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Discrepancies in sentencing.
December 9, 2013 2:56 AM   Subscribe

Men receive longer sentences for equivalent crimes. Abstract: This paper assesses gender disparities in federal criminal cases. It finds large gender gaps favoring women throughout the sentence length distribution (averaging over 60%), conditional on arrest offense, criminal history, and other pre-charge observables. Female arrestees are also significantly likelier to avoid charges and convictions entirely, and twice as likely to avoid incarceration if convicted. Prior studies have reported much smaller sentence gaps because they have ignored the role of charging, plea-bargaining, and sentencing fact-finding in producing sentences. Most studies control for endogenous severity measures that result from these earlier discretionary processes and use samples that have been winnowed by them. I avoid these problems by using a linked dataset tracing cases from arrest through sentencing. Using decomposition methods, I show that most sentence disparity arises from decisions at the earlier stages, and use the rich data to investigate causal theories for these gender gaps.

Full PDF download from the abstract page.

A Huffingtonpost article regarding the study here.
posted by vapidave (54 comments total) 17 users marked this as a favorite

 
Interesting, thanks. And thank you for linking to the actual study.
posted by Sticherbeast at 3:24 AM on December 9, 2013 [2 favorites]


Wow, there is some violent anti-feminism in the comments at huffpo. I guess I shouldn't be surprised.
posted by Hildegarde at 4:46 AM on December 9, 2013


From the title page of the paper: ESTIMATING GENER DISPARITIES IN FEDERAL CRIMINAL CASES

Ouch.
posted by Joe in Australia at 4:52 AM on December 9, 2013 [2 favorites]


It's an interesting study of a problem that's intrinsically hard to analyse. I wonder whether how the recidivism rate of women compares to men; if it's the same or lower then you have an implicit argument that harder sentences don't translate to better deterrence or rehabilitation.
posted by Joe in Australia at 4:58 AM on December 9, 2013 [2 favorites]


I can see that mums might get more of a break on sentencing than dads, as it were. Also some account may be taken of how much of a risk to the public the sentencees might be, and men might generally be judged more dangerous. Perhaps also there's a residual feeling that women are less robust and suffer more from incarceration.

I do remember a discussion on BBC Radio 4 about what a scandal it was that so many women were in jail, which never mentioned men at all.
posted by Segundus at 5:01 AM on December 9, 2013 [2 favorites]


The comments at HUFFPO are unfortunately bog-standard on the internet today. This appears to be the result of (1) the patriarchy (2) a successful American-right campaign to misrepresent 'feminism' as advocating a matriarchy rather than equality (3) "men's rights" preaching #2 to younger members of #1 on the internet. Boo for all of that. The only hope is to show MRA that the things they view as advantageous to women are, in fact, caused by the very patriarchy that feminism seeks to abolish.
posted by beerbajay at 5:05 AM on December 9, 2013 [8 favorites]


Also some account may be taken of how much of a risk to the public the sentencees might be, and men might generally be judged more dangerous.

If a particular man is given a sentence that's 63% harsher than a woman convicted of the same offense because men generally are judged more dangerous, I think that's pretty much the definition of prejudice.
posted by layceepee at 5:07 AM on December 9, 2013 [8 favorites]


This post also reminded me how much I hate seeing HUFFPO links, so I made a user script to destroy them. Preview of how it looks here.
posted by beerbajay at 5:09 AM on December 9, 2013 [1 favorite]


It's normal enough in non-criminal enterprises for women's activities to be underplayed, underestimated and attributed to other people. I don't think it's surprising that the same thing happens when it comes to crimes.
posted by emilyw at 5:23 AM on December 9, 2013 [33 favorites]


It's an interesting study of a problem that's intrinsically hard to analyse. I wonder whether how the recidivism rate of women compares to men; if it's the same or lower then you have an implicit argument that harder sentences don't translate to better deterrence or rehabilitation.

Well, not necessarily. Then you'd have the question if the difference in recidivism was due to gender issues as well, whether innate or socially-constructed. Now I am off to RTFA.
posted by GenjiandProust at 5:28 AM on December 9, 2013


The current first comment in the HuffPo is rather refreshing:

It's amazing that so many men are quick to point to feminism as the cause of this discrepancy. Feminism doesn't have much sway at judicial benches in the United States. What seems clear to me in this data is that judges simply don't tend to see women as a credible threats to society, even when they are committing the same violent crimes as men. That's not a feminist perspective at all.

Then I got two or three comments down, and, well...
posted by GenjiandProust at 5:38 AM on December 9, 2013 [16 favorites]


I think emilyw hit the nail on the head, so let me just paraphrase: Women often don't get full credit for the work they do elsewhere, so it would follow that they're not getting full credit here either.

This is not really surprising when you think about it from that angle. Anybody who's ever spent more than a couple of days in a courtroom would have noticed this a long long time ago.

