Women almost never scare us; commit random acts of serious violence; violate our sexual integrity; or form organised crime networks and yet their prisons numbers are now the highest in recorded history.
The homogeneity of the human species breaks down when it comes to criminal behaviour. Women, who constitute slightly more than 50% of population, commit only about 20% of all crime. They commit even a lower portion of all serious crime.
Hillary Clinton is right to assert that the sentencing system should be reformed to reduce the growing number of female prisoners but the changes should go much further than has been suggested. We should implement concrete targets to remove the stains on our landscape and societal ethic that are women’s prisons.
There are remarkably similar patterns of female offending and incarceration in the United States and Australia. In the United States women commit only 17% of felonies, while in Australia they commit about 13% of the crimes dealt with in the higher courts.
Moreover, when it comes to sexual offences, rounded off to the nearest whole number, women constitute 0% of all offenders – that’s right, zero. The crimes they most commonly commit are drug and property offences. Thus, in the US, approximately 30% of female prisoners are incarcerated for property offences, and a further 26% for drug offences. The percentages for these offences are 26% and 17%, respectively, in Australia.
Women do of course commit homicide offences, but nearly always the victim is a relative and the crime was committed against the backdrop of an abusive relationship or depressive mindset. All homicides are heinous crimes but the types of homicides committed by women rarely involve random victims and hence do not engender community fear.
Despite this, the rate of female incarceration in both the United States and Australia is on the increase – far outstripping the increase in male incarceration levels. Women now comprise 8% of prisoners in the United States and Australia, which amounts to more than 200,000 incarcerated inmates in the US and 3,000 in Australia.
Nearly every one of these incarcerated women is the victim of a perverse and lazy policy disfigurement that fails to acknowledge the marked differences between female and male offenders. The differences are so stark that not only should women be treated more leniently because they commit less serious crime but they should also be treated more leniently when they commit the same crime as a man.
There are four major differences between male and female offenders.
First, women are much less likely to reoffend than men. Their recidivism levels are at least 10% lower in both the US and Australia.
Second, when women are imprisoned they suffer more. They have higher rates of mental illness, making it more difficult for them to adapt to and cope with the prison setting. And US studies show that when in prison they are three times more likely to be victims of sexual abuse than male prisoners.
Third, society suffers more when we remove a female from it and place her behind a prison wall. More than 50% of incarcerated women are single parents and even in two-parent households, female prisoners typically assume the main child nurturing role. In relation to non-parental dependency, the majority of carers (60%) are females.
Finally, women are often less culpable when they commit crime. There is a profoundly devastating link between child sexual and violent victimisation and female offending. US studies show that 23% to 37% of female prisoners reported that they had been physically or sexually abused prior to the age of 18. The rate is even higher in Australia. Incarcerating females is often simply a lamentable case of victimising the victimised.
The sentencing system should be reformed radically to deal more fairly with female offending. The starting position is that no female offender should be imprisoned. In relation to most forms of crime, they should be dealt with by way of intermediate sanctions including the greater use of electronic monitoring.
In the rare instances that women commit heinous crimes, community protection and the need to impose proportionate penalties requires a prison term but this should be the exception, not the increasing norm. The exception is so rare that the utopia of closing prisons would readily become a reality.
Implementing these changes will not prejudice male offenders. In fact, it is likely that the opposite will occur. It will encourage a normatively sound and empirically grounded assessment of sentencing law and policy. This would result in a bifurcated sentencing system, whereby imprisonment was largely reserved for only serious sexual and violent offenders. This approach would greatly benefit the approximately 50% of male US and Australian inmates who are imprisoned for other types of crimes, such as drug and property offences.
The approach would save the community billions of dollars annually and go a long way to correcting the unfathomable public policy misstep which has resulted in 10 American states spending more on prisons than higher education. Best of all, it would not cause the slightest reduction to community safety.
Professor Mirko Bagaric, is the Director of the Centre for Evidence-Based Sentencing at Deakin University, Melbourne. This is a summary of his article Mitigating the Crime that is the Over-Imprisonment of Women: Why Orange Should Not Be the New Black which will be published in a forthcoming edition of the Vermont Law Review.