PhD Blog: The Disproportionate Increase of Female Prisoners within a Penal System Structured on Proportional Punishment

IMAG0937_c3The second submission in our PhD Blog series is  by Sharon Walker.

Sharon is in her fourth year of her PhD at the National University of Ireland Galway. Today she is writing about her PhD subject, which focuses upon the increasing number of females in the Irish criminal justice system.

If you are interested in hearing more from Sharon about her interesting research, you can email her  s.walker3@nuigalway.ie or follow her on  twitter@sharonjanie.

The Disproportionate Increase of Female Prisoners within a Penal System Structured on Proportional Punishment

The Irish criminal justice system is conflicted with the irony of a disproportionate growth within a jurisdiction which bases its sentencing practices on the principle of proportionality.  Whilst the number of female prisoners remains a minority within the entire prison population, the exponential growth of female offenders being committed under sentence is alarming.  Irish Prison Service statistics show that the proportion of female offenders sentenced to committal in 2007 was one to every twelve male offenders, rising to one in four by 2014[1].  Although sentencing in Ireland remains unstructured by formal guidelines, ‘proportional punishment’ is measured by the gravity of the offence committed and the particular circumstances of the offender.

This research began with investigating whether a change in female offence types and offender demographics were responsible for the enhanced punishment.  Improved crime data and recording techniques[2] showed that this was not the case. Committals have grown, despite offending remaining predominantly non-violent and acquisitive[3].  The research focus then shifted to examine the sentencing practices employed by the sentencers.    Was this the result of an attitudinal change, where judges were adopting a harsher stance within their wide discretion?

The difficulty with testing this particular hypothesis stems from the type of crime traditionally committed by the female offender.  Females generally commit lower level crime than their male counterparts and cases are often dealt with summarily.  This means that the majority of cases are heard in the District Court, where ‘conveyor-belt’ style proceedings makes decision analysis difficult.  Recent studies have used random sampling techniques[4] or judicial interviews using vignette studies[5] to gain insight into judicial attitudes. These appear to show that judges have not altered their sentencing practices but rather tend to adhere to their own ‘rule of thumb’.  While slight judicial variation has been detected in different District Court locations, for example between urban and rural locations[6], any wild fluctuation in sentencing practices would attract media attention and appeals would increase.  District Court proceedings might be hurried and noisy, but they are still public and subject to scrutiny.

Committal rates can be disguised behind very short term prison sentences combined with the use of full temporary release.  This has a deceptive effect on daily prison population statistics[7].  Closer inspection reveals a high turnover of both new and recidivist offenders. Where less crisis is felt at the front line by staff and inmates in relation to over-crowding issues, the growing problem requiring attention at policy level may be shelved in favour of ‘louder’ complaints.

Most females who are committed to prison are not sent directly from the District Court dock to the prison.  Instead, the majority of committals are the result of non-payment of a court-ordered fine.  The irony of a custodial sentence resulting from fine default is that the judge will have considered the original offence to be not serious enough to come within the custodial ambit in the first place.

Should the judge decide that the offence does fall within the custodial sphere, the provisions of the Criminal Justice (Community Service) Act 2011 are designed to compel the judge to reconsider a sentence of twelve months or less and to check for the suitability of a Community Service Order (CSO).  However, given that the majority of offences committed by Irish women do not even warrant a prison sentence of more than three months, the legislation in fact only serves to protect a minority of female offenders whose crimes are more serious.

Where the crime is considered serious enough, the judge will usually assess the suitability of the offender for a CSO or refer the matter to the Probation Service for evaluation.  If the assessment is positive, the offender must then consent to the alternative.  The corresponding jail sentence in lieu of community service has been shown to have forceful ‘punitive bite’ in an attempt to minimise risk.  This could lead to up-tariffing, placing the offender higher on the penal scale should she consent and subsequently breach[8].  Studies have shown that the typical female offender is more likely to suffer with addiction, poverty or abusive backgrounds than her male counterpart [9].  Where the matter is handed over to the Probation Service for assessment, the female offender might be considered ‘unsuitable’ for community service, especially if her profile is plagued with such vulnerabilities.  The female offender might even acquiesce in this opinion.  Where she is living a chaotic lifestyle, a short term prison sentence might appear to offer respite.

Whilst the female offender rarely commits the type of serious offence that requires incarceration for public safety, more are finding themselves with prison records than ever before.  The rate of recidivism has been shown to be higher after custodial punishment and further offending will have harsher consequences.  Increased focus on prevention should target unnecessary prosecutions and more proactive diversions from custody.  The cyclical nature of women’s offending and its multi-generational impact is obvious.  The growth of female offenders within the penal system is obscured.

Bibliography

Corston BJ, The Corston Report: A Report of a Review of Women with Particular Vulnerabilities in the Criminal Justice System (Home Office 2007)

O’Nolan C, The Irish District Court: A Social Portrait (Cork University Press 2013)

Maguire N, ‘Consistency in Sentencing’ 2 Judicial Studies Institute Journal 14-54

O’Hara K and Rogan M, ‘Examining the Use of Community Service Orders as Alternatives to Short Prison Sentences in Ireland’ 12 Irish Probation Journal 22- 45

Annual Report Irish Prison Service (2007)

Annual Report Irish Prison Service (2014)

2016 JPS-IPSS-, An Effective Response to Women Who Offend (2014)

 [1] Annual Report Irish Prison Service (2007) & Annual Report Irish Prison Service (2014): All committals, including fine defaults.  The percentage of female committals for fine defaults more than doubled from 12% to 26% of the total from 2007 to 2014.

