Sentencing disparity

Variation among judges

Two judges could be faced with a similar case and one could order a very harsh sentence while another would give a much lesser sentence. There is evidence that some U.S. federal judges give much longer prison sentences for similar offenses than other judges do.

In 2005 Max Schanzenbach found that "increasing the proportion of female judges in a district decreases the sex disparity" in sentencing which he interprets as "evidence of a paternalistic bias among male judges that favors female offenders".

A 2020 study found with decreasing number of female judges in French courts the gender gaps in prison and probation sentences widens - prison and probation sentences are lighter for women, while suspended prison sentences are longer. The gender of the prosecutor seem to play no role.{{cite journal | access-date = 23 August 2023

By gender or sex

United States

A 2001 University of Georgia study found substantial sentencing discrimination against men "after controlling for extensive criminological, demographic, and socioeconomic variables". The study found that in US federal courts, "males are... less likely to get no prison term when that option is available; less likely to receive downward departures [from the guidelines]; and more likely to receive upward adjustments and, conditioned on having a downward departure, receive smaller reductions than ... females".

In 2006 Ann Martin Stacey and Cassia Spohn found that women receive more lenient sentences than men after controlling for presumptive sentence, family responsibilities, offender characteristics, and other legally relevant variables, based on examination of three US district courts.Ann Martin Stacey and Cassia Spohn, Gender and the Social Costs of Sentencing: An Analysis of Sentences Imposed on Male and Female Offenders in Three U.S. District Courts, 11 Berkeley J. Crim. L. 43 (2006).(DOI)https://doi.org/10.15779/Z38F32G https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1001&context=bjcl

In 2012 Sonja B. Starr from University of Michigan Law School found that, controlling for the crime, "men receive 63% longer sentences on average than women do," and "[w]omen are…twice as likely to avoid incarceration if convicted", also based on data from US federal court cases.

Natalie Goulette and her colleagues found 2014 support for the “evil woman” theory, which suggests that chivalry is reserved for certain groups of women who appear to be docile and in need of protection.

In 2019 The Guardian claimed that outdated data on sentencing disparity have been widely cited, such as a 2006 ACLU article saying that the average prison sentence is 2 to 6 years for men who kill their female partners and 15 years for women who kill their male partners. This claim was repeated by Women's March organization{{cite web |article-url = https://bjs.ojp.gov/library/publications/violence-between-intimates | access-date = 2024-10-15

United Kingdom

A paper examining gender sentencing disparities in a large samples of assault, burglary and drugs offences found that male offenders are subjected to significantly harsher sentences, even when controlling for mitigating factors and case characteristics. Men were 2.84 times more likely than women to receive custodial sentence for the offence of assault, 1.89 more likely for the offence of burglary, and 2.72 more likely for offence related to drugs. For offences of assault, the gender factor was stronger than any other ‘harm and culpability’ factor with the exception of the ‘with intent to commit serious harm’ factor.{{cite journal | access-date = 23 August 2023

France

A 2020 study shows that women receive 33% (15 days) shorter prison sentences than men, even when controlling for all observable characteristics – including a very precise description of the crime. When pairs of mixed-gender offender are convicted together the gender gap is even higher - men receive 38.7 additional prison days and 10.7 fewer suspended prison days.

From a procedural point of view, when controlling for the type of crime, men are on average judged after shorter investigations, and are more likely to be sentenced after an accelerated procedure. When taken to court, men are 20% less likely to be discharged (6% vs. 4%). In 2017, 19.9% of convicted men were sentenced to prison, compared to 8.5% of convicted women.

By race

United States

A 2001 University of Georgia study found substantial sentencing racism against African Americans "after controlling for extensive criminological, demographic, and socioeconomic variables". The study found that in US federal courts, "blacks... less likely to get no prison term when that option is available; less likely to receive downward departures [from the guidelines]; and more likely to receive upward adjustments and, conditioned on having a downward departure, receive smaller reductions than whites".

A 2023 study found for grand juries in the USA a "small but statistically significant disparate impact on Black defendants", but no taste-based discrimination or statistical discrimination between black and white races based on data from a quarter million felony cases.

Equality versus equity

Some have argued in favor of sentencing disparity because of social equity or substantive equality for race and gender. In 2016, Mirko Bagaric argued that African-Americans and Indigenous Australians should receive a sentencing discount in all but the most serious of crimes, in part to offset unacknowledged biases to the opposite effect, while women should "be treated more leniently when they commit the same crime as a man" - in this case, he did not make any exception for serious offending. In the United Kingdom, Jean Corston's 2007 report planned as a "review of women with particular vulnerabilities in the criminal justice system" is described as making the case "that prisons should be scrapped for all but a tiny number of women", which Corston justified on the basis "equality does not mean treating everyone the same" (social equality, formal equality). She proposed "Custodial sentences for women must be reserved for serious and violent offenders who pose a threat to the public" and that overt separate sentencing for men and women could be considered after then-pending equality legislation. In 2024, UK's Secretary of State for Justice Shabana Mahmood unveiled plans to decrease the number of women in jail, close women’s prisons, or convert them to male prisons to tackle an overcrowding crisis.{{cite web | access-date = 2024-10-16 | access-date = 2024-10-16

Some legal commentators and Men's Rights activists argue that giving women lighter sentences than men is infantilizing, based on stereotyping, and incompatible with gender equality.

References

References

1. (1981). "Detecting Sentencing Disparity: Some Problems and Evidence". American Journal of Sociology.
2. [http://books.nap.edu/openbook.php?record_id=101&page=9 Alfred Blumstein, et al. ''Research on Sentencing: The Search for Reform'', Volume II (1983)], p.9
3. Secret, Mosi. (5 March 2012). "Wide Sentencing Disparity Found Among U.S. Judges". New York Times.
4. Schanzenbach, Max. (2005). "Racial and Sex Disparities in Prison Sentences: The Effect of District-Level Judicial Demographics". The Journal of Legal Studies.
5. Mustard, David B.. (2001-03-06). "Racial, Ethnic and Gender Disparities in Sentencing: Evidence from the Us Federal Courts". [[Journal of Law and Economics]].
6. "Study finds large gender disparities in federal criminal cases".
7. Starr, Sonja B.. (2012-08-29). "Estimating Gender Disparities in Federal Criminal Cases". Social Science Research Network.
8. Kelsh, Chaz. (2015-11-12). "Are criminal courts more lenient on women?".
9. (2014). "Gender and Sentencing in the Federal Courts: Are Women Treated More Leniently?". Criminal Justice Policy Review.
10. Mustard, David B.. (2001-03-06). "Racial, Ethnic and Gender Disparities in Sentencing: Evidence from the Us Federal Courts". [[Journal of Law and Economics]].
11. [https://conference.nber.org/conf_papers/f189536.pdf Hoekstra, Mark, Suhyeon Oh, and Meradee Tangvatcharapong. "Are American juries racially discriminatory? Evidence from over a quarter million felony grand jury cases." (2023). NBER]
12. Bagaric, Mirko. (1 June 2016). "Why we should close women's prisons and treat their crimes more fairly". The Guardian.
13. (March 2007). "The Corston Report". The Home Office.
14. "Why feminists need to discuss gender disparity in the criminal justice system - The Arizona State Press. Women also get lighter sentences because of the violent nature as men commit 80 percent of the violent crimes such as murder".
15. Foges, Clare. (2023-07-07). "Women must face the same justice as men". [[The Times]].