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.”^

No Sex Neutrality in Criminal Justice Sentencing

face of a prisoner

Criminal justice is a core function of the state. Deprivation of personal liberty through incarceration is a highly significant state action. The U.S. has extraordinarily high prevalence of incarceration. The sex ratio of incarcerated persons is strongly skewed toward men. Highly sex-disparate incarceration has attracted little public concern. Anti-men gender bias in criminal justice is not merely a justice system problem. It’s also a more general problem of public communication.

Criminal justice sentencing is not sex-neutral in practice. A high-quality empirical study of U.S. federal criminal cases concluded:

Conditional on arrest offense, criminal history, and other pre-charge observables, men receive 63% longer sentences on average than women do. Women are also significantly likelier to avoid charges and convictions, and twice as likely to avoid incarceration if convicted.^

Other studies have found similar results.^ ^ Sex bias in criminal justice system action is simply apparent in comparing sex ratios of commitments to prisons and jails to sex ratios of persons held in prisons and jails. Because the criminal justice system tends to hold men for longer, the ratio of men to women in prison or jails is about 50% higher than the ratio of men to women committed to prisons or jails. Publications of the U.S. Bureau of Justice Statistics obscure this sex disparity.

Under a 1984 sentencing reform act, the U.S. Sentencing Commission was formed and directed to “assure that {sentencing} guidelines and policy statements are entirely neutral as to the race, sex, national origin, creed, and socio-economic status of offenders.”^ Leading authorities associated with the Commission recognized sex disparities in sentencing, e.g. “female bank robbers are likely to serve six months less than their similarly situated male counterparts.”^ Lack of sex neutrality in administering justice is a serious injustice.

The U.S. Sentencing Commission’s directive that sentencing guidelines be “entirely neutral” with respect to sex did little to address disparate treatment in sentencing. In its 2004 report, Fifteen Years of Guideline Sentencing, the Sentencing Commission noted:

Unlike race and ethnic discrimination, the evidence is more consistent that similar offenders are sometimes treated differently based on their gender. Gender effects are found in both drug and non-drug offenses and greatly exceed the race and ethnic effects discussed above. The typical male drug offender has twice the odds of going to prison as a similar female offender. Sentence lengths for men are typically 25 to 30 percent longer for all types of cases. Additional analyses show that the effects are present every year.^ ^

The report found that the sex disparity in sentencing was larger in 2001 than in 1984.^ Covering this high-profile sentencing report, The Wall Street Journal issued a news article entitled “Commission Finds Racial Disparity in Jail Sentences.” The article did not mention gender disparities.^ The New York Times titled its news article, “Sentencing Guideline Study Finds Continuing Disparities.” That article reported:

The panel {conducted by the U.S. Sentencing Commission} examined how well the guidelines had brought uniformity to punishments, and found that while sentencing had become “more certain and predictable,” disparities still existed among races and regions of the country, with blacks generally receiving harsher punishment than whites.^

A syndicated version of the article was entitled, “Study examines sentencing rules; Racial disparities persist, despite guidelines.”^ Neither article mentioned gender disparities. The Sentencing Commission’s finding that men generally receive longer prison sentences than women apparently wasn’t newsworthy. Perhaps everyone knows that’s true and no one cares.

Men are invisible in legal deliberation about bias in the criminal justice system. In 2003, in an influential speech to the annual meeting of the American Bar Association (ABA), a high-ranking U.S. judicial official raised fundamental questions about the fairness of the criminal justice system. He noted:

We must confront another reality. Nationwide, more than 40% of the prison population consists of African-American inmates. About 10% of African-American men in their mid-to-late 20s are behind bars. In some cities more than 50% of young African-American men are under the supervision of the criminal justice system.^

The ABA President promptly organized an ABA commission to examine the criminal justice system. The ABA Commission considered:

Why more than 60 percent of our 2.1 million prison population are people of color and more than 20 percent are Hispanic.^

The ABA Commission did not consider why about ten men were in prison per woman in prison. It focused on racial and ethnic bias, detached from any reference to men. Thus, in accordance with the ABA Commission’s recommendations, the ABA resolved:

That the American Bar Association urges states, territories and the federal government to strive to eliminate actual and perceived racial and ethnic bias in the criminal justice system. By enacting measures that would:

(1) Establish Criminal Justice Racial and Ethnic Task Forces ….

(2) Require law enforcement agencies to develop and implement policies and procedures to combat racial and ethnic profiling

(3) Require legislatures to conduct racial and ethnic disparity impact analyses to evaluate the potential disparate effects on racial and ethnic groups of existing statutes and proposed legislation; …propose legislative alternatives intended to eliminate predicted racial and ethnic disparity at each stage of the criminal justice process.^

Does the highly disproportionate imprisonment of men not matter? Are men of color not men?

