In or Out: Justice-Involved Women Characterization and Their Perceptions about Penal Sanctions

Abstract

Women incarceration rates in Portugal are rising, nevertheless, noncustodial sanctions should be chosen, whenever possible. This paper aims to understand which women are being sentenced to noncustodial sanctions and which are not, and what they think about their penalty, considering that the penalties’ effectiveness is linked to how they are experienced. A self-report questionnaire was administered to 152 Portuguese women serving custodial and non-custodial sentences. Results demonstrated that women were not spared from prison, regardless of their parental and marital situation and whether or not this was their first penalty or if it was a nonviolent crime conviction. The women generally considered their sentences to be unfair, and rehabilitation was not considered the purpose guiding judges’ sentencing decisions. Implications for the rehabilitation of justice-involved women are discussed since these perceptions might compromise their adherence to the penalties and minimize its effectiveness.

Keywords:

• Custodial penalties
• justice-involved women
• non-custodial penalties
• perceptions about penal sanctions
• sociodemographic and juridic characterization

INTRODUCTION

Over time, research has shown that women who commit crimes are distinguishable from men in key aspects; such as the age of onset, duration of criminal career, and developmental pathways (Cauffman, 2008; Fontaine et al., 2009; Kennedy et al., 2020). Most research within criminal justice focuses on men that commit crimes, therefore, penal responses and most interventions targeting women are designed based on men’s needs (Breuer et al., 2021; Naffine, 2015; Schelbe et al., 2018). Notwithstanding, an effective planning of intervention and penal responses should be grounded in understanding the factors specifically related to female criminality (Hedderman, 2004b), and gender-specific needs (Breuer et al., 2021). Such a “tailored” approach aligns with the principles of the Risk-Need-Responsivity (RNR) Model of Bonta and Andrews (2007, 2016).

Taking this into account, to develop and apply appropriate mechanisms that are responsive to the particular needs of women who commit crimes, it is essential to explore the idiosyncrasies of female criminality, understanding how these women perceived and signify their sentences. Besides considering the particularities of different types of sentences (i.e., custodial, or non-custodial sentences), such understanding should contemplate both individuals who are in prison and who are serving a community order, since their experiences (and therefore, their insights about the penalty) might be different.

As such, this study aims to understand who are the women sentenced to custodial and non-custodial sentences and reveal their experiences in the criminal justice system. Firstly, we will introduce a comprehensive literature review on the topic. Secondly, methodological aspects are presented to the readers. Finally, results are revealed and discussed in light of the existing literature.

The Female Criminality

According to the general strain theory (GST), certain strains increase the likelihood of crime (Agnew, 2014; Agnew & Brezina, 2019). Many individuals learn to cope with crime to overcome and deal with some strains or stressors (Agnew & Brezina, 2019), which could be more salient in females (Sharp et al., 2005; UNODC, 2020). In line with this, female criminal behavior has been directly identified by female prisoners as a way to cope with experiences of drug abuse, economic deprivation caused by poverty and child caretaking responsibilities, and surviving domestic abuse (Kennedy et al., 2020). In addition, imprisoned women report high rates of distinct emotional and physical abusive experiences in childhood (e.g., Breuer et al., 2021; Kennedy et al., 2016). Literature has also shown gender differences in the impact of the exposure to interpersonal violence and on the rates of mental health issues, and substance use disorders (Começanha, et al., 2017; Kubiak et al., 2014). As such, female prisoners show high levels of childhood trauma and associated distress in adulthood (Williams et al., 2012), mental health issues, such as depression, anxiety, and post-traumatic stress disorder (PTSD; Bartlett et al., 2015; Gunter et al., 2008) and other problems, such as anger control and expression (Kubiak et al., 2014; Pinheiro et al., 2021).

Another theory of criminology that contributes to explain female criminality is the Labeling theory, which posits that deviance results from the interaction between an individual and society’s negative label toward he/she (Lee et al., 2017). Contacting with criminal justice systems entails feelings of depreciation, and consequently, an increase in offending behaviors (McGrath, 2014). Despite this effect being true for both men and women, it tends to be more adverse for the latter (Giordano et al., 2004; McGrath, 2014). Indeed, female prisoners experience stigma and bias from a variety of criminal justice actors which are typically grounded on deeply held cultural beliefs and stereotypes about acceptable behavior for women (Kennedy et al., 2020). This links with the Double Deviance theory (Heidensohn, 2012): women may be punished not only by breaking the law but also by having broken societal expectations regarding female gender roles, namely the way a woman should behave. Thus, if a woman presents herself in the court acting outside the traditional feminine gender role, she might be treated more punitively. In contrast, if a woman acts in a way considered feminine, the opposite might occur (Gelsthorpe, 2007).

Penal Responses to Female Criminality

Worldwide, women's incarceration rates have been increasing (Bontrager et al., 2013; Enos, 2017; Liddell & Martinovic, 2013; Walmsley, 2017), and according to the literature, this increase is more a reflex to the changes in official responses to female and criminal behavior, than a result of an increase on the rate of female criminality (Fisher, 2018; Hedderman, 2004a). Indeed, a hypothesis for this increase may be a rise in the use of custody for women (Hedderman, 2004a), namely those that commit less serious offenses (Liddell & Martinovic, 2013; Patel & Stanley, 2008). In Portugal, the crime most committed by women are directly and, in many cases, indirectly related to drugs (Matos et al., 2017). In 2001, the Portuguese legislation decriminalized drug consumption, which resulted in a reduction of female arrests (Cúnico & Lermen, 2020), contrary to other countries’ scenarios. Comparing the official statistics of the ministry of justice (DGRSP, 2022), between 2000 and 2020, there was a decrease from 1206 to 854 female inmates, 279 of whom are for drug trafficking. Despite this, if we consider all the people serving a penalty or measure on 2020 December 31st, we observe that the decrease was higher in men (8%) than women (4.5%). However, if we narrow the range of years to the present, we observe that the female prison population has been growing in Portugal in contrast with the male population. Between 2010 and 2020, the number of women incarcerated increased 26.9%, while men decreased 3.4% (RASI, 2010, 2020).