[2] The introduction of the Irish Crime Classification System by the Central Statistics Office in 2008 improved the recording of crime statistics and facilitates comparative research within the criminal justice system.

[3] Joint Probation Service – Irish Prison Service Strategy 2014 – 2016, An Effective Response to Women Who Offend (2014)

[4] Caroline O’Nolan, The Irish District Court: A Social Portrait (Cork University Press 2013)

[5] Niamh Maguire, Consistency in Sentencing’ 2 Judicial Studies Institute Journal 14-54

[6] Kate O’Hara and Mary Rogan, Examining the Use of Community Service Orders as Alternatives to Short Prison Sentences in Ireland’ 12 Irish Probation Journal 22- 45 at p25

[7] The number of committals to prison for both male and females as a consequence of the non-payment of a court-ordered fine has been increasing (8,121 in 2013 – 8,979 in 2014 – 9,892 in 2015), but the Strategic Review of Penal Policy report noted that the number of persons in prison on any given day for the non-payment of fine is low: ‘on 30 November 2013, of the 4,099 persons in custody, only 8 were committed for the non-payment of a fine’.  Final Report July 2014

[8] O’Hara and Rogan, Examining the Use of Community Service Orders as Alternatives to Short Prison Sentences in Ireland at p41

[9] Baroness Jean Corston, The Corston Report: A Report of a Review of Women with Particular Vulnerabilities in the Criminal Justice System (Home Office 2007)

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2 thoughts on “PhD Blog: The Disproportionate Increase of Female Prisoners within a Penal System Structured on Proportional Punishment

  1. Sinead O'Malley, MA (@smomalley) says:

    Very interesting and a good solid piece…. I was recently told by a prison Governor that women are not now sent to prison on her first ‘unpaid fine’ charge – but on her second she will receive a custodial sentence. I wonder will this shift in practice alter these findings or is it that more are women are now receiving fines? Great work here and very important. well done.

    Like

  2. sharonjanewalker says:

    Thanks for your comment Sinead! Just to clarify a bit- this isn’t so much a shift in sentencing practice, but rather legislative development:
    The Fines Act (2014) only commenced in January of 2016 so we’ve yet to see official figures, but hopefully the installment mechanism it provides for will show significantly reduced committal stats. Before the installment mechanism, when a judge imposed a fine the offender was given a date by which the fine must be paid. At the same time, the judge signed a warrant for arrest and imprisonment should default occur. The warrant was executed if the offender failed to pay the fine by that date. The matter did not go back to court and prison could result for up to 90 days. Automatic committal. However, this did not necessarily mean that they spent any length of time in custody. In 2013, 8,121 people were committed to prison for non-payment of court ordered fine and in 2014, this number was 8,979. Of this number, 2,334 were female while 6,645 were male. A total of 22 male and 1 female were actually committed to prison. Due to the issue of overcrowding in prisons, a practice of immediate release on committal emerged.
    As the 2015 Irish Prison Service Annual Report has not been published, unofficial statistics indicate there were 17,420 committals to prison in 2015 and 9,800 involved offenders jailed because they had failed to pay fines imposed on conviction for a variety of offences. Since the 2014 Act was finally put into operation in January 2016, it is hoped there will be a change in trend as offenders can pay fines in installments over 12 months (providing the fine exceeds €100). An attachment to earnings mechanism can be used to take installments from people at source, although social welfare payments cannot be attached at present. The reason for the ‘at present’ proviso is because of the situation in England & Wales.
    In England & Wales, where an offender is fined the magistrate makes a ‘collection order’ containing details of how the fine should be paid. The notice of fine and payment rate is sent to the offender and if they agree, an attachment of earnings order or deduction from benefits order can be made immediately. If the offender does not agree they can appeal the matter to the fines officer and this will lead to a further hearing with the magistrate. If payments remain unpaid, the court can order weekly deductions of £5 to be taken from benefits to pay the fine. I’m sure this would not be a welcome development in this jurisdiction.
    In Ireland, women remain over-represented in this group and account for 1 in 4 fine committals. The Irish Penal Reform Trust deputy director Fiona Ni Chinneide was reported (by Conor Lally, Irish Times March 21 2016) as cautioning that a ‘habit’ had developed where some people convicted in courts did not pay fines, knowing they would be cleared by spending just a few hours in jail. If the number of committals to prison for this brief period could be reduced, it would free up resources. The IRPT also wants the minimum fine installment eligibility of €100 to be removed and urge that more consideration should be given at sentencing to Part II, s5 of the Fines Act concerning capacity to pay.

    So in short, the Fines Act is now allowing for installments instead of automatic committals. Committals (as distinct from custody) continue to increase year on year. Let’s hope we see a reduction of use of the committal procedure for all fine defaulters!

    This is a fairly recent development so if anyone has any comments to add or can clarify further, please do!

    Like

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