In the contemporary era of “tough on crime” policies and the globalized drug war, the number of women in the criminal justice system has increased across several countries. Women’s involvement in the system is not limited to imprisonment, however, and many criminalized women (those involved in the justice system with the assigned status of defendants, offenders, etc.) participate in community-based programs after serving sentences in prisons or jails or as an alternative to incarceration. Criminalized women encounter multiple interlocking forms of oppression based on sexuality, race and ethnicity, class, disability, immigration status, punishment status, and (importantly) gender. Gendered ideas and norms shape the way women are treated not only by the carceral state but also by community-based, nongovernmental organizations (NGOs).
NGOs have played an increasingly prominent role in the provision of social services since the 1970s. Organizations working with criminalized people in more affluent, English-speaking nations commonly address job readiness, psychological and substance issues, parenting, sexuality, romantic relationships, and spirituality, among other important areas. Some NGOs work with criminalized people as a condition of their criminal sentences. Criminalized women’s self-reported needs are great, yet resources are often scarce, inadequate, and unwelcoming, particularly for women of color. Responding to a dearth of services available to women, feminists formed NGOs focused on this population beginning in the 1970s; women are also served at NGOs that work with men. “Reducing offending” and “empowerment” are frequently stated goals at NGOs that work with women, but these goals can be interpreted widely depending on the views of NGO leadership and staff about gender.
NGOs can approach women’s gender in a variety of ways. For instance, they can resist or affirm the dominant views used by the carceral state that criminalize and stigmatize women. Their approaches matter because of the implications for equality of opportunities that follow. Two major philosophies can motivate the outreach that NGOs do with criminalized women. Gender sameness disregards gender differences and stresses that it is necessary to treat women “like men” to reverse the disadvantages and marginalization that women encounter. Gender difference emphasizes the importance of treating men or women based on their purportedly unique characteristics and social experiences. Much critical feminist research on NGOs that work with criminalized women has studied programs formed around ideas of gender difference.
Critical researchers have examined gender in organizational work with women outside of prisons, in community-based prisons run by NGOs, and in more traditional prisons. Researchers have examined practices at programs, the philosophies underpinning them, and their implications. This body of work shows that NGOs can perpetuate gendered exclusions and may expand the power of the carceral state. In their prescriptions for responding to the status quo, critical researchers make arguments along a spectrum from advocating more moderate social change, such as by creating more effective programs, to more radical social change, such as by ending community-based programs that perpetuate carceral control.
Numerous philosophical theories purport to justify a system of legal punishment. It is doubtful, however, that any of them successfully answer these three questions: Why punish? Whom to punish? How much to punish? Straightforward retributive theories, which justify punishment by looking back at the wrongful harm done by an offender, don’t adequately answer the question of why the offender should be harmed in return for harm done. More sophisticated retributive theories construe punishment as equalizing an unfair advantage taken by an offender. Such theories have difficulty with the question of how much to punish. Consent theories view offenders as willing punishment onto themselves by their voluntary acts. The various versions of this theory all fail to answer one or more of the three questions: why, whom, and how much. Rights forfeiture theories give a question-begging answer to the “why” question and don’t answer the question of how much. Consequentialist theories, which justify punishment by looking forward to results such as deterrence and incapacitation, have difficulties with whom to punish and how much. Arguably, punishing an innocent person who is believed to be guilty could deter potential offenders, and a serious offense might be deterred by a less severe punishment than a minor offense. Some philosophers see insurmountable problems for strictly backward-looking theories that appeal to guilt of the offender and for strictly forward-looking theories that appeal to future consequences. The solution, then, could be a theory that appeals to future results to provide a reason for punishing, but looks back at harm done by the offender to answer the question of whom to punish and how much. However, without a unifying rationale for taking these different approaches to these particular issues, such a mixed theory would be ad hoc if not incoherent.
In recent decades, philosophers have offered several approaches that might avoid the pitfalls described above by providing a unified rationale for punishment that is both backward and forward looking. Self-defense theories hold that it is rational and justifiable for the state to threaten punishment in order to defend citizens against offenses. They then move by various strategies from the justifiability of the threat to the justifiability of punishment. Forced choice theories justify punishment as a way of distributing necessary harm to the guilty rather than the innocent. Censure theories attempt to justify punishment as the state’s means of expressing disapproval of offenses against the law. Each of these theories faces difficulties, but proponents might judge that even though they haven’t yet been able to adequately state the justification of punishment, their theory is on the right track. Others view the difficulties faced by all theories and boldly conclude that punishment is not justifiable. There is little support for rehabilitation as an alternative to punishment. The practices associated with restorative justice, although not directly aimed at punishment, typically involve punishment, so they still require a justification for punishment. Whether a system of restitution could take the place of a system of punishment is problematic. The situation is made even more troublesome by the fact that the theories that have been surveyed aim to justify punishment in a society with a just political structure and laws. Even if such a theory succeeds, it is far from clear that it would justify punishment in a society where many of those who are harmed by punishment have also been victims of injustice.