Legal deliberation that addresses gender disparities in the criminal justice system often emphasizes differences that would be illegal or highly impolitic to emphasize in other policy discussions. A typical argument is that women’s care for their children is more important than men’s care for their children, and that the separation of women from their children hurts children more than the separation of men from their children. That would be a highly contentious assertion in considering daycare policy or employment discrimination.^ Yet in deliberation about the criminal justice system, such arguments pass as accepted wisdom. A high-ranking judge in the English legal system recently noted:

Many years ago, when training as a baby judge, I heard a very experienced judge comment that he was reluctant to send a woman to prison because she was usually the more useful member of the family.^

An employer who offered such an explanation for not sending female business executives on out-of-town trips could face a massive employment discrimination lawsuit. A leading legal historian addressed sex discrimination in sentencing with an anecdote:

One judge in the Washington, D.C. area, who allowed he was, in fact, more lenient to women, could not explain why, except to say that “I love my mother very much.”^

Sex bias in sentencing can be considered using systematic empirical evidence, but such evidence has attracted relatively little attention. Responses not otherwise tolerable apparently suffice for addressing the large sex disparity among persons in prison.

Scholarly discussions of gender and criminal justice center on arguments that the criminal justice system should discriminate more so as to imprison fewer women. Women’s crime is different from men’s crime. Women offenders are victims, while men offenders are offenders. Women experience prison differently from men (women suffer more in prison, while men have been taught to take it like a man). Women prisoners have special needs, while men are regularly disposed in prison (or in death or in exile), or alternatively, in military service. All these assertions of difference are deeply rooted in gender stereotypes. Scholarly discussion of gender and criminal justice typically has not challenged these gender stereotypes, but rather has exploited them and re-enforceed them.^ ^ ^ ^ ^ ^

Consider, for example, an article entitled, “Gender, crime, and the criminal justice system.” The Principal Research Officer in the U.K. Home Office Research and Planning Unit authored this article. It was published in 1995. About twenty-five men were then in prison in England and Wales for every woman in prison there. The article set out to consider “whether there is any research or statistical evidence to support the view that women and girls are discriminated against in the criminal justice system.” Frustrating its framework of inquiry, the article concluded that “women appear to receive less severe sentences than men.” The article then suggested that existing research evidence indicates that the sentencing bias against men is a “legitimate reflection” of various (unaccounted for) circumstances, but also that the evidence “is equivocal.” As is conventional for authors interested in doing research, the author concluded, “more large-scale studies which control for a wide range of legal and social factors are required.”^ The suicides of six female prisoners in 2003-2003 subsequently generated many studies putting forward proposals that would raise the ratio of men in prison per woman in prison.

Men leaders have designed prisons primarily for men, who make up the vast majority of prisoners. Men’s leadership in imprisoning men is unremarkable. A recent scholarly article noted, “As the unmarked gender category, men are ‘the norm,’ the universal nongendered offender.” But rather than exploring possibilities for lowering the ratio of men in prison to women in prison, the article suggests

we might imagine a form of gender neutrality that is female-normed, and we might fashion an equal treatment punishment scheme in which women, not men, are the standard.^

An “awkwardly simple” alternative is to reduce greatly the number of men in prison, so as to make men prisoners much less numerically prominent.^ That alternative seems unutterable within public deliberation about criminal justice.

Nelson Mandela and South Africa’s Constitutional Court:
Increasing Disproportionate Imprisonment of Men

face of a prisoner

Despite highly disproportionate imprisonment of men, South African President Nelson Mandela and the South African Constitutional Court enacted and validated sex-discriminatory release of only women prisoners. The Constitutional Court observed that in post-apartheid South Africa, equality gained fundamental legal importance:

The importance of equality in the constitutional scheme bears repetition. The South African Constitution is primarily and emphatically an egalitarian constitution. The supreme laws of comparable constitutional states may underscore other principles and rights. But in the light of our own particular history, and our vision for the future, a constitution was written with equality at its centre. Equality is our Constitution’s focus and organising principle.^

In 1994, thirty-eight men were in prison in South Africa for every woman in prison.^ For comparison, in Europe from the sixteenth to the nineteenth centuries, a typical ratio of men to women disposed in punishment was about four. Across most of the world in 2003, the ratio of men in prison to women in prison was sixteen. Nelson Mandela’s act and the Constitutional Court’s decision in President v. Hugo occurred in South African circumstances of highly disproportionate imprisonment of men, absolutely and in comparative perspectives.

Through a special, sex-discriminatory legal act, Nelson Mandela directly increased highly disproportionate imprisonment of men in South Africa. In 1994, acting in his capacity as President of South Africa, Nelson Mandela ordered freed from prison “all mothers in prison on 10 May 1994, with minor children under the age of twelve (12) years,” who had not been committed to prison for an enumerated list of offenses. Imprisoned fathers with such children received no such privilege.

