Punishment in Convict-Settled Australia in Comparative Historical Perspective

face of a prisoner

Australia’s criminal justice system in the mid-nineteenth century imposed more punishment than did the U.S. and England & Wales. In Australia in 1858, the first year for which aggregate punishment statistics can be constructed, the overall prevalence of life-disposing punishment in Australia (execution and imprisonment) was 378 persons per 100,000 population. Executions accounted for 24% of persons absence in punishment. In the United States in 1858, punishment prevalence was 75 persons per 100,000. Executions accounted for only 6% of persons absent in punishment in the U.S. The overall prevalence of punishment in England & Wales in 1858 was 232, or about 60% of that in Australia. Execution accounted for only 2% of punishment in England & Wales in 1858. Compared to another overseas area of English settlement, the U.S., and compared to England & Wales itself, mid-nineteenth-century Australia punished more extensively and used execution more frequently. Available data, while incomplete, suggests that this difference was even more pronounced earlier in the nineteenth century.

comparative extent of punishment in Australia, U.S., and England & Wales from 1850 to 2010

Convicts transported from the United Kingdom accounted for a large share of European settlement of Australia in the first half of the nineteenth century. Transportation of convicts from the United Kingdom to Australia began in 1787. Transportation peaked at about 6000 convicts per year in the 1830s. After 1852, transportation decreased sharply. It ended in 1867. From 1786 to 1852, about 150 thousand convicts were transported to Australia. Australia’s total population in 1852 was about 500 thousand. Transported convicts and their offspring were a major share of Australia’s population in the first half of the nineteenth century.

The predominance of men among transported convicts and punishment’s bias toward men helps to explain relatively extensive punishment in mid-nineteenth century Australia. From 1787 to 1852, the aggregate sex ratio among convicts transported to Australia was about 5 males per female. In 1830, males were about three times as numerous as females in Australia. In 1852, males outnumbered females by 45%. Males were more likely to be punished than females, and more likely to be punished severely. For example, in the Australian state of Victoria from 1842 to 1967, males were more likely to be charged with a capital offense, more likely to be convicted, and more likely to be executed. A plausible estimate for the sex ratio of punishment in Australia about 1858 is 6 men per woman absent in punishment. That figure, along with the difference in population sex ratios in Australia and the United States, can account for most of the mid-nineteenth-century difference in the prevalence of punishment between Australia and the United States.

Sex Bias in Criminal Justice System of Victoria, Australia, 1842-1967

 charged with capital crimeconvicted of crime (% of charged)executed for crime (% of charged)persons executed
Source: Douglas and Laster (1991) p. 156, data available in executions Australia dataset.

In a sex-sensitive comparative perspective, convict-settled Australia punished surprisingly little. Today, persons imprisoned are often re-imprisoned. Differences in individual criminal propensities and recidivism are major issues in criminology. Adjusting for population sex ratios makes the prevalence of punishment in Australia and the U.S. nearly the same. That leaves little room for criminal effects of Australia’s distinctive convict settlement. Moreover, adjusting for population sex ratios, both Australia and the U.S. in the mid-nineteenth century had a much lower prevalence of punishment than did England & Wales.

Punishment Sex Ratio in England and Wales Since 1750

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punishment sex ratio in England and Wales from 1780 to 2010

From 1750 to 1920, the ratio of men to women absent in punishment in England and Wales changed relatively little despite major societal changes . During this period, England and Wales underwent industrial revolutions, unprecedented population growth, and extensive development of state institutions. Both the prevalence of persons absent in punishment and their punishment positions changed significantly across this period. Nonetheless, with the exception of a brief peak after the American Revolutionary War, the ratio of men to women absent in punishment remained between five to ten men per woman from 1750 to 1920.

From 1780, sex ratios of prisoners show a similar pattern to sex ratios of persons absent in punishment. Absence in punishment accounts for persons punished by execution or transportation, in addition to persons in prison. Accounting for executions and transportation is potentially important because those were predominant forms of punishment in England and Wales prior to 1855. However, like the sex ratio of persons absent in punishment, the sex ratio of persons in prison was typically between five to ten men per woman from 1780 to 1920. Ratios of men to women in prison earlier, particularly in the seventeenth century, were much higher as a result of mass imprisonment of men for debt.

Increased professionalism in the administration of justice coincided with a relatively small nineteenth-century reduction in gender inequality in punishment. In 1835, the British national government appointed national prison inspectors covering local prisons and required those prison inspectors to issue yearly reports. The Prison Act of 1877 nationalized all local prisons in England and Wales. The nineteenth-century growth in Britain’s national penal bureaucracy helps to explain the mid-nineteenth-century shift in punishment from predominately transportation to almost exclusively imprisonment.^

The development in penal bureaucracy probably also contributed to a reduction in gender inequality in punishment. The ratio of men to women absent in punishment fell from about 9 from 1825 to 1845 to about 6 from 1860 to 1910. By giving more weight to procedure and routine, the growth of government bureaucracies probably reduced sex-biased discretion in administering justice. In addition, national penal bureaucracy lessened the personal connections between the administrators of justice and persons disposed in punishment. From the perspective of the professionalizing civil servants administering justice, working-class men and women moving into the growing cities were united more by class and divided less by sex. In the U.S. in the early nineteenth century, the ratio of black men to black women in prison was usually significantly lower than the ratio of white men to white women in prison. In mid-nineteenth-century England and Wales, social class may have had a similar effect on sex ratios in punishment.

