Perspective Chapter: Conditions and Protection of Female Imprisonment – The Double Detention of Women in Italian Prison Management Policies

Abstract

This chapter intends to analyze the conditions of detention and protection of women prisoners (also as mothers), first in the European context, in the light of the international sources on the subject, and then, more specifically, in the Italian penitentiary system. In particular, from a critical perspective, we will try to highlight how the female prison population, being a minority, suffers a sort of “double” detention within the Italian prison management policies, which are focused on the re-educational needs of the majority male component. The result is the marginalization of an entire category of persons, which leads to a tendency to lack resources and access to treatment activities. In order to deal with this problem, we underline the need for a rethinking of the current Italian prison administration model, so that in the management of daily life the female part of the prison population can finally be given due attention.

1. Introduction

Prison administration policies for men and women have historically been based on two different prison models, in turn, centered on different approaches to male and female criminality. Indeed, while an afflictive paradigm has always been used for male offenders, women offenders, considered, since the time of Lombrosian theories, to have an innate biological, psychological and physiological weakness and inferiority, were not considered fully responsible for the criminal act, as an emotional and illogical species incapable of committing most crimes with full autonomy and rationality [1]. In the wake of these theories, the “justice model”, intended for men and centered on retributive modes of punishment, was countered by a women’s prison model that, referring to the theory of limited responsibility, was based on a rehabilitative and correctional approach: the so-called “care model” [2].

Therefore, in the Italian legal system, since the early modern history of women’s internment, women’s detention institutes had to be separate from men’s ones and were aimed at the correction of those deviant women, who, as perpetrators of crime, prostitutes or belonging to marginal social and economic classes, deviated from the predominant female model. Later, starting in the nineteenth century, the management of these institutions—which were both punitive and moralizing in nature—was assigned to religious orders, according to which the rehabilitation of women prisoners was to take place according to a family model based on discipline, redemption, religious conversion and sexual purification [3, 4]. And when, with the reform of the prison system in 1975, the rehabilitative detention model managed by the nuns came to an end, the women’s prison ended up flattening out on the men’s prison, which had become the prototype.

Although today, thanks to the evolution of criminological theories, a different perspective on women offenders prevails and, under Article 14, par. 6, law no. 354/1975 (law on the penitentiary system)—at least formally—the model of female detention previously implemented in convent prisons has changed, in Italian prisons, there is still a clear difference in the treatment of women and men. This is, at least in part, a reflection of the more general and by now well-established condition of disadvantage that women already suffer in our social fabric and which, inevitably, is destined to worsen in the prison context, where gender discrimination and differences in opportunities tend to be even more amplified.

Not only that, the objective difficulty of our prison system in recognizing and accommodating the complexities of the female is partly due to the low number of women prisoners in the penitentiary circuit. In particular, as of 31 December 2023, there were 2541 women prisoners in Italy (a slight increase, in absolute values, compared to the 2365 recorded at the end of 2022), distributed in four women’s prisons and 52 sections located in men’s prisons [5].

As will be discussed in more detail, the small number of women in the Italian prison population has contributed to the lack of attention paid to gender policies concerning the re-educational treatment of women prisoners, who are de facto a minority, to whom opportunities and treatment resources are allocated only in a residual perspective compared to the male prison population, and this despite Article 1, par. 1, law no. 354/1975 according to which, at least on paper, prison treatment must be characterized by absolute impartiality, without sex discrimination.

The present work is a non-empirical study, based on an extensive review of the Italian and international literature on the topic of female detention. It aims, in fact, to analyze the conditions of detention and protection of women prisoners in the European context and, above all, in the Italian prison system. The aim of the chapter is, in particular, to highlight the critical condition of “double” detention of women prisoners within Italian prison management policies. In order to overcome these critical aspects, the need for a re-thinking of the current Italian prison administration model is emphasized.

2. Women’s detention in the European and international context

The small number of women prisoners is not only a characteristic of the Italian system but is also a constant among the European and international prison population. Not only that, with the exception of individual cases, it is also widely reported that female prisoners represent a category with reduced criminal weight, considering that female criminality tends to concern crimes against property and is so attributable to situations of marginality rather than social alarm.

In particular, according to the latest edition of the World Female Imprisonment List (2022), female prisoners worldwide make up only 6.9% of the prison population (740,000 female inmates) [6].

