Essay On Gender Disparities

The United States Criminal Justice System is known globally for its disparities, particularly in race. However, perhaps the largest disparity, however unreported, exists between genders. According to a groundbreaking study conducted by Professor Sonja Starr of the University of Michigan Law School, men are fifteen times more likely than women to be incarcerated. Even after adjusting for differences in criminal behavior or circumstances, this study found that gender gaps “widen at every stage of the justice process and that men and women ultimately receive dramatically different sentences.” The impact of this is the total violation of the Constitution and the goals of the Criminal Justice System itself as well as the incredible social consequences
of demographic concentrated mass incarceration. This paper focuses on the facts of gender disparities within the criminal justice system, the causes of these disparities and several theories associated thereof as well as a rationale as to why solutions are difficult to develop to alleviate this problem. Prior to researching this topic, I had prior knowledge of the existence of a gender disparity in the United States Criminal Justice System but had no idea that the problem was as prevalent as it is. This groundbreaking study, of the University of Michigan, adjusted for gender, race, age, marital status, district, citizenship, a string field describing the offense, criminal history, number of dependents, education, Hispanic ethnicity, counsel type, co-defendant information, and county, to ensure that any results produced were as close to pure causation rather than simple correlation that many such studies have been satisfied with in the past.
This study found that the causes of these disparities are just as diverse as they are vast. Multifaceted, these causes include differential treatment in terms of plea bargaining and crime charged with despite identical circumstances. Additionally, even when charged with the same offense men are committed to prison more often and for longer sentences. It also found that men receive sentences that are on 63% longer than women and that men in general are fifteen times as likely to be
incarcerated. Another study published in the Journal of Criminal Justice by Natalie Goulette in 2015, analyzed 4000 felony cases. This study found that women are 46% less likely to be detained than men before trial. For those released on bail, women were given bond amounts set 54% lower than what men were required to pay. In aggregate, women were also 58% less likely to be sentenced to prison than men. Indeed, this study found that the gender gap is about six times as large as the racial disparity that exists in the Criminal Justice System. The modem operandi of this disparate treatment is extensive and varied.
The act of plea bargaining has come to define the Criminal Justice System in recent years and, according to the New York Times, 97% of federal cases and 94% of state cases end in plea bargains. (http://www.nytimes.com/2012/03/23/us/stronger-hand-for-judges-after-rulings-on-plea-deals.html) However, this program has only given more power to the state or federal prosecutor, sometimes even more power than the judge themselves. In fact, an analysis by the Federal Sentencing Reporter found that 92% of judges said their findings of fact diverge from the plea agreement either “infrequently” or “never.” That is to say, Judges forgo their independent assessment of facts in favor of deferring to the criminal prosecutor who is disproportionately likely to hit male defendants with more severe sentences. Indeed, these prosecutors charge male defendants with crimes of a greater degree of severity than female defendants even when the perpetrator has committed the same type of
offense. The causes of this disparate treatment in the Criminal Justice System are also varied. Psychology experiments conducted by the Psychology Press “have found that attributions of blame and credit are often filtered through expectations that males are “agentic” and active and women are “communal” and passive. Thus. prosecutors or judges might be predisposed to credit societal or situational explanations for females’ crimes than for males.” Such psychological observations are impossible to prove but such a theory is given sufficient merit with such statistical generalizations and disparities. However, if true, such a psychological disparity would be at odds with the Supreme Court, which has repeatedly ruled, as in J.E.B. v. Alabama, that reliance on gender stereotypes is impermissible even if those stereotypes are statistically well founded. In the same vein, Professor Cassia Spohn, the foundation professor and director at the School of Criminology and Criminal Justice at ASU, comments that “even when you have two people committing very similar or even the very same crime, judges may come to a conclusion based on stereotypes that may or may not be true: That women are simply less culpable, less dangerous, less threatening. As a result, they may impose harsher punishment on men.” While gender stereotypes often disadvantage women educationally and professionally, in this case, they appear to benefit them. A study from Jill Doerner of the Criminal Justice Policy Review found that federal courts are more lenient on female defendants. Interestingly, however, according to Penal Reform International, in the majority of developing countries around the world, the justice department is skewed against women as it is felt that if women step outside clearly delineated gender roles they should be severely punished to stifle further dissent. Another psychological cause could be what has been coined the “black male effect,” defined by the previously cited University of Michigan study as a “special harshness toward black men, who are by far the most incarcerated group in the U.S.” With the media constantly blaring negative coverage of African American men, this can only contribute to the disproportionate sentencing of African Americans. However, this study also found that African American men are treated disproportionately as opposed to African American women, and it is in the Black community that this gender disparity is the highest, with 74% disparity in sentencing among Black male and female defendants as opposed to only 51% in non-black defendants. Another promoted theory is the “Girlfriend theory.” In group offenses, culpability is often determined by relative role. Oftentimes, women are viewed as relatively minor players, particularly in instances where the crime is committed with their male romantic partners. This Michigan study found that “Prosecutors and judges may consider such women less dangerous, less morally culpable, or useful sources of testimony” and that “in cases involving couples, it may just be assumed that the female is the ‘follower.’” This theory is backed up by statistical evidence and the gender gap was found to be significantly higher in multi defendant cases: 66% to 51%. The data presented also shows that the largest gender disparities exist among single parents whereas the smaller are present among defendants with no children. A hypothesis presented by this paper is that “prosecutors and/or judges worry about the effect of maternal incarceration on children.” According to an ancillary study by Behavioral Sciences and the Law, the author found that simply “mentioning child care reduced judges’ probability of recommending prison.” While this childhood theory does not fully explain the gender gap it likely explains at least part of it. Discrepancies can also be partly explained by a judges background. According to a study by CorrectionsOne, “Male judges are typically less strict when it comes to sentencing a female offender versus a male offender if both genders were charged with the same crime and came from a similar background.” Indeed, this study concludes that males tend to be guilty until proven innocent whereas the opposite is true for females. Additionally, jury selection can also affect the outcome of a case. According to testimony presented at the Supreme Court Opinions on Sex as Jury-Selection Standard in 1994, “female jurors are more likely to vote to convict than male jurors.” While as a whole males are not a disadvantaged group, men within the criminal justice system are as they are disproportionately poor and nonwhite. Furthermore, a key dimension of the incarceration of men of color likely stems from such gender disparity. However, while society should work to limit any disparity, in this case, practical solutions are incredibly difficult to determine as the majority of the discriminant treatment is caused by the subconscious mind and cannot be actively changed. When pressed on solutions, Professor Sonja Starr of the University of Michigan Law School, said the solution “is not necessarily to lock up a lot more women, but perhaps to reconsider the decision-making criteria that are applied to men. One potential solution could be the introduction of mandatory minimums and sentencing guidelines in the Criminal Justice System. The previously cited study from the University of Michigan found that this decreases the gender incarceration disparity by about 60%. However, this solution is far from perfect and men still receive sentences on the longer end of the sentencing guidelines whereas women receive shorter sentences for the same exact crime.
In conclusion, about one in every fifty American men is currently behind bars, and we could think about this gender disparity as perhaps being a key dimension of that problem. The United States certainly does have a problem with an incredibly high rate of incarceration and by rectifying this disparity this rate could be reduced.