The Usefulness of Therapeutic Jurisprudence for Re-thinking Babies in Prison

International human rights state that imprisonment for mothers with babies should be used as a last resort. Currently, there is no international agreement for the age limit of children in prison and a lack of consistency with the treatment of this minority population. Prison mother and baby units are presented as the solution in the majority of countries however, these living arrangements are not always in the best interests of children.

Currently babies are in prison as a consequence of the sentencing of their mother. The dominant understanding is that babies need to be with their birth mother for the first days of their lives. For example, a recent report from the United Kingdom explains the detrimental effects of separation for babies and advocates that prison policy makers should take this into account (Abbot, Scott, Thomas and Weston, 2020). Solutions to the complex problem of babies living in prisons are limited to what amounts to them continuing to live with their mothers in ‘gentler, kinder, cages’. There is a need to ‘re-think’ the existence of babies in prison and challenge the current status of women within criminal justice systems who are mothers of young infants.

I have written an article that is significant in its advocacy of using a theoretical approach that emphasises the benefits of using legislation, including international human rights frameworks. The premise of Therapeutic Jurisprudence (TJ) is that law influences emotional life and psychological well-being (Winick & Wexler, 2003). With this approach, legal values and due process are not under-mined but used so that the therapeutic effect of legislation is maximised, and the anti-therapeutic effect is minimised (Spencer, 2014). Central to the theoretical framework of TJ is the intricate relationship between the design of legislation and its application.

Little is known about the potential of therapeutic jurisprudence (TJ) for improving the rights of female prisoners. Implicitly anti-therapeutic conditions have been recognised within the United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (Bangkok Rules, 2010). The Bangkok Rules are unique because they protect the rights of women and are the first international instrument devoted to addressing the needs of children in prison with their parent. Whilst the Bangkok Rules (2010) are not enforceable and could be regarded by lawyers as soft law, these rules are significant with their provision of explicit protection for women in criminal justice systems around the world.

There are no internationally consistent conditions, agreement on the age of separation or discussion about the possible choices for those who are supporting infants living in mother and baby units. Concerns from scholars and activists using a women’s rights perspective relate to how the rights of female prisoners are managed and taken into account within the prison setting. Whilst the introduction of the Bangkok Rules (2010) appears to have given hope that the anti-therapeutic conditions for prisoners could be eradicated, the reality for creating a rights respecting culture in prisons across the globe is complex.

I have published an article that can be accessed from Cambridge Core. It explains the usefulness of TJ for promoting international legislation relevant for babies in prison as well as exploring how this makes it possible to change the current status quo. There are three sections that examines the role of activists who represent the rights of women, practitioners who work in prisons and other potential stakeholders.