Introduction

This book argues that mothering is an important, specific and gendered experience that is incompatible with the dominant model of the legal subject. This incompatibility creates gendered punishment for women involved in the criminal legal system. This chapter situates sentencing law within the context the myth of autonomy that underpins dominant concepts of formal equality under the law. A case study of the operation of sentencing law in New South Wales Australia shows that even in a jurisdiction where individualised justice and judicial discretion feature prominently, there are significant barriers to considering mothering in sentencing. This represents an injustice, as mothering is a key factor shaping the lives and criminal pathways of most women who go to prison. Mothers’ pathways to prison are shaped by these inequalities and their derivative dependencies. The complex interplay of trauma, poverty and coercive relationships in the lives of criminalised mothers produce a variety of circumstances in which undermine claims that legal subjects exercise agency and autonomy. Once incarcerated, mothers’ experiences and hardship cannot be separated from the experience of their children. Maternal incarceration harms children who are profoundly dependent, but harm to one’s children and the undermining of the mothering relationship that occurs as a result of separation punishes mothers. The harm that is incurred when mothers are incarcerated is relational and it is therefore ongoing – long outside the window of the sentence itself. The individual model of the legal subject cannot account for this deep relational harm and therefore inflicts gendered punishment on mothers, that is not mirrored in the experiences of men who go to prison.