These values allow for a perspective of the current trends, without the close effect of drug decriminalization, which goes in line with the international scenario.

Gender Differences in Sentencing Outcomes

The criminological literature widely reports a criminogenic effect associated with imprisonment (Durlauf & Nagin, 2011). This criminogenic effect is based on a higher recidivism, when compared to non-custodial sanctions (Bales & Piquero, 2012; Gendreau et al., 1999) and imprisonment-related processes, such as the development of an oppositional culture (Listwan et al., 2013), feelings of outrage toward society (Sherman, 1993), and reinforcement of a deviant identity (Matsueda, 1992). Studies on the effect of custodial and non-custodial sanctions on men and women have reported that those in prison were at higher risk for reoffending than those on probation (e.g., Caudy et al., 2018). This effect was found in both men and women but tended to be stronger for the latter, which means that prison probably has a more negative influence on women that committed crimes in terms of recidivism when compared to their male counterparts. Besides, probation orders are more likely to address the problems that typically underly the causes of women’s imprisonment (e.g., drug or mental health problems) (UNODC, 2020).

In the past, several studies have pointed out that some women seem to be preserved from custodial sentences. Literature has shown that the probability of women being condemned to a prison sentence is lower than for males (e.g., Spohn, 2002; Steffensmeier & Motivans, 2000). Considering the effect of gender on the decision about a prison or probation order, regarding sex offenders, for example, women were more likely to be sentenced to a probation order than their male counterparts (Shields & Cochran, 2020). Other studies underlined that gender alone did not predict the likelihood of imprisonment, but women with dependent children were less likely to go to prison (Koons-Witt, 2002; Patel & Stanley, 2008), often receiving more non-custodial sanctions. More recent studies have challenged these patterns, showing large amounts of incarcerated women having children (Steyn & Booyens, 2017).

Regarding gender effects on the length of the prison sentence, results are not as consistent, with studies revealing less severe sentences for women and others finding the opposite pattern (Rodriguez et al., 2006). Reported inconsistencies are probably related to the complexity of the relationship between gender and punishment. Hence, the importance of deepening the research to the variety of socio-demographic and criminal circumstances is vital. For example, a study revealed that women's sentences tended to be shorter, except for charges for drug-related crimes (Chatsverykova, 2017). Literature has been highlighting that many of the differences in detention rates and prison length are explained by gender differences in legally relevant factors, such as the severity of the offense and prior criminal record (Doerner & Demuth, 2014; Spohn, 2002; Steffensmeier & Motivans, 2000). Also, the judicial “leniency” toward women that offend may also be related to judges’ perceptions that women are less dangerous, less guilty, less likely to reoffend, and more likely to be deterred from committing crimes than men (Spohn, 2002). Some authors advocate that the gender gap in the attribution of penal sanctions cannot be fully explained by accounting for legal and extralegal factors (Doerner & Demuth, 2014). Analyzing each gender group separately, some legal and extralegal factors did influence sentencing differently for male and female defendants, with several aspects, such as educational levels and ethnicity, playing a role in the relation between gender and sentence severity (Doerner & Demuth, 2014). As reported by the results of Tasca et al. (2019) it exists a multifaceted relationship between parenthood, gender, and prison term length. The authors found no differences between the sentences of parents and nonparents unless gender was considered—women and mothers received longer prison sentences than their male counterparts. Gender-split parent models analysis revealed that parental involvement had different effects, with mothers who were responsible for their children before imprisonment having less severe sentences than uninvolved mothers. Parental involvement had no impact on the prison sentences of fathers. These authors suggest that leniency may be reserved for low-level female offenders without criminal records (Tasca et al., 2019).

Despite these mixed results on the (higher or lower) severity of sentences imposed on women, as we mentioned, recently we assist to an increase in women’s imprisonment around the world, which calls for the importance of understanding who these women are, and what distinguishes them from the ones that are sentenced to a probation order.

Portuguese Criminal Justice System

Portuguese criminal sentencing follows an inquisitorial procedure and is based on the civil law tradition, which guides sentencing by penal and procedural codes. Penalties and their penal framework are defined in the Penal Code, for each offense. In the Portuguese Criminal Justice Law, a prison sentence under five years of imprisonment can be substituted by other non-custodial sanctions, such as fine, suspended prison term, or community service, between others. In these cases, penalties can lead to associated ancillary sanctions, such as the obligation to respect certain rules of conduct. When a crime fulfills the conditions to be penalized with non-custodial penalties, criminal law establishes that the court should prefer this option over custodial penalties (art. 70 of Portuguese Penal Code). Judges must decide on a particular sanction depending on the specific characteristics of each case and each defendant, namely, mitigating and aggravating circumstances, social alarm, etc. The discretionary power of judges is particularly evident at this moment since the characteristics of each case and each defendant must be weighed by the judges, without specific or strict procedure guides, to respond to the specificities of the situations (Castro Rodrigues et al., 2019).

