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Week 11
Critical thinking

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Gendered Nature of sentencing

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Gendered nature of sentencing

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Abstract

Background

There are no population statistics collected on a routine basis on the children of prisoners in Australia. Accordingly, their potential vulnerability to adverse outcomes remains unclear. This study draws on linked administrative data to describe the exposure of children aged less than 2 years to maternal imprisonment in Western Australia, their contact with child protection services, and infant mortality rates.

Results

In Western Australia, 36.5 per 1000 Indigenous ( n = 804) and 1.3 per 1000 non-Indigenous ( n = 395) children born between 2001 and 2011 had mothers imprisoned after birth to age 2 years. One-third of infants' mothers had multiple imprisonments (maximum of 11). Nearly half (46%) of prison stays were for ≤2 weeks, 12% were between 2 and 4 weeks, 14% were for 1-3 months, and 28% were longer than three months. Additionally, 17.4 per 1000 Indigenous ( n = 383) and 0.5 per 1000 non-Indigenous ( n = 150) children had mothers imprisoned during pregnancy. Half of the children with a history of maternal incarceration in pregnancy to age 2 years came into contact with child protection services by their second birthday, with 31% of Indigenous and 35% of non-Indigenous children entering out-of-home care. Rates of placement in care were significantly higher for Indigenous children (Relative Risk (RR) 27.30; 95%CI 19.19 to 38.84; p < .001) and for non-Indigenous children (RR 110.10; 95%CI 61.70 to 196.49; p < .001) with a history of maternal imprisonment compared to children of mothers with no corrections record. Infant mortality for children whose mothers were imprisoned up to 5 years before birth or within their first year after birth was higher than for children of mothers with no corrections record for both Indigenous (RR 2.36; 95%CI 1.41 to 3.95; p = .001) and non-Indigenous children (RR 2.28; 95%CI 0.75 to 6.97; p = .147).

Conclusions

This study highlights the particular vulnerability of children whose mothers have been incarcerated and the importance of considering their needs within corrective services policies and procedures. Prison may present an opportunity to identify and work with vulnerable families to help improve outcomes for children as well as mothers.

Background

Children of prisoners are highly vulnerable. Prisoners experience elevated rates of adversity including mental illness, domestic violence, substance use disorders, poverty, homelessness, racism and discrimination (Abbott, Magin, & Hu, ; Department of Corrective Services, ; Friestad, Ase-Bente, & Kjelsberg, ). These adverse experiences within a family environment are known to increase the risk of poor outcomes for children, particularly in the early years of infancy (Brown, Anda, Tiemeier, Felitti, Edwards, Croft, & Giles, ). Studies have found children with incarcerated parents experience a range of issues such as poor developmental outcomes, behavioural problems, educational difficulties, and increased mortality (Aaron, & Dallaire, ; Byrne, Goshin, & Joestl, ; Dallaire, Zeman, & Thrash, ; Rud, Van Klaveren, Groot, & Maassen van den Brink, ; Wildeman, Andersen, Lee, & Karlson, ). Much of the literature on children of prisoners has been conducted within the United States, United Kingdom and Europe (Murray, Bijleveld, Farrington, & Loeber, ). There is comparatively less known about the experience of children in other countries, including Australia. There is also relatively little evidence available on children of prisoners at a population level.

Within Australia, and beyond, there is no routine reporting of the prevalence of children affected by parental incarceration, nor their health or welfare (Dennison, Stewart, & Freiberg, ). Infant mortality is the most significant adverse outcome that can be experienced and is a strong marker of disadvantage and represents a measure of the health of a population (Reidpath, & Allotey, ). There is a lack of information on infant mortality outcomes for women prisoners, as distinct from imprisoned fathers, due to their relatively smaller numbers (Wildeman, ).

Child protection system contact is also an important measure of child welfare. Children with a history of placement in out-of-home care are at increased risk for a range of ongoing difficulties including mental illness, behavioural problems and poor school performance (Maclean, Taylor, & O'Donnell, ; Osborn, Delfabbro, & Barber, ). In addition, information on the characteristics of children's exposure to parental incarceration is not readily available. There is no reporting on such characteristics as the duration and frequency of parental prison stays, or on the classification of parental offences. This information is important for establishing the health status and service needs of children of prisoners, and to inform future research priorities.

In the absence of formal population surveillance, data linkage provides a means for accurately describing the prevalence and characteristics of children of prisoners. Data linkage connects information relating to individuals within defined populations across multiple collections of data which are routinely recorded by government services and departments for primarily administrative purposes, such as hospital admission data or records of births, deaths and marriages (Holman, Bass, Rouse, & Hobbs, ). Data linkage can provide retrospective coverage of entire populations of interest, while maintaining the confidentiality of individuals, making it highly suitable for investigating marginalised groups such as the prisoner population, and rare outcomes such as infant mortality.

This study draws on linked data to provide key descriptive statistics for the population of infant children of women prisoners in Western Australia. Infants are a priority population given their vulnerability and unique developmental considerations. Infants have an absolute reliance on caregivers for their basic needs, lack communication skills, and have less structured contact with community services, such as schooling, where at-risk individuals may be identified. Experiences of adversity during pregnancy and infancy have significant and long-term consequences for child health and development. Exposure of the fetus during pregnancy or of the infant after birth to factors such as poor nutrition and maternal alcohol and drug abuse, domestic violence, and maternal stress has been shown to result in poor health outcomes including low birth weight, infant mortality and developmental delay (McMillen & Robinson 2005; Heindel, & Vandenberg, ; Latendresse et al., ). Women prisoners have increased risk of poor pregnancy outcomes including low birth weight infants when compared to women in the general community, as well an increased risk of disrupted attachment with their infants (Knight, & Plugge, ; Poehlmann, ). Despite their vulnerability, it is not known with any certainty how many Australian children experience the imprisonment of their mother in pregnancy or infancy, or the degree to which infants with a history of maternal imprisonment experience higher rates of mortality or child protection contact than infants in the general community.

There are also limited data on the infant children of Australian Indigenous women prisoners, despite their overrepresentation in the prison population. In Western Australia, for example, Indigenous peoples represent 4% of the general population but 46% of the female prison population (Australian Bureau of Statistics (ABS), ; ABS, ). Indigenous children are also overrepresented in the Australian child protection system. Similarly, Indigenous peoples in Australia experience poorer pregnancy outcomes compared with non-Indigenous mothers, and while infant mortality rates have improved across time for both Indigenous and non-Indigenous populations, a racial disparity remains (Council of Australian Governments (COAG) ). This reflects the high levels of disadvantage and discrimination experienced by Indigenous peoples in Australia stemming from the historical and continuing impacts of colonisation, such as land dispossession, racism, and the forced removal of children from their families (COAG, ).