Looking at the European continent, it can be noted that there are generally fewer women prisoners than men prisoners, even if in varying percentages between individual countries. These variations are, however, so insignificant and inconstant that it can be said that the characteristics of the geographical, historical, political and cultural context of each country are not, by themselves, sufficient to explain the reason for the low rates of female imprisonment (per 100,000 free women). Indeed, despite some theoretical perspectives committed to identifying the reason for the lesser—and less dangerous—female criminality in the position assumed by women within society [7], comparing data between European macro-regions, we obtain interpretations that are not too differentiated according to the level of female emancipation. And in fact in the Northern European countries, characterized by less gender inequalities, the female detention rates are not higher than in the Eastern European States, characterized by lower levels of democracy and social emancipation: in Denmark, for example, with 4.8% female prisoners, there is a female detention rate of 3.5, in Finland (7.1% female prisoners) the rate is 3.6 and Sweden (with 5.8%) has a rate of 4.3. In Poland, the detention rate is 9.3 (with 4.9% female prisoners), in Hungary (with 7.5% female prisoners) the rate rises to 14.7 and in Russia (with 8.9% female prisoners) the rate is 27.1. Also with regard to the data of the Central and Southern European countries, there are no significant deviations such as to justify a unifactorial interpretation of the low presence of women prisoners: in Germany (where the female detention is 5.6%) the detention rate is 3.8, in Belgium and the Netherlands (where female prisoners are, respectively, 4.9 and 4.6%) the detention rate is, in order, 4.4 and 2.8 and, again, France (with 3.6%) has a rate of 4.5. In Southern Europe, despite having the highest percentage of women prisoners in Europe, the female imprisonment rates fluctuate on average: in Andorra (with 13.1% of women prisoners) the rate is 10.2, in Greece (with 4.7% of women prisoners) the rate is 5.0, Italy, where the percentage of women prisoners, net of small fluctuations, has been around 4% for more than 20 years (2541 as of 31 December 2023), has a rate of 3.9, and in Portugal and Spain (both with 7.1% female prisoners) the rate rises to 8.2 and 8.3, respectively (Figure 1) [6].

Figure 1.

Female prison population rate in the European continent.

Looking at the international context, the same report shows that the countries with the highest percentage of women prisoners belong to the Asian continent (Hong Kong with 19.7%, Macau with 14.8% and Qatar with 14.7%), while in the United States, women prisoners are 10.2% of the total (with a detention rate fifteen times higher than in Italy) [6].

That being said, the risk of marginalization of women in prison has long been highlighted by various international and European Union Institutions. On this point, it is first of all worth recalling some recommendations of the Council of Europe aimed at encouraging greater attention by individual legal systems to the conditions of women’s detention.

In fact, Recommendations R(87)3 and R(2006)2 on the European Prison Rules, more recently updated by Recommendation R(2006)2-rev adopted in 2020, are along these lines. In particular, Rule no. 34 emphasizes the necessity of specific consideration of the “physical, vocational, social and psychological” needs of female prisoners, whose presence should entail the implementation of gender-sensitive specific policies and positive measures (through the guarantee, for example, of specialized services in medical and psychological support, which is essential, especially in cases of trauma of abuse suffered), as well as adequate training of specialized staff [8].

Although non-binding, at the international level, fundamental are also the UN Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (Bangkok Rules), adopted by the UN General Assembly in December 2010 in order to promote the emergence and implementation of a model of detention that is also attentive to the needs of women prisoners. Indeed, the preamble of the Bangkok Rules openly states that most prisons are designed for the male population. In consideration of this, Rule 1, in laying down the principle of individualization of re-educational prison treatment, states that “In order for the principle of non-discrimination embodied in rule 6 of the Standard Minimum Rules for the Treatment of Prisoners to be put into practice, account shall be taken of the distinctive needs of women prisoners in the application of the Rules”. It is further added that measures taken to meet these needs from a gender equality perspective must not be considered discriminatory [9]. This is because, as is well known, it is precisely the principle of equality that requires treating different people who are in unequal situations with each other, since, instead, their equal treatment would be a factor that would increase the already existing inequalities. The Bangkok Rules insist, among other things, on the fundamental role of adequate training of prison staff (educators, police, directors) on the specific gender needs and human rights of women prisoners (rule no. 33), so that, in the difficult task of assisting and accompanying them on their path to social reintegration, operators take the necessary measures to remove—or at least reduce—the disparate practices used against them [9].

From this point of view, moreover, the Bangkok Rules adopt a broad gender perspective, as they also pay attention to discriminatory practices suffered by female prison staff, for the overcoming of which a concrete and constant commitment is required at the management level in prison administrations (Rules 29–35) [9].

The principle of non-discrimination is also emphasized by the subsequent Mandela Rules, by which the United Nations Commission on Crime Prevention and Criminal Justice adopted in 2015 the Minimum Standards of Protection in Prison Treatment of Prisoners. Indeed, in particular, Rule no. 2, declaring the application of these Rules without discrimination on the basis of race, color, sex, language, religion, political or other opinion, states that, in order to put the principle of non-discrimination into practice, “prison administrations shall take account of the individual needs of prisoners, in particular the most vulnerable categories in prison settings [10]”.

In the European context, the European Parliament has repeatedly expressed its views on the need for the adoption of gender policies within prison circuits. As, in fact, the previous Resolution of 1989 about women and children in prison, Resolution 2007/2116 of 2008 takes into consideration the peculiar condition of women prisoners, as well as the impact of the detention of parents on family and social life. In particular, insisting on the introduction of security and reintegration facilities designed for women and recalling the special individual treatment needs of women victims of abuse, exploitation and exclusion, this resolution call on member States to integrate the gender equality dimension into their respective prison policy and detention centers, as well as to take greater account of women’s specificities and the often traumatic past of women and to create living conditions adapted to the needs of children living with the imprisoned parent [11].

The subsequent Resolution on detention conditions in EU member States (2011) emphasized the importance of granting specific protection to female prisoners who are mothers and their children, including through the use of alternative measures to detention in the best interests of the child, calling on the member States and the Commission to actively promote and support such initiatives [12].

