Good Example Of Gender Discrimination In Punishments Research Paper

Type of paper: Research Paper

Topic: Sentencing, Women, Crime, Victimology, Gender, Social Issues, Supreme Court, Law

Pages: 8

Words: 2200

Published: 2020/10/23

Introduction

The weight of popular opinion suggests that women typically receive less harsh sentences than men, even when committing the same crime. Although it is acknowledged that males are more likely to commit certain crimes than females (e.g. burglary), and that overall there are (numerically) many more male offenders than female, nonetheless there appears to be a gender-related disparity in punishments meted out to females versus males, even when the crimes committed are nominally the same for both sexes. This paper examines and reviews the evidence in published literature, to assess and determine the validity of that view.

The Research

Nagel and Johnson (1994) examine that gender issue as it affects punishments in a structured sentencing system. They make a valid observation that much of the research data available relates to crime statistics dating back several decades, to a time prior to the implementation of significant sentencing reforms which reduced judicial discretionary powers, so reducing disparities in sentencing and discrimination on the basis of class, race and gender. Part of the consequences of those reforms, particularly at the federal level, is that female offenders should receive less favorable treatment on the basis of their gender, and length of sentences more on a par with male offenders. The authors do however make the point that if the courts take into account such mitigating factors as pregnancy, responsibility for child care (including being a single parent), or psychological coercion, those issues are more relevant to female offenders than males (Nagel and Johnson 1994 pp. 182-183.)
Those adult sentencing reforms cited by Nagel and Johnson were embodied in the Sentencing Reform Act, which set up the Sentencing Guidelines Commission and was enacted by the Washington State Legislature into law in 1983, but applied to the treatment of crimes committed from July 1st 1984. One principal effect of the reduced discretionary powers in sentencing is that due to greater numbers of offenders being incarcerated and often for longer durations, the national prisons population has increased by more than 100 percent since 1984 (“Sentencing Reform Act: Historical Background” 2011).
Prior to the implementation of that legislation and its included guidelines, the principal philosophy behind offender sentencing was to target rehabilitation of the offender, which meant that there was ample scope for discretionary sentencing policies. That situation led to “unwarranted disparities in the sentencing of offenders convicted of similar offenses” including individuals with similar histories of criminality. Research in the 1970s and 1980s also found that adult female offenders were less severely punished than male offenders in similar situations. The difference was particularly pronounced in respect of the decision by judges whether to incarcerate the offender. Various studies found that female offenders were more likely to receive either a suspended sentence or to be placed on probation (Nagel and Johnson 1994 pp. 184-186.)
Reasons why women received preferential treatment by the courts included concepts of chivalry and paternalism, and the general view that women are the weaker sex. Based on that view, women were considered less suitable for imprisonment, less responsible for the crimes committed, and – being viewed by judges as more easily manipulated – were perceived to be more amenable and responsive to rehabilitation programs. However, other research indicated that the chivalrous approach by judges and other law enforcement officials was selective in practice, applying more to middle and upper class women and far less to women of minority ethnic groups (Nagel and Johnson 1994 pp. 188-189.)
Following the Sentencing Reform Act and the subsequently implemented sentencing guidelines, one difficult issue for the justice system is how to take into account pregnancy when imposing a sentence. (That issue is not specifically covered in the sentencing guidelines). A precedent was set in a specific case, ruling that pregnancy should not be grounds for modifying (reducing) the sentence, on the basis that it is not “extraordinary” physical impairment. Furthermore, single parenthood as a sentence-modifying factor is also not mentioned in the sentencing guidelines, nor widely used as a factor to reduce sentencing. That is the case even though almost 90 percent of all single parents are female, and that imprisonment of the female single parent could mean the child or children having to be placed into care such as a foster home (Nagel and Johnson 1994 pp. 197-202).
One might conclude from the Nagel and Johnson paper cited above, that gender-based sentencing disparities have been overcome to a considerable extent as a result of measures included in the Sentencing Reform Act and the subsequently implemented sentencing guidelines, but according to Starr (2012), considerable disparities still exist. Professor Starr’s study findings include that male defendants in the US are “fifteen times as likely to be incarcerated as women are.” Her study encompasses tracing federal criminal cases right through from the initial arrest to the sentencing, and finds that “gender gaps widen at every stage of the justice process and that men and women ultimately receive dramatically different sentences.” She notes further that sentences for male defendants are on average over 60 percent longer than for women. Starr attributes that hitherto unexplained difference to decisions made at earlier stages of the justice process, particularly the prosecutor-driven process of sentencing fact-finding (Starr 2012 pp. 1, 2).