Accordingly this study will provide a description of the population of infant children of Western Australian women prisoners including details of the characteristics of exposure of infant children (aged less than 2 years) to maternal imprisonment, as well as measuring child protection system contact and infant mortality rates for the population.

Methods

Aims

This study draws on whole-population linked administrative data to examine maternal incarceration exposure, child protection system contact, and mortality rates for infant children of Western Australian women prisoners.

Aim 1: To describe the features of maternal incarceration exposure including the proportion of women prisoners who are pregnant; the prevalence of children exposed to maternal incarceration between birth and before age-2; and offence type and length and frequency of maternal imprisonments for children between birth and before age-2.

Aim 2: To describe contact with the child protection system before 2 years of age for children whose mothers have a record of imprisonment during pregnancy or before the child's second birthday and for children whose mothers have no corrections record.

Aim 3: To determine infant mortality rates for children of women with a history of imprisonment 5 years before birth or within their first year after birth and for children whose mother had no contact with corrective services.

Data sources

Data were obtained through the Western Australian Data Linkage System (WADLS). The WADLS uses highly accurate computerised probabilistic matching with clerical review to create linkages between administrative data collections across a range of Western Australian government departments and services (Holman et al., ). For the present study, records were extracted from the Midwives Notifications System, Birth Registrations, Death Registrations, Department of Justice, and Department of Communities: Child Protection and Family Support data collections. These are all State-wide and statutory data collections with good coverage of the Western Australian population.

The Birth Registration and Midwives Notifications System data provides social and demographic characteristics of mothers and children at time of birth. Death data includes all deaths registered in Western Australia. The Department of Justice data collections include all custodial records for offenders held in Western Australian prisoners or under supervision of the Department on community-based correctional orders. The Department of Communities: Child Protection and Family Support data includes all reports of concerns for child welfare made to the child protection system and the details of investigations, protection applications and orders as well as placements in out-of-home care.

Study population

The study population was drawn from a retrospective longitudinal cohort study of all children born in Western Australia between 1985 and 2011 whose biological mother was imprisoned at least once between their date of birth and 18th-birthday, identified using the Midwives Notification System and Registry of Births in conjunction with linked Department of Justice prison data. For a description of the full cohort see Dowell, Preen, and Segal (). The cohort study included a randomly sampled comparison group of children whose mother had no record of imprisonment from their birth to their 18th-birthday, which was identified through the same data sources as the cohort and matched 3:1 to cohort children on Indigenous status, age and gender.

The present study focused on a subset of children within the full cohort born from 2001 onwards. This time period was chosen due to substantial changes in the annual prevalence of children affected by maternal incarceration in Western Australia in the 1990s (Dowell et al., ). To address the three study aims, we have conducted three separate analyses all of which have slightly different observation periods, and hence different study populations, as summarised in Table . All analyses were stratified by Indigenous status given differences between Australian Indigenous and non-Indigenous populations in terms of their demographic characteristics, health status, sentence type and unique cultural contexts.

To address aim 1, maternal incarceration exposure was described for pregnancy and after birth to before age 2-years separately, because of the different implications of imprisonment for unborn and infant children. The study population included children born 2001-2011 whose mother was imprisoned in pregnancy between 2000 and 2011 ( n = 533) and children whose mother was imprisoned from birth to before age-2 between 2001 and 2013 ( n = 1199). There were 349 children within both groups who were exposed to maternal imprisonment in pregnancy and after birth before age-2. Mothers could have multiple children who met the inclusion criteria.

To address aim 2, child protection system contact was described from the start of pregnancy through to before age-2, as it is possible for child protection notifications to be raised for unborn children in Western Australia.

To address aim 3, we studied children born to mothers with a history of imprisonment 5-years before birth to age-1 ( n = 2180) as infant mortality is a rare outcome in Australia and there were not sufficient numbers of infant deaths to limit analyses to children of mothers imprisoned in pregnancy and their first year. Accordingly, the analyses explore the population characteristics and mortality outcomes of children whose mothers have a history of imprisonment. Not all children in our defined at-risk group will be directly exposed to maternal imprisonment in utero or after birth. Infant mortality rates for Indigenous children born from 1992 onwards were calculated in order to illustrate the change in rates over time. A similar calculation was not possible for non-Indigenous children, due to small numbers. Western Australian birth data for population denominators are only available by Indigenous status from 1992 onwards (ABS, ).

The comparison groups were also stratified by Indigenous status and limited to children whose mothers never had a record in any Department of Justice data collection (including for community-based correctional orders) at any time during the period from 1985 to 2014. These groups were selected to describe the difference in child protection system contact and infant mortality between infants of women prisoners and infants within a general community sample with no maternal corrections history.

Analyses

Maternal incarceration exposure

The proportion of women prisoners who are pregnant was calculated from the total number of Western Australian women prisoners using Australian Prisoner Census data (ABS, ). As the Prisoner Census records the prison population on a single day (30 June) each year, the numbers of pregnant women in custody on 30 June annually were identified from the study data using mothers' prison reception and discharge dates and children's birthdates. Pregnancy start date was calculated as being nine months before child birth-month, as child birthdate was provided to month of birth only and gestational age was not available.

The prevalence of children whose mother was imprisoned during their infancy (birth to age 2-years) was calculated for Indigenous and non-Indigenous children born in Western Australia across the period of 2001 to 2011 using population birth data from the ABS (ABS, ). The number, length and nature of offence for maternal imprisonments during infancy, were described using child birth and death dates, mother prison reception and discharge dates, sentence type, and major offence type using the Australian and New Zealand Standard Offence Classification (Pink, ). Maternal imprisonments included both juvenile and adult sentenced offenders and remandees held in Western Australian prisons.

Child protection system contact

Child protection system contact was defined as any record within the Western Australian Department of Communities: Child Protection and Family Support database for reports made to the Department concerning a child's welfare, applications or orders for a child's protection, and periods of out-of-home care (including for respite care as well as child maltreatment).

The proportion and rate (per 1000) of children who had any child protection contact (including out-of-home care) was calculated for children whose mother had a record of imprisonment during pregnancy and/or from birth to age 2-years, and for those whose mother never had a corrections record. The proportion and rate of children who were placed in out-of-home care was also calculated.

Infant mortality

Infant mortality rate is commonly defined as "the number of deaths under one year of age occurring among the live births in a given geographical area during a given year, per 1000 live births occurring among the population of the given geographical area during the same year" (Organisation for Economic Co-operation and Development (OECD) ). All children within the study population were live-born. Infant mortality rates (per 1000) across the period 2001-2011 were calculated for children with a history of maternal imprisonment and children of mothers with no corrective services history stratified by Indigenous status.