South Africa’s Constitutional Court decided that such sex discrimination does not violate South Africa’s constitution. In an affidavit in support of the President’s action, the National Director of the South African Council for Children and Family Welfare directed attention away from equal human dignity and toward “the best interests of the children.” The National Director defined that emotive concept in terms of sex differences and gender stereotypes:

In my opinion, the identification of this special category {of women in prison} for remission of sentence is rationally and reasonably explicable as being in the best interests of the children concerned. It is generally accepted that children bond with their mothers at a very early age and that mothers are the primary nurturers and care givers of young children.^

The Court itself was less concerned about maternal bonds and more concerned with women’s burdens of child-rearing. Seven judges’ majority opinion affirmed that gender stereotypes about women’s burdens of child-rearing are not valid reasons for discriminating against women:

To use the generalisation that women bear a greater proportion of the burdens of child rearing for justifying treatment that deprives women of benefits or advantages or imposes disadvantages upon them would clearly, therefore, be unfair.^

A mother’s burdens of child-rearing isn’t a valid reason for refusing to admit a mother to a demanding job such as being an attorney. The question in this case, however, was about being in prison. The judges declared that such generalizations about child rearing, while not valid reasons for depriving women of opportunities, are valid reasons for preferentially releasing women from prison.

Even accepting that gender stereotypes about child-rearing burdens are just reasons for sex discrimination in releasing prisoners, the practical reasoning is backwards. Since children are no longer allowed to accompany their parents to prison, parents in prison do not bear the burdens of child-rearing. Released prisoner-parents do. Concern about women’s burdens of child-rearing logically imply preferentially releasing fathers from prison so that those fathers could help rear children, or at least earn money to make government-specified financial payments to children’s mothers. The Court, however, apparently didn’t consider women’s burdens of child-rearing as a practical problem. Instead, the Court seems to have viewed women’s burdens of child-rearing as a general harm for which women can receive special compensation through criminal justice policy.

Eight judges emphasized the practical importance of existing, large gender inequality in imprisonment. These judges reasoned:

Male prisoners outnumber female prisoners almost fiftyfold. A release of all fathers would have meant that a very large number of men prisoners would have gained their release. … In the circumstances it must be accepted that it would have been very difficult, if not impossible, for the President to have released fathers on the same basis as mothers. Were he obliged to release fathers on the same terms as mothers, the result may have been that no parents would have been released at all.^

The specific level of prisoner sex inequality wasn’t a matter of careful concern. That “male prisoners outnumber female prisoners almost fiftyfold” summarized figures, explicitly given in a footnote, implying a sex ratio of thirty-eight male prisoners per female prisoner. What apparently mattered was the existing, large gender inequality in the prison population. The Court’s validation of discriminatory prison release had the effect of raising even higher the highly disproportionate imprisonment of men. Large gender inequality in imprisonment provided legal justification for action directly making that gender inequality even larger.

The prevailing highly disproportionate imprisonment of men didn’t preclude feasible, non-discriminatory prison release policies. A special remission of sentence could have been issued for all parents, with minor children under the age of twelve, who had not been committed to prison for an enumerated list of offenses, and who had less than X days of imprisonment remaining on their prison sentences. The parameter X could been chosen to effect the release of any given total number of prisoners. Conditioning release by time remaining on sentences is a common practice in statutes governing probation and remission of prison sentences. Rather than conditioning release on days of remaining imprisonment without sex discrimination, the release order conditioned release on the prisoner being female. Conditioning release on the prisoner being female increased already highly disproportionate imprisonment of men. That’s blatant sex discrimination. It’s unjustified in reason apart from power in public deliberation.

Equality is a fundamental democratic ideal, yet public deliberation seems incapable of expressing common sense of this ideal with respect to men and imprisonment. For example, in discussing the criminal justice system, a high-ranking English judge recently declared:

I am, as you might expect, a passionate believer in equality. But equality is a complicated subject.^

The judge went on to offer suggestions that would raise the ratio of men in prison per woman in prison in England from the then-current ratio of sixteen. Confronting gross failures in legal deliberation in the U.S. in the late 1950s, a legal scholar proposed moving outside of public deliberation as it’s typically understood:

Equality, like all general concepts, has marginal areas where philosophical difficulties are encountered. But if a whole race of people finds itself confined within a system which is set up and continued for the very purpose of keeping it in an inferior station, and if the question is solemnly propounded whether such a race is being treated “equally,” I think we ought to exercise one of the sovereign prerogatives of philosophers – that of laughter.^

What about equality in criminal justice and imprisonment when ten men per woman, or twenty men, or fifty men per woman are in prison?^ Surely some ratio exists beyond which public deliberation about gender equality becomes absurd and meaningless. Then individuals active in self-government become only girlfriends, wives, brothers, sisters, mothers, fathers, family and friends of prisoners, weeping for their imprisoned men. Caring persons should weep for South Africa and humanity when considering South African President Nelson Mandela’s act and the South African Constitutional Court’s decision in President of the Republic of South Africa and Another v Hugo.