Elaine Player

The reduction of women’s imprisonment in England and Wales: Will the reform of short prison sentences help?

The Government published a separate strategy for women offenders and established the Women’s Offending Reduction Programme to co-ordinate cross-government initiatives that target women’s offending and the criminogenic factors that underpin it. In order for preventive strategies to be taken forward the reduction of women’s imprisonment has been identified as a priority. Yet the Government has presided over a period of unprecedented growth in the female prison population and its criminal justice policies convey contradictory messages about the use of custody for women. The future capacity of the female estate has been expanded by the commissioning of two new women’s prisons and the sentencing reforms contained in the Criminal Justice Act 2003 fail to apply a brake on the courts’ increasing use of imprisonment. This article examines the ways in which the new legislation fails the test of ‘joined-up’ government by undermining its own strategy for female offenders and exposing larger numbers of women to the risk of imprisonment.

Rehabilitation, risk management and prisoners’ rights

The expansion of prison treatment programmes for personality disordered offenders as part of the ‘Rehabilitation Revolution’ in England and Wales raises significant questions about the ways in which inherent concepts of risks, rights and rehabilitation are selectively perceived and employed. Current policy supports rehabilitative opportunities that address the risks offenders pose to the public, yet remains inattentive to the risk of harm that rehabilitative programmes can pose to offenders. Examination of the risk of personal harm intrinsic to one rehabilitative intervention for personality disordered prisoners – the democratic therapeutic community – illustrates how the selective acknowledgement of human rights in contemporary penal policy, whereby prisoners’ rights are routinely tied to a status of less eligibility, has important consequences that both undermine the integrity of programme delivery and seriously jeopardize the positive duties that are inherent in the duty of care owed to prisoners by the State.

Remanding Women in Custody: Concerns for Human Rights

Concern about the increasing population of women in prison has tended to focus on the sentencing of female offenders. It is often overlooked that about one in five women held in custody is there on remand, awaiting trial or sentence, and that most of them will not receive a prison sentence at the end of the process. This article examines the legal grounds for a custodial remand and explores the extent to which individual rights guaranteed under the European Convention are adequately protected. It is argued that women are particularly disadvantaged by the laws governing bail and by their practical application in the criminal justice system; and that the pre-trial detention of so many women routinely violates the spirit of the Convention by allowing questionable claims to social utility to prevail over the right to liberty and to a fair trial.

Women in the criminal justice system: The triumph of inertia

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.

The offender personality disorder pathway and its implications for women prisoners in England and Wales

This article examines how the Offender Personality Disorder Pathway has been tailored to deliver services to a relatively wide population of women prisoners, despite the fact that few of them meet the dangerousness criteria that determine access for men. Although women in custody have a well-established claim to resources that address their mental health needs, there are legitimate concerns about programmes that foster individualised and ‘pathologised’ understandings of female offenders. These are particularly problematic in the contemporary rehabilitative climate which functions in a state of legal and ethical uncertainty about the duty of care owed to those who participate in the programmes. The article calls for a broader understanding of the political and cultural circumstances in which the Offender Personality Disorder Pathway for Women operates and an awareness of the consequences that derive from the coercive environment of the prison, the ideological dominance of risk management and the minority status of women in the criminal justice system.