II. Gender Imprisonment A. Punishment Sex Ratio 3. Punishment Trends

Prisoner Sex Ratio in Australia Since 1858

face of a prisoner

sex ratio of prisoners in Australia from 1860 to 2010

Like in England and Wales and in Scotland, the ratio of males to females in prison in Australia rose sharply across the mid-twentieth century. Reasonably good yearly statistics for the daily average number of prisoners in Australia are available from 1858. From 1858 to 1890, the ratio of male prisoners to female prisoners averaged 5.6. Australia during this period had 21% more male residents than female residents. Adjusting for this difference in the populations at risk of imprisonment, the ratio of male to females prisoners was 4.7. From 1890 to 1915, the prisoner sex ratio rose to 10. Australian punishment sex ratios, which become available in 1876, parallel these movements in the prisoner sex ratio. A sex ratio of 10 or less males per female in punishment was not unusual internationally prior to the era of intensified concern about gender equality.

The sex disparity in the Australian prison population began increasing sharply about 1920. The ratio of males to females in prison climbed to 33 by 1939. During WWII, that ratio dropped sharply. That’s consistent with a large body of historical evidence indicating that disposal of men in military service substitutes for disposal of men through punishment. From a trough of 13 in 1943, the ratio of male prisoners to female prisoner shot up, reaching 35 by 1960. The peak in the sex disparity in prisoners was about 1975, with an aggregate sex ratio of 42 across 1974 to 1976. Relative to available historical statistics for punishment, that was an extraordinarily high level of disproportionate punishment of men.

Only about three years after that peak in the ratio of men to women in prison, the Australia Institute of Criminology convened a seminar on “Women and Crime.” The introduction to a published volume of papers prepared especially for this seminar observed:

During the 1970s, interest in the study of crimes by women gathered momentum in several countries, a significant result of which was the publication of a number of books and articles on the subject. … While their fundamental impact was welcome in that a grossly and unjustifiably ignored area received the deserved attention, there were some unwelcome results as well; that is, several researchers used the opportunity to present a misconstrued relationship between various women’s movements and crimes by women. … The papers in this volume dispute with cold hard fact the substance of the claim that ‘women’s liberation’ is turning more women to crime.^

The opening article, by the volume’s co-editor, is entitled “Sexism in Criminal Law.”^ It provides a tendentious, misleading, and now conventional discussion of Blackstone’s famous statement and the law of coverture. The article discusses the crimes of domestic violence (imprison more men), rape (imprison more men), and infanticide (imprison fewer women). Men’s liberation, in the direct, factual sense of liberation from highly disproportionate imprisonment, was completely ignored in this volume’s emphasis on disputing myths about women’s liberation.

Despite subsequent, large changes in the prisoner sex ratio, subsequent scholarly literature on Australian prisoners naturalized prisoners as being “almost exclusively male.” The sex ratio among Australian prisoners declined from its peak of 42 men per woman in the mid-1970s to 15 men per woman in prison about 2000. Fifteen men per woman is nearly three times as high as the 5.6 men per woman sex ratio that prevailed on average in Australia from 1858 to 1890. With no definition or justification for “modern,” a 1999 study of sentencing reform and penal change in Australia declared that about 95% of prisoners being male is “modern levels” of sex inequality in punishment.^ Obscuring the historical variation in the sex ratio of prisoners, a 2000 study focusing on female prisoners in Australia began thus:

One of the most fundamental characteristics of incarcerated populations is that they are almost exclusively male. … The reason for this overwhelming preponderance of males over females in prison is fairly straightforward. Crime is predominately committed by young males. Male involvement in criminality of all types is much greater than female involvement, and this tendency is more pronounced for more serious forms of criminality.^

This “explanation” naturalizes men as criminals, obscures the historical variation in the sex ratio of prisoners, and justifies without reason stereotyping criminals as “almost exclusively male.” It ignores the reality that history and politics shape the social construction of criminal acts, the criminal seriousness of particular acts, and imprisonment sentences. With only some light paraphrasing, this introductory criminalization of men was copied into the introduction for a 2003 scholarly paper entitled, “Women in prison – Why is the rate of incarceration increasing?”^ That’s a peculiar scholarly concern in circumstances of 15 men in prison per woman in prison.

