11. Memorandum submitted by
Dr Loraine Gelsthorpe
The points below are broadly directed at the
question as to "what steps should be taken to get people
from vulnerable groups (women, young people, the mentally disordered,
alcohol and drug addicts, and minor offenders) out of prison?"
My submission addresses particular issues in
relation to the sentencing of vulnerable women and how the inappropriate
use of imprisonment might be avoided. My main argument is that
"needs" and "deeds" should be separated out
in sentencing. By introducing multiple aims, the Criminal Justice
Act 2003 rather invites confusion. The logical consequence is
that the principle of "desert" should be re-emphasised—to
determine the appropriate level of sentencing, whilst any attempt
to deal with women's "needs" in sentencing should be
addressed in the shape and form of the sentence (ie at the delivery
stage).
Beyond this, whilst provision for women within
existing criminal justice system services for women is limited,
it is possible to determine a whole range of organisations in
the voluntary sector which have appropriate experience to address
women's broad criminogenic needs. But they need appropriate funding.
WOMEN AND
SENTENCING
1. Since 2000 there has been heightened awareness
of the upward trend in the imprisonment of women. Although women
in prison presently constitute only 6% of the total prison population,
between 1994 and 2004 the numbers of women in prison in England
and Wales increased by over 150%. This is a startling increase
and a wide range of different explanations have been offered for
it: changes in the nature and seriousness of women's crime, moves
towards dealing with male and female offenders more "equally",
changes in sentencing patterns, changes in the "type"
of women being sentenced to imprisonment, increases in the length
of women's sentences, more foreign national women being imprisoned
for drugs offences, and even the idea that prison reforms have
attracted prison sentences (with prison provision sometimes being
perceived to be better than social services) have all been proffered.
In the main, none of these explanations is adequate entirely on
its own (Gelsthorpe and Morris, 2002; Deakin and Spencer, 2003;
Hedderman, 2004; Carlen, 2002) yet all contribute to the depressing
fact that imprisonment appears to be increasingly used as a first
resort rather than a last resort—in principle, if not in
practice. One explanation that still carries favour within popular
and public policy circles is that female emancipation has led
to increases in women and girls' crime. But even recognition of
sophisticated ideas about women's changing participation in social
life comes nowhere near explaining the dramatic shift in the prison
figures.
2. To add to this dismal scenario, between 20
and 25% of women in prison are likely to be on remand at any one
point; most women serve sentences of under a year. A high proportion
of women prisoners receive help for mental health/emotional problems
in the year prior to custody, and a significant proportion of
women in prison self-harm. In 2004, there were thirteen deaths
from self-inflicted injuries in women's prisons and four in 2005;
two-thirds of women in prison have drug problems and a further
two-thirds have dependent children (the living arrangements of
at least 8,000 women a year are affected owing to their mothers"
imprisonment). Moreover, the House of Commons Home Affairs Select
Committee's First Report on the Rehabilitation of Offenders published
in 2005 merely added to well-rehearsed concerns about the continuing
failure to adapt rehabilitative programmes to the needs of women.
3. In sum, although there have been some increases
in women's crime, they do not amount to a radical change in patterns
of offending which might account for the radical change in sentencing;
women continue to commit property related crimes in the main,
they commit crimes less often than men and they commit less serious
crimes than men on the whole. But more of them are being sentenced
to imprisonment.
4. There have long been problems in the sentencing
of women, not least because of the tendency to configure sentences
on the basis of perceptions of women's "needs" rather
than their "deeds" (Hedderman and Gelsthorpe, 1997).
Successive generations of scholars and practitioners alike have
highlighted the ways in which common constructions of gender appropriate
behaviour have shaped sentencing. But, if anything, the Criminal
Justice Act 2003 may have exacerbated the problem of "needs"
being prioritised over "deeds" in sentencing, thus leading
to an increased use in imprisonment.
The Criminal Justice Act 2003: potential and pitfalls
5. The major review of sentencing which heralded
the Criminal Justice Act 2003 (the Halliday Report) offered much
potential to sort out sentencing. Beyond expressing disappointment
that the review was not more far-reaching, Elaine Player (2006)
has rightly pointed to the ways in which the new legislation both
reflects the Government's commitment to the formal equality of
consistent sentencing (desert) whilst at the same time establishing
new penal aims: punishment, the reduction of crime by deterrence,
reform and rehabilitation, the protection of the public, and the
making of reparation by offenders. Thus the way is made clear
for needs and risks and individualised sentencing to come to the
fore. But this is problematic for women especially. The issue
is that definitions of need in contemporary criminal justice practice
are narrowly defined and fused with risk, and that the needs of
offenders have been either re-framed as "criminogenic"
needs, or rather dynamic risk factors. Indeed, the introduction
of new penal aims may well introduce confusions in the sentencing
of women. The new aims perhaps give licence to confusing "needs"
and "deeds". Making desert but one of a number of aims
rather than a key aim perhaps gives a green light to uptariffing
women on the sentencing ladder so that their needs can be addressed
via different sentencing options. SGC Guidance of course highlights
desert principles, but not in a way that makes it clear that other
penal aims should follow attention to desert.