I am curious, however, to see how long this would have been buried under the rug if it wasn't negatively affecting seen as unfair to some part of the straight/white/male demographic.
posted by Blue_Villain at 5:47 AM on December 9, 2013 [2 favorites]



I am curious, however, to see how long this would have been buried under the rug if it wasn't negatively affecting seen as unfair to some part of the straight/white/male demographic.


While there are many aspects of life that are unexamined with respect to race, (unfair) prison sentencing ain't one of them; it surely isn't 'swept' under the rug.
posted by lalochezia at 6:02 AM on December 9, 2013 [2 favorites]


As it so often is, the Onion is on it.
posted by sappidus at 6:10 AM on December 9, 2013 [7 favorites]


seen as unfair to some part of the straight/white/male demographic

Um...? From the discussion of race:

...the gender gap is substantially larger among black than non-black defendants (74% versus 51%). The race-gender interaction adds to our understanding of racial disparity: racial disparities among men significantly favor whites, but among women, the race gap in this sample is insignificant (and reversed in sign). The interaction also offers another theory for the gender gap: it might partly reflect a “black male effect”—a special harshness toward black men, who are by far the most incarcerated group in the U.S. This possibility is not really an “explanation” for the gender gap, much less a reason to worry less about it—but it might cause policymakers to understand it differently, as an issue of intersectional race-gender disparity. This theory only goes so far, however—the gender gap even among non-blacks is over 50%, far larger than the race gap among men.


Sexuality is not included in the study.
posted by zennie at 6:21 AM on December 9, 2013


FWIW, the "girlfriend theory", which encompasses at least some of emilyw's point, is discussed in section 3.2 of the paper. It's worth reading the original text (just a couple of paragraphs, starting page 13) but, briefly, the author agrees that women benefit from the assumption that they were led by male co-conspirators, but concludes that this effect can't account for all of the difference. Especially in cases where the women acted alone. The author does acknowledge the possibility that women are just generally perceived as being less dangerous, although it's hard to see how the impact of that can be measured.

Mentioning race, I was surprised to see (in section 3.6) that while black men are heavily penalised for their race, black women aren't: their treatment isn't distinguishable from non-black women. Perhaps something to do with further-reduced perceptions of agency/threat? Or maybe being female is a strong enough protective factor that it overcomes race in this context?

Joe in Australia - I wonder whether how the recidivism rate of women compares to men; if it's the same or lower then you have an implicit argument that harder sentences don't translate to better deterrence or rehabilitation.
The author mentions (in 3.7) that the recidivism rate is generally reported as being lower amongst women, but that this difference might be explained by factors that this study is already controlling for. Regardless, she also states that The Supreme Court has repeatedly ruled that reliance on gender stereotypes is impermissible even if those stereotypes are statistically well founded. So even if the difference is real, it shouldn't factor into sentencing decisions.
posted by metaBugs at 6:22 AM on December 9, 2013 [5 favorites]


Yet another example of female malefactor privilege.
posted by BurntHombre at 6:44 AM on December 9, 2013 [2 favorites]


I wonder how much might be due to prosecutors wanting to avoid trial, juries being what they are, so they offer better pleas to women. I don't see that in the discussion section.
posted by bleep-blop at 6:51 AM on December 9, 2013 [2 favorites]


It's normal enough in non-criminal enterprises for women's activities to be underplayed, underestimated and attributed to other people. I don't think it's surprising that the same thing happens when it comes to crimes.
posted by emilyw at 8:23 AM on December 9 [6 favorites +] [!]


I think this is an example of 20-20 hindsite. It is purporting that the cause of the different levels of incarceration is because women's contributions are "underplayed, underestimated, and attributed to other people."

While I agree that this is true in society in general, I don't think that the under-sentencing logically flows from it. If sentencing were equal, or even greater, for women, I don't think we would be raising red flags saying "Wait, why are they getting sentenced for the same, or longer, times as men? After all, everyone knows that women's contributions are underplayed, underestimated, and attributed to other people."

I think that what we would say would be something like "Well it makes sense that women are sentenced for longer than men. After all, women are seen as having little value to contributing to society, there are many attempts to control women's bodies (what better way to control them than locking them up?), and they are often seen as less capable of moral decisions than men."

So this is the type of thing where it seems there is no win state - damned if you do, damned if you don't. Personally, regardless of the cause, I think it's, not a win per se, but at least a bonus for women and feminists that, at least in this arena, women aren't at the bottom of the heap like normal.
posted by rebent at 6:55 AM on December 9, 2013 [3 favorites]


bleep-blop's observation makes a huge amount of sense to me; prosecutors care about conviction rates, and juries are likely (?) to be more sympathetic to women generally, so they offer more favorable / lenient plea bargains.

At least this seems to me a very likely sounding pragmatic or self-concerned motivation on their end, rather than a sort of squishy idea of paternalism or whatever.
posted by taz at 7:03 AM on December 9, 2013 [1 favorite]


I'm not following that logic, rebent.