Thus, although the 1984 Act intended to restrict the formerly available discretionary powers of judges in sentencing, disparities still exist. Starr reviews the sources of discretion and of the consequent and still-prevailing gender disparity. She points out that in both the federal and state justice systems the prosecutors possess enormous powers, creating what is effectively “a system of negotiated justice.” Prosecutors are able to select specific charges from a number of criminal statutes, then through a plea-bargaining process and stipulations of key sentencing facts, coupled with sentencing and perhaps leniency recommendations, are able to exert considerable influence on the likely sentencing outcomes (Starr 2012 p. 2).
The legal frameworks guiding federal sentencing are twofold; firstly that for each criminal statute there is a specified sentencing range, which in the majority of instances is a broad range – typically from zero to a fixed number of years, but sometimes specifying what is called a “mandatory minimum” term. Secondly, the sentencing guidelines introduced in the 1980s to reduce judicial discretion including gender disparity, specify tighter ranges (for example 27 to 33 months). Those tighter ranges were mandatory until in 2005 the Supreme Court ruled to make them advisory, although judges are still required to use the guidelines to calculate sentences. The guidelines ranges are defined in the form of a grid, in which the two axes are offense level and criminal history. In most instances however (over 90 percent), judges defer to the plea agreement reached between the prosecution and the defense in that case. According to Starr, most legal scholars agree that the consequence of these tighter sentencing constraints combined with the power of the prosecutors mean that there are more guilty pleas, because prosecutors can offer promises of lighter sentences in exchange for cooperation from the defense (Starr 2012 pp. 2, 3).
Starr reports that studies looking at gender disparities in sentencing found disparities ranging between 10 and 30 percent (women receiving the shorter sentences in all cases), but states that these figures ignore the effects of various discretionary decisions made much earlier in the justice process, rendering the findings less meaningful (Starr 2012 p. 3).
In her conclusions, Starr finds that the dramatic gender disparities found in sentencing indicate that women not only receive shorter sentences, but “are also significantly likelier to avoid charges and convictions, and twice as likely to avoid incarceration if convicted.” Whilst there are various factors that could contribute to / account for these disparities, Starr maintains that “the key role of sentencing factfinding, a prosecutor-dominated stage that existing disparity research ignores” is an important factor. She suggests that because women comprise a relatively small minority of offenders, our policymakers may view apparent leniency towards female offenders as being not of major concern (Starr 2012 p. 17).
Starr’s findings generally support earlier investigative research findings by Doerner (2009), which indicated that female defendants in general receive lighter sentences than males, although she made the point that the disparity is not uniform across all case (crime) types. For example, Doerner found the difference to be smaller in fraud cases than (say) convictions for firearms offenses or drug trafficking. Further, Doerner notes that the gender disparities in terms of the probability of receiving a custodial sentence are less for those sentenced within the sentencing guidelines, than for those for those receiving some degree of sentence departure (who are more likely to be females). The gender gap is also smaller for those receiving a substance assistance departure (Doerner 2009 p. iv).
As regards gender disparities in sentencing varying according to crime type, that particular factor is researched in a Social Science Quarterly article published in 2006. The researchers comment that whilst there have been numerous studies concluding that female offenders “benefit from their gender in sentencing decisions”, they note that few of those studies have examined whether the gender effect is more pronounced for certain types of crime (such as minor non-violent offenses) and less pronounced for more serious (e.g. violent) crimes (p. 318). Their research reviewed what the authors describe as “a large random sample” of 1991 cases in Texas (Rodriguez, Curry & Lee 2006).
Rodriguez et al. refer to the so-called “selective chivalry” view that encourages preferential sentencing outcomes (i.e. greater lenience) towards female offenders whose criminality meets gender expectations. In other words, preferential treatment is likely to be afforded to females who commit crimes that match female gender stereotypes, such as using drugs, forging checks and shoplifting. Conversely, “evil women” – those committing violent crimes or other crimes that are more typical of male offenders – may not only fail to receive preferential treatment by the courts but may even receive harsher sentences, because they have violated not only the law but also broken with the stereotypical gender roles (Rodriguez, Curry & Lee 2006 pp. 321-322).