6. In terms of the actual sentencing provisions
in the Act, there have been worries regarding the possibility
that intermittent custody (part week in prison, part week out
of prison) will have the unintended consequence of more women
being sentenced to custody than hitherto (if mothers are at home
for at least part of the week then it might be thought that their
imprisonment will not be wholly disruptive of children's lives).
Thus there is another green light here for uptariffing. It is
something of a relief that this sentencing option has not proved
popular with sentencers.
7. Although it has now been shelved there
have been particular concerns about the proposed sentence of Custody
Plus. This is a term used by the CJA 2003 to describe the licence
component of a term of imprisonment of less than 12 months. So
all sentences of less than 12 months will consist of: (a) a short
"custodial period"; and then (b) a longer "licence
period" during which, by way of an innovation—the offender
must comply with one or more requirements set by the court as
part of the sentence (chosen from a statutory "menu"—but
a shorter menu than that in relation to the generic community
sentence—mental health treatment, drug rehabilitation, and
alcohol treatment, for example, are all missing from the custody
plus menu (presumably it is thought that such problems will be
resolved during the custodial part of the sentence...). As noted,
many women in prison do have mental health and substance abuse
problems, but these are commonly enduring problems and not ones
which are going to be resolved during a short custodial sentence.
So their absence from the "Plus" menu is both perplexing
and worrying.
8. This new sentence also raises the spectre
of sentencers of the past remanding women in custody to give them
a "dose of what they don't want" and "to scare
them off" and then giving them a community penalty to deal
with "what they need". If the idea of "Custody
Plus" is revisited with a view to implementing it, there
is surely a danger that Custody Plus will lower the custody threshold
as courts are attracted to the "short, sharp shock"
element of the custody period—assured that it will be followed
up by supervision and support in the community.
9. In early May 2006, Lord Bassam, Junior Government
Minister, announced a delay in the implementation of Custody Plus
on grounds that the Probation Service would not be able to cope
at present (probation staff have claimed that they need at least
a 15% increase in staffing). Given that probation practice is
increasingly risk-driven (resources necessarily following those
who present the highest risk of reoffending, and this is certainly
confirmed in the NOMS National Offender Management Model), there
have been huge concerns that women, who tend to present lower
risks as offenders, will not receive adequate attention and support
from the Probation Service in relation to Custody Plus. This is
not from a lack of good intention or willingness, but it reflects
past practice and the lack of resources. We also know that there
is a lack of women-specific community provision and work placements
and as a result women have sometimes had to travel far to complete
punishments in the community. Put this together with women's childcare
responsibilities and we can see that it may be particularly difficult
for women to complete the "Plus" requirements of their
sentences unless there is adequate Probation Service provision.
The ultimate consequence of patchy or thin provision for women
may mean breaches and more imprisonment for them. Again, it is
something of a relief that this sentencing option has been shelved
for the moment.
Women and sentencing
10. The logical conclusion of all of this is
to suggest that the desert principles inherent in the CJAct of
2003 need to be re-emphasised. A direct focus on desert, without
this being overshadowed or shaped by other considerations, should
be used to determine the level of penalty appropriate. It is only
after the level of penalty has been decided upon that other sentencing
considerations such as rehabilitation should come into play.
11. In sum, there are good reasons to return
to the principles in CJAct of 1991—with the modifications
of legislation in 1993. Indeed, it is not entirely clear why this
legislation was changed (it had only just been implemented).
Alternatives to custody
12. In March 2005, Charles Clarke, then Home
Secretary, announced the award of £9.15 million for pilot
community initiatives specifically for women offenders over a
four year period. However, compared with the cost of imprisoning
women (estimated at around £35,000 for every prisoner), this
is a small sum of money, and there are only two such initiatives
anyway.
13. Recent research which I have carried out
for the Fawcett Society suggests that there are a number of existing
community-based initiatives for women in general which might be
utilised for women offenders to help keep them out of custody.