Finally, the resolution on prison systems and detention conditions within the European Union (2017), highlighting the specific needs of female imprisonment, calls on member States to adhere to existing recommendations concerning the treatment of women prisoners, avoiding any gender discrimination. Indeed, by asking the Commission and the EU institutions to take the necessary measures in their field of competence to ensure respect for and protection of the fundamental rights of prisoners, and in particular of vulnerable persons, the resolution highlights the need to take action against any form of discrimination in the treatment of prisoners based on sexual orientation or gender identity and to guarantee the rights of prisoners to sexuality [13].

However, in spite of the mentioned international standards and European indications, intervention programs to support women prisoners are still lacking. As will be seen, their detention conditions appear, in fact, engulfed by the male logic that traditionally characterizes the detention model, thus often becoming victims of evident neglect from the prison administration.

2.1 A focus on the Italian prison system: Detention conditions and the lack of instruments to protect women prisoners

With particular reference to the Italian prison system, the small number of women prisoners, as well as their disadvantaged starting position, compared to men, in the free community, entails, as is easily imaginable, inevitable consequences on the ways, spaces and conditions of their detention. Indeed, the places that receive women prisoners are poorly adapted—from a structural and service point of view—to the emotional, family, social and health needs that characterize women’s detention.

First of all, their scarcity determines their distribution (among only the four women’s penitentiary institutes present throughout the Italian territory and the other small sections inserted in male-dominated prisons) in violation of the principle of territoriality of the penalty, enshrined in Article 14, par. 1, law no. 354/1975, as introduced by the 2018 reform, according to which, unless specific reasons to the contrary exist, the detained person has the right to be assigned to an institution as close as possible to the stable home of the family or to his social reference center. Failure to comply with this principle (valid, on the other hand, for male prisoners) has clearly negative repercussions on the detention conditions of female prisoners, since, as is well known, the distance from one’s affections (in particular from one’s children) and, therefore, the greater difficulty, or in some cases even impossibility, of maintaining stable contact with one’s family determines great suffering in female prisoners, in addition to that already inherent in the restrictive condition itself.

In addition, it is often not very convenient for the prison administration to organize special treatment activities, with the consequence that, in institutions accommodating women and men, it is mainly for the latter that re-educational offers are designed, thus creating obvious treatment disparities between the two sexes. To this must be added the Italian practice of the strict separation of women and men in moments of sociability and daily intramural life. Indeed, except for participation in some events (such as theater performances), according to recent surveys, only in 10% of Italian prison institutions with mixed composition common activities are planned and allowed [14]. This practice, implemented to avoid promiscuity situations, appears to be an expression of the persistent and harmful infantilizing approach, underlying prison management policies, according to which the inmate population is seen as the object of re-educational treatment, rather than as a set of persons with rights. So, the forced separation of the two sexes further penalizes the female prison population, which is de facto prevented from participating in re-educational activities, which are almost entirely for men.

Indeed, in spite of the 2018 reform of the Italian penitentiary system, which intervened, among other things, on the mentioned Article 14, par. 6, law no. 354/1975, providing that within the female sections of male penitentiary institutes, there must be a minimum size of women prisoners in such a number as not to compromise the treatment activities, as well as on Article 31, par. 2, law no. 354/1975, by introducing the possibility also for female prisoners to be part of the prisoners’ and internees’ representations, there is a tendency to lack resources and access possibilities for female prisoners to school, work, vocational training, cultural, recreational and sports activities. This is also confirmed in the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on the visits carried out in some Italian prisons in 2022, which shows, precisely, the absence of an adequate treatment offer for women detained in the institutions visited [15]. And in fact, despite the provision of Article 19, par 3, l. no. 354/1975, which ensures, through the programming of specific initiatives, equal access to cultural and vocational training for women prisoners and internees, the latter still encounter greater obstacles than men in accessing work and school activities, which the female prison population can generally only take advantage of for the lower levels of education, due to the absence, in most cases, of sufficient space and numbers to allow the activation of higher or university-level courses.

Moreover, it should be kept in mind that, where they do exist, the few activities available to the female prison population bend to gendered logics, according to which women are generally allocated only those activities considered more suitable to the female gender (such as, for example, tailoring, embroidery, laundry, confectionery, gardening, beautician or hairdresser).

Then there are some specific needs related to women’s bodies that affect prison conditions and that should receive special attention in prison policies. With regard to hygiene, for example, as indicated in Article 7, par. 2 of Presidential Decree no. 230/2000 (regulation implementing the Italian penitentiary system), the size of women’s rooms must take into account the bidet, the presence of which, however, is only guaranteed in 66% of Italian penitentiary institutions housing women [14]. Indeed, the necessity to meet some essential needs of women prisoners—even if, as in this case, transposed in some regulations of the Italian prison system—does not always receive concrete implementation in practice, due to the great inefficiencies and economic difficulties of the administrative system.

As for, more generally, the condition of women’s rooms, although similar—in terms of shape and size—to those accommodating men, they generally appear better maintained and cleaner and often receive more renovation work.