Also, the penal purposes that a sentence may pursue are defined by the codes, namely, retribution is not supposed to be the purpose for sentencing. On the contrary, the imposition of penal sanctions should essentially be preventive—whether through general or special deterrence—that is, sentencing should primarily aim to prevent future crimes, and restore the juridical peace that was undermined by the offense (Antunes, 2013; Dias, 2001).

(Female) Offenders’ Perspective about Penalties

There is a substantial volume of research about the possible deterrent value of various criminal justice policies but much less research on the relationship between punishment’s objective and perceptual properties (Paternoster, 2010). Indeed, the voice of people that committed crimes remains relatively marginal to policy debates (Armstrong & Weaver, 2013), especially women’s, nevertheless the literature has been widely discussing procedural justice and its importance for the effectiveness of penal justice (e.g., Jackson et al., 2012; Tyler, 2003). Indeed, how defendants interpret punishment intrinsically relates to the experienced severity of such punishment, being influenced by the individual’s circumstances. Therefore, the experience of punishment and the response to its results from the interaction between defendants and their sentence (Van Ginneken & Hayes, 2017). In line with Duff’s theory of communicative punishment (Duff, 2001), listening to people serving sentences plays an essential role in maximizing penalties effectiveness and the achievement of penalties purposes. Given the possible implications for deterrence, Crank and Brezina (2013) considered the lack of research on the users’ perception of penalties, and its punitiveness and fairness surprising, and nowadays it still is. Also, some studies comparing probation orders and prison sentences have reinforced the subjective experience of punishment, namely with individuals considering a community sanction more severe than imprisonment, and others reporting the opposite—which underlines the interaction of punishment experiences with peoples’ circumstances (Van Ginneken & Hayes, 2017).

Besides, most studies have been conducted in male samples, which underlines the need to increase research on the perspectives of incarcerated women about their penal sanctions (Kennedy et al., 2020). The exception to this is the studies about women-specific needs within the criminal justice system which have been widely reported (Annison et al., 2019; Bloom et al., 2004; Breuer et al., 2021; Hedderman et al., 2011; Singh et al., 2019; Sorbello et al., 2002; Wardrop et al., 2019). For example, a review of treatment needs of women that committed crimes has shown that these women have several needs often ignored within male corrections contexts, such as sexual and/or physical abuse; dependent children; low self-esteem, vocational and life skills deficits; and drug abuse (Sorbello et al., 2002). Focusing on imprisoned mothers, Breuer et al. (2021) discussed how their gender and parenting-related needs are often not considered in the criminal justice system, from mental health and previous traumas and substance abuse issues, until the need to maintain relationships with their children during custody and to reestablish those relationships upon release.

Thus, exploring how imprisoned women experience their sentence (Hedderman et al., 2011; Malloch & McIvor, 2011) and how such experiences influence their linking to criminal lifestyle (Scherer et al., 2020) is vital. Previous research underlined that women tend to provide different meanings to the sentences and to deal differently with the experience of condemnation (Rumgay, 2004; Wright et al., 2012). Compared with male counterparts, female inmates report a more painful experience of reclusion, complain about the lack of privacy, and present more hopelessness, anger, and insecurity (Crewe et al., 2017). Particularly incarcerated mothers show amplified psychological and emotional distress since prisons are not usually designed to respond to the needs of mothers and their children (Wattanaporn & Holtfreter, 2014). Many imprisoned mothers see their family relationships severely affected during their custody (Aiello & McCorkel, 2018, Breuer et al., 2021), whereas incarcerated mothers who are separated from their children frequently report psychological distress (Kennedy et al., 2020), suffering despair, frustration and depression due to such separation (Sorbello et al., 2002), and even repeated cycles of incarceration (Breuer et al., 2021).

Hence, considering the increased impacts of imprisonment on women, the gender and parenting-related needs, and also the article 70 of Portuguese Penal Code that postulates that the court should prefer non-custodial over custodial penalties whenever possible, it is important to verify if the application of Law is reflecting all this. Additionally, according to Tyler’s procedural justice and Duff’s theory of communicative punishment, and the compromise of sentencing purposes, which might come from a lack of understanding and adherence to the penal decision, it urges to analyze condemned females regarding their penalties.

Hereupon, this study aims to increase the scope of knowledge about who are the women sentenced to custodial and non-custodial sentences, and their experiences in the criminal justice system. The goal is to report exploratory data of a sample of Portuguese women sentenced to probation and prison sentences, regarding their sociodemographic characteristics, their perceptions about the purpose of the sentences, and their insights concerning the effect of sentences being served.

METHODOLOGY

Participants

Data collection took place in one female Portuguese prison, five State probation agencies, and one service for therapeutic intervention for non-custodial sanctions. The participants of this study are 152 female offenders serving a custodial or non-custodial sanction. The sample includes women who have committed different offenses (e.g., drug trafficking, property/economic, domestic violence, serious bodily harm, driving-related offenses, sexual crimes, and attempted murder). Inclusion criteria were to be able to read Portuguese and be psychiatrically compensated.

