration because incarceration is seen to have negative impacts on female offenders. The next section discusses some of these negative impacts in greater detail.

Incarceration and Females: Negative Impacts

As per the Relational Theory, incarceration is more punishing to the female psyche as compared to the male (Litchtenwalter, Garase, & Barker, 2010). One of the reasons given to explain this greater intensity of punishment is given by Covington (2008) is that female prisoners suffer more from the disconnection and violation that may be common in the relationships of female offenders because such dysconnectivity and violation may intensify past psychological injuries that the women may have suffered. Another reason why incarceration may be more punishing for women than it is for men, may be explained by the relationships that female prisoners may have with their children, if any.

Maternal incarceration poses even more trauma and distress to female inmates, all the more where the children are dependent on the inmates and the stress of separation from their children may be painful and distressing, and even shameful to the incarcerated mothers (Covington, 2008, p. 145). For female inmates who have dependent children, the negative effects of incarceration may be multiplied when they lose custody of their children, or their homes so that they do not have a place to come back to after the completion of their sentences (Allen, Flaherty, & Ely, 2010). Such women may continue to struggle with guilt and remorse long after their incarceration is over and may develop drug and alcohol problems and fall into recidivism (Allen, Flaherty, & Ely, 2010).

Feminist literature sees the position of female inmates as worse off than male also on account of multiple marginality that comes with being women, being poor, being mothers, or even being minority Ethnic groups. This is explained as follows: “These women are already marginalized by their gender, class, and victimization status and the systemic barriers they consistently face. Although each has her own unique story, the one thing that incarcerated women share is their invisibility. The women have been locked away with little or no contact with the outside world. They are convicted criminals, viewed by society as social outcasts. Their multiple marginality, combined with the stigma and shame of incarceration, renders this powerless population essentially disposable in the eyes of society. They are dismissed as ‘’throwaway moms’ ” (Allen, Flaherty, & Ely, 2010, p. 162).

Therefore, female offenders are already situated at the margins due to their gender and this is worsened by multiple marginalities of class and victimisation status. Literature also suggests that for a significant proportion of female prison population in Australia, the pathways to criminal justice are also reflective of social disadvantage (Burgess & Flynn, 2013). Many of these women are already victimised through sexual abuse, domestic violence, mental illness, homelessness, and poverty (Burgess & Flynn, 2013). Therefore, their position is complicated by multiple marginalities as discussed above. Criminal justice system in Australia may not always take these factors into consideration at the sentencing level (Marchetti, 2008 ). On the other hand, other jurisdictions have already started responding to the issue of female incarceration from a more feminist perspective. An example can be seen in the United Kingdom, wherein efforts have been made to provide a more considerate policy for female offending and criminal justice system (Carlen, 2003). This policy has been summarised as follows:

“Create gender-specific policies towards female offenders, which aim to prevent recidivism, slow down rates of maternal imprisonment, and engender flexible programmes, that would reduce the time spent in prison or away from dependent children” (Carlen, 2003, p. 135).

The United Kingdom policy shows that there is a possibility for a gender-specific approach to female offenders in Australia also and that there is merit in the argument that the female experience with criminal justice system may be different in specific ways from the experience of the male offenders which makes such gender-specific policy plausible. From the brief discussion above, it may be summarised that the peculiar problems that are faced by women who are incarcerated relate to the higher intensity of punishment for women due to violent conditions in the prisons as well as possibility of separation from their children.

This makes the issue of female incarceration, especially maternal incarceration, unique and different from that of male incarceration. Due to this, feminist theory demands that the needs of female offenders and the special position that they are in, should be considered in sentencing decisions that are made by the courts (Boyd, 2016).
The awareness that women suffer more due to incarceration is not new and even in the more traditional legal systems in an earlier time, females were less likely to be incarcerated for crime than males. However, in recent times the rates for female incarceration, including maternal incarceration have increased significantly, leading to concerns about the effects of such incarceration on female offenders and the ways in which these effects are peculiar to their gender (Chadwick & Clarke, 2017).
At the international level also, there have been calls for responses to female incarceration with the development of guidance on the same in the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (‘2010 Bangkok Rules’), adopted by the United Nations General Assembly in 2010. This guidance is also a response to the feminist approaches to female offending and punishment, which demand consideration to gender-specific characteristics and needs of criminalised women (Goshin, Arditti, Dallaire, Shlafer, & Hollihan, 2017). The 2010 Bangkok Rules demand that there be a development of alternatives to incarceration of criminalised mothers, especially considering their maternal responsibilities for care giving.

