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Mitigating the Crime That Is the Over-Imprisonment of Women: Why Orange Should Not Be the New Black

47 Pages Posted: 2 May 2016 Last revised: 2 Jun 2016

Mirko Bagaric

Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School

Brienna Marissa Bagaric

Deakin University, Geelong, Australia - Deakin Law School

Date Written: 2016

Abstract

Most criminal acts are performed by men. Moreover, with only a hint of exaggeration, women never commit the most heinous types of offenses. Males commit the vast majority of murders and approximately one hundred percent of all rapes. Further, women re-offend less frequently and imprisoning women normally has a more harmful effect on their dependents than does incarcerating men. Women suffer more while in prison. Female inmates have higher rates of mental illness and are more likely to be sexually assaulted while in prison than men. A staggering high level of female offenders have also been the subject of child sexual abuse, making it more likely that they will commit crime. Yet we still have vast and expensive institutions, in the form of prisons, exclusively established for the sole purpose of imprisoning women. It is a categorical policy disfigurement that women in their hundreds of thousands are subjected to the oppressive sanction regime that should be reserved for criminals who commit the most serious of deprived acts. In this Article we propose a fundamental change to the manner in which women are dealt with by the criminal justice system. The default position is that no woman should be imprisoned. The number of female prisoners and prisons should be massively reduced. Most female inmates would not be imprisoned in the first place pursuant to a fair and efficient sentencing system. Many female inmates could be dealt with by less harmful and expensive sanctions, such as probation and fines. Implementation of these reforms would have no adverse impact on community safety. It will enhance the normative integrity of the criminal justice system and greatly reduce the fiscal burden of the sentencing system to the taxpayer. The fact that women behave differently when it comes to crime and gender difference in sentencing has been the subject of previous analysis. This Article adds to the literature because it proposes concrete reforms which will dramatically reduce women prison numbers. The approach in this Article is also novel because it extrapolates the normative and empirical rationales justifying less serve penalties for female offenders to male offenders, resulting in recommendations which will also considerably reduce male imprisonment numbers.

Suggested Citation

Bagaric, Mirko and Bagaric, Brienna Marissa, Mitigating the Crime That Is the Over-Imprisonment of Women: Why Orange Should Not Be the New Black (2016). Vermont Law Review (41), Forthcoming; Deakin Law School Research Paper No. 16-16. Available at SSRN: https://ssrn.com/abstract=2773341

Mirko Bagaric (Contact Author)

Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School ( email )

Hawthorn
Hawthorn
Burwood, Victoria 3000
Australia

Brienna Marissa Bagaric

Deakin University, Geelong, Australia - Deakin Law School ( email )

221 Burwood Highway
Burwood
Burwood, Victoria 3125, Victoria 3125
Australia

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