Also regarding the health conditions of the female prison population, there would be a need for a gender perspective within the health services provided in penal institutions, which, as can be easily guessed, prove to be inadequate because they are designed only for male bodies. After all, in confirmation of the fact that the disadvantaged condition of women in prison reflects, as highlighted above, a more general disadvantaged situation of women within society, a need of this kind can also be found outside prison, considering, for example, that old complaint concerning the questionable efficacy—if not, in some cases, harmfulness—of certain drugs administered to women following a testing procedure based on mainly male samples. Omitting for the moment the services for pregnant women or women who have recently given birth, which will be discussed later, we refer, in particular, to the fact that a gender medicine, capable of taking into account the specificities, which, also from this point of view, distinguish female from male prisoners, still needs to be implemented in prison, as well as in the whole of society. In this perspective, gender medicine should, for example, guarantee the prevention of gynecological or tumor diseases of women (breast or uterine cancer), considering, moreover, that compared to the women’s health services that already exist today, only in 66.7% of institutions accommodating women there is a gynecology service [14].

Moreover, as far as mental health is concerned, as emerged from some recent surveys, the female prison population appears to be the bearer of greater psychic distress, with a percentage of serious psychiatric diagnoses standing at 12% for the year 2022 and regular use of psychotropic drugs at around 64%. On the other hand, the number of female inmates in treatment for drug addiction is lower than the number of male inmates, which is set at 15% in the same year [14].

These data could well be interpreted as signs of greater fragility of the female prison population, due to serious difficulties in adapting to the totalizing mechanisms of prison or to the previous experiences of victimization that often involve female prisoners and that, as indicated by the World Health Organization, are frequently responsible for the high presence among them of mental illnesses and disorders related to the use of drugs or alcohol [16].

As highlighted, indeed, by copious literature on the point, many of the women entering the prison circuit have experienced histories of violence and abuse within their affective or family sphere, with significant repercussions on their physical and mental health [17]. For this reason, numerous international sources recommend that the previous condition of victimization characterizing women prisoners be taken into account by the prison administration both at the stage of entry into prison, through health and psychological screening aimed at identifying, thanks to the training of specialized personnel, any particular vulnerabilities, and throughout the course of detention, in order to favor, except for contrary security reasons, alternative paths to prison (Rule no. 57 of the Bangkok Rules). The specificities of women’s imprisonment related to the trauma of abuse suffered are reflected, therefore, in the need to provide women inmates with health, psychological and social support interventions during imprisonment and even after release from prison.

Not only that, the particular vulnerability that distinguishes, from this point of view, the female gender can also be found in the Mandela Rules (Rule no. 45) and the Bangkok Rules (Rule no. 22)—as well as in Article 39, par. 3, law no. 354/1975—where the application of the disciplinary sanction of solitary confinement is discouraged because of the psychological violence it can bring about against women prisoners, especially when they are mothers or pregnant.

Between women and men, there is, therefore, a clear difference in the way they experience prison.

Numerous research studies on women’s imprisonment tell us, in fact, that women tend to experience imprisonment with different suffering than men, who would seem to possess better abilities to adapt to the prison environment. Indeed, for the female prison population, the incidence of sentimental, affective and social factors is generally stronger and this is also because in women interpersonal relationships (especially of the family type) are marked, more naturally than in men, by behavioral models and languages based on emotionality, confrontation and sharing, rather than on mechanisms of rationality, force and power. In this sense, while being aware of avoiding any kind of generalization, given the uniqueness and individuality of each person, there has been no shortage of studies that, in contrast to the aggressiveness of men, have highlighted greater emotionality in women prisoners [18].

If, therefore, it is true that the women’s prison is a container of emotionality [18], it is easy to understand how fallacious its management through languages and value codes referable to the rationality proper to men is. Indeed, imprisoned women, alienated from their own identity, live the prison experience with more difficulty and solitude, since they are placed in a purely male environment based on rigid and predetermined rules that do not allow the communicative dimension to express itself. With the clarification, however, that the mentioned differences related to the emotional profile more typical of female identity should not be absolutized into a presumed gender diversity, such that women are, in a general and abstract way, to be considered always more fragile and weak than men: incurring, otherwise, in the mentioned paradigm in favor of limited responsibility, from which we should, on the contrary, depart because of the unacceptable consequences that even today, despite its formal overcoming, it determines on women’s prison treatment.

Moreover, in the social fabric, women’s imprisonment would seem to be less accepted than men’s, with the consequence that female inmates would suffer greater social stigma than men. This can be traced back to the female model that still predominates in our society today: women incarcerated, due to having committed a crime, would thus be estranged from those patriarchal canons of meekness and docility that would be ascribed to femininity [19] and would tend, therefore, to more easily lose social and working ties with the outside world, as well as relationships with their families and loved ones.

All of this could explain the high number of suicides (five) recorded among female inmates in Italy during 2022, with a rate—unlike outside the prison environment—being much higher than that referring to imprisoned men and significantly higher than in previous years. Not only that, in that year the recorded rate of attempted suicides and self-harming acts committed in female departments is twice that relating to the male prison population. Levels of violence within the sections and institutions housing women (assaults on staff or other female inmates) are also no less than those found among male inmates, demonstrating that the management of intramurals life in such places is by no means easier but is also marked by obvious discomforts, which probably, also for this reason, should make us reflect on the need for a rethink about the way women’s prisons are managed [14].