Infant mortality rates were calculated for Indigenous children born from 1992 to 2011 using 6-year moving averages (e.g. 1992-1997, 1993-1998, etc.) and presented for children of mothers with an incarceration history, children of mothers with no history of corrective services contact, and for all Western Australian Indigenous children, the latter using ABS data.

Indigenous status

Indigenous status for children and mothers in the study populations was provided through the Derived Indigenous Status Flag variable generated by the WADLS using best-practice algorithms, which assess individuals' Indigenous status across multiple data collections to enhance accuracy (Christensen et al., ).

Offence type

Major offence type is recorded in the Department of Justice data collections using the Australian and New Zealand Standard Offence Classification, which contains 16 Divisions classified according to the offence aim, use of violence, victim, seriousness and intent (Pink, ). For the present study, offence type were described in six categories: Offences against the person (Divisions 1-5); Theft and related (Divisions 6-8); Fraud and related (Division 9 and bribery offences); Drug (Division 10 and licit drug offences); Public order (Divisions 11-13 and 16); Traffic and related (Division 14, and driving under the influence of alcohol or other substance, dangerous or negligent driving offences); and Breach of justice procedures (Division 15).

Socioeconomic status and geographical remoteness

The Socio-economic Indexes for Areas Index of Relative Socio-economic Disadvantage (ABS, ) and the Accessibility/Remoteness Index of Australia (ABS, ) were used to describe infant's socioeconomic status and geographical remoteness of their place of residence at time of birth.

Statistical analysis

All statistical analyses were performed in Stata version 14.0 and stratified by Indigenous status. The analyses were undertaken to establish whether the study populations differed in terms of their key characteristics. Pearson's chi-square was used to assess the difference between study sub-populations' basic demographic characteristics including sex, socioeconomic status, and geographical remoteness. A log-binomial regression model was applied to the child protection and infant mortality data to obtain risk ratios for comparing children of women prisoners with children whose mothers had no corrections record (Knol, Le Cessie, Algra, Vandenbroucke, & Groenwold, ; McNutt, Wu, Xue, & Hafner, ; Robbins, Chao, & Fonseca, ).

Results

Descriptive characteristics of the study sub-populations

Table describes the basic demographic characteristics of the study populations. Within the Indigenous and non-Indigenous populations, there were no statistically significant differences ( p > .05) between the two maternal imprisonment history subgroups across all characteristics. Likewise, within each of the Indigenous and non-Indigenous populations, there were no significant differences with respect to the sex distributions of the groups of infants with maternal imprisonment histories to those with no maternal corrections record. In both the Indigenous and non-Indigenous populations, infants with a history of maternal imprisonment had different distributions of socioeconomic status and geographical remoteness in comparison to infants with no maternal corrections history.

Maternal incarceration exposure

Pregnancy

Between 2001 and 2011, 5.7% of Indigenous and 4.0% of non-Indigenous Western Australian female prisoners were pregnant while imprisoned. Over the same period 383 Indigenous (17.40 per 1000) and 150 non-Indigenous (0.49 per 1000) children were born to mothers who were imprisoned at least once while pregnant with them.

Birth to two-years

Table provides a summary of children's exposure to maternal incarceration in infancy. In total, 804 Indigenous and 395 non-Indigenous children had a mother imprisoned at least once between their birth and their second birthday, equating to 36.52 per 1000 Indigenous and 1.29 per 1000 non-Indigenous children born in Western Australia between 2001 and 2011. Of these children, 30% of Indigenous and 27% of non-Indigenous, also had their mother imprisoned while pregnant with them.

For most children exposed to maternal incarceration between birth and age 2-years, their mothers were imprisoned just once (63% Indigenous and 75% non-Indigenous children). The mean (SD) length of incarceration was 97 (184) days but the distribution was highly skewed, with half of all mothers' prison stays being for periods less than three-weeks with a median (IQR) of 19 (4-110) days.

The level of exposure varied considerably across the population of children exposed to maternal incarceration with 37% of Indigenous and 25% of non-Indigenous children experiencing multiple (up to 11) periods of maternal incarceration during infancy. For 22% of Indigenous and 23% of non-Indigenous children, their mother was imprisoned in total for more than a quarter of their life to age 2-years.

As shown in Table , mothers of children aged less than 2-years are more frequently imprisoned for non-violent offences related to theft, breach of justice procedures, and traffic offences. Offences against a person (e.g., acts intended to cause injury) accounted for 29% of Indigenous and 17% of non-Indigenous mothers' imprisonments.

Child protection system contact

For children born between 2001 and 2011 with a history of maternal imprisonment in pregnancy or infancy, 537 (568.9 per 1000) Indigenous and 243 (553.5 per 1000) non-Indigenous children came into contact with the child protection system by their second birthday. Of those children, 291 (31%) Indigenous and 153 (35%) non-Indigenous children were removed and placed in out of home care by age 2.

In comparison to children whose mothers had no corrections involvement, children of mothers with a prison record in pregnancy or infancy were 8-times (RR 7.99; 95%CI 6.93 to 9.22, p < .001) and 28-times (RR 28.36; 95%CI 22.29 to 36.08, p < .001) more likely to have contact with the child protection system by age 2 years for Indigenous and non-Indigenous children respectively. Rates of placement in out-of-home care by age-2 were 27-times (RR 27.30; 95%CI 19.19 to 38.84, p < .001) greater for Indigenous and 110-times (RR 110.10; 95%CI 61.70 to 196.49, p < .001) greater for non-Indigenous children whose mothers had a prison history during pregnancy to age 2-years compared to children whose mothers had no contact with corrections.

For the children of mothers with a record of imprisonment in pregnancy or infancy who had no child protection contact by age 2-years, a further 23% Indigenous and 19% non-Indigenous had child protection contact after their second birthday. A further 8% of Indigenous and 7% of non-Indigenous children had spent time in out-of-home care. This compared with 18% Indigenous (2% out-of-home care) and 4% non-Indigenous (0.5% out-of-home care) for children of mothers with no record of corrections contact.

By the end of the observation period in 2017, 21% of Indigenous and 26% non-Indigenous children with maternal imprisonment history in pregnancy or infancy had no child protection contact. This compares with 75% of Indigenous and 94% of non-Indigenous children of mothers with no corrections involvement.

Infant mortality

Across 2001-2011, Western Australian children whose mothers had a history of imprisonment prior to their birth (up to five years prior) or within their first year of life had an infant mortality rate of 22.6 deaths per 1000 Indigenous births and 7.8 deaths per 1000 non-Indigenous births. Infant mortality rates were higher for children of women prisoners compared to children of mothers who had no contact with corrective services by 2.36-times (95%CI 1.41 to 3.95, p = .001) for Indigenous and 2.28-times (95%CI 0.75 to 6.97, p = .147) for non-Indigenous children.