You're right that we will always seek to understand the reasoning behind presented data like this, which I think is perfectly rational, and until we have more data, we won't be certain about the whys and wherefores of any of it. If if had found that women consistently received longer sentences than men, I would wonder whether it had something to do with an expectation that women will behave with a stronger moral imperative than men, and thus were seen to deserve a harsher punishment for their lapses. It would suggest that women committing crimes had a bigger social/moral impact on society than men committing crimes. But that's not the data we got.

Sentencing seems to be related both to the severity of the crime and the degree of risk the perpetrator is seen to pose to the community. This data seems consistent with a perspective that women just aren't seen as that powerful or threatening as men, and that their crimes aren't seen to have as much potential impact as men's crimes. It seems like a creepy version of pay inequity: women get paid less for the same work, and have to do less time for the same offence. For some reason, in both cases, a man doing it makes it more worthy of reward/punishment.
posted by Hildegarde at 7:17 AM on December 9, 2013 [1 favorite]


Lots of good thoughts here. Realistically, I think the authors discount the defendants' role in the offense way, way too much. Both the drug kingpin and the drug mule will be charged with the same offense - conspiracy to distribute. Should these two people be punished the same even though they are convicted of the same crime? Absolutely not. One person had a major role and one person had a minor role. This isn't the "girlfriend theory" -- this is a matter of relative culpability.

I'd also be hesitant to cast this as a matter of women not getting enough credit for their crimes. Although there's no official census of ongoing criminal activity, I'd venture to say that there are more men out there leading drug and firearm smuggling rings than women. Is that really so controversial? These are the type of crimes that are most common in federal court. (Immigration related crimes are up there as well - though I think the gender breakdown there is more complicated). Nor would I discount the interplay of domestic violence.

I also wonder whether women are more likely to plead because of risk aversion. This, of course, is another debatable principle. But keep in mind that those that plead get better sentences.

I certainly wouldn't disregard the discrepancy in its entirety, and I think it's worth studying. Just my two cents.
posted by snarfles at 8:17 AM on December 9, 2013 [5 favorites]


Men receive 60% longer prison sentences than women because society treats women as inferior.
posted by 0 at 8:17 AM on December 9, 2013 [1 favorite]


Maybe this will create an opportunity for legislation to address this and other sentencing discrepancies such as sentences based on the race of the victim.
posted by BrotherCaine at 8:33 AM on December 9, 2013


While I agree that this is true in society in general, I don't think that the under-sentencing logically flows from it. If sentencing were equal, or even greater, for women, I don't think we would be raising red flags saying "Wait, why are they getting sentenced for the same, or longer, times as men? After all, everyone knows that women's contributions are underplayed, underestimated, and attributed to other people."

I think that what we would say would be something like "Well it makes sense that women are sentenced for longer than men. After all, women are seen as having little value to contributing to society, there are many attempts to control women's bodies (what better way to control them than locking them up?), and they are often seen as less capable of moral decisions than men."

So this is the type of thing where it seems there is no win state - damned if you do, damned if you don't.


Right. Or, more accurately I'd say: instead of "ah, well, here's one place where sexism works against men," we get, in effect: "well, the root of this must be sexism against women...so let's make up a story about how that might be..." It is, of course, possible that anti-female sexism is at the root of this, or mixed up in it in some way, but, prima facie, this is an instance of anti-male sexism. That really ought to be acknowledged before the discussion inevitably skips right over it to, inevitably, massage it and bend it until it fits with the local orthodoxy.

If the post had pointed out that blacks get longer sentences, on average, than whites, we wouldn't have seen suggestions that the root of that was really, in a complicated way, anti-white racism...that the contributions of blacks are, y'know, always underestimated...
posted by Fists O'Fury at 8:40 AM on December 9, 2013 [14 favorites]


I wonder whether how the recidivism rate of women compares to men; if it's the same or lower then you have an implicit argument that harder sentences don't translate to better deterrence or rehabilitation.

I don't get the impression that rehabilitation is a goal of the American justice system.
posted by Hoopo at 8:53 AM on December 9, 2013


Policymakers might simply be untroubled by leniency toward women. They are a small minority of defendants, and when disparities favor traditionally disempowered groups, they might raise fewer concerns. But the gender disparity issue need not be framed in terms of how women are treated. One could ask: why are men treated so harshly, if women are (apparently) treated otherwise? It is hard to dismiss this question as trivial: over two million American men are behind bars. While males generally are not a disadvantaged group, men in the criminal justice system generally are; they are mostly poor and disproportionately nonwhite. The especially high rate of incarceration of men of color is a serious social concern, and gender disparity is one of its key dimensions.

