Historical Sex Inequality in Criminal Justice Administration

face of a prisoner

The highly unequal prisoner sex ratio has generated historically only sporadic concern about sex inequality in the administration of criminal justice. In the nineteenth-century U.S., a few outspoken advocates of sex equality condemned the disparate treatment of men and women. For example, in 1835, a member of the Pennsylvania House of Representative vehemently criticized legal advantages arising from wealth, family, and powerful social connections. He vigorously challenged those with “respectable connexions” who “rush in a mass to rescue one of their number.” He associated with such injustices special privileges for women:

though women are frequently the principals as well as accessories to crime, courts and juries rack their ingenuity and strain their consciences in order to acquit them of the consequences of guilt ^

The legislator forcefully condemned sex bias in the administration of criminal justice:

sex or condition should not sanctify crime. The crime alone should be taken into the consideration of courts and juries – not the sex or circumstances of the criminal. … it must be a morbid sensibility of the dispensers of the law which can induce them to licence offences in the one sex, which they scrupulously punish in the other; a sensibility seriously detrimental to the best interests of society.^

Members of the Prison Association of New York in 1863 expressed similar concern:

The committee feel impelled, at this point, to remark that the whole spirit of the administration of penal law concerning women, or rather the application of criminal law to women, requires reform. The country swarms with female thieves, pickpockets, shoplifters, swindlers, pimps, seducers of poor girls, &c., &c. Yet, we hear of few women being tried and fewer still being convicted, upon the principle, degrading to the character of the woman, that she is less responsible, and therefore less punishable, than the man.^

Equally responsible individuals are central to ideals of active liberty and self-government. The idea that the crime, rather than the sex of the criminal, should determine punishment is consistent with ideals of democratic equality and equal justice under law.

Throughout history, criminal justice systems in practice have treated men and women unequally. A scholar who studied criminal verdicts and sentences in England about 1780 to 1820 concluded, with due respect for contemporary scholarly decorum (note reference to “complex contradictions of patriarchy”), men received much harsher punishment:

what seems clear is that somewhere within the complex contradictions of patriarchy, the interaction of various forces meant that female offenders accused of crimes in the major courts of late eighteenth- and early nineteenth-century England frequently succeeded in obtaining much more lenient treatment than their male counterparts.^

Another scholar recently found that in late nineteenth-century and early twentieth-century U.S. women used battering, romantic rejection, alcoholism, and temporary insanity much more successfully as defenses against charges of intimate homicide than did men:

Based on close analysis of New York and Colorado intimate homicide cases, this article suggests that in such cases, lenient treatment of female defendants and harsher treatment of their male counterparts constituted a typical pattern in both the eastern and the western United States between 1880 and 1920. Both men and women faced murder charges. However, while prosecutorial zeal to convict male defendants accorded with public opinion, {all-male} juries showed their aversion to the severe punishment of women, many of whom had been seduced, physically abused, or trapped in dire economic circumstances.^

How many of the male defendants were trapped in dire economic circumstances, physically abused, or seduced isn’t a concern. In 1919, the Chicago Daily Tribune noted that over the past twelve years in the county encompassing Chicago (Cook County), twenty-nine women had been tried for acting alone to kill a man. Twenty-six of those had been freed.^ In a subsequent (1922) sardonic article, the Tribune reported:

The Chicago man and the wife who hid under his bed with a horsewhip in a St. Louis hotel and administered a sound beating to him and to the girl who entered the room with him are reported to be reconciled.

That was an old fashioned wife. A thoroughly modern one would have shot either the husband or the girl, or both. Then probably she would have been acquitted by a jury and given a running start toward theatrical stardom. But she would have been subjected to some unpleasantness and expense, and certainly would have lost a husband. This one merely chastised the spouse and girl whom she suspected of irregularities, and now all appears to be well.

It is not a modern method of triangular settlements, but it has its advantages. We recommend it to the gun women in lieu of shooting. So far as the records show, no murdered husband has ever been successfully restored to his wife or family.^

The situation remained unchanged in 1935, when a Chicago journalist provided a lengthy investigative report:

A woman still can commit murder in Cook County and stand a better than even chance of escaping punishment, especially if she chooses her husband as the victim, more especially if she is young and attractive. The statement is borne out by records of the Criminal court, which show that only two out of every nine women tried for murder in Cook County since 1906 have paid any penalty. The greater number of these women killed their husbands. The few who were sentenced to prison were either old, unattractive, or both.^

These and other contemporary newspaper accounts indicate widespread recognition that men were treated more harshly in the criminal justice system. Justifications for this disparity included (1) “basic instinct for the preservation of the species”; (2) “well-grounded custom”; and (3) “women’s rights” and “men’s wrongs,” e.g. emphasizing that men regard women as “property,” that women are “just realizing that they are free and are demanding humane, decent treatment,” that men try to settle arguments with women using “brute force”, that women kill men as a matter of “self-preservation”; and that “women are far from political, social, or economic equality with men.”^ These justifications, put forward in letters to the Chicago Tribune in 1923, probably were common currency in public discourse even earlier. They draw on deeply rooted gender stereotypes and rhetorical appeals still effective today.^ By 1980, they had been elevated to a claim that blurs the boundaries between misandry and misogyny: “The story of women who kill {men} is the story of women.”^

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