Instrument

We used the “Questionnaire of Experiences and Perceived Effectiveness of Penal Sanctions,” developed by Castro-Rodrigues and Gonçalves. The items are scored on a 3-points (ranging from 0 = not helpful to 2 = helpful) and a 4-points Likert type scale (ranging from 0 = strongly disagree to 4 = strongly agree). The questionnaire includes several domains related to the experience of the penalty (e.g., Characterization of the routine of serving a sentence), perceptions toward the justice system (e.g., Perceptions about the certainty of being sentenced, Perceptions about sentencing purposes in Portugal), perceptions about the penalties (e.g., Perceptions about the usefulness of the different penalties for their situation, Perceptions about the adequacy of the different penalties for the different crimes, Aspects that promote offenders’ rehabilitation), perceived effects of the sentence (e.g., Perceptions about the imposed penalty), perceptions about the crime committed (e.g., Motivations for the crime for which is serving a sentence) and other criminality (e.g. Perceptions about the severity of the criminality), and perceptions about criminal carriers (e.g., Aspects of persistence of criminal lifestyle) and desistance (e.g., aspects of intentions for desistance). Additionally, the questionnaire includes a sociodemographic section, which collects data regarding age, gender, marital and parental situation, and questions regarding the penalty being served (type of penalty, length, crime(s) committed, penal situation, and the description of the previous sentences served, in the case of being a recidivist). In this paper, we analyze sociodemographic variables and the domains of the Perceptions about sentencing purposes in Portugal, the Perceptions about the imposed penalty, and the Perceptions about the usefulness of the different penalties.

Procedures of Data Collection and Analysis

All procedures were approved by the national funding agency FCT—Foundation for Science and Technology (which funded the study), by the [university removed for review], and the Directorate General for Reintegration and Prison Services (DGRSP). After receiving the authorization from DGRSP, we contacted the prison and the probation agencies, scheduling a meeting with the coordinators to organize the face-to-face data collection. All the potential participants were asked to voluntarily participate, without any reward for the participation besides the opportunity of being heard about their situation, but also without any damage or harm for refusing to participate or withdraw. The ones that accepted to participate signed an informed consent, where all these aspects are exposed. The most rigorous national ethical standards were considered in the study design and implementation, namely regarding participants’ privacy and voluntary participation, and data protection and retention. Data was collected between 2017 and 2019 since the broad project was a longitudinal study. In prison, we administered the questionnaires in the school area or next to the visits room, coordinating with the prison guards, who selected and called the potential participants. As for probation agencies, female offenders were invited to take part in the study after their regular appointment with the probation officer. offenders with their probation officers.

Data analysis consisted of descriptive statistics and group differences tests, namely, Chi-square tests for nominal variables, Mann-Whitney tests for ordinal variables, and independent t-tests for scale variables. A p-value of <.05 was used as an indicator of statistical significance (Aron et al., 2013). All analyses were performed using IBM SPSS Statistics, version 27.

RESULTS

All participants were women serving either probation (n = 24) or a prison sentence (n = 128). Demographic and criminal variables are described in Table 1.

Table 1. Demographic and criminal variables.

	Total n (%)	Women in prison n (%)	Women in probation n (%)	χ^2	p
Marital situation				2.680	.444
Single	53 (35.3)	42 (33.3)	11 (45.8)
Married	55 (36.7)	46 (36.5)	9 (37.5)
Widow	6 (4.0)	6 (4.8)	0 (0.0)
Divorced	36 (24.0)	32 (25.4)	4 (16.7)
Parental situation: with children	130 (85.5)	109 (85.2)	21 (87.5)	NA	NA
Penal situation				.241	.887
First sentence	81 (54.0)	67 (53.2)	14 (58.3)
Second sentence	43 (28.7)	37 (29.4)	6 (25.0)
Third or more sentence	26 (17.3)	22 (17.5)	4 (16.7)
Type of crime
Drug trafficking	78 (54.9)	68 (56.7)	10 (45.5)	.944	.331
Property/economic	53 (37.3)	43 (35.8)	10 (45.5)	.736	.391
Domestic violence	1 (0.7)	0 (0.0)	1 (4.5)	NA	NA
Serious bodily harm	3 (2.1)	3 (2.5)	0 (0.0)	NA	NA
Driving related offense	5 (3.5)	4 (3.3)	1 (4.5)	NA	NA
Sexual crimes	3 (2.1)	2 (1.7)	1 (4.5)	NA	NA
Attempted murder	11 (7.7)	11 (9.0)	0 (0.0)	NA	NA
Violent crime	35 (24.6)	33 (27.5)	2 (9.1)	3.392	.065
Victim present	43 (30.3)	40 (33.3)	2 (13.6)	3.417	.065
		M (SD)	M (SD)	t	p
Sentence length		88.42 (60.32)	34.13 (20.26)	−7.493	<.001
Drug trafficking		73.40 (32.95)	35.40 (15.49)
Property/economic		93.05 (66.37)	33.00 (21.48)
Domestic violence		NA	NA
Serious bodily harm		75.00 (7.94)	NA
Driving related offense		91.00 (56.16)	NA
Sexual crimes		82.00 (11.31)	NA
Attempted murder		197.09 (70.77)	NA
Violent crime		131.97 (79.57)	39.00 (29.70)
Victim present		120.72 (77.13)	26.33 (30.37)
Criminal versatility		1.09 (.367)	1.05 (.213)	−.573	.568

Note. NA since one or more cells have expected count <5.

Type of Sentences

Most women (n = 119) were serving a prison sentence (78.3%), and nine (5.9%) were on remand, while 24 (15.8%) were on probation. Of these 24 on probation, 19 (12.5%) were serving a suspended prison sentence, four (2.6%) were doing community service, and one (0.6%) was in conditional release at the time of data collection.

Marital and Parental Situation

Overall, the rates of single and married women were the highest, followed by divorced ones. Only a small portion of the sample reported being a widow (4%). Among the imprisoned group, most women were married, in a slightly higher proportion than single women, similar to the percentage of married women on probation. Besides, most divorced women were serving a custodial sanction. Both in prison and on probation, most of the participants of our study have children. Regarding marital status, Chi-Square tests revealed no significant differences between the two groups. Chi-square tests could not be reported regarding parental situation since one cell (25%) had an expected count of <5.

