Research surrounding the imprisonment of women, indeed even the imprisonment of mothers, is not new. A plethora of researchers and scholars have explored the issues surrounding women and criminal justice with passion and tenacity, arguably all of whom have contributed to the evidence-laden pathway culminating in the inspirational and influential 2006 Corston Report.
The Report – and latterly the 2011 review – consolidated, expanded, discussed and showcased excellent research by eminent, skilled, respected and dedicated researchers, and conclude with a set of recommendations that few have ever questioned as anything other than appropriate or required – even essential – for the improvement in the way women experience the criminal justice system.
Consistently, research surrounding the imprisonment of women in particular, has argued that for the majority, prison is not the most appropriate nor indeed the most successful outcome in terms of the individual, wider family, society and especially the children of mothers incarcerated. We know the cost is vast emotionally, psychologically and financially. Yet despite this consistent, educated (and for the most part, accepted) view that prison is not effective in the rehabilitation of women, a rise in the female prison population has ran parallel to this.
Since 1995 the female prison population has doubled. In 1995 6,000 children were affected annually by maternal imprisonment. In 2014 The Prison Reform Trust suggested this figure is now closer to 20,000 children a year. Surely a damning and shocking statistic? More so when we know from research that children affected by parental imprisonment are more likely to suffer emotional and educational disturbance, are at a significant risk of entering the care system and indeed more likely to go on, not only to become victims of crime but to follow offending behaviour pathways.
Why do Sentencers continue to send so many mothers to prison?
Aside from the impact of well-researched potential influencing factors on sentence such as class-, race- and gender-related differentials, Rona Epstein’s 2010 research “Mothers in Prison” suggests this is at least in part due to the fact that Sentencers are “failing” to undertake the “balancing” exercise which the Human Rights Act 1998 in conjunction with the European Convention requires courts to undertake. Article 8 provides that:
- Everyone has the right to respect for their private and family life, home and correspondence.
- There shall be no interference by a public authority with the excise of this right except such as in accordance with the law and is necessary in a democratic society….
Obviously when a court sentences a mother with dependent children, Article 8 rights of the child become engaged as imprisonment, by definition, forcibly separates the mother and child, depriving the child of parental care. Following a case involving two young mothers in 2001 Lord Phillips, then-Master of the Rolls, made it clear that precedent was set and stated:
‘’It goes without saying that since 2nd October 2000 sentencing courts have been public authorities’ within the meaning of section 6 of the Human Rights Act. If the passing of a custodial sentence involves the separation of a mother from her very young child (or, indeed, from any of her children) the sentencing court is bound…to carry out the balancing exercise…before deciding that the seriousness of the offence justifies the separation of mother and child. If the court does not have sufficient information about the likely consequences of the compulsory separation, it must, in compliance with its obligations under section 6(1) ask for more …’’
Accordingly, Sentencers must;
- Acquire information about dependent children: and
- Balance the Article 8 rights of the child against the seriousness of the mother’s offence.
It is not that Sentencers ignore the presence of dependants completely, indeed the Sentencing Council regards sole or primary care for dependant relatives “as something that ought to be given mitigating consideration.” However, mitigation in relation to the offender is very different to real consideration of the welfare of dependent children, or a consideration of the devastating long and short term implication of the incarceration of mothers.
Judicial discretion means that judges can and (as Epstein (2012) and Minson (2014) found) do choose to ignore direction to undertake the balancing exercise. Epstein in her research found that in 75 cases there was “no evidence of any specific consideration of the Article 8 rights of the child,’’ and that reference to the welfare of any dependent children was at best inconsistent. Minson found that in some of the cases she discussed in her study judges did consider the children and did reduce the sentence – however the point is that disruption and damage occurs with a sentence of any length, and the ideal outcome would not be shorter custodial sentences, but fewer. Many women are sentenced to very short stretches in prison or even short periods on remand – 2-6 weeks is commonplace – only to then receive a community order at sentencing. The sad reality by this point is that many women may have lost their homes and their children been taken into care. What motivation is there then to avoid re offending? What irreversible damage has occurred?
Worryingly, the present Government’s quiet determination to at best reduce the influence of the Human Rights Act is likely to result in a worsening of this situation – unless that is there is an acceptance and an acknowledgement that prison is not effective, indeed for most. Particularly in relation to women and especially mothers, prison is not just ineffective but catastrophically damaging for women themselves, for their children and for society as a whole in the long run.
Over the threshold?
Perhaps it could be argued a further significant factor in relation to sentencing women, as supported by Hedderman & Gundy, is the fact that despite insisting there is a mindfulness of imposing a custodial sentence only when an offence is “so serious” as to warrant it – in reality 85% of women in prison are incarcerated for non-violent offences. If women were only imprisoned for offences that are “so serious” how can it be that women have been imprisoned for such offences as in the case of Ursula Nevin: for accepting one pair of stolen shorts; or more recently the case of Syndi Baker: a pregnant mother who also had a 10 month old baby – her crime? Writing love letters, albeit from a position of trust, but for writing love letters and nothing more. An example foremost in my mind, a women I spoke with last week who had been remanded for three weeks, and regarded as “punished sufficiently” at sentence and so fined for her crime of shoplifting and released, in meantime separated from her three young children.
Who, if anyone at all, benefits from prison sentence of this type? Does the punishment/use of custody really fit the crime? Not only is the answer to this question mostly “no” (given that most women in prison are serving time for non-violent offences), it also invites questions such as: what is punishment, how do we define it? Is it only and at its best custody? What is the purpose of punishment? In whose interests is “punishment” in the form of custodial sentences meted out?
This article is part 1 of 3 in our Mothers Confined series, by Lucy Baldwin.
Go to article 2: Time for action
Go to article 3: Lead by example: transforming rehabilitation