A much larger, long-term increase in the ratio of men to women absent in punishment is readily apparent in England and Wales from 1920 to 1970. Absence in punishment in the 1920s almost exclusively meant persons in prison. About 1920, the ratio of men to women in prison was about 7. That’s about the same sex ratio among prisoners as existed among prisoners in England and Wales in 1780. From 1920 to 1970, the prisoner sex ratio rose from 7 to nearly 40 men in prison per woman in prison. The only interruption in this rise was the customary alternative disposal of men in military service during World War II.

The large, long-term rise in men in prison per woman in prison in Britain coincided with a major expansion of democratic deliberation. The Representation of the People Act of 1918 gave voting rights to five million men and nine million women, all previously without the right to vote. That act thus raised the enfranchised share of persons in Britain ages 21 and over from 28% to 76%. The Representation of the People Act of 1928 enfranchised an additional five million women.^ After the Act of 1928, all British subjects ages 21 and over who resided in Britain and met minimal property requirements had the right to vote. Overall, voting rights expanded from 28% of persons ages 21 and over in 1910 to 97% of those persons in 1929.

The expansion of the franchise in Britain occurred along with vigorous political debate and contention. From 1918 through the 1920s, the British people demobilized from total war and participated in intense union activity, including a General Strike in 1926. The Russian Revolution of 1917 intensified arguments over socialism and communism. A new national political party, the Labour Party, rose to control the British government in the 1920s. The Labour Party has had enduring political importance. Extensive new programs of print dissemination and the development of radio and film also intensified public debate.

The ratio of men to women in prison in England and Wales declined sharply from 1970 to 2003, but then increased from 2003 to 2010. A society-wide movement for gender equality may have contributed to reducing the ratio of men to women in prison from 39 to 15 from 1970 to 2003. The suicides of six female prisoners in the English prison at Styal between August, 2002 and August, 2003 prompted high-level political concern about women prisoners. Since then, the prisoner sex ratio has risen from 15.5 men in prison per woman in prison in 2003 to 19.0 in 2010. Both those figures are much higher than the maximum and median ratio of men to women in prison from 1780 to 1920: 8.0 men per woman maximum and 6.1 men per women median across 140 years of criminal justice history. Even with the decrease in gender inequality in punishment from 1970 to 2003, the pattern of punishment by sex is currently extraordinarily unequal.

Recent high-level reports have focused making the criminal justice system better serve women. The Corston Report, published in 2007, was a Home-Office commissioned “review of women with particular vulnerabilities in the criminal justice system.” The reviewer, Baroness Corston, declared:

My first recommendation concerns the treatment of men and women within the criminal justice system. From April 2007 the government will have a statutory duty to take positive action to eliminate gender discrimination and promote equality under the Equality Act. I have seen little evidence that much preparatory work is in hand in respect of the imminent statutory duty or of any real understanding that treating men and women the same results in inequality of outcome.

Inequality in outcomes from government action (imprisonment) that directly affects fundamental life capabilities (personal physical liberty) should be a priority concern in pursuing gender equality.

International development leaders seek to promote equal human capabilities.^ Concern for human capabilities suggests priority for reforming the criminal justice system to promote equal outcomes in imprisoning men and women. If that’s considered an unrealistic ideal of real gender equality, gender equality efforts might aim to reduce gender inequality in punishment to less gender inequality than existed from 1780 to 1920. A reasonable start would be to reduce anti-men gender bias in criminal sentencing.

Yet when the issue is imprisonment, equality doesn’t mean equality. Baroness Corston forthrightly declared:

Women and men are different. Equal treatment of men and women does not result in equal outcomes.

That’s never been a prominent consideration in comparing aggregate labor-market earnings by sex. But at the punishing end of public policy, women and men are regarded as essentially different. With seventeen men in prison per woman in prison in England and Wales, Baroness Corston proposed a separate and even more unequal criminal justice system. She proposed treating women “holistically and individually” so as to free up prison spaces for imprisoning men:

I have, however, concluded that it is timely to bring about a radical change in the way we treat women throughout the whole of the criminal justice system and this must include not just those who offend but also those at risk of offending. This will require a radical new approach, treating women both holistically and individually – a woman-centred approach. …

Equality does not mean treating everyone the same. The new gender equality duty means that men and women should be treated with equivalent respect, according to need. Equality must embrace not just fairness but also inclusivity. This will result in some different services and policies for men and women. …

An additional 8,000 places {in prison) for men are planned and a reported £1.5 billion is being sought to fund them. Unless the current sentencing trend can be reversed, more must follow. A much smaller level of funding would provide an opportunity for government to do something innovative for women. I do not pretend that my proposals will free up hundreds of prison places overnight. It will take time and determination and persistence but I do believe that, if my package of recommendations is implemented, over time the women’s prison population will decrease.^

Gender equality here becomes the abstract social construction of treating men and women “with equivalent respect, according to need.” It apparently implies imprisoning more men and imprisoning fewer women. Increasing the ratio of men to women in prison is also the implied direction of other major reports since 2003 on women offenders in England and Wales. Such policy is consistent with the increasing ratio of men to women in prison since 2003. Apart from power and persuasiveness in public discourse, such policy isn’t consistent with any reasonable understanding of gender equality and justified gender-equality priorities.