Penal Situation

Regarding the penal situation, most women were serving their first sentence (54%). Chi-Square tests revealed no significant differences between the groups, in terms of being serving their first, second, or third sentence.

Type of Crime

Most women in prison in our sample committed trafficking, followed by property crimes, consistent with the official statistics (DGRSP, 2022). In a very small proportion, we find other categories of crimes (see Table 1). Current data indicate that most women committed a non-violent crime, whether in prison or on probation. Besides, regardless of the sentence, most women committed a crime with no victim, and no significant differences regarding the crimes committed, the presence of violence, and the presence of a victim were found. In these last two cases—the presence of violence and the presence of a victim, there were only marginal significant differences (respectively, χ²(1) = 3.392, p = .065 and χ²(1) = 3.417, p = .065), between women serving a prison sentence, and women on probation. Although we need to be cautious with these differences, due to the low number of women in some of these groups, these results might suggest that prison sentences are being attributed regardless of the severity and persistence of the criminal activity and the existence of a victim.

Sentence Length

Comparing the sentence length of the two groups of women, the group of imprisoned women had statistically significant longer sentences (M = 88.42, SD = 60.32) than women sentenced to probation (M = 34.13, SD = 60.32; t(105.913) = −7.493, p = <.001, d = −.979, 95% CI [−1.444–.510]). From the group of imprisoned women, 28.6% were serving a sentence below or equal to five years (which by law could have been suspended in its execution and, thus, served on probation), and more than half (55.2%) were serving a sentence lower than six years (which is close enough to the cut off of five years that allows for serving probation).

Criminal Versatility

We recoded the crimes these women reported to have been condemned for in a new variable, called “criminal versatility,” which corresponds to the number of distinct types of crimes reported. Considering criminal versatility, we found no statistically significant differences, with the group of imprisoned women showing only a slightly higher number of crimes (M = 1.09, SD = .367) than women serving probation (M = 1.05, SD = .213, t(140) = −.573, p = 568, d = −.133, 95% CI [−.587–.322]).

Sentencing Purposes

Participants rated their agreement regarding sentence purposes in Portugal, particularly general deterrence, specific deterrence, rehabilitation, and punitivity (Table 2). Female offenders both in prison and on probation consider that the primary purpose of sentencing is punitivity. Indeed, only 18.1% of imprisoned women and 12.5% of women on probation disagreed with punitivity guiding judges when deciding on a penalty. Punitivity received the most concordance, and rehabilitation received the least. Among the two groups, 35.7% of imprisoned women and 20.8% of women on probation disagreed with rehabilitation being the purpose of penalties in Portugal, which might compromise their adherence to their rehabilitative process. Mann-Whitney tests showed no significant differences between groups regarding their perceptions of general deterrence, specific deterrence, rehabilitation, and punitivity (Table 2).

Table 2. Perceptions regarding sentencing purposes.

	Total N (%)	Women in prison N (%)	Women on probation N (%)	U	p
Specific deterrence: agree	111 (73.0)	90 (71.4)	21 (87.5)	1,401.00	.546
General deterrence: agree	117 (78.5)	97 (77.6)	20 (83.3)	1,492.00	.965
Punitivity: agree	130 (87.8)	109 (87.9)	21 (87.5)	1,451.50	.827
Rehabilitation: agree	100 (66.7)	81 (64.3)	19 (79.2)	1,398.00	.535

Note. N and % of participants who responded “agree” and “totally agree” with each of these purposes for the penalties in Portugal.

Perception about Their Sanction

We asked women in custodial and non-custodial penalties their opinions about the effects of their sanctions, as well as some features about the crime they committed and the prison sentences in general. Most considered that the type of sentence they were serving is adequate for the crime committed (57.6%), even though women in prison agree less with the penalty they received (54.3 vs. 75%), with marginal statistically significant differences between the two groups (U = 1,155.50, p = .064). Regarding the perception of fairness, analyzing the overall responses, only 38% agreed with the fairness of their condemnation. However, testing for differences between the group on probation and the group of prisoners, we noticed that the group of probationers considers their sentence as fair (62.5%). By contrast, most imprisoned women did not agree with the fairness of their penalty (33.3%), with marginal statistically significant differences between the two groups (U = 1,146.00, p = .056, r = .157). Most participants agree that their sentence had a deterrent effect from crime (60.3%). Nevertheless, significant differences emerged between women in prison and women on probation (U = 1,142.00, p = .040, r = .168), with the former considering their penalty to have the least deterrent effect (see Table 3). Besides, most participants admitted looking differently at their crime because of the sentence (85.7%). They mostly agree with the illegality of their actions (81.5%); nevertheless, women in prison scored higher than women on probation, although not significantly (U = 1,364.00, p = .382). Thinking about prison sentences in general, most women considered that prison works as a school of crime (74.5%), with no statistically significant differences between the two groups.

Table 3. Perceptions about their sentences.

	Total N (%)	Women in prison N (%)	Women on probation N (%)	U	p	Effect size
Type of sentence	87 (57.6)	69 (54.3)	18 (75.0)	1,155.50	.064
Fairness of the sentence	57 (38.0)	42 (33.3)	15 (62.5)	1,146.00	.056	.157
Deterrent effect	91 (60.3)	73 (56.2)	18 (75.0)	1,142.00	.040	.168
Look differently at the crime	132 (85.7)	111 (87.4)	21 (87.5)	1,462.50	.819
The crime should be illegal	123 (81.5)	107 (84.3)	16 (66.7)	1,364.00	.382
Prison as a school of crime	114 (74.5)	96 (74.4)	18 (75.0)	1,522.50	.994

Note. N and % of participants who responded “agree” and “totally agree” with each of these aspects regarding their penalty.

