Sentencing, Gender Differences

The U.S. criminal justice system has been marked by striking increases in incarceration for both men and women during the past two decades. The public has grown increasingly aware of the disproportionate numbers of young African American men charged, convicted, and sentenced in state and federal courts. At the same time, the public remains less attentive to the gender disparities in convictions and sentences despite the emphasis placed on eliminating unequal treatment under the Sentencing Reform Act of 1984 and federal sentencing guidelines. As early as the 1970s, sentence reformers sought to eliminate the discretionary practices allowed under indeterminate sentencing that favored whites and women. Under indeterminate systems, court actors (i.e., prosecutors, probation officers, and judges) could consider “extralegal” factors, such as race, gender, socioeco-nomic status, and family circumstance when meting out punishment. With the advent of determinate sentencing, those discretionary considerations, although forbidden, reemerged in nuanced forms. Despite the public's inattention, social scientists have paid considerable attention to the disparities in criminal processing between women and men offenders.

In the 1970s and 1980s, research focused on questions of whether courts treated women differently than men at the sentencing stage and, if so, whether those differences reflected different sorts of criminal conduct by women and men or leniency for women apart from their offense? Findings were consistent: Female offenders received lighter sentences than like male offenders did. For like situated offenders, women were less likely than men to receive suspended sentences or probation, but men were more likely to be incarcerated. (In cases of serious offenses, or long sentences, incarceration decisions for women and men were more similar.) Many studies since the sentencing reforms continue to reach the same conclusion—that women are treated preferentially in sentencing.

Several arguments have emerged to explain gender disparities in sentencing. In the criminological literature, women are the marked gender category of offenders, but men are the unmarked norm (even though men are equally gendered). As a result, discussions often center on the preferential treatment of women because of their physical and emotional characteristics, and their social roles. According to the chivalry/paternalism thesis, stereotypes about women lead to their special treatment in the criminal justice system. The sexist view of women as weak, passive, submissive, childlike, and dependent on men stipulates their need for protection rather than punishment. However, research indicates that the criminal justice system extends chivalry disproportionately to middle-and upper-class white women. Additionally, women offenders whose criminal behaviors violate stereotypical views of women may receive harsher punishment than similarly situated men offenders. Not all researchers agree that chivalry and paternalism explain the differential sentencing associated with gender, although most accept that it plays a role in the [Page 745]patterned responses of judges at sentencing. Judges may see women as less threatening to their communities, less likely to reoffend, or even less blameworthy because of men's greater participation in violent behavior, including violence against women. Perhaps even more revealing is the informal social control women experience in the family context because of their caretaking responsibilities. When researchers controlled for whether offenders were married with dependent children, the gender disparity disappeared in decisions to incarcerate.

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