However, Rodriguez et al. cite other studies which have examined the possible link between crime types and gender disparity, and find that other studies either found no link or even found the outcomes contradict the selective chivalry theory, although the studies concerned were limited in either nature or in the scope of crime types considered (Rodriguez, Curry & Lee 2006 pp. 322-323).
Findings from the Rodriguez et al. study show that in terms of the offender receiving probation as opposed to incarceration, the overall gender disparity is that males are 2.1 times more likely to be sent to prison than females. Breaking down the findings according to crime types, the male-female ratio is 2.79 for property crime, 2.02 for drug offenses, and no significant difference in the case of crimes of violence. Those findings support the contention that crimes not violating feminine norms are most likely to attract lighter sentences for females (Rodriguez, Curry & Lee 2006 p.332).
Interestingly, when the Rodriguez et al. study examines and reviews the outcomes of those offenders who were incarcerated (just over 3,000 of the almost 8,000 cases studied), there are differences in sentence lengths, but there are both similarities and differences compared to the probation versus prison analysis. Overall, female sentences average 3.22 years fewer than those awarded to male offenders – a clear gender disparity. On the other hand, there are differences in female sentencing according to crime type, but the differences do not correspond with those found in the probation versus prison analysis. The disparity between male and female sentencing for violent crimes is 4.49 years, but for property crimes the difference reduces to 3.14 years, and for drug crimes the difference reduces further to 2.35 years. Although these findings support the view that women will receive lighter sentences than men for similar crimes, they do not support the selective chivalry theory in respect of lightest sentencing for “feminine” crimes (p. 333). Overall, Rodriguez et al. conclude that whilst variation of gender disparity in sentencing according to crime type seems to be somewhat inconsistent with the popular theory, the inconsistencies may be accounted for by certain peculiarities and specifics of the Texas Code (Rodriguez, Curry & Lee 2006 p. 335).
Doerner’s comments regarding gender disparities in sentence departures are supported by Spohn and Fornango (2009) who found gender to be one of the factors affecting the likelihood and the magnitude of both sentencing and substance assistance departures. Their research found that downward departures in sentencing accounted for no less than 67 percent of the gender disparity present in sentence durations (Spohn and Fornango 2009 p. 817).
That view offered by Spohn and Fornango broadly confirms the findings by Mustard (2001) whose research covers the sentencing of over 77,000 offenders – all of whom were sentenced in federal courts governed by the requirements of the 1984 Sentencing Reform Act. He suggests that circa 70 percent of the gender disparities can be attributed to departures from the sentencing guidelines (p. 285). Mustard cites the male-female difference in sentencing length as the greatest area of disparity. He claims that the average sentence length for male offenders is almost 280 percent greater than the figure for female offenders (“51.5 versus 18.5 months”) (Mustard 2001 p. 296).
The “evil woman” theory touched upon in the Rodriguez et al. paper is the focus of a Feminist Criminology paper published in 2006, specifically covering sex crimes. Their findings follow the expected trait that women receive lighter sentences than men, but do not support the evil woman hypothesis, in that male sex offenders receive longer sentences than their female counterparts (Embry & Lyons, p. 146). Their findings include the fact that even after taking into account the sentencing guidelines, judges are more predisposed to considering extralegal factors for women offenders when making sentencing decisions, increasing the tendency for women to receive downward departures from the recommended sentences (p. 150). In the case of sex offenders, the research undertaken by Embry and Lyons covers five categories of sex offenses. These are “rape, statutory rape, sexual assault, child sexual assault, and forcible sodomy” (p. 154). Findings of the research include the statistic that – as expected – male sex offenders comprise the great majority – almost 90 percent of the total of almost 270,000 cases included in the review. For the purposes of detailed study, a randomized sample of 3,000 cases was taken from each sex category (male and female), so 6,000 cases in total (Embry & Lyons p. 154).
Although popular gender disparity theory (the “evil woman” concept) would suggest that the female sex offenders would receive harsher sentences than their male counterparts, the findings of the study were that the average duration of sentence was greater for the men in some cases, and about evenly balanced for the most common offense of sexual assault. The findings also failed to support the hypothesis that the women convicted of the sexual offenses demonstrating the greatest deviation from traditional gender roles would receive longer sentences than men (p. 156).
Conclusions