Punishment Sex Ratio in Scotland Since 1840

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punishment sex ratio in Scotland from 1840 to 2010

Mid-nineteenth-century Scotland had a relatively equal distribution of punishment across men and women. About 1.9 men were in prison per woman in prison. Less comprehensive statistics from earlier in the nineteenth-century show even more equal sex distribution among Scottish prisoners. In the Glasgow bridewell in 1818, there were 160 men and 160 women.^ In 1820, Glasgow’s tolbooth and bridewell together held 200 male criminals and 151 female criminals.^ The sex ratio among persons transported was even more nearly equal (1.4 men per women) than the prisoner sex ratio. In contrast, the death penalty was administered highly disproportionately to men (about 16 men executed per woman executed). Overall, the sex ratio of Scots absent in punishment from 1840 to 1874 has median by year of 2.3 men per woman.

Life-disposing punishment was applied less unequally in the nineteenth century in Scotland than in England and Wales. The sex ratio of persons executed in the nineteenth-century in total was 16 men per woman in Scotland and 20 men per woman in England and Wales. The sex ratio of persons transported was 2.6 men per woman for Scotland and 7.3 men per woman for England and Wales. The sex ratio of the average number of persons in prison from 1840 (the start of Scottish prison data) to 1899 was 2.3 men per woman for Scotland and 5.0 men per woman for England and Wales. Overall, the median sex ratio of Scottish persons absent in punishment from 1840 to 1899 was less than half that in England and Wales.

The relatively equal sex ratio in punishment in Scotland was a result of a Scottish criminal justice system that differed significantly from England and Wales’ criminal justice system. In contrast to English common law, Scottish law is primarily based on Roman law. Scottish law also encompasses elements of Old Norse law and Celtic law. Under the 1707 Act of Union that created the United Kingdom of Great Britain, Scotland retained its distinctive legal system. In addition, Scotland, particularly Edinburgh, was a center of eighteenth-century Enlightenment thought. Enlightenment thought earlier and more strongly influenced Scottish penal practice than it did penal practice in England and Wales.

In the eighteenth and nineteenth centuries, life-disposing punishment was less prevalent and more rationalized in Scotland than in England and Wales. Enlightenment thinkers generally condemned capital punishment as cruel, unreasonable, and contrary to the public interest.^ In the 1780s, Scotland executed only about 13% as many offenders on a per capita basis as did England and Wales. Across the nineteenth century, Scotland executed on a per capita basis only 53% as many persons as did England and Wales. Transportation had a similar pattern of less prevalent punishment in Scotland than in England and Wales across the eighteenth and nineteenth centuries. Robert Adam’s Edinburgh Bridewell, completed about 1795, was the first prison in Britain that followed Jeremy Bentham’s new rotunda model.^ Bentham was a leading penal rationalizer. Scotland centralized control over its prisons in 1839, more than twenty-five years before England and Wales did.

Despite these differences between the criminal justice systems in Scotland and England and Wales, Scotland paralleled England and Wales in a large increase in the prisoner sex ratio from 1920. By 1875, absence in punishment nearly exclusively consisted of persons in prison. From 1875 to 1920, the sex ratio of prisoners rose gradually, from 2.3 to 6.2 men per woman. The prisoner sex ratio then began rising rapidly. From 1965 to 1970, the prisoner sex ratio was about 33 men in prison per woman in prison. That sex ratio is more than ten times higher than the prisoner sex ratio in Scotland from 1840 to 1900.

From about 30 men in prison per woman in prison from 1960 to 2000, the prisoner sex ratio in Scotland declined rapidly. In 2010, based on the average daily number of prisoners, the prisoner sex ratio in Scotland was 17.1 men in prison per woman in prison. That’s rather different from the movement in the prisoner sex ratio in England and Wales. There the prisoner sex ratio began to decline from historic heights about 1970. In conjunction with influential penal policy advocacy, the prisoner sex ratio in England and Wales began rising in 2005 from 15 men per woman in prison. In 2010, the prisoner sex ratio in England and Wales, 19.0 men in prison per woman in prison, was higher than that in Scotland, 17.1 men in prison per woman in prison. Whether a policy-spurred trend toward more male-biased imprisonment re-emerges in Scotland remains to be seen. Just as in England and Wales, large sex inequality in imprisonment doesn’t seem to be an issue on the gender-equality agenda.