From this perspective, one might think differently about some of the possible explanations for the gender gap. Most defendants of both genders have suffered serious hardship, have mental health or addiction issues, have minor children, and/or have “followed” others onto a criminal path. Sentencing law provides very limited formal mechanisms to account for such factors—which is probably why, with women, they appear to mostly be considered sub rosa. If prosecutors, judges, and legislators are comfortable with those factors playing a role in the sentencing of women, then perhaps it is worth explicitly reconsidering their place in criminal sentencing more generally.


Although men may have minor children, they are surely not nearly as involved in their care as women, generally. But after adjusting for this and the "girl friend theory" and other explanations there is still a large discrepancy. I think the author makes a good point. It is clear we are incarcerating far too many people in this country, maybe this study could help reveal where these injustices could be easily addressed.

I'm curious if the is an incarceration gender gap is dependent on the gender of the prosecutor.
posted by Golden Eternity at 8:54 AM on December 9, 2013


I only had time to skim the paper, so I freely admit my understanding is probably imperfect. And it's quite likely that what I'm thinking may not cover a significant number of cases.

The author's statistical model doesn't find that family caretaking hardship or greater cooperation play a significant role in the gap, but I can't help wondering if perhaps they do in informal ways that are harder to measure in the data that’s available to her.

I take myself as an example, and I know other women in the same position. I don’t have dependent children, and I’m not anyone else’s official primary caregiver or source of income. But I do have close family members in poor health (not officially disabled) who depend on me and what help I can give them, and they’d be in sorry shape if I had to go away for a long time. Like many women, I’m a de facto caretaker but not a de jure recognized one. I wouldn’t be able to officially claim family hardship, but I would do whatever else I could (naming names, etc.) to cut the best deal possible for a shorter sentence, which brings me to the next point…

Female defendants may not be invoking any kind of official greater compliance in the verbally recorded record, but I would be surprised to find out that they’re not adopting more compliant mannerisms. In my generation, anyway, it’s been HEAVILY conditioned into us since we were old enough to sit up and make noises. If the stakes were high enough (as in I needed to get back to the people who needed me, above), you can bet my voice would be at its softest and most non-threatening as I yes, sir’d and pleased and thank you’d and generally did my best Mary Magdalene for the prosecutor and judge.

It doesn’t always work out, of course – you never know when a submissive manner is going to strike the wrong note. But if the point is to make people think you’re not going to be a threat if you get out in a few months instead of a few years, I can’t imagine it not having an unconscious influence. It’s still something girls are trained to do far more often and more thoroughly than boys.
posted by The Underpants Monster at 8:54 AM on December 9, 2013 [7 favorites]


Joe in Australia: " I wonder whether how the recidivism rate of women compares to men; if it's the same or lower then you have an implicit argument that harder sentences don't translate to better deterrence or rehabilitation."

The gender differences would muddy any conclusions beyond usefulness.
posted by IAmBroom at 9:18 AM on December 9, 2013


Right. Or, more accurately I'd say: instead of "ah, well, here's one place where sexism works against men," we get, in effect: "well, the root of this must be sexism against women...so let's make up a story about how that might be..." It is, of course, possible that anti-female sexism is at the root of this, or mixed up in it in some way, but, prima facie, this is an instance of anti-male sexism. That really ought to be acknowledged before the discussion inevitably skips right over it to, inevitably, massage it and bend it until it fits with the local orthodoxy.

But there's no such thing as "anti-female sexism" or "anti-male sexism" separate from one another -- they're just two sides of the same coin. "Gender stereotypes influence courts to see female defendants as not very aggressive or dangerous" = "gender stereotypes influence courts to see male defendants as highly aggressive and dangerous." "Gender stereotypes influence courts to see women as invariably primary in raising their children, so sending them to prison would be a disaster" = "gender stereotypes influence courts to see fathers as not playing much of a role in raising their children, so no big deal if they get sent to prison." Same thing. We're probably discussing it in terms of women largely because that's how the paper pitched it.
posted by ostro at 9:23 AM on December 9, 2013 [10 favorites]


"Lots of good thoughts here. Realistically, I think the authors discount the defendants' role in the offense way, way too much. Both the drug kingpin and the drug mule will be charged with the same offense - conspiracy to distribute. Should these two people be punished the same even though they are convicted of the same crime? Absolutely not. One person had a major role and one person had a minor role. This isn't the "girlfriend theory" -- this is a matter of relative culpability. "

The paper looked at that and found that it could only account for around 10 percent of the 60 percent sentencing disparity.

"I also wonder whether women are more likely to plead because of risk aversion. This, of course, is another debatable principle. But keep in mind that those that plead get better sentences."

This is also discussed in the paper — if women are more risk averse and prosecutors are treating them as such, they should be treating women the same way poker players treat people who fold easily, by bluffing them to take worse deals.

