(possibly misguided) concerns about the expense. What is clear from studies such as those by Phillips and Brown (1998) is that women feel – and, indeed, are – ‘out-of-place’ in the criminal justice system (Worrall 1981), unable to command the language and behaviour that will enable them to negotiate for themselves what passes for ‘justice’ in a male-dominated system.
On reaching court, women are more likely than men to receive conditional discharges and supervision, and less likely to receive fines and custody (Home Office 2002a). The overwhelming reasons for this apparent leniency are that women commit less serious offences and have fewer previous convictions than men. While one in three men is likely to have a conviction by the age of 40 years, this is true of only one in twelve women (Home Office 2002a). Women’s criminal careers are also much shorter than men’s, the vast majority lasting less than a year. Additionally, there has been a limited recognition in recent years of the ‘criminalisation of female poverty’ (Pantazis 1999) and women’s relative inability to pay fines. There has been a consequent reluctance on the part of sentencers to burden women with fines (Hedderman and Gelsthorpe 1997) though the result has been that some women may experience the greater intrusiveness of supervision rather than the lesser sentence of a conditional discharge.
Sentencers tend to construct men and women differently, though it is arguable that those differences are diminishing and that it is this, rather than any changes in women’s offending behaviour, that accounts for the increase in the numbers of women being sent to prison. This change has been termed the ‘backlash’ against feminist perspectives on women and crime, or the ‘search for equivalence’ (Worrall 2002). Traditionally, sentencers have allowed considerations of women’s domestic competence, sexual respectability and mental (in)stability (Eaton 1986; Allen 1987; Worrall 1990; Hedderman and Gelsthorpe 1997) to inform their decisions to a greater extent than would be the case for men (where employment and general citizenship are considered to be more relevant) (Deane 2000; Horn and Evans 2000).
Notwithstanding all of the above, Hedderman and Gelsthorpe (1997) identified two groups of women for whom these considerations appeared to play little or no part in sentencing: women who commit drugs or violent offences. Although women are less likely than men to be sent to prison for their first drugs offence, repeat offenders are equally likely to receive a custodial sentence, regardless of other factors. The pattern is reversed in the case of violent offences. First-time violent female offenders are as likely as men to be sent to prison, though this is not true for repeat offenders. One can speculate that this is because women who commit violent offences are most likely to commit one very serious offence such as either homicide (of a male partner following years of his abuse) or cruelty to a child. Those who engage in repeat but lower level violence may invite concerns about their mental stability and thus be diverted away from custody towards treatment .
Thomas (2002) is convinced that a major explanation for the increase in women’s immediate imprisonment can be found in the decline in the use of the suspended prison sentence. If he is correct (and his argument appears to make numerical sense) then one aim of the Criminal Justice Act 1991 – to reduce the prison population – has been undermined by the restrictions placed on the use of the suspended sentence by that same Act. Prior to the Act, it had become received wisdom that suspended sentences simply postponed imprisonment and had a net-widening effect. In the case of women, however, because of their low re-offending rates, its use might well have prevented imprisonment.