Penal Reform and Gender 1 Introduction The penal system is a vital part of the security sector. Any state run according to the rule of law must have a justice system that is able to impose sanctions, where appropriate, on those convicted. Most countries have an array of sanctions, ranging from warnings and community service to imprisonment. The penal system ensures that the law is enforced and respected. It also protects society by removing from circulation those who pose a serious threat of harm to others, deterring would-be offenders, rehabilitating offenders and showing society’s disapproval of their acts. However, the discrimination that pervades justice systems in general is also found in many penal systems, as can be observed in their sentencing procedures and the way penalties are administered. Integrating gender issues – the different needs, rights and abilities of women, men, boys and girls – into penal reform processes will help build an effective penal system that is non-discriminatory, meets human rights standards, and promotes prisoners’ rehabilitation. This tool on penal reform and gender provides guidance on responding to gender issues within penal systems. It aims to assist those responsible for management, policy making or reform of prisons within their own countries; international and regional actors supporting prison reform; as well as parliamentarians, civil society organisations and others that play a role in overseeing and monitoring prisons. 2 What is penal reform? Penal reform is the process of changing a penal system to bring it into line with the rule of law and the international human rights framework. It aims to ensure sanctions that are proportionate, non-discriminatory and rehabilitative. In particular, it aims to change prison institutions into places that respect individual human dignity, and ensure that those imprisoned are afforded their legal rights.1 Developing civilian-run prisons that are linked to the national health and welfare systems and have strong local links to assist social reintegration and rehabilitation can make an important contribution to crime control and community harmony and stability.2 Penal reform involves changes to the whole sanctions system, including custodial and non-custodial practices. Poor countries usually provide few alternatives to either pre-trial detention or to prison sentences. Fines can be court-ordered sanctions in most countries, but many of those fined subsequently end up in prison because they cannot afford to pay the fines. Developed countries usually have a range of alternatives to prison, including bail for those awaiting trial as well as sanctions such as supervision or community work for sentenced offenders. Because of the predominant place of prison in penal systems and the potential for abuse and torture in prisons, most penal reform activities focus on prison reform. Prisons are generally run by governments, although certain governments have contracted private companies to manage a number of their prisons. Prisons in all countries of the world serve two functions: to hold pre-trial detainees and those convicted by a judicial process to serve prison sentences as punishment for their offences. In some countries, people are held in administrative detention that is outside judicial processes, and prisons may exist that are run by the security service outside of the regular prison system. People are also detained outside the penal system, such as in secure mental hospitals or immigration detention. Reform of these systems is not seen as part of penal reform, since such detention does not fall within the criminal justice system. Penal reform activities are dependent on governments since they are the only ones that have the authority to impose sanctions and deprive people of their liberty. However, agents of reform can be non-governmental organisations (NGOs), lawyers, intergovernmental bodies, and other entities in the administration such as human rights commissions or coalitions. Problems widely found in penal systems include: Under-resourcing of the means to process noncustodial sanctions and measures so that imprisonment is imposed in cases where a non-custodial sanction might be more proportionate and less damaging.3 Over-use of pre-trial detention when release to await trail in the community would be more proportionate.4 Imprisonment when a health or welfare intervention would be more just and appropriate.5 Poorly trained and underpaid prison staff.6 Corruption that is deeply embedded in many systems and difficult to eradicate because of low staff pay, and lack of transparency and effective oversight mechanisms. A range of human rights abuses in prisons including: ■ ■ Overcrowding – to be found in almost two-thirds of prison systems worldwide. At a minimum, this can mean three people cramped into a cell meant for one person, and, at the worst, that prisoners have to take turns lying down to sleep while fellow inmates tie themselves to the cell bars and sleep standing up.7 Scarcity of resources so that buildings are insecure and crumbling, food and medicine are in short supply, 1