"I'd also be hesitant to cast this as a matter of women not getting enough credit for their crimes. Although there's no official census of ongoing criminal activity, I'd venture to say that there are more men out there leading drug and firearm smuggling rings than women. Is that really so controversial? These are the type of crimes that are most common in federal court. (Immigration related crimes are up there as well - though I think the gender breakdown there is more complicated). Nor would I discount the interplay of domestic violence. "

The paper compared percentages based on the same crime codes, so relative numbers of men running drug or firearm smuggling rings doesn't matter in terms of sentencing; women and men charged with the same crime e.g. drug smuggling would receive disparate sentences.
posted by klangklangston at 9:44 AM on December 9, 2013


"Right. Or, more accurately I'd say: instead of "ah, well, here's one place where sexism works against men," we get, in effect: "well, the root of this must be sexism against women...so let's make up a story about how that might be..." It is, of course, possible that anti-female sexism is at the root of this, or mixed up in it in some way, but, prima facie, this is an instance of anti-male sexism. That really ought to be acknowledged before the discussion inevitably skips right over it to, inevitably, massage it and bend it until it fits with the local orthodoxy. "

Honestly, that seems like a weird and strained reading — instead of this being consistent with pretty much every other incidence of sexism, which is often boiled down the the phrase "The patriarchy hurts everyone," it feels like you're just reflexively trying to come up with an anti-feminist framing. Correct me if I've misunderstood, but sexism isn't just about which "side" is benefitting at a given time.
posted by klangklangston at 9:48 AM on December 9, 2013 [8 favorites]


this is an instance of anti-male sexism ...

I'd say it is a good example of how our society can be inhumane towards men, and can treat them as more disposable, or with more violence, in a particular way and place that it doesn't with women. I think it is both bottom up and top down: we can ask why the vast number of criminals are men, not women; we can ask if the harshness/cruelty/inflexibility of the punishments are because the typical criminal is imagined as male; and we can ask if punishments are harsh because they come from a male-dominated public will.

Just saying the whole thing is anti-male sexism is a bit too easy and anti-feminist, what with the snark about "local orthodoxy" 'n all.

(fake preview: damn you, klang)

The author's statistical model doesn't find that family caretaking hardship or greater cooperation play a significant role in the gap, but I can't help wondering if perhaps they do in informal ways that are harder to measure in the data that’s available to her.

I kind of think the author might think that as well, given how the conclusion ends with that.
posted by bleep-blop at 9:54 AM on December 9, 2013 [4 favorites]


snarfles - Both the drug kingpin and the drug mule will be charged with the same offense - conspiracy to distribute.
It sounds like she attempted to control for this, coding for "additional flags based on written offense description", and refers to taking into account things like "loss value" and "drug quantity". In the specific case of drug offences, she found that the gender gap is "only slightly reduced by adding arrest-stage quantity controls". I agree with you though, (and the author acknowledges) that it's safe to assume that not all of the differences are captured by this. We can't really see how fine or coarse the coding was, from the paper alone.

...I also wonder whether women are more likely to plead because of risk aversion.
In 3.4, the author states that women "receive modestly but significantly larger charge reductions in plea-bargaining than men do, and far more favorable findings of fact, suggesting that they may be offered better factual stipulations." So it seems like women are offered more generous terms on their pleas which, as the author points out, is the opposite of what you'd expect if a prosecutor knew that women are more prone to accepting plea deals. Of course, this might just be evidence that prosecutors aren't totally rational.

Regarding the "anti-male sexism" thing, ostro made the point that we're largely following the paper's framing, and it's worth emphasising that the paper pitched it like that because the relative sample sizes mean that doing it this way around makes the stats work more reliably. (NB: I'm taking the author's word for that bit. It looks plausible to me, but IANAStatistician).
posted by metaBugs at 9:58 AM on December 9, 2013



If the post had pointed out that blacks get longer sentences, on average, than whites, we wouldn't have seen suggestions that the root of that was really, in a complicated way, anti-white racism...that the contributions of blacks are, y'know, always underestimated...


"What if we substituted black people for men here" is still not a good argument.
posted by sweetkid at 10:12 AM on December 9, 2013 [7 favorites]


Men receive 60% longer prison sentences than women because society treats women as inferior.
posted by 0 at 11:17 AM on December 9 [1 favorite +] [!]


see this just proves my point, and on preview I'd like to respond to Sweetkid's comment simultaneously. A logical argument is being constructed here, along the lines of:

(i)People treated as inferior by society are given shorter prison sentences
(ii) women are treated as inferior by society
--
.: (iii) Women are given shorter prison sentences

The reason substituting black people for men is acceptable here is because it proves that the argument is invalid, thus:

(i)People treated as inferior by society are given shorter prison sentences
(ii) black people are treated as inferior by society
--
.: (iii) black people are given shorter prison sentences

We know that (iii) is false, therefore one of the premises must be false. I believe that it is premis (i) that is false, in both versions of the same argument.
posted by rebent at 10:19 AM on December 9, 2013 [4 favorites]


The paper compared percentages based on the same crime codes, so relative numbers of men running drug or firearm smuggling rings doesn't matter in terms of sentencing; women and men charged with the same crime e.g. drug smuggling would receive disparate sentences.