The criminological literature has worked to legitimize a highly unequal ratio of men in prison to women in prison. Focusing on females, a study found explanations for the ratio of males to females in prison increasing from 5 to 10 from about 1885 to 1915, but found puzzling the ratio of males to females in prison decreasing from 40 to 17 from about 1975 to 1997:

It is fairly clear that the reduction in female imprisonment in the late 19th and early 20th century was in large part the result of changes in the way that good order offences (especially drunkenness, vagrancy and prostitution) were dealt with. … The increase in female imprisonment since the 1970s has proven rather more difficult to account for.^

The Sentencing Advisory Council of the Australian state of Victoria published in 2010 a study, Gender Differences in Sentencing Outcomes. That study forthrightly recognized inequalities in sentencing:

In the Magistrates’ Court of Victoria, women are less likely to receive a sentence of imprisonment for all of the offence categories examined. For most of the offence types, women receive a shorter term of imprisonment than do men.

The study then justified categorical sex differences with “a constellation of factors that can validly reduce the length of a sentence.” What are the stars in this constellation? One wondrous star unblinkingly reflects effects of historical sex disparity in sentencing, blurred with vague references to seriousness of offenses and “more complex personal histories and situations”:

Women prisoners have less serious criminal histories than do men, with fewer prior convictions and less serious previous and current offending in terms of the type of offences for which they have been imprisoned. They also tend to be sent to prison for shorter periods, likely a reflection of their less serious offending and their more complex personal histories and situations.

The claim that men have less complex personal histories and situations than women do sheds light not on the reality of men’s lives, but on lack of social interest in men’s lives. The reflective reference to shorter sentences leads to women’s more complex personal histories and situations. That leads to extensively discussed, emotive factors:

The biographies of female offenders vary systematically from those of men. Contributing to their blurred status as both victims and offenders, women are more likely than men to have a history of factors that are often causally interrelated, such as mental illness, physical or sexual victimization in childhood or early adulthood, and substance abuse. Women are also more likely than men to have primary caregiver status.

Women being more likely to have primary caregiver status, which does not justify employment discrimination, here is used to justify discriminatory sentencing to prison. The Executive Summary for this study, which was issued by the Sentencing Advisory Council of the Australian state of Victoria, ends with a filigreed justification for sex inequality in imprisonment:

The effect of gender on sentencing is not direct, but travels via two distinct paths: via gender differences in offending behaviour; and via the individual biographies of women that see a greater proportion of women coming before the court with a constellation of characteristics that creates legitimate mitigating circumstances. It is these mitigating factors that lead to disparities in sentencing outcomes for men and women in the criminal courts, disparities that appear warranted and that are not immediately indicative of any pervasive ‘bias’.

Thus the disparities seen in sentencing outcomes for men and women are a reflection of legitimate but gender-linked characteristics: differences are evident because of factors associated with being female, not because of gender per se.^

If there were 3 times as many men as women in prison, or 5 times as many men, one might consider this analysis seriously. But the historical reality is that in that late 1970s, there were about 30 times as many men as women in Australia prisons. Australian scholars then began expressing concern about the number of women in prison. In 2011, Australian prisons held 13 times as many men as women. Scholars straining to justify that level of sex inequality for prisoners in societies formally committed to gender equality indicates not just pervasive anti-men sex bias in punishment. Such scholarly work also indicates pervasive anti-men sex bias in public deliberation.

Sex Ratio of Prisoners in U.S. Since 1880

face of a prisoner

sex ratio of U.S. prisoners from 1880 to 2010, with comparison to England & Wales

Two features make the U.S. history of punishment exceptional. First, the U.S. massively increased its prevalence of imprisonment starting from about 1980. Second, the U.S. had a relatively high concentration of punishment on men in the nineteenth century and did not greatly increase its concentration of punishment of men in the two decades after World War II. The post-1980 massive increase in imprisonment is a well-recognized feature of U.S. punishment history. In contrast, the early, exceptionally high U.S. ratio of men to women in prison and the relative stability of the U.S. prisoner sex ratio is hardly known.

Early in the nineteenth century, the ratio of men to women in prisons and penitentiaries was much higher in the U.S. than in European countries. Official French visitors to U.S. state prisons about 1832 noted:

the only certain, incontestable fact which we have remarked in the United States, and which may offer an opportunity for comparison, is the peculiar and extraordinary morality of the women belonging to the white race. Out of one hundred prisoners in the United States, we find but four women, whilst with us there are twenty in a hundred.^

An English official who visited U.S. state prisons about a year later offered a similar observation:

Few circumstances connected with this subject impress a visitor more forcibly than the small number of females to be found in the penitentiaries of the United States. …there prevails a strong indisposition to prosecute, especially if the offender be not a woman of colour. Magistrates are also reluctant to commit women from the circumstances of there not being any suitable prisons for their reception.^

A leading U.S. scholar of crime and punishment in 1833 concurred with these views:

