How Sentencing Reform Movements Affect Women

AuthorLisa Kerr
How Sentencing Reform Movements
Aect Women
Lisa Kerr*
e distinct pains of punishment for women are well established in stud-
ies of the social and material realities of sentence administration. Some of
the unequal burdens that women experience in custody ow from how
“systems, practices, and policies” are “designed for the majority of the
incarcerated population: men.” Other disparities derive from inequal-
ities in the broader community. For example, women who appear at sen-
tencing are more likely to be the primary caretakers of children, and for
them a custodial sanction will mean family separation. In this chapter, I
canvass the capacity of Canadian sentencing law to respond to the dis-
tinct impacts and eects of incarceration on women. I argue that the
limited impact of sentencing reform movements in contemporary Can-
ada has helped to sustain the judicial discretion and the strong emphasis
on individualization that allows judges to craft t sentences for women.
* With thanks to Benjamin Berger and Anthony Doob for characteristically generous
feedback and to Emily Beierl for excellent research assistance. Thanks also to David
Cole and Julian Roberts for editorial guidance on this chapter and, more generally, for
their leadership in this f‌ield.
Elizabeth Swavola, Kristine Riley & Ram Subramanian, Overlooked: Women and Jails in
an Era of Reform (New York: Vera Institute of Justice, ) at .
How Sentencing Reform Movements Affect Women | 
Scholars have highlighted the ways in which women have been
mistreated in Canadian prisons, how incarcerated women are dis-
proportionately Indigenous, and how they have been “disadvantaged,
treated unfairly and essentially penalized for their underrepresentation
among those convicted of crime.” ese critical perspectives point to
important empirical truths, but it is equally important to emphasize
the ways in which the sentencing courts are, in many respects, ocially
open to considering these realities.
Canadian sentencing courts are well positioned to respond, within
the bounds of existing legal rules and principles, to the distinct experi-
ences and eects of women’s imprisonment. is is largely because
Canadian judges have broad discretion to consider the circumstances
of an oender at sentencing and because the collateral consequences
and impacts of imprisonment are broadly relevant. In addition, the
circumstances of Indigenous women must be considered at sentencing
pursuant to section .(e) of the Criminal Code, and R v Gladue is
broadly instructive on how to consider systemic factors in the context
of individual cases and an overarching commitment to proportional-
ity. e Gladue framework helps to resolve what scholars have called
the “challenge” of sentencing that responds to the distinct impacts of
imprisonment on women “without compromising the fundamental
sentencing principles of equity and proportionality.
See, for example, Debra Parkes & Kim Pate, “Time for Accountability: Eective Over-
sight of Women’s Prisons” ()  Canadian Journal of Criminology and Criminal
Justice  at –.
Of course, these issues change over time and vary across penal institutions and indi-
vidual cases. As Judith Resnick put it in a piece about sentencing women in the United
States: “Women are not a singular set, but dier on many dimensions, including those
of race, class, sexual orientation, age, parental status, occupational position, and the like.
Women share the ways in which the social order is organized by gender, but that organ-
ization is varied and complex.” Judith Resnik, “Sentencing Women” ()  Federal
Sentencing Reporter  at .
RSC , c C- [Criminal Code].
R v Gladue, []  SCR ; see also R v Ipeelee,  SCC  [Ipeelee].
See Julian Roberts & Gabrielle Watson, “Reducing Female Admissions to Custody:
Exploring the Options at Sentencing” ()  Criminology & Criminal Justice 

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