This was related to my point about conspiracy. There is no "drug smuggling ring leader charge" -- each member of a conspiracy is responsible for the acts in furtherance of the conspiracy from the top to the bottom. I understand that she said this conspiracy factor could only account for 10% -- I find that dubious given that conspirators can also be charged in separate indictments -- but I didn't do the research so I'll take her word. But I concede this couldn't explain all the difference in any case. After all, more men are bit players than kingpins.

It sounds like she attempted to control for this, coding for "additional flags based on written offense description", and refers to taking into account things like "loss value" and "drug quantity". In the specific case of drug offences, she found that the gender gap is "only slightly reduced by adding arrest-stage quantity controls". I agree with you though, (and the author acknowledges) that it's safe to assume that not all of the differences are captured by this. We can't really see how fine or coarse the coding was, from the paper alone.


Right. I think this is really the crux of the issue. I'm not really sure how useful this is without her breakdown -- there's a shockingly wide range of conduct captured in one criminal offense. That's exactly why we have plea bargaining and sentencing guidelines -- so judges and prosecutors can account for the difference. The flip side is that "discretion" can lead to prejudice, unconscious or not. But generally speaking, it would be a bad, bad thing for criminal defendants if X crime always received X sentence. See mandatory minimum sentences.
posted by snarfles at 10:19 AM on December 9, 2013 [3 favorites]


It's a decent enough argument. The same author also published Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences, using similar methodologies, suggesting that the racial sentencing bias is one-sixth that of the gender sentencing bias.
posted by adipocere at 10:21 AM on December 9, 2013 [1 favorite]


"We know that (iii) is false, therefore one of the premises must be false. I believe that it is premis (i) that is false, in both versions of the same argument."

You've failed in two ways. First off, the argument isn't simple that people treated as inferior are given shorter sentences; second, black men and women are not analogous categories because the way that the discrimination functions is different, especially in this instance. Women are seen stereotypically as less aggressive than men; black men are seen as stereotypically more aggressive than white men.
posted by klangklangston at 10:41 AM on December 9, 2013 [14 favorites]


Maybe there are economic factors driving this. As others have mentioned, women are probably a significant source of *free* domestic labor in our society, not just limited to child care. Unemployed men are, perhaps, more often a liability. Though, I'm not sure if this is as true for women who face incarceration, and may be fairly incapacitated due to addiction and other mental health problems.
posted by Golden Eternity at 11:09 AM on December 9, 2013


rebent, your problem is, I think, that you imagine the word "inferior" means the same thing in every context. So, your construction fails when women are denied agency as part of their "inferior" status (which might explain the lighter sentencing) while black people's "inferiority" is tied in with images of bestial and violent natures (which might explain harsher sentencing). I can't guarantee that this is what is going on, but it's why comparing oppressed groups like this is rarely productive; the structure of each specific oppression is slightly different, and they combine with other oppressions (so a gay black man can't be compared one to one in many cases with a straight black man or a black lesbian).
posted by GenjiandProust at 11:14 AM on December 9, 2013 [3 favorites]


"This was related to my point about conspiracy. There is no "drug smuggling ring leader charge" -- each member of a conspiracy is responsible for the acts in furtherance of the conspiracy from the top to the bottom. I understand that she said this conspiracy factor could only account for 10% -- I find that dubious given that conspirators can also be charged in separate indictments -- but I didn't do the research so I'll take her word. But I concede this couldn't explain all the difference in any case. After all, more men are bit players than kingpins."

Why would that be dubious? And that's likely a decent part of the control — if people have multiple indictments, as a leader of a drug conspiracy seems likely to, wouldn't they likely receive a lengthier sentence?

(And to answer an earlier objection, immigration crimes were excluded from the sample.)