14. The voluntary sector provision identified
is broadly creative and flexible, and responsive to women's needs.
Such provision also commends itself on the basis of open and continuous
access to women so that they can draw on support and resources
as and when needed, not according to someone else's timescale,
or fixed to involvement in the criminal justice system as part
of a sentence or post-prison programme. However, there are a number
of issues which militate against the reliability of voluntary
sector provision for women, including the perpetual search for
funding, a need to change programmes and provision to attract
new funding, lack of continuity in staffing with short term contracts
(typically just twelve months)—which affects relational
dimensions of the work with women—and low pay for many staff,
in turn contributing to a high turnover and discontinuities in
provision. In contrast, statutory provision may be relatively
well-funded, but fixed, time-limited and with access only to women
under certain conditions.
A mixed economy of provision?
15. Ideally, community provision for women which
is designed to meet their needs and be flexible enough to address
changing needs, might be funded by statutory bodies but delivered
by voluntary agencies. Thus far, the concept of contestability—introduced
in the Carter Report relating to the restructuring of key criminal
justice system agencies which essentially splits the functions
of the existing Probation Service into purchaser and provider—has
been viewed rather negatively by interested observers and critics,
partly because it may serve to undermine the expertise that the
probation service have built up in its hundred year existence.
There is also a spectre of the heavy hand of statutory governance
constraining voluntary sector provision. For example, whilst the
nationally recognised accreditation programme has meant some benefits
and standardisation, the criteria upon which accreditation is
based has come under criticism for not addressing women's distinctive
needs in an appropriate manner.
16. Leaving the politics of contestability aside
(see the NOMS and NAPO and Probation Boards Association websites),
there has already been searching examination of the potential
to use the voluntary sector (third sector) in delivering probation
functions and services. The Social Market Foundation (2006), for
instance, has been involved in identifying the potential and the
barriers to increased voluntary and community sector involvement
at both a general level, and at the prospect of probation functions
returning to their roots in the voluntary sector more specifically.
17. The Social Market Foundation's work serves
to remind us that the third sector has a long history in providing
user-focused support and services to disadvantaged client groups
and has the ability to engage with those often considered to be
hard to reach and engage. Voluntary and community services also
tend to be relatively flexible in their approach, and able to
provide personalised and tailored services as they are developed
from the bottom up to respond to their service users. However,
the Foundation's analysis and reflection suggests that where there
is too much involvement with statutory agencies there may be a
risk of these voluntary agencies losing their distinctive identify
and skill base; this may also undermine voluntary agencies' ability
to challenge those who commission services—despite their
skill base—because they are anxious not to lose out on contracts
and funding. A further challenge to increasing the voluntary and
community sectors' contribution to the provision of services is
the fact that commissioners may not fully understand how the third
sector operates. Equally, third sector providers may not understand
or be equipped to deal with monitoring and evaluation. Prescriptive
contracts may undermine the value that third sector providers
can bring through their involvement; a focus on processes and
systems rather than outcomes may limit innovation and flexibility
in delivery. How commissioning structures operate will obviously
be important in all of this.
18. These critical matters aside, there is evident
capacity within the voluntary sector already working with women
to suggest that NOMS may be able to utilise and build on the available
expertise to ensure provision which is appropriate to women's
needs. The Government should offer longer term funding to these
voluntary agencies which have the expertise and experience to
work with vulnerable women at risk of offending, or in danger
of being imprisoned because of tier offending behaviour and perceptions
of their needs. But the government should seek to do this without
being unnecessarily over-prescriptive in a way that will militate
against these organisations doing effective work with women to
keep them out of custody.
REFERENCES
Carlen, P (2002) (ed) Women and Punishment.
The Struggle for Justice. Devon: Willan Publishing.
Deakin, J and Spencer, J (2003) "women
behind bars: explanations and implications", The Howard
Journal, 42, 2, 123-36.
Gelsthorpe, L and Morris, A (2002) "Women's
imprisonment in England and Wales: A Penal Paradox", Criminal
Justice, 2,3, 277-301.
Hedderman, C (2004) "Why are more women
being sentenced to custody?" in G McIvor (ed) Women Who
Offend. London: Jessica Kingsley.
Hedderman, C and Gelsthorpe, L (1997) Understanding
the Sentencing of Women, Home Office Research Study 170. London:
Home Office.
Player, E (2005) "The reduction of women's
imprisonment in England and Wales" Punishment and Society,
7, 4, 419-439.
7 March 2007
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