The resulting picture is, therefore, a set of detention conditions that often do not meet the needs of women prisoners, as can easily be deduced, incidentally, from the very scarce presence of rules, in addition to those already mentioned, within the law on the penitentiary system and its implementing regulations, specifically dedicated to women’s imprisonment. And, since not even the reform of the prison system—as expounded—has greatly changed the original structure of the Italian prison, the latter has remained marked by a typically masculine model, inappropriate to give importance to the peculiarities of women.

Therefore, it does not seem that women inmates are assured adequate and sufficient instruments of protection, except for the particular condition of mothers or pregnant women, with respect to whom—as will be discussed in more detail below—our legal system seems instead more inclined to provide wide levels of protection.

2.2 Bad mothers: the imprisoned childhood

The mentioned difficulties that shape the intramurals life of women prisoners are amplified if they are mothers or have recently given birth or are pregnant. And the Italian penitentiary system seems to be aware of this, since motherhood is de facto the only aspect, among the many other peculiarities of women’s detention, to have received special attention from the Italian legislature. Restricted women therefore appear to be the beneficiaries of increased caution only by virtue of their maternal function, otherwise ending up in the oblivion of missed rights [20].

As proof of this, there are many institutions, regulated within the criminal code, the criminal procedure code and the penitentiary law, which have been introduced over time in order to provide adequate protection for women-mothers subjected to measures of deprivation of personal liberty. These include the mandatory and optional postponement of the execution of the sentence for pregnant women and mothers of children under one or 3 years of age (Articles 146 and 147 of the Criminal Code), the possibility of access to extramurary forms of execution of the sentence at the private home (ordinary and special home detention, as provided for in Articles 47-ter and 47-quinquies, l. no. 354/1975), as well as to penitentiary benefits (such as the outside care of minor children or visits to the infirm child or handicapped child under Articles 21-bis and 21-ter, l. no. 354/1975) and, finally, to serve the sentence or pre-trial measure in protected foster homes or mitigated custody institutions for mother prisoners (so-called “Icam”), as provided for by law no. 62/2011.

Well, looking at this whole system to protect imprisoned motherhood—which, moreover, according to a clear patriarchal perspective, identifies the right to parenting in prison only as a right (and duty) to motherhood, by virtue of which the care of the children is the sole responsibility of the mother—it seems that the condition of woman-mother is the only aspect capable of legitimizing the individualization and flexibilization of the re-educational treatment of imprisoned women, otherwise destined to an intramuratorial execution of the sentence.

Not only that, the consideration of female prisoners within the only role of women-mothers also emerges from the circumstance that the only rule in the Italian penitentiary system that specifically addresses women’s health care is the one related to the right to health care for pregnant or mothered prisoners and their children, as provided for in Article 11, par. 8, law no. 354/1975 (moreover, with little application in practice).

But even if the intent of this approach was to bring, in a favorable light, adequate protection to motherhood, recognizing its proper value even in the prison context in light of the importance of maintaining the mother-child relationship in the latter’s early years of life, de facto it results in a further ghettoization of the woman-mother prisoner.

In fact, from this point of view, female prisoners who are mothers suffer a greater social stigma, since, due to the fact that they have committed a crime, they are generally considered bad mothers, being considered responsible not only for having violated criminal laws, but also for having transgressed those social models that impose on them the role of women-mothers who are caregivers and obedient. Having deviated from the idea of motherhood that society ascribes to them, they are therefore judged negatively in their parental role and presumably considered incapable of caring for their children. This happens regardless of the reasons that led them to commit crimes or the type or severity of the crimes they committed, which are often unrelated to the parental function because, as exposed, they pertain in most cases to the patrimonial sphere and are symptomatic of low social dangerousness. And so, despite the difficulties due to, for example, limited meetings and phone calls with their children and family members, incarcerated mothers are required to prove not only that they have become good inmates, but also good mothers and that they have complied, therefore, with the duties that motherhood imposes on them.

This is a blaming penitentiary approach that without any doubt leads to experiencing motherhood in prison as an additional aggravation of punishment, becoming a tool to trigger guilt and need for redemption, a purpose that translates into a tool of discipline or extortion to achieve the goals of re-education, leveraging the presence of minor children [21]. On the other hand, on closer inspection, it is not so much motherhood (or the detained mother) per se that is being protected, but the childhood of the offspring, whose serenity is threatened precisely by the detention of the mother. In this sense, the mentioned rules would not actually be part of a gendered approach, nor a set of tools aimed at protecting the specificities of female detention, but would rather help to ensure those basic functions of care for the child, innocently involved in the judicial affairs of the mother.

It should also be noted that such system for the protection of children does not always turn out to be effective, as witnessed by the current presence of children in prison in spite of—as will be seen—the numerous international indications on the point. This occurs, for example, because of the critical issues that often affect in practice the possibility for particularly socially fragile mother prisoners to access the mentioned institutions established in their favor, as well as because of the scarce presence on the territory of foster homes and mitigated custody institutions intended for them.

In such cases, since the imprisoned mother is generally the only parental figure responsible for the care of the child, the difficult alternative arises between maintaining the family bond within the prison, thus allowing mothers to keep their children under the age of three in the institution—with all the negative consequences that the prison environment can have on the development of their children—or forcing their separation from the children, who would, in any case, see their rights violated due to the abrupt interruption of the emotional bond.

