WOMEN
IN PRISON
FROM EQUALITY TO EQUITY: A NEW APPROACH
The complexity surrounding women in prison can thus be encapsulated by the distinction between equality and equity. Throughout history, the struggle for women’s rights has been framed in terms of equality, for example the equal right to vote. In the context of prison however, the disproportionate impact equal treatment has on women is not accounted for.
In order to begin unravelling the complexities surrounding the imprisonment of women in Australia, this issue must thus be reframed in terms of equity. In this way, we must shift our perspective from treatment to outcome. This shift from micro to macro level thinking is the necessary first step in achieving an equitable criminal justice system.
In line with this perspective shift, four solutions, two short term and two long term are proposed.
SHORT TERM SOLUTIONS
PRE-SENTENCE REPORTS
Recent case law suggests that whether a woman in the primary carer of children is routinely not considered in pre-sentence report, and if it is considered it is given insignificant impetus when weighed against the severity of the crime. There is also often no reference to the offender having been a victim of abuse themselves and the mental health information typically covered is unhelpfully brief.Improving pre-sentence reports is thus likely to improve outcomes for women exponentially.
This could be achieved through educating legal professionals including judges and magistrates on the benefits of the aforementioned guidelines with the hope that they will become soft law. Advocating policy makers to absorb more
comprehensive guidelines into the relevant State-based Sentencing Acts would be an ideal final outcome.
STRATEGIC LITIGATION
Strategic litigation should be utilised to improve the treatment of women by the criminal justice system. With the assistance of relevant interest groups, taking cases with a clear policy outcome in mind is an achievable way of making a difference in the short term. By beginning with few, specific cases these groups can employ a mitigation strategy from the outset, as is often done in death penalty cases in the United States. This will set an example for other lawyers in the field.
LONG TERM SOLUTIONS
FURTHER RESEARCH
There are two potential courses of action here, either lobby the government to commission another report or apply for research funding to investigate some issues associated with women in prison in more detail. While another government commissioned report would be the best outcome, it is difficult for public interest groups alone to exert this kind of pressure
If relevant actors were to to conduct small scale research instead, a gendered study on whether pre-sentence reports improve sentencing outcomes as they currently exist would be a good place to begin.
EVALUATION
There has been a decent amount of research on women in prison produced by government and non-government organisations across Australia. Where research is failing in this area is in follow up evaluation and assessment. There is no government body or non-government organisation that evaluates changes that have come about following research and subsequent policy changes. Public interests groups could contribute in this area by carefully evaluating any research produced against unambiguous, dated objectives. Such groups could then work towards developing a standard guideline for evaluating research in this area that could be adapted and used by the government and other organisations.