There is a good bit about drug versus non-drug offenses; the author sees similar results in both, but there's a bit about methodology and offense coding that's interesting:
In this part of the analysis, data limitations require separate assessment of drug and non-drug cases. For non-drug crimes, the initial and final charges were coded with the statutory minimum, maximum, and Guidelines measures described above. But in drug cases, the AOUSC charge data are too ambiguous to permit that coding; the same statutory subsections encompass a vast array of drug types, quantities, and sentences. The only usable measure of statutory severity available for drug cases is the mandatory minimum for the crime of conviction, which the Sentencing Commission records. Thus, in drug cases I cannot disentangle the effects of initial charging and subsequent charge-bargaining. The mandatory minimum variable represents the combined effect of those stages.
Another nut graph on "severity" explanations:
Unobserved differences naturally cannot be ruled out, but there are good reasons to doubt that they explain much of the observed disparity. First, the observable covariates are detailed, capturing considerable nuance. They include not just the 430 arrest codes and the multi-defendant flag (a proxy for group criminality, an important severity criterion), but also additional flags based on the written offense description (see Table 4, Rows 15-16). Second, the disparities are similar across all case types (and across arresting agencies), suggesting it is not a matter of a few crimes being “worse” when men commit them. Such differences would have to be prevalent across a variety of crimes and agencies to explain the result.
More on drug cases:
Within that pool, there are substantial gender disparities in the drug quantity found at the sentencing stage, even after controlling for drug quantity at arrest and the other standard covariates. The estimated gender gap in sentences in pre-2004 drug cases is only slightly reduced by adding arrest-stage drug quantity controls to the reweighting (Table 5, Cols. 22-23). These findings suggest that quantity findings at sentencing diverge from the underlying facts in ways that differ by gender.
And on the overall sample:
In order to achieve better overlap between the male and female samples, I also excluded several case categories in which the arrestees were over 95% male: sex and pornography-related offenses (except for prostitution), weapons offenses, conservation offenses (mainly illegal hunting and fishing), and family offenses (mainly failure to pay child or spousal support). The remaining case types were property and fraud offenses, regulatory offenses (excluding those mentioned above), non-sexual violent crimes, and drug offenses.
posted by klangklangston at 11:33 AM on December 9, 2013


So this is the type of thing where it seems there is no win state - damned if you do, damned if you don't. Personally, regardless of the cause, I think it's, not a win per se, but at least a bonus for women and feminists that, at least in this arena, women aren't at the bottom of the heap like normal.

This is more an example of two wrongs inadvertently making something that looks like a right.

It's true that no matter where an obvious gender disparity falls, people are going to fit it into a patriarchy narrative, because we live in a patriarchal system. That's just fact, and it's uncontroversial among those who understand what patriarchy is.

Ultimately, this particular thing ends up looking like a statistical win for women, but that's because it lies at the intersection of two shitty systems. We've got the patriarchy, which tends to attribute agency disproportionately to men, and treats women as subservient and easily influenced. So it's basically the same mechanism by which women are not given due credit for other things. We're not really seen as being as competent and self-driven as men are, whether we're building a database or running drugs.

The only reason this ends up looking more fair to women is that it's sitting there at the intersection of an out of control criminal justice system.

There are a lot of ways in which the patriarchy hurts men pretty much directly, by limiting their options and pre- or proscribing behaviors based on silly and restrictive gender roles, and by devaluing those associated with women and girls, but this is a kind of weird case where it's not even a direct consequence of patriarchy. (Unless, of course, you were to argue that the criminal justice system itself is patriarchal.)
posted by ernielundquist at 11:58 AM on December 9, 2013 [5 favorites]


And one of the interesting things in there is when she renorms the sets to be based on either male or female means, and comes out with saying that women would experience a 63 percent increase in sentence lengths if treated like men. (Though she does point out that the difference between men-treated-like-men versus women-treated-like-men in sentence length increase is mostly due to a slight change in baseline average, so what looks pretty big — about ten months of the difference — is likely statistical noise, as it's only about 3 percent.)
posted by klangklangston at 12:24 PM on December 9, 2013


see this just proves my point

Er, pretty sure 0 was being sarcastic.
posted by bleep-blop at 1:25 PM on December 9, 2013


You've failed in two ways. First off, the argument isn't simple that people treated as inferior are given shorter sentences; second, black men and women are not analogous categories because the way that the discrimination functions is different, especially in this instance. Women are seen stereotypically as less aggressive than men; black men are seen as stereotypically more aggressive than white men.
posted by klangklangston 2 ¾ hours ago [8 favorites +]


That was not a failure on my part, I merely used the language that I saw as I understood it. I agree that changing the argument to start with
(i) prison sentencing is based on how aggressive the group is traditionally perceived as
would be an excellent revision because (a) it does seem to align with the way we see sentencing going, and (b) talking about how aggressive a group is traditionally perceived as is much more parsimonious than talking about "inferiority" or how women's activities are "underplayed, underestimated and attributed to other people."
posted by rebent at 1:40 PM on December 9, 2013


This is because society thinks that the female criminal is a fallen exception who needs help to be restored into a good mom, while the male criminal is ordinary and can be punished and thrown away.
posted by knoyers at 1:57 PM on December 9, 2013 [1 favorite]


It is true that women's activities are "underplayed, underestimated and attributed to other people", but there's even more to these discrepancies than that.

As remarked above, women are typically seen as being nonaggressive, in contrast to men. This stereotype is well-known, and in and of itself, it hardly bears further explanation. What's interesting, however, is that women who do engage in aggressive criminal behavior are not typically punished more severely than a man would be, at least in a courtroom setting. We often punish people more for deviating from their societal roles. Contrast with how "wicked mothers" are run up the proverbial flagpole: Casey Anthony could hardly be a more despised human being, whereas murderous fathers are both more frequent and more obscure. Contrast with how authoritative, not-jolly women are often viewed with fear and disdain, as "ball busters" or "ice queens": see, Hillary Clinton.