Thus, in the first case, while wishing to guarantee, for the child’s balanced growth, close contact with the mother, the minor involved actually finds himself serving—together with his mother—a sentence without having committed any crime, himself becoming a secondary victim of the sanction imposed. And so, in clear contrast to the Constitution and the United Nations Convention on the Rights of the Child (1989), in Italy at the end of 2023 there are 20 minors detained together with their mothers in penal institutions [22].

As it is clear, the condition of detention can cause toward the children serious damage to their physical and mental health, leading to devastating effects on the normal development of the child, who, moreover, by becoming invisible to the rest of society, is exposed to the concrete risk of assuming deviant behavior in the future.

Moreover, the fight against the dramatic phenomenon of imprisonment of infants [23] has long been the subject of disparate international sources. In addition to the already mentioned Convention on the Rights of the Child, it is worth mentioning a number of recommendations of the Council of Europe, including, Recommendation r(2006)2 on European Prison Rules, which ensures equal rights and treatment for children living with the imprisoned parent, as well as the creation of living conditions suited to their needs in units independent and distant from the prison setting, and Recommendation r(2018)5, which enshrines the fundamental rights of children of imprisoned parents, including the right to a continuous bond with the imprisoned parent, who in turn has the duty and right to fulfill his or her parental role and to promote positive experiences for his or her children [24].

In addition, the Bangkok Rules also deal with detained children, providing that infants may stay in prison with their parents only if it is in favor of the welfare of the infants themselves, the achievement of which requires the presence of highly qualified staff (Rule no. 36).

However, these are principles that have received little practical application in our legal system, especially in terms of the places and facilities that should accommodate imprisoned mothers and their children, who continue, therefore, to be housed in environments unsuitable for their development, in clear contrast to Article 31, co. 2, of the Constitution, according to which Italy protects motherhood, childhood and youth, favoring the institutions necessary for this purpose. Indeed, no matter how much effort is made to establish detention spaces that are not immediately recognizable to children and to reduce the signs and externality of imprisonment [23] in order to create an atmosphere as close as possible to a domestic environment, such places—although humanized—nevertheless continue to manifest the typical mechanisms of total institutions, which can seriously harm the growth of the child. There is, therefore, a general inadequacy of the detention environment to the needs of the children, considering, for example, the presence of bars, gates and armored doors (with the loud noises they produce), cramped spaces to be shared with other people, as well as the lack of outdoor environments for play and the scarcity of light and air that generally characterizes penitentiary institutions.

Moreover, the goal of overcoming the presence of children in prison is not facilitated by the current political debate on the point, which continues to feed that dichotomy between good and bad mothers that still informs prison ideology and practices [21] and that often leads to the sinking of important reforms on the subject, as happened, for example, in the case of the “Icam”, which, established by the mentioned l. no. 62/2011, were recently the subject of a proposal for amendment—aimed at overcoming the problems of the current discipline and thus reducing the number of children in prison—which was then withdrawn due to amendments made to the bill, such as to distort its original structure and, indeed, worsen the conditions of protection toward minors. Not only that, the issue of imprisoned motherhood is at the center of public discussion, since, especially when it relates to foreign women or those in socially and economically marginalized conditions, it is often considered merely instrumental to release from prison, on the assumption that motherhood is not at all an automatic factor in nullifying or diminishing the social dangerousness of the woman-mother, as it could otherwise legitimize dangerous incentives to procreate in that sense.

The great attention that pregnancy and motherhood in prison today receive is rightly related to the particular condition of fragility in which female prisoners and mothers find themselves. However, the use of these tools of protection should be done with the awareness that motherhood, as anticipated, represents only one of the aspects of female detention, which does not exhaust its further multiple specificities. Therefore, it would be necessary to give up the idea, which is widespread in our system even outside prison walls, of motherhood as an experience monopolizing the identity of a woman who has children [25]. Starting precisely from the strengthening for female prisoners who are mothers of alternative forms of serving sentences to prison such as to mitigate the consequences of imprisonment on their children, this would make it possible to implement also for the rest of the female prison population institutions that facilitate more contact with the outside environment and with family ties, so that the gender perspective that it would be fundamental to take (also) on the subject of detention is finally adopted, escaping from that sort of deresponsibilizing and absolving vision whereby, once the rights of the detained mother have been guaranteed, no different need requires to be focused on [23].

3. The “double” imprisonment of women in Italian prison management policies: the necessary rethinking of the current Italian prison administration model

It is clear from what has been said so far that the Italian prison system assumes the male as the universal reference parameter, thus de facto relegating the female to a real minority, so much that in doctrine there has been talk of a crushing, and indeed an invisibility of the female condition on the male one [23]. And so, for reasons that have been explored in depth, women’s imprisonment has so far been understood as a sort of “rib” of men’s imprisonment, an exception to the rule that is declined according to the well-known “residuality paradigm” [23]. Observing, in fact, the way women prisoners are treated, it can be deduced how this condition of marginality—based on a gender difference—manifests itself in a generalized sense both at the structural level and at the organizational and management level.