Figure shows the temporal change and difference in infant mortality rates between Indigenous children whose mother had a history of imprisonment and those whose mother had no corrections record, as well as the Western Australian average for Indigenous children. Between 1992 and 97 and 2006-11, infant mortality rates for Western Australian Indigenous children reduced by 56% overall and by 40% for children with maternal prison history, while there was less change in rates for children with no maternal corrections history with a 25% reduction over the period.

Discussion

A major finding of the study is that 1 in 3 children whose mothers were imprisoned during pregnancy or their first two years of life, were placed in out-of-home care by their second birthday. In contrast only 1 in 100 Indigenous and 1 in 300 non-Indigenous children whose mothers had never been in contact with corrective services were placed in out of home care by the same age. While parental imprisonment has been recognised as a factor that contributes to infants and children being placed in care (Delfabbro, Borgas, Rogers, Jeffrey, & Wilson, ), the extent to which the population of women prisoners have children placed in care has not been previously quantified in Australia.

In our study, half of all imprisonments were for unsentenced mothers being held in custody on remand. In such circumstances it is possible mothers may not have time to arrange care for their children following their arrest (Healy, Foley, & Walsh, ; Dallaire, ). Nearly half of all imprisonments of mothers whose children were aged less than 2 years were for two-weeks or less. This raises the question of if and how the length of a mother's prison stay impacts on the likelihood of child protection contact. Prisoners held on remand or for short periods would be difficult to capture in prospective research and so have not featured much in prior studies. The assumption is often that longer periods of imprisonment are potentially more harmful for young children, as in theory they are more likely to lead to disrupted attachment. But it is possible that shorter imprisonments, and unplanned detention in the case of remandees, create a greater disruption for already vulnerable families. Questions have been raised about the utility of short-term imprisonment in general (Trevena, & Weatherburn, ; Wermink, Blokland, Nieuwbeerta, Nagin, & Tollenaar, ). The data reported in this study highlight the importance of considering the value of very short-term maternal imprisonments. Such periods are unlikely to allow for any participation in rehabilitative programs and may increase the likelihood of children coming into contact with the child protection system, although whether such contact is helpful or harmful to the child is not known.

One in six of the maternal imprisonments in the cohort were for non-payment of fines. While nearly a third of maternal imprisonments for the Indigenous population were for violent offences against the person, a significant number of imprisonments for both Indigenous and non-Indigenous mothers were for non-violent crimes and fine default. There was legislative action taken to reduce imprisonments for non-payment of fines in Western Australia in the mid-1990s with the enactment of the Fines, Penalties and Infringement Notices Enforcement Act (WA). This appeared to lead to a significant reduction in maternal imprisonments from 1994 to 1996 (Dowell et al. ), although the current study demonstrates that default of fine remains a common reason for imprisonment of Western Australian women prisoners with young children. The Western Australian legislation has since been described as having "a discriminatory and disproportionate effect, leading to the over-representation of Aboriginal and Torres Strait Islander peoples, poor people and vulnerable people, in the Western Australian prison system" (Law Society of Western Australia, ). Female prisoners are more frequently imprisoned for default of fine than male prisoners in Western Australia (Morgan, ). Three-quarters of women imprisoned for fine default in Western Australia are not employed, in comparison to 10% of males (Morgan, ). Socioeconomic factors including homelessness can also lead to prisoners being detained on remand in circumstances where they would otherwise be released before trial (Ayres, Heggie, & de Almeida Neto, ). While it is well established that women prisoners experience high levels of socioeconomic disadvantage, the policy discussion around short term, remand, and fine default imprisonments has not extended to consider the potential implications of these for children with incarcerated mothers.

We found that for children aged less than 2 years, rates of contact with the child protection system were almost identical for Indigenous and non-Indigenous children whose mothers were imprisoned during pregnancy or before their second birthday. However, twice the number of Indigenous compared to non-Indigenous children had their mother imprisoned between pregnancy and their second birthday. This is of concern given that less than 7% of Western Australian children under 4 years old are Indigenous (ABS, ). The over-representation of Indigenous children within the child protection system has been well established (Delfabbro, Hirte, Rogers, & Wilson, ). Our study findings raise the question of how much of the over-representation of young Indigenous children in the child protection system may be related to the over-representation of Indigenous women in the prison system. The removal of Indigenous children from families is a pertinent issue in Australia, with some commentators expressing concerns in the wake of the rise in numbers of Indigenous children in care (Lavarch, ).

It would be valuable to explore whether there is any association between the timing of maternal incarceration and child protection contact but this is beyond the scope of the present paper given the complexities we have reported of prison exposure in terms of frequency and duration, and taking account of similar complexities of the timing, frequency and nature of child protection system contacts, familial relationships and additional contributing factors. The magnitude of our findings suggest the interaction between maternal incarceration and exposure of children to the child protection system is significant. The relationship between maternal incarceration, child protection and juvenile justice system involvement is clearly an important area for future research.

Our study found that infant mortality rates for children of mothers with a history of imprisonment were over twice the rate for children of mothers with no corrections record. This equated to an additional 13.1 deaths per 1000 Indigenous births and 4.4 deaths per 1000 non-Indigenous births, for children whose mothers have a history of imprisonment. While we were unable to calculate rates for women imprisoned during pregnancy separately, the international literature on the birth outcomes of women imprisoned during pregnancy has found improved birth outcomes, including birth weight, for women imprisoned during pregnancy compared to women imprisoned at other times and worse birth outcomes compared to women who are never imprisoned (Knight, & Plugge, ). However, these findings were not replicated by the only Australian study to date by Walker, Hilder, Levy, and Sullivan (), which found similarly poor birth outcomes for women imprisoned while pregnant compared to women imprisoned at other times. The authors questioned whether this was in part due to the shorter imprisonment terms within the New South Wales female prison population compared to those in the United States (Walker et al., ). Our findings highlight the increased risk of infant mortality for children born to mothers with a history of imprisonment. Further research is needed, however, to establish whether the experience of maternal incarceration itself increases children's infant mortality risk, or whether it is acting as a marker of extreme vulnerability.

Limitations

The sampling methodology for the broader longitudinal study, from which the data were drawn, primarily identified children whose mothers had at least one record of imprisonment after their birth to their 18th-birthday. While it was possible to identify women who were imprisoned while pregnant, the sample did not include a full census of women imprisoned during pregnancy in Western Australia. Possible implications of this would be an underreporting of the proportion of Western Australian female prisoners who are pregnant, however, we found similar proportions of female prisoners who are imprisoned while pregnant as Australian-wide data (Australian Institute of Health and Welfare, ). Thus any error is likely to be small.

