Labour’s plans to turn society into an open-air prison are tough to swallow

Prison isn’t working for women, according to Justice Secretary Shabana Mahmood. It’s not actually working for anyone, offenders, staff or society. Be that as it may, why should female offenders get out of jail free just because of their sex?

There are many good reasons for not locking up women who commit crime. They are disproportionately primary carers for children. Their crimes are predominantly non-violent, including a large number of pretty wretched women locked up after repeated acquisitive criminality to feed drug habits that are killing them. Of the 3,453 women currently in a prison, theft, fraud and drugs offences running at 55 per cent of the total population dwarves the 15 per cent in for assaults.

Their offending pathology is greatly influenced and accelerated by emotional, physical and sexual abuse by men. There are a small number of very dangerous women in custody for whom jail is the appropriate and only destination. I’ve locked them up in the past. They included people like Rose West, Myra Hindley and IRA bombers.

But these exceptions hide the rule – abused and addicted women and girls who are far better and more cheaply dealt with outside places awash with mental illness and rocketing levels of self harm. The latest statistics paint a grim picture – a 29 per cent increase in self injury in a female estate.

Some commentators have pointed out that our legislative framework precludes favouring one protected characteristic over another. Treating women more leniently than men who offend is, they say, a breach of the Equality Act. This is not absolutely correct even if it is ethically suspect.

The Act provides for discrimination in favour of one protected characteristic or another – in this case sex – if it is a proportionate means to a legitimate end. So, in this case, it could be argued that women in custody should be treated differently because they are considerably more marginalised and vulnerable as a group by the experience of imprisonment. And it’s not just they who suffer.

Research for the parliamentary joint committee on human rights suggests that 95 per cent of children dependent on women who go to prison have to leave the family home. This emotional dislocation and distress of a parent in prison increases the chances of the children involved offending in later life. Inter-generational criminality is one of the drivers of prisons full to bust today where we can’t reduce the dangerousness of truly harmful people because our penal system is overwhelmed by men and women serving short sentences for non violent crimes who leave better enabled to make more victims than they did on the way in.

Prison may not work for women but any solution must be one where the public have trust that personal responsibility for criminal behaviour will continue to be a feature of a justice response. Punishment must not be allowed to become a dirty word, but punishment without purpose that drives women to suicide and their children into crime is not the ethical benchmark we should be aiming for.

Just over a fifth of released women will reoffend so community solutions must be found that will deliver punishment, restitution and rehabilitation. Perhaps the greatest urgency is around breaking the cycle of criminality gifted from mother to children. So, where a family is a significant factor – either protective or predictive of further offending, the establishment of women’s centres looks like an innovative way of improving parenting.

In other cases it’s clear that offending is motivated by physical addiction. We must not regard the shoplifting that drives this dismal existence as a victimless crime. But surely we should be able to have some form of compulsory detention in NHS facilities for treatment rather than incarceration in brutalising jails.

Finally, releasing women from many prisons that were only ever crudely repurposed male facilities would allow an alternative to the increasingly flawed and risky mass early release of male adult offenders. The kit and the staff exist already. It’s an easy conference win for the Lord Chancellor to decarcerate women. It’s much harder to explain to the public at large and female victims in particular why a threadbare early release safety net allowed their abusers a free shot. Women and children first, in each circumstance.