It is plain that across the board there is a desire for change in relation to women and criminal justice. Many examples exists of wonderful, creative, worthwhile and even evidently successful projects in relation to diverting women away from custody and improving conditions for women who lose their liberty. Research related to women and criminal justice is ongoing from a range of respected and vociferous advocates such as Women’s Breakout, The Prison Reform Trust, Women in Prison and Halsbury’s Law Exchange to name but a few – many working together to effect change. There is no doubt that evidence and recommendations from each of these respected bodies – and more alongside them – will call for real change, offering genuine educated and reasonable arguments for doing so. However arguably (at least for now), the real “power” lies with the Courts, ergo it is the Courts who need to be at the vanguard of change.
Hedderman (2012) stated that knowledge of the excellent community resources and indeed knowledge of the futility and ineffectiveness of custodial sentences for women was still not enough to stop magistrates from continuing to send women to prison for non-serious offences. Magistrates sentence 4/5 women in the criminal justice system so it is primarily the magistrates who can and should be addressed. Hedderman suggested changes in practice in relation to restricting powers of magistrates in specific ways and in response to specific offences.
Furthermore I would suggest that magistrates are not “encouraged” to change in relation to sentencing practice – but required to change. Sentencers must adopt the approach of sentencing women to custody only when the offence is “so serious” as to warrant it – and in the case of mothers and carers – passing a custodial sentence only following, and more importantly, only after demonstrating the “balancing exercise” has been completed. Until this becomes commonplace the female prison population will remain essentially unchanged.
There is no doubt that drive and willingness to embrace change for women and criminal justice exists in the UK, but perhaps one of the blocks to universal change to date has been a lack of consistent coordinated communication between agencies surrounding the issue and with the courts.
There are examples of excellence in relation to resources designed to divert women away from custody, or to support them via community channels, but no singular approach based on standard of framework exists which would facilitate successful monitoring and accountability. I would respectfully suggest that the framework for facilitating this support does exist and there is a need for these to be more effectively and consistently utilised. Proposals detailing referring to the frameworks, together with realistic proposals for change will be discussed in a forthcoming paper by Baldwin and Mezhoughi – and in the concluding chapter of the author’s forthcoming text: I would suggest the Courts are a logical place to provide at least a starting point for change, as said change would be more likely to have an immediate effect.
Michael Matheson, the Scottish Justice Minister, spoke rather sensibly at the 2015 Scottish Centre for Crime and Justice Research (SCCJR) Women and Criminal Justice Symposium, calling for a “whole system” approach to change. Matheson has already demonstrated his commitment to progressive and informed change by halting plans to build a large women’s prison in Scotland, and instead stating his intent to focus on smaller, more effective alternatives to custody – such as the Glasgow 218 Project. Obviously this has to be part of a wider initiative/agenda to address inequality and social justice across the board, but the intention is clear – change is beginning to take shape in Scotland and the rest of the UK must surely follow.
In relation specifically to mothers at risk of custody Reed (2014) in her paper “Orphans of Justice” goes further than most have to date and makes sensible, rational and well-thought-out suggestions as to how the court might be informed of the needs of dependent children. I share her view that there might be a role for a Guardian ad litem to inform the court how a custodial sentence might impact on children of imprisoned mothers. Furthermore I am in agreement that this ought to be a routine feature of sentencing in that there needs to be a system in place that will facilitate previously discussed monitoring and accountability.
More on the how
Historically, probation officers have through time been required to respond to specific indicators at the point of pre-sentence reports. For example, when a crime was deemed to be related to race, hate, drugs or serious sexual offences, certain responses have been required of the probation officer. The response may have been referral to an experienced officer to complete the report, or referral to a specialist team to assist. There are specific directives and procedures to follow, ergo directives can be given in response to need which then allow an “audit trail” facilitating monitoring and accountability. It would seem pertinent therefore that this is something that could be repeated for – and in particular – mothers with dependent children. (Or indeed more broadly any defendant who is a lone carer; or if commitment is being made to reduce the number of women in prison, then it could be repeated for all women.)
Returning the focus, at least for now to mothers, I am proposing at the point of requesting a pre-sentence report (PSR) ( which would be mandatory in the case of mothers of dependent children), a referral could be made to a Guardian ad litem by the probation officer with a view to securing an independent report. This would then be used to inform the court, much in the same way a psychiatric report would, thereby assisting the sentencer in undertaking the balancing exercise. For this I would suggest a standard 4-week period of adjournment to facilitate report and information gathering.
Granted, this would delay proceedings and there could be some resistance on this basis. However, the delay and the assessment would facilitate proper investigation into what arrangements or referrals might need to be made for the children, and at the same time provide valuable evidence to assist the sentencer in making a truly informed – and more importantly balanced – sentencing decision. The delay would also allow the probation officer/PSR writer time to establish and consider alternatives to custody and conditions for a community order should the sentencer eventually be minded to consider a non-custodial option (obviously after establishing also that the offence was “so serious” as to warrant custody in the first instance). This process could easily be built into magistrates’ training and would be subject to monitoring with measures of accountability.
Additional weight to support this argument is to be found in the known facts that many women who are sentenced to custody had not expected to receive a custodial sentence – or indeed may have even been advised this was unlikely. Such women have often left children temporarily in the care of a neighbour or relative and not prepared the children in any way for their absence (Pryce 2013). One doesn’t have to try too hard to imagine the impact of such an event on young children. Therefore it is suggested that any delay in proceedings, even if a custodial sentence is warranted, would surely be for the greater good of all parties involved: especially the children.
A logical consequence of this methodology would be a reduction in the number of women entering custody, and given that over 66% of women in custody are mothers it would thereby reduce the number of mothers entering custody significantly, which in turn would return the benefits financially, emotionally, psychologically for the women, for their children and for society.
This article is part 2 of 3 in our Mothers Confined series, by Lucy Baldwin.
Go to article 1: Over the threshold?
Go to article 3: Lead by example: transforming rehabilitation