Data were not available on gestational age and the day of birth, accordingly the date of commencement of pregnancy was taken as nine-months before the first day of a child's birth month. This may have included some mothers who were not yet pregnant at time of imprisonment, but were at least nine months away from giving birth. Research has shown, however, that the preconception period (approximately 6 months prior to conception) is also an important time when the experience of maternal stress during this period can impact on the health of the conceived child (Class, Khashan, Lichtenstein, Långström, & D'Onofrio, ).

Conclusions

This is the first Australian study to report the extent of the population of infant children of women prisoners in contact with the child protection system. The results confirm that infant children of women prisoners are a highly vulnerable population who experience a significantly increased risk of engagement with the child protection system and placement in out-of-home care. These children also experience high rates of infant death compared to children of mothers with no corrective services history. The findings also demonstrate that many imprisoned mothers of young children are held on remand, for short periods of time and for non-violent crimes. This study highlights the importance of considering the heterogeneity of timing and frequency of imprisonment within the prison population on outcomes for families and children.

Declarations

Acknowledgements

We thank the Developmental Pathways in Western Australian Children Project, the Western Australian Data Linkage Branch, the Western Australian Aboriginal Health Research Ethics Committee, the Western Australian Aboriginal and Torres Strait Islander community, the Western Australian Department of Justice, the Department of Communities: Child Protection and Family Support, the Western Australian Department of Health and the custodians of the Western Australian Birth and Death Registrations, and Midwives Notification System for the linkages, provision of data and ongoing ethical review of project outputs.

Material presented cannot be considered as either endorsed by the Western Australian Department of Justice or an expression of the policies or view of the Department, and any errors or omission or commission are the responsibility of the Researchers.

Responsibility for interpretation of the data supplied through the Government of Western Australia, the Developmental Pathways in Western Australian Children Project, and by any other data custodian, is the Researchers' alone.

Funding

CD was funded by an Australian Government Research Training Program (RTP) Scholarship.

Availability of data and materials

This study used linked routinely-collected administrative data from the Western Australian Departments of Health, Justice, and Communities: Child Protection and Family Support. While these data are accessible to approved researchers through the standard ethical and data application processes, they are not publicly available and are maintained by the relevant government data custodians. As a result, while future researchers are able to apply directly for these data we are restricted under Statutory requirement from releasing any of our project data to a third party. This includes making the study data available in a publicly available repository.

Authors' contributions

CD had primary responsibility for the study design, conduct of the data analysis and interpretation, and drafting the initial and final versions of the manuscript. LS, GM and DP contributed to study design, interpretation of findings and drafts of the manuscript. GM contributed to data analysis. All authors read and approved the final manuscript.

Ethics approval and consent to participate

Ethical approval for the project was received from the Department of Health Human Research Ethics Committee, the Western Australian Aboriginal Health Ethics Committee, and the University of South Australia Human Research Ethics Committee.

Consent for publication

The study uses data that is routinely collected by the Department of Justice and other Western Australian Government departments and services and linked for research purposes by the Western Australian Data Linkage Branch. In cases such as this the National Health and Medical Research Council outlines in the National Statement on Conduct in Human Research the requirements for waiver of consent. Under the National Statement, a Human Research Ethics Council can grant a waiver of consent if it is satisfied certain conditions have been met. The criteria for allowing a waiver listed under the National Statement apply to the project. Specifically as the project carries no more than a low risk; it is not feasible to obtain consent due to the age and quantity of the data required; and measures are being taken to ensure the continued protection of the confidentiality of the data.

Competing interests

The authors declare that they have no competing interests.

Publisher's Note

Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

Open AccessThis article is distributed under the terms of the Creative Commons Attribution 4.0 International License ( http://creativecommons.org/licenses/by/4.0/ ), which permits unrestricted use, distribution, and reproduction in any medium, provided you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license, and indicate if changes were made.

Authors' Affiliations

Health Economics and Social Policy Group, Centre for Population Health Research, Sansom Institute, School of Health Sciences, University of South Australia, Adelaide, Australia

Centre for Health Services Research, School of Population and Global Health, University of Western Australia, Crawley, Australia

References

1. Aaron, L, Dallaire, DH. (2010). Parental incarceration and multiple risk experiences: Effects on family dynamics and children's delinquency. Journal of Youth and Adolescence, 39(12), 1471-1484.

2. Byrne, MW, Goshin, LS, Joestl, SS. (2010). Intergenerational transmission of attachment for infants raised in a prison nursery. Attachment & Human Development, 12(4), 375-393.

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# data[].attributes.attachment_link.title
Maternal incarceration, child protection, and infant mortality: a descriptive study of infant children of women prisoners in Western Australia

# data[].attributes.attachment_link.description
There are no population statistics collected on a routine basis on the children of prisoners in Australia. Accordingly, their potential vulnerability to adverse outcomes remains unclear. This study draws on linked administrative data to describe the exposure of children aged less than 2 years to maternal imprisonment in Western Australia, their contact with child protection services, and infant mortality rates.

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Gendered Nature of sentencing

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DRAMATIC TV footage has captured a woman's emotional reunion with family after more than two decades in jail following Donald Trump's move to commute her life sentence.

Alice Marie Johnson had been sentenced to life for drug offences and the case for her release was championed by Kim Kardashian in a recent visit to the White House.

President Trump took the reality star's words to heart and decided to pardon Johnson.

"Ms Johnson has accepted responsibility for her past behaviour and has been a model prisoner over the past two decades," The White House said in a statement.
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"While this Administration will always be very tough on crime, it believes that those who have paid their debt to society and worked hard to better themselves while in prison deserve a second chance," the statement added.

Shortly after the announcement news cameras caught Johnson's joy as she reunited with family.

The 63-year old has spent more than two decades behind bars and was not eligible for parole.

Kardashian later revealed she was the one who broke the news to Johnson.

"The phone call I just had with Alice will forever be one of my best memories. Telling her for the first time and hearing her screams while crying together is a moment I will never forget," she said.

The move comes amid a recent flurry of pardons issued by Mr Trump, who has seemed drawn to causes advocated by conservatives, celebrities or those who once appeared on his former reality show, The Apprentice.

The commutation puts a renewed focus on the Trump administration's push for prison and sentencing reform, but which has sometimes clashed with the president's law-and-order approach, especially at the Justice Department.

Indeed, Mr Trump has called for getting tougher on drug dealers, including suggesting some should receive the death penalty.

Johnson was convicted in 1996 on eight criminal counts related to a Memphis-based cocaine trafficking operation involving more than a dozen people. The 1994 indictment describes dozens of deliveries and drug transactions, many involving Johnson.

She was sentenced to life in prison in 1997, and appellate judges and the US Supreme Court have rejected her appeals.

A criminal justice advocacy site, CAN-DO, and one of Johnson's lawyer say a request for clemency was rejected by former US President Barack Obama. The reasons are unclear.

Memphis lawyer Michael Scholl, who filed the latest court documents in her request for a sentence reduction, said she was not a leader in the cocaine operation.