It results, therefore, for women prisoners a condition of “double” imprisonment because of their gender: first as prisoners and then as women. In fact, especially when placed in female sections of male institutions, women prisoners suffer double segregation: not being able to share spaces and activities with the male population, they are penalized because they are even more confined within structures designed and organized for men, with inevitable consequences—as described—on their treatment pathway. There is, thus, a double marginalization of female imprisonment within the Italian prison management policies, which, centered on the re-educational needs of male prisoners, discriminate against female prisoners. Indeed, the regulations disciplining penitentiary institutions, as well as the management, conduct and organization styles of such facilities, are completely indifferent to a gender perspective, no differences being provided for or allowed between inmates of different sexes, whose imprisonment would therefore seem to be managed in an egalitarian manner.

Although today in the Italian legal system, at the regulatory level, some initial timid attention to the condition of women—certainly not sufficient even at the theoretical level—can be found, it is also necessary to consider the almost non-existent implementation in practice.

Emblematic in this sense is the Italian affair concerning the ministerial Regulation for women’s sections and institutes, established by the circular of the Department of Prison Administration no. 0308208/2008, following the proposal of a group of experts [26]. In order to meet the standards set by the European Prison Rules, this model of internal regulation, intended for penal institutions and women’s departments, was supposed to fill a serious gap in prison organization, favoring the introduction throughout the country, albeit with the necessary adaptations to each local reality, of a specific regulation that would take into account the peculiarities of penal execution concerning the female gender [26]. However, in spite of the acknowledged perception of the need for an awareness-raising work aimed at activating and building a conceptual, methodological and political and social intervention framework that would recognize and enhance gender difference, thus giving full implementation to national and international standards that protect the rights of detained persons [26], the regulation has never been concretely applied.

This is symptomatic of the fact that, in order to face the problem of the “double” imprisonment of female prisoners, it is not sufficient to superficially modify a regulatory system that, untouched in its nature, remains, in any case, male-dominated, but it is rather necessary to carry out a more incisive rethinking of the current Italian model of the prison administration. This need is certainly much more difficult to achieve, since it also implies a cultural change in the role of women in society, but it is essential to fulfill in order to ensure that the gender dimension is finally recognized as playing an important role in the management and organization of prison life.

In this sense, as also advocated by the third table of the General States on Penal Execution (2016) devoted to women’s detention [27], Italian penitentiary policies should take the gender difference as a key to interpret the detention condition, thus allowing the recovery in the penitentiary context of spaces and activities adequate to the needs of the female population. As required by the European Prison Rules, it is therefore necessary that in the Italian prison management models—as, moreover, in the free community—a central role be recognized to gender policies, because only in this way the prison can be considered truly compliant with the constitutional principles that should characterize the meaning of punishment.

From this point of view, therefore, the reasons underlying the identification of modalities of management of detention functional to guarantee ways of protection of the female condition are not to be found—according to the mentioned old conception of the female offender—in presumed instances of indulgence toward a category of offenders (women) who are supposed to be intrinsically less dangerous because they are weaker or more fragile and so not really capable of committing crimes. Indeed, although, as stated, female criminality is generally not oriented toward crimes of particular social alarm, the importance due to gender specificities in the penal execution phase is rather related to the necessary respect for the principle of individualization. The latter requires, in fact, that prison treatment takes into account the diversity of needs that characterizes the daily lives of male and female prisoners, as well as the different needs of each female inmate, with an awareness of how important it is that discussions around prison reflect the multiple voices of the variety of women prisoners. If, therefore, as exposed, women prisoners experience imprisonment differently from men, precisely under the aforementioned principle, their treatment should take this diversity into consideration. On the other hand, claiming the greater vulnerability as an innate characteristic of female offenders would still be equivalent to comparing them to a main reference model that remains centered on male criminality.

It is not, thus, from a welfarist and potentially discriminatory point of view, a question of aprioristically giving women inmates a more humane prison than the one—which would therefore remain more severe—intended for men, but rather to allow gender dynamics to detach the ancillary role so far attributed to women’s detention in comparison with men’s, by programming appropriate policies to facilitate the removal of the obstacles that undermine the equal treatment of prisoners and women prisoners, through the emphasis on the re-educational needs of the latter, in compliance with the principle of substantive equality.

Therefore, this new system of prison administration should serve to restore women’s detention conditions to equal dignity with those of men and to allow the institutional and managerial attention to be given to women’s detention to finally make it less burdensome and more functional to social reintegration, overcoming the gender discrimination that affects it. Starting, then, from women, there are those who have argued that the new prison management described could then be extended, beyond its borders, to the whole prison population and be understood, therefore, as a kind of experiment to outline a better prison model, which, also thanks to a greater openness with the territory, equalizes upwards the prison treatment of women and men subjected to criminal enforcement measures, albeit respecting the relative gender differences and individual needs [28].