In all countries women commit less crimes than men, but in none is the disproportion of criminals of the two sexes so great as in ours.^

Specific data indicate the U.S. had a much higher ratio of males to females in prison than did other countries. About 1837, the Belgian government sought to construct at Liege a penitentiary capable of holding 300 prisoners – 240 males and 60 females.^ In Britain, the Penitentiary Act of 1779 (19 Geo. 3, c. 74) directed the construction of two national penitentiaries, one for 600 male convicts and one for 300 female convicts. The national penitentiary at Millbank, London, was intended in 1818 to hold 600 males and 400 females.^ In 1840, Millbank held two male prisoners per female prisoner. In contrast, U.S. state prisons in 1840 held twenty-two male prisoners per female prisoners.

The relatively high ratio of males to females in early nineteenth-century U.S. prisons wasn’t an effect of the distribution of life-disposing punishment. In the U.S. from 1825 to 1845, the ratio of males to females executed was 14.7. That’s close to the execution sex ratio of 17.3 in England and Wales during that period. England and Wales during this period was also transporting convicts to Australia. The sex ratio among the transported convicts was 7.4 males to females. Many more persons were transported than were executed, hence substitution of these punishments for imprisonment would in aggregate raise the ratio of men to women in prison. Nonetheless, the ratio of men to women in prison was much lower in England and Wales than it was in the U.S.

Punishment in the U.S. focused increasingly on men through to the mid-twentieth century. Good national statistics for punishment by sex are available for the U.S. only from 1880. From 1880, 97% or more of the persons absent in punishment in the U.S. were in prison. Hence absence in punishment is nearly equivalent to persons in prison. The sex ratio among U.S. persons absent in punishment was about 11 in 1880. That was about twice as high as the sex ratio in punishment in England and Wales at that time. The U.S. sex ratio in punishment rose steadily from 1880 to 22 males per female in punishment in 1933. Execution, while accounting for only a small share of absence in punishment, also focused more extensively on men. The U.S. from 1846 to 2010 executed 90 males per female, a much higher sex ratio than the corresponding statistic of 25 for England and Wales.

The exceptional history of the U.S. sex distribution of punishment may be related to the exceptional U.S. history of communication. Compared to European countries, the United States experienced relatively early development of deliberative democracy.^ Freedom of the press, freedom of speech, and freedom of religion were central to the American colonists’ struggle against the British government and to their relations with each other. The First Amendment to the U.S. Constitution explicitly expressed those values. Moreover, the U.S. Declaration of Independence asserted as self-evident truths that all men are created equal and that governments derive their just powers from the consent of the governed. These principles spurred democratic deliberation. The federal structure of the U.S. government, with non-enumerated powers reserved to the states, allowed considerable political experimentation and political diversity as well as tension between state and national governments. In addition, plentiful land and good opportunities to form new settlements gave persons opportunities to exit from communities where entrenched institutions and established social hierarchies made deliberation unprofitable. The early American republic thus provided propitious circumstances for personally significant discussions of common life. Those discussions included extensive discussions about punishment.

The U.S. electoral franchise was broader before World War I and expanded less in the mid-twentieth century than did the electoral franchise elsewhere. In 1790, about a quarter of adults in the U.S. had the right to vote. In England and Wales, the corresponding figure was 8%. Across the first half of the nineteenth century, U.S. states largely eliminated property and tax-paying qualifications for voting.^ By 1919, 46% of persons in the U.S. ages 21 and over had full voting rights. This figure includes women who lived in states that had fully enfranchised woman (27% of women), but excludes non-citizens (11% of adults) and blacks living in the south (7% of adults). The Nineteenth Amendment to the U.S. Constitution (1920) increased the fully enfranchised share of adults to 82%. These figures do not subtract disenfranchised felons, overwhelmingly male, who increased to 2.5% of adults by 2004. The mid-twentieth-century increase in the U.S. electoral franchise was significantly smaller than the increase from 28% to 97% for the British electoral franchise from 1918 to 1929.

The exceptional history of U.S. imprisonment is associated with an exceptional history of communication and public deliberation. The U.S. was an early-nineteenth-century leader in the development of communication media and democracy. The U.S. also led the early nineteenth-century practice of attempting to suppress completely prisoners’ communication. The U.S. had an exceptionally high ratio of men to women in prison early in the nineteenth century. Sharp increases in the electoral franchise in other countries in the mid-twentieth century are associated with large increases in the ratio of men to women in prison in those countries. Democratic development that does not increase the engagement of prisoners in communication with non-prisoners seems to skew the sex composition of prisoners toward men.