"What is the purpose of putting a lady with no prior criminal record, on a nonviolent drug offence, in jail for her entire life?" he said in a telephone interview. "She's a model inmate." Mr Scholl added that Johnson has admitted her wrongdoing, which is borne out in letters she has written to US District Judge Samuel H. Mays, who now oversees her case.

"Judge Mays I'm writing to you to express my deep remorse for the crime that I committed over 20 years ago. I made some bad choices which have not only affected my life, but have impacted my entire family," she said in a February 2017 letter in the court record.

In a hand-scrawled letter last June she wrote: "I'm a broken woman. More time in prison cannot accomplish more justice."

Kardashian visited the White House in May to meet with Jared Kushner, Trump's son-in-law and senior adviser, who is overseeing the administration's push to overhaul the nation's prison system.

She also met with Mr Trump in the Oval Office, a photograph of which the president released on Twitter.

Kardashian said she'd been moved by Johnson's story after seeing a video by the news outlet on Twitter.

"I think that she really deserves a second chance at life," Kardashian told Mic. "I'll do whatever it takes to get her out."

The commutation comes days after Mr Trump pardoned conservative commentator Dinesh D'Souza, who was convicted of a campaign finance violation, and granted a posthumous pardon to boxing's first black heavyweight champion, clearing Jack Johnson's name more than 100 years after what many saw as a racially charged conviction.

The boxer's pardon had been championed by actor Sylvester Stallone, who Mr Trump said had brought the story to his attention in a phone call.

Mr Trump has also pardoned former Maricopa County Sheriff Joe Arpaio, a staunch campaign supporter; Scooter Libby, who served as chief of staff to Vice President Dick Cheney; and a US Navy sailor convicted of taking photos of classified portions of a sub.

In May, he also suggested he was considering acting to commute the sentence of former Illinois Governor Rod Blagojevich, who is serving 14 years in prison for corruption, and celebrity homemaker Martha Stewart, convicted of insider trading.

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DRAMATIC TV footage has captured a woman's emotional reunion with family after more than two decades in jail following Donald Trump's move to commute her life sentence. Alice Marie Johnson had been sentenced to life for drug offences and the case for her release was championed by Kim Kardashian in a recent visit to the White House.

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Gendered Nature of Sentencing

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While women have made great strides in achieving gender equity in many areas of American society, gender stereotypes remain pervasive. Voters sometimes have different expectations of female political candidates. Business remains dominated by men. Women are vastly underrepresented in the so-called STEM fields of science, technology, engineering and math. Women often make less money than men working the same jobs. According to the White House, a woman earns an average of 78 cents for each dollar a man makes.

Sometimes, however, gender stereotypes benefit women, particularly in the area of criminal justice. Scholars have found that women receive shorter sentences for sex crimes than men. A 2014 study suggests that federal courts are more lenient on female defendants in general. They are less likely to incarcerate women and tend to give women shorter sentences than men.

A 2015 study published in the Journal of Criminal Justice, "From Initial Appearance to Sentencing: Do Female Defendants Experience Disparate Treatment?," takes a broader look at gender disparities within the criminal justice system. The four researchers - Natalie Goulette of the University of West Florida and John Wooldredge, James Frank and Lawrence Travis III of the University of Cincinnati - explored outcomes at two key stages of the criminal justice process. They examined decisions that judges made at a defendant's first appearance hearing and during sentencing. Previous studies had investigated gender disparities in judicial decisions connected with only one of those two events, potentially neglecting the interaction of the outcomes at each phase. The researchers analyzed 3,593 felony cases that had been referred in 2009 to the County Office of the Prosecutor of a large, urban jurisdiction in the northern United States.

Findings include:

Women were less likely to be detained before trial. They were 46 percent less likely than men to held in jail prior to a trial.

Women who were released on bond were given lower bond amounts. Their bonds were set at amounts that were 54 percent lower than what men were required to pay.

Women were 58 percent less likely to be sentenced to prison.

For defendants who were sentenced to prison, there generally was no gender disparity in the length of the sentence. There were disparities in sentencing for some individual types of crime, however. For example, female defendants convicted of theft received longer prison sentences than male defendants convicted of theft. Women convicted of "other property offenses" - a category of crimes that includes arson, receiving stolen property and breaking and entering - received shorter prison sentences.

Black female defendants were, in some ways, treated differently than white female defendants. Black women were assigned higher bond amounts and were more likely to be sent to prison than white women. Women of both races were equally likely to be released prior to trial.

The authors hypothesize that judges might treat female defendants more leniently when they conform to the traditional gender roles of housewife and mother. Goulette and her colleagues found support for the "evil woman" theory, which suggests that this "chivalry" is reserved for certain groups of women who appear to be docile and in need of protection. The authors suggest that future research should explore the idea that, in some cases, some judges may treat female defendants more harshly if they believe it is in the defendants' best interest or if the tougher sentence will serve to protect the women in the future. The researchers also suggest that policymakers consider ways to standardize the judicial process, which could reduce disparities by constraining judges' discretion. The authors stress the need to more carefully monitor the decisions that judges make at a defendant's first-appearance hearing. "Our findings suggest that decisions related to bond amounts impact pretrial detention which, in turn, is one of the strongest predictors of prison sentences," the authors state.

Related research: A 2014 study in the American Journal of Criminal Justice, "An Examination of Defendant Sex Disparity in Capital Sentencing: A Propensity Score Matching Approach," looks at the role of gender in capital sentencing. A 2014 study in Criminal Justice and Behavior, "Needs and Pretrial Failure: Additional Risk Factors for Female and Male Pretrial Defendants," examines whether female defendants have different needs in pretrial screenings.
Keywords: law, gender, gender disparity, civil rights, crime, conviction rates, incarceration rates, sentencing, sex offense, judicial leniency, chivalry, paternalism, single mothers
Last updated: November 12, 2015
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Citation: Goulette, Natalie; Wooldredge, John; Frank, James; Travis, Lawrence III. "From Initial Appearance to Sentencing: Do Female Defendants Experience Disparate Treatment?," Journal of Criminal Justice, August 2015, Vol. 45. doi:10.1016/j.jcrimjus.2015.07.003.

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Are criminal courts more lenient on women? - Journalist's Resource

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While women have made great strides in achieving gender equity in many areas of American society, gender stereotypes remain pervasive. Voters sometimes have different expectations of female political candidates. Business remains dominated by men. Women are vastly underrepresented in the so-called STEM fields of science, technology, engineering and math.

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Masculinity in prisons

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PHILADELPHIA - A man who was convicted of killing three gay men during a weeklong rampage in Philadelphia in 1989 has been found dead in prison.

The Philadelphia Inquirer reports 50-year-old Arnold Mulholland was found unresponsive in his cell at a state facility in Frackville around 6 a.m. Friday.