References:

Doerner, Jill K. (May 2009). “Explaining the Gender Gap in Sentencing Outcomes: An Investigation of Differential Treatment in U.S. Federal Courts.” Bowling Green State University. Retrieved from: https://etd.ohiolink.edu/ap/0?0:APPLICATION_PROCESS%3DDOWNLOAD_ETD_SUB_DOC_ACCNUM:::F1501_ID:bgsu1237482038%2Cinline
Embry, Randa & Lyons, Phillip M. Jr. (Jun. 2012). “Sex-Based Sentencing: Sentencing Discrepancies Between Male and Female Sex Offenders.” Feminist Criminology: 7(2) 146-162. Retrieved from: http://www.ncdsv.org/images/fc_sex-basedsentencingdiscrepanciesbetweenmaleandfemalesexoffenders_2012.pdf
Mustard, David B. (Apr. 2001). “Racial, Ethnic, and Gender Disparities in Sentencing: Evidence from the U.S. Federal Courts.” Journal of Law and Economics, vol. XLIV (April 2001) pp. 285-314. Retrieved from: http://time.dufe.edu.cn/jingjiwencong/waiwenziliao1/004109.web.pdf
Nagel, Ilene H., & Johnson, Barry L. (Summer 1994). “The Role of Gender in a Structured Sentencing System: Equal Treatment, Policy Choices and the Sentencing of Female Offenders under the United States Sentencing Guidelines.” Journal of Criminal Law and Criminology, Vol. 85, Issue 1 Summer, Article 4, pp. 180-221. Retrieved from: http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6809&context=jclc
Rodriguez, S. Fernando, Curry, Theodore R., & Lee, Gang. (Jun. 2006). “Gender Differences in Criminal Sentencing: Do Effects Vary Across Violent, Property, and Drug Offenses?” Social Science Quarterly, Vol. 87, No. 2, June 2006, pp. 318-339. Retrieved from: http://digitalcommons.utep.edu/cgi/viewcontent.cgi?article=1001&context=gang_lee
“Sentencing Reform Act: Historical Background.” (2011). Washington State Sentencing Guidelines Commission. Retrieved from: http://www.ofm.wa.gov/sgc/documents/historical.pdf
Spohn, Cassia and Fornango, Robert. (Jul. 2009). “U.S. Attorneys and Substantial Assistance Departures: Testing for Interprosecutor Disparity.” Criminology, Vol. 47, No. 3, 2009 pp. 813-846. Retrieved from: http://gcecs.edu.au/wp-content/uploads/2013/08/U.S.-Attorneys-and-Substantial-Assistance-Departures-Testing-for-Interprosecutor-Disparity.pdf
Starr, Sonja B. (Aug. 2012). “Estimating Gender Disparities in Federal Criminal Cases.” University of Michigan Law and Economics, Research Paper, No. 12-018. Retrieved from: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2144002

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