In this direction, there are numerous proposals to change the current model of prison policies, put forward by several sides with the aim of helping to bring women’s detention out of the shadow zone to which it has so far been relegated. From them emerges the need to prepare measures based on the needs of women prisoners, as well as actions aimed at providing them with concrete emotional support, in order to preserve and strengthen the emotional ties that imprisonment tends to break. In particular, among the various attempts to rethink the organization of Italian prison facilities from a gender perspective, there is the establishment in 2005 of a special administrative unit within the Department of Prison Administration, formed by experts with specific gender expertise. This unit, which later failed as it was dismissed in the following years, examining the specific needs of women’s detention, was aimed at ensuring the adaptation of detention conditions to the specific needs of women in prison. Alongside the focus on management and administration, there is also the proposal—so far unrealized—for the introduction, for women and men prisoners, of a new execution regulation of the prison order, capable of reflecting the above-mentioned revised prison model and meeting the current needs of the prison population, including the protection of minority rights.

That being said, what we wish to highlight is not only the indispensable inclusion of women’s specificities within prison policies, but, more generally, the necessary participation of gender issues in the reflections on the modalities of response to crime. In fact, even before considerations of the modalities of prison treatment, it would be appropriate that, precisely because of the principle of individualization of punitive treatment, the judge should take into account the peculiarities that characterize women at the very moment of sentencing and determination of the punishment, so as to “feminize” the state response to crime [29]: an operation currently not allowed in the Italian legal system, where very little space is left to the human stories of the people involved in judicial events in the trial phase of identification of criminal responsibilities.

It therefore seems essential to develop wide-ranging strategic interventions that are able to face the enormous social repercussions that female imprisonment entails, while at the same time helping to make women’s prisons a concrete opportunity for women’s social reintegration and not a mere infliction of pain, which has no effect other than being criminogenic.

4. Conclusions

This chapter aimed to highlight how the Italian legislature and prison administration have so far given very little attention to female prisoners. In fact, the greater presence of men in the prison context has contributed to the detention model being built on the dimension of male prison population, with prison administration and management policies remaining totally unrelated to the needs and specificities of women’s detention. The law on the penitentiary system does not, therefore, adequately protect the minorities of the prison population, which certainly includes women prisoners, who, still only taken into consideration as mothers, must residually adapt to the rules and characteristics of an institution designed in the shape of men.

The few rules dedicated to the female detention condition, a re-educational treatment still based on an inflexible and reductive model of femininity, the evident difficulty of the system in elaborating organizational solutions and resocializing opportunities suitable for grasping and enhancing the specificities of the female detainee population, the absence of places, facilities and services designed according to a gender perspective: these are all aspects from which it can be easily deduced the lack of protection in the Italian prison system of the multiple female subjectivities in which women can express themselves.

But if these elements have so far so influenced the conditions, methods and spaces of women’s detention to the point of being able to define it as a sort of “double” imprisonment, the constant scarcity of women prisoners compared to male prisoners and, moreover, their tendency to be slightly criminally involved can no longer justify the lack of interest from the Institutions.

Therefore, in order to defeat the marginalization of an entire category of people, who receive de facto fewer resources and opportunities for access to treatment activities than those reserved for the very majority of the male part of the detainee population, it is necessary to rethink the current Italian prison model, accompanied by specific gender expertise of the prison staff, who must be able to recognize and satisfy, as far as possible, the specific needs of prisoners.

And so, in order to reduce this “double” imprisonment and remove some of the factors that obstruct the achievement of equality of treatment for women prisoners, it would be possible, for example, to argue for the non-absolute character of the cited Article 14, par. 6, law no. 354/1975, favoring the normalization of sociality between women and men prisoners through the organization of common daytime activities within mixed-composition institutions. In this way, it would be possible to overcome the mentioned practices—an expression of the prison institution’s sexphobia—that induce female prisoners housed in female sections to forced idleness.

Therefore, in order to avoid some minorities remaining deprived of resocializing opportunities and to mitigate the strong gap that makes prison a sort of universe apart from the rest of society, women prisoners should be allowed access to the same cultural, recreational, sporting, educational and vocational training courses intended for the male population. Indeed, as also proposed by the General States on Penal Execution [27], women prisoners could be directly involved in the definition, organization and management of the re-educational activities intended for them through the establishment of special commissions of female prisoners, thus overcoming what is currently provided for by the mentioned art. 31, par. 2, law no. 354/1975, which instead provides, as explained, for the mere presence of a single female representation within commissions that remain predominantly male. This would also favor the transition from the current stereotypical resocializing opportunities to a real qualifying re-educational offer for the female inmate population. This could imply the activation of specific resocialization projects or the reorganization of functional spaces and facilities to meet the different female and male needs. Not only, in order to avoid the progressive marginalization of women prisoners, it would be appropriate to promote their economic autonomy through work orientation services and the provision of concrete opportunities for work reintegration at the end of their imprisonment.

Finally, as also emphasized at the international level, the gender perspective should also affect the rules on the organization of prison offices and staff, so as to avoid any form of gender discrimination that, at all levels of employment, female workers may encounter in the workplace. Also from this point of view, we understand, therefore, the importance of adequate training and specialization of prison staff and supervision on gender differences, with particular attention to gender-based violence.

However, all this cannot be achieved without a radical change, in the name of a gender perspective, within the Italian prison management policies, which in turn requires an essential transformation of the culture of prison administration and, even before that, of the penal system as a whole. It is precisely by starting from the protection of minorities and the gender dimension that it is, therefore, possible to guarantee a new penitentiary model, more inclusive and advantageous for everyone because it is able to take into account differences in equality.