Women are often seen as lacking moral agency. This is a related concept to the idea that their roles in activities are being underplayed, but on a different axis. The idea is that men are seen as being morally responsible for their actions in a way that women are not. Men are defined by what they do, in a way that women are often not. Male criminals are more typically seen as evil, whereas women are more typically seen as either suffering from illness, as acting under the thrall of a man, or as exacting some kind of revenge on society. There are, of course, major exceptions, but this is the major trend.

This is just a pop culture example, but I'm reminded of a recent AskMe in which somebody asked for books and movies where a female villain had no motivations other than pure evil. It's surprisingly tricky!

I'm also reminded of the backstories on Orange Is The New Black, in which the sweeping majority of the inmates have emphatically sympathetic backstories. There is nothing wrong with that in and of itself, but there is something a little weird about the idea that the show doesn't want to wrestle too hard with the idea of criminals being, well, criminals. You're not really being sympathetic to inmates if you can't accept the very idea of a criminal!

(Of course, it also depends on the kinds of actions. A man who cheats on his wife and leaves her to take care of the kids will not be viewed positively, but he will be at least seen as more "natural" than a woman who cheats on her husband and leaves the father to take care of the kids.)

Women are also often seen as victims, just as men are often seen as perpetrators. This framework can be encoded in any number of ways. It can also cause weird wobbles to our usual fundamental attribution errors and actor-observer bias. It may be much easier for many people to accept the idea that a woman has committed a crime due to external factors XYZ - or that this woman would not commit a crime again if she just had a better support network or whatever other positive external factor we bring into the equation - just as it may be easier for many people to accept the idea that a man has committed a crime because he has made a choice to do something wrong. The idea lurks in the back of many heads that women don't really have any agency, and that in the "natural" state of things, whatever that means, they would only be Nice™.

It's also interesting to contemplate how people see prison as a punishment. "HURR DURR DON'T DROP THE SOAP", people might say in reference to a guy going to prison. There isn't really an equivalent remark for women going to prison. There is the idea that prison is a painful hell for bad people, where physical punishment and degradation awaits its occupants. But to sentence a woman there...a mother...there is something about women in prison which revolts even the biggest fans of law's duresse oblige.
posted by Sticherbeast at 2:36 PM on December 9, 2013 [2 favorites]


All of the above dovetails neatly into a more general criticism of how we perceive criminality and prisons. It would not necessarily make life more fair to send more women to prison.
posted by Sticherbeast at 2:40 PM on December 9, 2013


I think another factor may be the way we perceive female rage. Angry men may be violent or they may be outraged, but we wouldn't think that their anger means they're crazy. In fact the two states are almost incompatible: if you see a man shouting and gesticulating you would see if he makes sense or not; if he's incoherent he's crazy, otherwise he's just angry. Contrast this to women: an angry woman will likely be seen as hysterical; in fact that used to be a regular medical diagnosis.

Angry people are probably more likely to commit violent crimes, to attract attention, and to get arrested. Crazy people, on the other hand, are seen to lack agency and may be treated with more compassion. They're also a pain to deal with, so they may not get arrested in the first place. So this sexist attitude works in women's favor in one way (they can get away without legal consequence) while it works against them in another: their anger isn't taken seriously even when it's justified.
posted by Joe in Australia at 3:41 PM on December 9, 2013 [1 favorite]


Factoring in the attractiveness study (good-looking people get 20% lighter sentences), I guess you'd expect unattractive men of color to get the harshest sentences. So Martha Stewart had a good shot at getting less than she "deserved". But then, what about rich vs poor? There are probably crosswinds - juries might be biased against privileged criminals but the same can hire better lawyers.
posted by jimmymcvee at 4:30 PM on December 9, 2013 [2 favorites]


The difference is that the uglors deserve it. LOCK THEM AWAY, LEST WE GAZE UPON THEM!
posted by klangklangston at 4:56 PM on December 9, 2013 [2 favorites]


Yeah, I think they make allowances for women driven into things by shitty men, as well.
posted by corb at 12:52 PM on December 10, 2013


Don't ask me why, but I was watching a program on YouTube, about a morbidly obese women, who was charged with murder of her niece. In a written confession, she admitted to literally falling on top of the kid. This being Texas, she was facing basically the death penalty.

(Spoilers Below)

and it turned out to untrue - the real killer was her Sister - the boy's Mother. The family with covering up the abuse. The Sister fled the country before the hearing for the trial, which isn't the best way to not raise suspicions... She finally came back to be arrested, after her Sister recanted the confession. This Sister took a plea bargin for a less charge, sentenced to 15 years of prison, will probably be out in 3 years. For killing your own son, and blaming it on your Sister with a disability. Amazing.

It's andecata, of course, but still, the outcome was pretty surprising.
posted by alex_skazat at 12:30 PM on December 11, 2013


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