Alternatives to Incarceration

One of the alternatives that may be used in place of incarceration is that of suspended sentences, which allow criminalised women to stay with their children in community (Bartels, 2007). Suspended sentences have been proposed as alternatives to incarceration also because of the empirical research on this issue which shows that suspended sentences reduce the spill-over effects of female, especially maternal incarceration and also lead to reduction in recidivism (Lulham, Weatherburn, & Bartels, 2009). Suspended sentences are also focused on restorative justice, which has been the focus of feminist theory in relation to female offending (Lulham, Weatherburn, & Bartels, 2009).
In the US, an alternative to female incarceration is found in the House of Healing, which is a court ordered and community-based programme that is used as an alternative to female incarceration (Litchtenwalter, Garase, & Barker, 2010). Criminalised mothers were allowed under this House of Healing framework to live with their children and serve out their sentence without being separated from their children (Litchtenwalter, Garase, & Barker, 2010). However, this program may have some limitations due to which it is difficult to replicate the program in Australia on a large scale. The biggest limitation of this program is that it can only be provided to limited number of women offenders as the program is expensive to implement on a larger scale.
Sheehan, McIvor, and Trotter (2013) suggest that alternatives to incarceration can be devised by developing gender appropriate community-based interventions. In other words, there should be a greater emphasis on non-custodial alternatives to incarcerations for dealing with women who offend (Sheehan, McIvor, & Trotter, 2013, p. 301). Some of these methods may include community supervised programs that allow women with offending behaviour to undergo treatment and desistance pathways with the help of multi-agency approaches that involve social workers and health professionals in case of mental health issues (Sheehan, McIvor, & Trotter, 2013). Women could be provided mental illness services, substance abuse services, and other interventions without incarceration and while remaining within the community (Sheehan, McIvor, & Trotter, 2013, p. 302). Empirical research in Australia indicates that such programmes are effective in reducing recidivism for women offenders while also ensuring that women are not separated from their children and exposed to further damaging violent prison environments (Sheehan, McIvor, & Trotter, 2013).

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Conclusion

Women offenders are different from male offenders in terms of their pathways to crime, as well as impact of incarceration. Women are more negatively impacted by incarceration without improvement in recidivism statistics. This has led development of feminist approaches to female incarceration, which emphasises on the unique issues faced by women offenders when incarcerated and argues for alternatives to incarceration based on non-oppressive approaches. The alternatives to incarceration are usually found in community centred programmes, which are shown by empirical studies to be effective in reducing recidivism as well as providing a response to the spill-over effects of female incarceration. Gender-specific approaches are therefore argued for within the theoretical framework of feminist theory and such approaches are already adopted in the UK. Australia too can consider some of these alternatives to incarceration, such as, suspended sentences or community centered programmes and interventions for offending women.

Bibliography

  • Allen, S., Flaherty, C., & Ely, G. (2010). Throwaway moms: Maternal incarceration and the criminalization of female poverty. Affilia, 25(2), 160-172.
  • Bartels, L. (2007). The Use of Suspended Sentences in Australia: Unsheathing the Sword of Damocles. Criminal Law Journal, 31, 113-132.
  • Boyd, S. B. (2016). Motherhood and law: constructing and challenging normativity. In V. Munro, The Ashgate Research Companion to Feminist Legal Theory (pp. 267-284).
  • Burgess, A., & Flynn, C. (2013). Supporting Imprisoned Mothers and Their Children: A Call for Evidence. Probation Journal, 60, 73-81.
  • Chadwick, K., & Clarke, B. (2017). ‘From ‘troubled’women to failing institutions: The necessary narrative shift for the decarceration of women post-Corston’ i. In L. Moore, . Scraton, & Wahidin, Women’s Imprisonment and the Case for Abolition (pp. 61-80). Routledge.
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  • Hagan, J., & Foste, H. ((2012)). Children of the American prison generation: Student and school spillover effects of incarcerating mothers. Law & Society Review, 46, 37. Human Rights Law Centre and Change the Record Coalition. (2017). Over-Represented and Overlooked: The Crisis of Aboriginal and Torres Strait Islander Women’s Growing Over-Imprisonment. Melbourne: Human Rights Law Centre.
  • Litchtenwalter, S., Garase, M. L., & Barker, D. B. (2010). Evaluation of the house of healing: An alternative to female incarceration. J. Soc. & Soc. Welfare, 37, 75. Lulham, R., Weatherburn, D., & Bartels, L. (2009). The Recidivism of Offenders Given Suspended Sentences: A Comparison with Full-time Imprisonment. Crime and Justice Bulletin no 136, NSW Bureau of Crime Statistics and Research.
  • Lulham, R., Weatherburn, D., & Bartels, L. (2009). The Recidivism of Offenders Given Suspended Sentences: A Comparison with Full-time Imprisonment. Crime and Justice Bulletin no 136, NSW Bureau of Crime Statistics and Research. Marchetti, E. (2008 ). Intersectional Race and Gender Analyses: Why Legal Processes Just Don’t Get It. Social & Legal Studies, 17, 155-174.
  • Sheehan, R., McIvor, G., & Trotter, C. (2013). What Does Work for Women Offenders. In R. Sheehan, G. McIvor, & C. Trotter, What works with women offenders (pp. 300-309). Oxon, England: Routledge. Willison, J. S., & O’Brien, P. (2017). A feminist call for transforming the criminal justice system. Affilia , 32(1), 37-49.

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