The Pennsylvania Department of Corrections says he was pronounced dead an hour later. Officials have not released the cause of death.

Mulholland pleaded guilty in 1990 and was handed three consecutive life sentences in connection to the deaths of Alexander Munchweiler, Tracy Griffin, and David Johnson.

Prosecutors say he stabbed all three men in their apartments after they invited him inside.

Mulholland's attorney previously described the men's deaths as "brutal, heinous killings," and said his client was sorry for the "havoc he created."

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Man convicted in killings of 3 gay men found dead in prison

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PHILADELPHIA - A man who was convicted of killing three gay men during a weeklong rampage in Philadelphia in 1989 has been found dead in prison. The Philadelphia Inquirer reports 50-year-old Arnold Mulholland was found unresponsive in his cell at a state facility in Frackville around 6 a.m. Friday.

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Masculinity in Prisons
Interesting article on 'prison code' that continues after prison life.

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When most people talk about a "prison code," they likely referring to an unwritten code of conduct amongst prisoners-one that lays out the expectations for how those behind bars are to behave, and one that defines what type of "inmate justice" might result if those rules are disregarded.

At San Quentin State Prison in California, however, a different kind of code is being taught to prisoners. And while the the traditional "prison code" regulates behavior inside correctional facilities, this code has the opportunity to make a difference in the lives of these men long after they leave the prison yard behind.

A new program initiated by the California non-profit organization The Last Mile is providing computer training for 18 prisoners. For 32 hours a week for six months, these men-some of whom had never used a computer before enrolling in the class-are being taught computer coding that can be used in software and web development. Upon completing their training, these men will be able to receive payment for their services while still behind bars, and the promise of real earning potential upon release.

"That's my goal, to become a computer programmer behind bars," prisoner Larry Hinston says in an interview with CCNMoney. "To become confident and then to take that skill to the streets ... as I look for the opportunity to start my business. It's given me hope to continue to strive."

The ability to procure a steady job at a sustainable wage is a major hurdle for many men and women when they leave prison. Programs like The Last Mile's do a great service in providing training and, in some cases, connections to allow for meaningful employment. However, there are many other factors that determine if a prisoners return to the world outside the prison walls will be a success. There is a need to find affordable housing. There is a need to avoid past temptations and associations that might lead back to prison. Most of all, there is a need for spiritual guidance and encouragement-a change of the heart and soul nurtured by those willing to walk alongside these restored members of society in love and friendship.

Prison Fellowship seeks the transformation of prisoners and their families. In addition to vocational training and networking, Prison Fellowship offers spiritual mentoring and the support of a community of believers-both as these men and women serve their sentences in prison, and as they begin their new lives outside it.

To find out how you can be a part of this transformation, visit www.prisonfellowship.org/get-involved.

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A New Kind of 'Prison Code' - Prison Fellowship

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When most people talk about a "prison code," they likely referring to an unwritten code of conduct amongst prisoners-one that lays out the expectations for how those behind bars are to behave, and one that defines what type of "inmate justice" might result if those rules are disregarded.

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Masculinity in prisons
The prison code.
This paper uses statistical data and interview  to examine how former male inmates describe how and why they follow the inmate code.

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This article was downloaded by: [Umea University Library] On: 12 January 2010 Access details: Access Details: [subscription number781079107] Publ...

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The Gendered Nature of sentencing

this paper theorizes the reasons why there are disparities in sentencing because of gender differences. It postulates viable arguments and supports with data.

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The gendered Nature of sentencing, masculinity in prison

"Seven News has confronted the prosecutor blamed with failing to keep gunman Man Monis in prison before the Lindt Cafe siege. Brian Royce, who now works in private practice, has been criticised for failing to lock up Monis. "  26th May 2017 https://au.news.yahoo.com/video-shows-seven-news-confronting-prosecutor-brian-royce-blamed-for-failing-to-lock-up-man-monis-35654770.html

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Masculinity in Prisons

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Women's imprisonment

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Masculinity in Prison

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In 1984, when Calvin Burdine was awaiting sentencing for allegedly stabbing his gay lover to death, the prosecuting attorney encouraged the jury in his closing remarks to award Burdine the death penalty, rather than life in prison, on the grounds that sending a gay man to prison was akin to sending a kid to a candy store. After 17 minutes of deliberation, the jury obliged and sentenced Burdine to die. His death sentence was later overturned (mostly because Burdine's public defender had slept through much of his trial), but the homophobic thinking - that prison is some kind of paradise for gay men - lingers on.

The reality of life in prison for homosexuals and transgender individuals does not appear to reflect this myth. One young man named Rodney, imprisoned for fraud and check-forging, sent me a detailed account of his life so far in prison. He described a litany of brutal rapes, assaults, beatings and, eventually, the total abandonment of his male identity as his only means of survival in the hyper-masculine and often homophobic prison environment. His account suggests that far from being a paradise, prison for gay men can be a living hell.

Within days of his first entering prison, the 23-year-old Rodney claimed he was the victim of three separate sexual assaults, involving five different inmates. The prison he was first sent to did actually have a separate tier for gay inmates, but according to Rodney, because he did not "appear overly effeminate" during his classification, he was placed with the general population; and because it was supposedly rare to have a gay person slip through the cracks of the system, his fellow inmates took full advantage.

"My first week or so in general population was hell on earth. Physical, mental and emotional torture. After being raped, I performed acts by request. It was understood and expected. I had no means to protect myself, being only 23 and scared for my life.

"I dared not report anything because I was clearly warned that my life would be in jeopardy should I do so. I quickly learned that a snitch is a worse label than a fag.

"Against popular opinion, jail is not heaven for a homosexual. Nothing is heaven about being intimidated into performing sexual acts. It is also rape, just like the three forcible rapes were.

"True enough, I am attracted to men and always have been, but in life [outside], it's my choice whom I share a bed with; it's intimate and personal. Having my mouth and anus aggressively penetrated by several strangers is anything but."

He went on to report how one of his rapists took a fancy to him and "purchased" him from the tier rep for $20. Even though he was thereby essentially enslaved by his new "prison husband", he was grateful - because his days of "being the communal bitch were over". He said he tried to do whatever his prison husband wanted or needed, including cleaning his cell, washing his clothes, preparing his food, and whatever else his "husband" wanted or needed, including, of course, being available for sex - because "he did what I wanted and needed - kept other inmates off me."

As time wore on and "husbands" came and went, Rodney perfected the art of being a "prison ho", as his only means of surviving intact. This involved establishing a female name and identity, learning how to speak when spoken to, "respect his man" and emasculating himself to the point where he could not stand while urinating. There is nothing about the experience that could be considered enjoyable.