The Usefulness of Different Sanctions

Participants were also asked to consider the usefulness of the different penalties and their potential to help them change their life to avoid crime perpetration (Table 4). Detention was considered the less helpful sanction (only 14.1% believed prison could help), with detainees showing marginal statistically significant differences in this discredit toward imprisonment compared to women on probation (U = 1,225.50, p = .056). Women in prison considered the community service and the suspended prison sentence the most helpful, followed by electronic monitoring. In contrast, women on probation preferred suspended prison sentences, followed by fine application, community service, and electronic monitoring (considered the most similar to imprisonment); imprisonment was the less considered sanction (14.1%). Testing for differences regarding their thoughts on the usefulness of these non-custodial sanctions, we found statistically significant differences, with imprisoned women believing more than women on probation in the utility of these alternatives to the sentence they were serving (Table 4).

Table 4. Usefulness of the different existent sanctions.

	Total N (%)	Women in prison N (%)	Women on probation N (%)	U	p	Effect size
Fine	52 (35.6)	46 (37.7)	6 (25.0)	1,113.00	.047	.164
Prison in free days	57 (38.2)	54 (43.2)	3 (12.5)	1,039.50	$<$.001	.404
Community service	94 (64.4)	88 (71.5)	6 (25.0)	638.50	$<$.001	.407
House arrest	72 (49.0)	69 (56.1)	3 (12.5)	498.00	$<$.001	.459
Suspended prison sentence	94 (65.3)	84 (69.4)	10 (43.5)	930.00	.003	.249
Prison	21 (14.1)	20 (16.0)	1 (4.2)	1,225.50	.056	.157

Note. N and % of participants who considered each one of these sentences might help or would help them change their life in order not to commit crimes anymore.

DISCUSSION

The literature on the effect of extralegal factors has not been consistent (Gaub & Holtfreter, 2015). However, extralegal characteristics, such as gender seem to play an important role in sentencing decisions (Doerner, 2015; Doerner & Demuth, 2014; Gaub & Holtfreter, 2015; Leiber et al., 2018). As a result, the stereotypes associated with men and women may induce inequalities even for decision-makers and their sentencing practices.

Penal sanctions can be experienced in various ways, depending on individual circumstances and vulnerabilities, yet, traditionally, research has focused on male samples, lacking studies on women that committed crimes and, consequently on the recognition of the diversity and distinct features of women prisoners’ experiences and identities (Cunha, 2018).

Although no national official data is available on the number of women serving a non-custodial sentence to compare with the number of women serving custodial ones, Portugal still has a high proportion of women serving prison sentences; despite the reduction in the number of imprisoned women because of the national drug policy—the percentage of imprisoned women in Portugal is 6.1% in contrast to 5.3% in the European Union (Gomes & Duarte, 2018). Identifying these trends and understanding how women are dealing with and perceiving their sentences and the justice system is essential to foster the rehabilitation potential of sentencing.

In line with these aims, regarding the marital and parental situation, our results suggest that married women and women with childcare responsibilities do not seem to be spared from prison. Portuguese judges might not be considering marital status and motherhood when deciding on a custodial or non-custodial sentence, in contrast to previous trends. These findings are consistent with the rise in the use of custody for women (Patel & Stanley, 2008), contrasting with previous research showing that women with marital and parental responsibilities used to be more preserved from custodial sentences (e.g. Koons-Witt, 2002; Patel & Stanley, 2008). Indeed, previous research has already stated that parental responsibilities do not seem to result in a lenient decision for women anymore, probably because of the judges’ expectations about the expected female role in the family (Freiburger, 2009). On the contrary, these findings might suggest women are being treated as double deviants (e.g., Cunha, 2018), and in consequence, are suffering from a double punishment: they are sentenced for their criminal acts, and noncompliance with motherhood and care provider roles. In addition, important features of motherhood in prisons shall be considered, since, among other processes, mothering can be a judicial instrument to blame and shame women for their actions before coming to prison (Kennedy et al., 2020). In line with a persistent and generalized double punishment, female prisoners are blamed by prison personnel, and blame themselves, not only for their criminal offenses but also for failing to fulfill maternal responsibilities (Cunha, 2018). This is particularly relevant to bring to this discussion since these experiences of blame and shame might influence the rehabilitation process that should be happening in prison (Kennedy et al., 2020).

Regarding the penal situation, most women in prison are serving a first sentence, which suggests that judges do not show a trend to give female offenders the chance of serving the first sentence on probation. These results are surprising since in Portugal sentences until five years may be suspended in their execution, namely for first-time offenders and low-risk/low severity criminal situations. This is a highly used measure as seen by data from December 31, 2020, when 14,631 persons were serving a suspended prison sentence, from the total of 27,802 people serving a penalty/measure in the community, in contrast with the total of inmates of 11,412 (RASI, 2020). Considering our results regarding the number of imprisoned women stating to be serving the first sentence, we question if the chance of a suspended penalty is mainly being given to men. Additional analysis should be carried out to adequately address this important issue, since criminological research has shown a stronger criminogenic effect of imprisonment for women (Caudy et al., 2018), and has long been arguing for the importance of reserving prison sentences for high-risk offenders (i.e., violent and chronic ones; e.g., Gendreau et al., 1999).

