Deborah Orr: Jailed in the name of equal opportunities

Brenda Hale, the first of Britain's female law lords, did Frank Longford proud on Monday. Speaking at the memorial prize-giving dedicated to his name, she lectured on "the Sinners and the Sinned Against: Women in the Criminal Justice System". In doing so she focused on one of the most visible problems in our highly problematic justice system: the mounting number of women in prison, the mounting degree of suffering of women in prison, and the comparative underlying stability of the statistics about women and crime, that make this leap in numbers quite certainly due to nothing other than more punitive attitudes.

The numbers are plain. In 1960 there were around 900 women in prison at any one time. This year, on 17 October, there were 4,635. While there has been an increase in convictions against women in that time, it is nothing like the increase in custodial sentences. Hale says: "A woman convicted of theft on handling at the crown court is now twice as likely to go to prison as she was in 1991. In the magistrates' courts, the chance of a woman receiving a custodial sentence has risen sevenfold." Women are simply much more likely to be sent to prison for their crimes now, even though prison is a less effective agent of rehabilitation than pretty much any other option.

Hale addressed herself to the reasons why this should be. Her argument was that the female prison population was a sad and unwanted consequence of the drive towards gender equality. Arguing that equal treatment did not mean the same treatment, Hale quoted Professor Dorothy Wedderburn in Justice For Women: The Need For Reform: "Throughout the criminal justice system women offenders have been disadvantaged by a failure to recognise both the degree of deprivation which characterises the backgrounds of so many and the wider consequences of custodial sentences for them and their families."

Hale offered at least six ways in which women offenders differed from men offenders generally: (1) women are victims as well as offenders; (2) the offending behaviour is different; (3) female prisoners have special needs; (4) the prison experience is different for women; (5) the remand experience is different for women; (6) there is a disproportionate effect on other people.

Hale expanded in some detail on each of these categories. But I think I can sum them up without doing too much damage. Women who end up in prison tend to have had abused childhoods, and far more often than men have previously been in care. They tend not to have committed either violent crimes or "organised" crimes, but instead as a response to drug addiction or debt or some other problem in their lives. They are far more often in mental distress, addicted to drugs or alcohol or in the grip of other obsessive behaviours, and often need help more than punishment.

Because they are in such a minority in the criminal justice system - still only 6 per cent of the prison population - the system tends to be geared towards catering to the needs of men, both in remand and after sentencing, with all sorts of nasty unintended consequences for women. Finally, little attention is paid to the impact of a custodial sentence on their families.

In the most devastating statistic of her devastating speech, Hale told of a survey in Holloway in which 1,400 women entering prison for the first time were interviewed. Forty-two had no idea who was looking after their children, 19 children under 16 were fending for themselves, and a number of women knew who their children were with but had not expected to be separated from them that night.

The more judgmental among us might be tempted to observe that a good mother would not get into such a situation in the first place. All that can be said to this is that it does not help anyone at all if the maternal impulse that does exist within a family is denied and belittled in the name of some "take her down to the cells" vision of bureaucratic, telegenic summary justice.

The most miserable thing about the women and prisons situation is that it keeps getting worse, even though there has for years been consensus around the issues. All major prison reform groups have been highlighting the special plight of women for decades, and have been explaining with remarkable clarity where the solutions lie. What's more, research has shown that the public are also against custodial sentences for women who are not a danger to the public.

Cherie Blair treats the scandal as a personal crusade, and Ann Widdecombe has spent many years trying unsuccessfully to correct the misapprehension that she was vile enough to make women give birth in manacles. There is plenty of consensus. But something - and not just the vile inertia of creaking bureaucracy in a demoralised and underfunded institution - defeats all this goodwill and conspires to laugh in the face of humane good sense.

After years considering this issue, hours of discussion with campaigners, talks with people who work in prisons, and one or two visits to these awful, touching institutions, I've become convinced that while it is a gender issue, it is a gender issue more fundamental than even Hale recognises. I believe that the fatal flaw in feminism is its own internal contradiction, the one whereby it berates men while at the same time adopting male models as the gold standard.

A feminist friend is fond of declaring that any woman who believes that women should have equal pay with men is a feminist, and that any woman who disagrees is a fool. I'm a fool, then. Because I think it would be better for society if men had considered the possibility of accepting equal pay with women, exchanging high salaries for part-time work, flexible work, or complete chunks of time off to care for children and family.

Likewise, I believe that at the start of the 1960s, when there were far fewer men in prison as well as women, it would have been wiser to start treating the men in the criminal justice system more like women, rather than the other way round. We have to start tackling the tendency to increase the length and scope of custodial sentences, alongside the tendency of politicians and the media to tout this as a good thing.

It is a good idea to win the argument by changing attitudes to women in the dock, largely because they are a smaller and more compliant group generally. But there are many abused and frustrated men in the system who are sinned against as much as sinning too. No humanist can say that an abused and brutalised young person deserved a punishment more, simply due to gender. It is all much sadder and more complex than that.

d.orr@independent.co.uk