"I've heard before that 'jail is a faggot's dream.' I assure you that cliché is not the case. Gay men who do not attempt to hide their sexuality are forced into passive and submissive roles. To live with some standard of equality, we have to trade in our manhood. We are completely emasculated. It's a form of technical castration. The role of woman is forced upon us and any rebuttal is considered a sign of disrespect. My way of thinking about myself and my sexuality has been permanently altered."

It's difficult to assess how typical Rodney's prison experience is, but numerous studies conducted by the Bureau of Justice Statistics, based on anonymous inmate surveys, have shown that gay and transgender inmates are among the most targeted groups for sexual victimization. Until fairly recently, little has been done to help them. Just Detention International (JDI), an organization whose aim is to eradicate prison rape (pdf), is trying to change that.

JDI has been working with the California Department of Corrections and Rehabilitation (CDCR) to establish "sensitive needs yards" (pdf), where gay, transgender and other vulnerable inmates can serve out their time in safety. Several prisons operated by the CDCR have now established sensitive needs yard with some success, and the JDI is hoping that other states will adopt this model.

In the meantime, prisoners like Rodney have been forced to make their peace with their "prison ho" fate.

"I've grown to realize that I am a man and being a prison ho is an act."

It is not, however, an act that Rodney or any other inmate should be forced to perform.
Topics

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The grim truth of being gay in prison | Sadhbh Walshe

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In 1984, when Calvin Burdine was awaiting sentencing for allegedly stabbing his gay lover to death, the prosecuting attorney encouraged the jury in his closing remarks to award Burdine the death penalty, rather than life in prison, on the grounds that sending a gay man to prison was akin to sending a kid to a candy store.

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Critical thinking
Masculinity in Prisons

This paper captured current discourse theories of ‘subordinate masculinity’ and
‘oppositional masculinity’.   It delivers theoretical arguments in reasoning to understand intimate same sex partner violence in prisoners such as gay rapes.  ‘Hegemonic masculinity’
as a theory can be applied in understanding male offending of questioning the idea:  Are all
social conditions suitable to achieve masculinity for all men.    How gender is performed in prisons reveals quite graphically the disparities in same sex relationships and how they relate to the Masculine-Feminine Dominant Figure.

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An interesting documentary on life behind bars for women with young children.

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Jail Babies: Born Behind Bars (RT Documentary)

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Patricia M. Barkaskas is the academic director of the Indigenous Community Legal Clinic at the Peter A. Allard School of Law at the University of British Columbia. Emma Cunliffe is an associate professor in the Peter A. Allard School of Law at the University of British Columbia. Both are expert advisors with EvidenceNetwork.ca.
There is no justice for Indigenous women in the current Canadian justice system.

Indigenous women are violently victimized at almost three times the rate of their non-Indigenous counterparts. Indigenous women are also more likely to commit criminal offences-but nine times more likely than non-Indigenous women to be sentenced to prison.

Independent Sen. Kim Pate recently announced her intention to introduce a private member's bill that would grant Canadian judges the power to impose an appropriate sentence for any offence, regardless of whether the offence carries a mandatory minimum sentence of imprisonment. An appropriate sentence reflects the seriousness of the offence committed and the offender's degree of responsibility. But it also takes into account the circumstances in which someone has committed a crime.

Judges already have the power to impose a more severe sentence than the mandatory minimum. This bill would allow them to impose a lesser sentence than the usual minimum in appropriate circumstances.

Adopting an evidence-based approach to sentencing reform makes sense for all actors within the Canadian criminal legal system. However, it is an urgent imperative for Indigenous women. For them in particular, a mandatory minimum sentence is often a systemic response to an offence committed in the context of extreme poverty, violent victimization or fear of state apprehension of children. Indigenous women's experiences of racism and colonial violence are "risk factors" that lead some to commit criminal acts.

Mandatory minimum sentences remove judicial discretion to account for these circumstances in sentencing. Worse, they have a disproportionately harsh impact on Indigenous women as judges are unable to craft sentences that reflect the circumstances in which Indigenous women offend.

The proportion and number of Indigenous women in Canadian prisons has grown rapidly as the use of mandatory minimum sentences has proliferated.

The recent case of Cheyenne Sharma illustrates the pattern. Sharma, a 20-year-old Saugeen woman, was arrested at Pearson airport while carrying cocaine. She had no previous criminal record and co-operated immediately with the police and investigation. Sharma later explained that she had agreed to carry a suitcase through customs for money because she was terrified of losing her housing and, consequently, her daughter. Like too many Indigenous families, Sharma and her daughter were living in poverty and often precariously close to becoming homeless.

Sharma's personal and family history reveals intergenerational patterns typical of many Indigenous women in her position: her grandmother was a residential school survivor, her mother spent time in foster care and Sharma experienced poverty, sexual violence and addiction from an early age.

However, Sharma's case is unusual because Aboriginal Legal Services successfully challenged the mandatory minimum sentence that would otherwise have applied to her. Mounting such a challenge takes resources that are rarely available within our chronically underfunded legal aid system.

Eventually, even the prosecutor conceded that the mandatory minimum sentence was too harsh for Sharma because of her family history and personal context. However, as Jonathan Rudin, director of Aboriginal Legal Services in Toronto observed: "The fact that the Crown thinks [her personal history is] exceptional speaks to the fact that they don't really understand the circumstances of Indigenous people."

The trial judge agreed with Aboriginal Legal Services: imposing the mandatory minimum sentence upon Sharma would be "cruel and unusual."

Allowing judicial discretion in sentencing is also important because research shows that Indigenous women who have experienced violence are more likely than other women to plead guilty to serious charges and more likely to be sentenced to lengthy periods in custody. Sen. Pate's bill would permit a trial judge to craft a just sentence for an offender such as Sharma without the need for an expensive court battle of the kind that most individuals before Canadian courts cannot afford.

Sen. Pate's bill, however, would just be the beginning. Ending mandatory minimum sentences would only make an unjust system less unjust. Ultimately, neither judges nor the Canadian justice system are capable of unilaterally delivering justice when it comes to Indigenous peoples in Canada, and a fuller solution must begin with the restoration of Indigenous legal systems and processes and with approaches that incorporate Indigenous women's knowledge, concerns and needs.

Providing judicial discretion to depart from mandatory minimum sentences is a simple step that can ameliorate some of the harshest impacts of the criminal justice system on Indigenous women. But it doesn't change the need for deeper systemic reform.

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Too many Indigenous women are in prison-but sentencing flexibility will help - Macleans.ca

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Patricia M. Barkaskas is the academic director of the Indigenous Community Legal Clinic at the Peter A. Allard School of Law at the University of British Columbia. Emma Cunliffe is an associate professor in the Peter A. Allard School of Law at the University of British Columbia. Both are expert advisors with EvidenceNetwork.ca.

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Women's imprisonment

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Critical thinking