To better understand these patterns, we analyzed the sentence length of both groups obtaining statistically significant differences between women in prison and women serving probation, which possibly means that judges might be deciding on a prison sentence or probation in response to the penalty length decided by them in the first place. Although this is a result to consider and explore in more detail in the future, it is not to exclude the possibility that the same mechanisms that underly the decision to incarcerate or not those women might be present in the decision of the sentence length, among the sentence frame for each situation. Indeed, from the group of imprisoned women, 28.6% were serving a sentence below or equal to five years, and more than half (55.2%) were serving a sentence lower than six years. This is important to observe considering the above-mentioned possibility of suspending the execution of a prison sentence until five years.

Regarding the type of crime, in our sample most imprisoned, women committed drug trafficking and property offenses, in accordance with official statistics (respectively, 37 and 23%) (DGPJ, 2020). Also, most imprisoned women committed a non-violent crime and without the presence of a victim—72.5% of women serving a prison sentence committed a nonviolent crime. Both results suggest an excessive usage of custody for women that commit less serious offenses (i.e., non-violent crime and without a victim present; Patel & Stanley, 2008). This goes in line with previous research where female inmates are more likely to have committed nonviolent economic offenses, whereas their male counterparts were more likely to have committed serious and violent property crimes (e.g., Steyn & Booyens, 2017). This is also consistent with previous data showing that women are proportionally more convicted to prison sentences for drug-related offenses than men, stressing the need to investigate the reasons these rates rose faster for women than for men (Cunha, 2018). In the context of the intersection between this fact and women’s double-deviance labeling, Cunha (2018) discusses that rehabilitation might then mean putting these women “back on track for the female roles and spheres from which they had supposedly strayed” (Cunha, 2018, p. 62).

These results make us question the criteria for, according to the same demographic and offense features, some women being sentenced to prison while others have the chance of serving a non-custodial sentence.

The situation of how the court are responding to the way a woman behaves during the trial, namely the stereotypes involved in this process about the acceptable and non-acceptable female behavior may explain why magistrates are sentencing women punitively, even if they do not necessarily represent a threat to society, rather are diverting from expected female roles (Gelsthorpe, 2007). Additional analysis would be needed to verify Gelsthorpe (2007) assertion about the attribution of more punitive penalties to women who present themselves in the court acting outside the traditional role associated with the feminine gender, and the inverse. Namely, future studies might consider direct observations of court trials to address this issue. Also, future studies should analyze possible explanatory variables to the phenomena, such as the potential effect of the socio-economic status of the female defendants and the type of defense they are entitled to (namely ex officio defense), in the line of research on the obstacles to access to law and justice (e.g., Gomes, 2019), namely from women (e.g., Maher et al., 2018; Troshynski, 2020).

Overall, our results align with the findings of Steyn and Booyens (2017), which stated the tendency for women in prison to have children, be first-time offenders, and have committed a non-violent crime. In Portugal, as in many other contexts, it seems that magistrates are being punitive in their sentencing of women who are not a threat to society (Gelsthorpe, 2007), and who used to be preserved from harsher sentences due to their caregiver roles. This is consistent with the absence of statistically significant differences between the groups of incarcerated and on probation women regarding their criminal versatility, that is the number of distinct crimes they reported to be serving the sentence for.

Regarding participants’ perceptions about sentencing purposes, female offenders, both in prison and on probation, considered that the primary purpose of sentencing is punitivity, and rehabilitation was the purpose that received the lower score. Present results collide with the Portuguese Penal Code principles, which foresees penalties pursuing deterrence purposes through positive means, such as rehabilitation, and not by punitivity or retributive purposes. Hence, rehabilitation should be, more than theoretically, privileged over punitivity or retributive purposes; ideally, punitivity should only be an unavoidable consequence of the penalty. Our results deserve attention since to be effective, and in line with Tyler’s theory of procedural justice (Tyler, 2003), the purpose of the sentences should be understood by those who are serving them, in order to maximize the adherence to and implication in the sentences. Understanding how women explain their offending behaviors and how they relate to the criminal justice system is crucial to increase efficiency in the prevention of crime (Gomes & Duarte, 2018). Therefore, we can hypothesize that the disbelief in the system’s rehabilitative purposes and, in contrast, the belief in the purpose of punitivity might impact the way offenders’ see their rehabilitation process. This goes in line with Schinkel (2014) assertions on the lack of moral engagement of long-term prisoners with their sentence and on the way the system of justice has been failing to consistently communicate the content and purpose of sentencing to defendants. Additionally, these punitive beliefs are opposite to the principles of third-generation of offender intervention programs, namely, the ideas of a good life, compassion, or human dignity (e.g., Byrne & Ní Ghráda, 2019).

Women in prison are less likely to consider their penalty to have a deterrent effect than those on probation. Besides, women in prison agree more with the crime they committed being illegal than women on probation, revealing a higher censure regarding the crime. Moreover, women in prison demonstrate stronger disagreement toward their penalty considering it less fair than women on probation. Despite this, both groups agree that prisons are schools of crime, and both say they now see crime differently. These results are relevant considering that identification with the sentence increases compliance and responsivity to it, again according to the Tyler’s theory of procedural justice (Tyler, 2003) and diminishes an oppositional culture (Listwan et al., 2013). For this reason, user’s experiences of punishment offer an essential opportunity to explore how penal legitimacy is being enforced, and the conditions under which it is achieved or compromised (Armstrong & Weaver, 2013).

