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.

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