Imprisonment was perceived as less useful to promote change in criminal behavior than other penalties. These results evoke the idea that recognizing how people live with punishment and how punishment lives with them might enrich policy reform efforts (Armstrong & Weaver, 2013). It seems crucial to continue to identify what works, considering other effects besides recidivism. Indeed, improving the effectiveness of services requires some understanding of how they are experienced by penal “service users,” and how they impact them. Although there is a considerable and very interesting group of qualitative research about women in the Portuguese criminal justice system that addresses how they perceive their sanction, they relate to specific problematics which are not our focus in this paper (e.g., Carvalho et al., 2021) which focus on how female offenders experience gender and perceive themselves as offenders in different stages of their lives; Cunha (2018) which focuses on how female offenders experience motherhood on prison; Ferreira et al. (2018) which focus on perceptions of women victims of intimate partner homicide who committed homicide of their abusive partners, between others). To the best of our knowledge, this is the first study in Portugal focusing on understanding on who are the women sentenced to custodial and non-custodial sanctions, how similarly or differently they perceive their penalties and the others available in our system, and how aligned with the theoretical purposes of sentencing they are.

Nevertheless, our results, although exploratory, bring critical data to rethink the implementation of penal law. Penal sanctions can be experienced in a variety of ways, depending on individual circumstances and vulnerabilities. Hence, considering the subjective severity inextricably linked to inequality in society (van Ginneken & Hayes, 2017), women must be particularly listened to, since inequality still affects them the most. The penal system must be built on (female) offenders’ perceptions of penalties to better adapt to their needs and responsivity, following the risk-needs-responsivity model (see Bonta & Andrews, 2016). Greater efforts must be made by the courts to communicate more effectively with these women (Schinkel, 2014), namely in what is supposed to be expected from them, according to Duff’s theory of communicative punishment (Duff, 2001), in terms of crime avoidance, and not in terms of gender roles stereotypes. Besides, interventions should be defined based on these assessments, helping female offenders to build new cognitions about their lives. It should be provided resources to develop new skills and behaviors, improve rehabilitative interventions in prisons, and the “cultivation of mature coping” (Johnson et al., 2017, p. 363).

We should recognize that the lack of official data on the number of women serving a non-custodial sentence limits our conclusions. The absence of a breakdown according to the gender of much of the official information is an obstacle to a deeper analysis of this reality (Liddell & Martinovic, 2013). Notwithstanding, as mentioned before, the number of imprisoned women is still high, regardless of the decrease of women serving prison sentences due to the changes in drug policy. Our suggestion for further analysis is to examine sentences’ length since several authors found that gender often predicts the length of the sanction (e.g., Doerner & Demuth, 2014; Tasca et al., 2019). Concretely, previous research showed that women and mothers are typically condemned to a longer custodial sanction than their male counterparts (Stewart, 2008; Tasca et al., 2019). Moreover, future studies must control variables, such as the severity of the crimes, the violence involved, the criminal background (based on official records), and the existence of mitigating circumstances. Also, future studies should perform additional analysis, for example, testing for relations between these women’s perceptions about their sentence, in regard to their parental status, and the length of their sentence, among others.

Despite the contributions, this study has also some limitations that we must address. The first one relates to the fact that the instrument is self-reported. Although this option has the advantage of avoiding undesirable resistance related to the individuals’ perception of having the personal record/file examined by the researcher, it might also have some inaccurate information, namely related to the crime committed and previous criminal situation. Even having included some control questions to minimize this possibility (asking the same in different manners) and draw on previous evidence on the reliability and validity of prisoner self-reports (Schofield et al., 2011; Sutton et al., 2011), it may still have occurred. Also, participants were recruited from institutions in the north of Portugal and may not be representative of all Portuguese condemned female individuals. However, besides having included distinct institutions, in what relates to the prison context, in Portugal, the residential area of the inmates is not necessary a criterion for their placement in prison facilities, especially in the case of women, due to the small number of female prisons (only three female prisons in all country, with some male prisons having female wings).

From our perspective, this study holds important value to penal system policies and practices. Although the research on female criminality and penal experiences is still scarce, several studies have been stating that the patterns of penal response are changing, with severe consequences for these women, their families, and their communities. Revealing more accurate and context-specific data on these patterns of sentencing decision-making, and on these women perspectives and experiences within the penal system is of central importance, to a better planning and implementation of effective penal services. Although important academic efforts are being made on discussing what works for women that commit crimes (e.g., Gelsthorpe, 2007; Gelsthorpe & Russell, 2018) the practice of the justice system, namely in the Portuguese context, is still far from being gender-responsive, in the creation and the enforcement of law (Matos et al. 2017). We advocate that time has come and conditions are being created to integrate evidence-based, gender-responsive, and gender-sensitive judicial responses in the implementation of law, that are both consistent with a rehabilitative and non-retributive justice system as the Portuguese are, and the needs and responsivity characteristics of women in conflict with the law.

ACKNOWLEDGMENTS

This study was conducted at Psychology Research Centre (UID/PSI/01662/2013), University of Minho, and supported by the Portuguese Foundation for Science and Technology and the Portuguese Ministry of Science, Technology and Higher Education through national funds and co-financed by FEDER through COMPETE2020 under the PT2020 Partnership Agreement (POCI-01-0145-FEDER-007653). The study was also supported by Grant SFRH/BPD/108602/2015 from the Portuguese Foundation for Science and Technology awarded to the first author.

DISCLOSURE STATEMENT

No potential conflict of interest was reported by the author(s).