Gender & Criminal Justice

1. Gender & Criminal Justice Crime Processing CJS is composed of three stages: Police Courts Penal system All 3 are sites for gender discrimination to play out in crime processing. Multiple decision points for processing in all 3

2. Gender & Criminal Justice What is discrimination and how is it produced? Law Application of Law Defining Gender-neutral & Gender-specific Law Gender-neutral No formal distinctions in applicability to males or females. Trend is in this direction (rape laws, for example) Gender-specific Application is limited to one sex Both types have the potential to produce gender-based discrimination in the CJS

3. Gender Discrimination & Criminal Law How can gender discrimination result from criminal law? 3 ways: Gender-specific 1) Law is written & enforced with a focus on one sex Statutory rape – age of consent Gender Neutral Application of same (“neutral”) law varies according to sex of parties involved: 2) Offenders Delinquency – Running away, Curfew & Promiscuity Prostitution – suspicious women 3) Victims Sentencing differences reflect “value” of victims Men who murder women/children less likely to receive DP

4. Gender & Criminal Justice Discrimination & Sentencing Law Sex-segregation in penal institutions General approach that has pervaded women’s prisons is embodied in their names Reformatories vs. Penitentiaries Rehabilitation vs. serious Punishment Rehab became a form of Parens Patriae (women need help/protection) Sex-specific sentencing laws Indeterminate sentencing – Patronizing – Consequence? Determinate sentencing 1913 Muncy Act of PA Judges have less discretion in sentencing women Women become eligible for parole much later than men Justified by states by arguing that men and women inherently different 1960-70s challenged on 14th Amendment grounds

5. Gender & Criminal Justice Perspectives on gender-biased processing: Equal Treatment (Null) Hypothesis No sex discrimination exists; the system is neutral, fair, impartial Chivalry (Paternalism) Hypothesis CJS is more lenient towards women offenders (discriminates against men? - Is chivalry reverse discrimination or not?) Chivalry is an exchange – placing ♀ on a pedestal Paternalism is based on the premise of weakness or dependency A. Typicality-Chivalry operates only when consistent with gender B. Selectivity-Chivalry is reserved for white females C. Differential Discretion-discretion varies by stage & visibility 3. “Evil” Woman Hypothesis CJS is biased against female offenders; More harsh. Females are punished for 1) crimes & 2) inappropriate gender display

6. Evidence on gender-biased processing: Early studies support Chivalry Adequate studies need to account for a variety of extra-legal factors: Individual characteristics (race, class, gender, age, etc.) Situational characteristics/Legal variables (seriousness of the offense, victim-offender relationship, etc.) Prior record often ignored (even though this is often a formal part of decision-making) Decision-points & the totality of the decisions are important to consider More contemporary studies support Equal treatment Findings are nuanced By race, class and age of female offender Juveniles Decision point of CJS Offense type (seriousness) Gendered stereotypes (double standards of family as an institution)

7. Decision points of CJS Police – Evil Woman Hypothesis Largest amount of Discretion; Lowest level of Visibility; Org. focus on “War” Subculture oriented around hegemonic masculinity & internal solidarity Police Sexual Violence (Kraska & Kubellis, 1995) Pre-trial Court Decisions – Actors: DA/Prosecutors, Judges, Juries Pretrial Release? Evil woman (prostitutes more likely to be detained) Trial or Dismiss? Equal treatment Plea Bargaining? Men more likely to plea to reduced charges & receive reduced sentence “deals” Trial & Post-Trial Decisions – Incarceration? Chivalry Sentencing? More Equal treatment (determinate sentencing effects?) Probation? Death Penalty? 1 in 7 homicides - 2% of executions - chivalry? Evil woman?

8. Other Patterns Offense type Relationship between sex-typed offense and gender? Gendered stereotypes Double standards of family as an institution Flavin (2001) finds that family status is linked to sentencing severity Women 2.5X as likely to live w/children Such women less likely to be incarcerated Women 8X more likely to be child’s only provider Such women less likely to be incarcerated, but mothers more likely if another provider was available Analysis: CJS reinforces the expectations of women to by nurturers & mothers & men to be breadwinners. This is reflected in sentencing patterns as gendered stereotypes reproduce PATRIARCHY in family.

9. Gender & Criminal Justice Findings are nuanced by race, class and age Who enjoys the spoils of chivalry? White, Middle-class Who is more likely to be perceived as an evil women? African American, Hispanic, poor Juveniles The criminalization of status What is a status offense? Delinquency – Running away, Curfew Sexual activities R&G3 – Double Standards of JJS

10. Trends in Women’s Incarceration Incarceration should reflect 2 realities: Offending patterns CJS Policy The recent trend has been an explosion of incarceration

11. Trends in Women’s Incarceration An explosion of incarceration especially for women

12. Trends in Women’s Incarceration An explosion of incarceration especially for women

13. Trends in Women’s Incarceration An explosion of incarceration especially for women Over the past 20 years, women’s imprisonment rate has increased ~400% Men’s increased ~200% What does this reflect? No real change in offending by women Significant changes in penal policy, especially the role of the War on Drugs Most women in prison are there for minor offenses, drug crimes

14. War on Drugs & Race & Gender The same federal sentence length for 5g of crack requires 50g of powder cocaine to reach. The mandatory minimum sentencing laws established by Congress in 1986 reflect the belief that crack is more harmful than powder cocaine and penalize crack defendants more harshly than powder cocaine defendants. Defendants convicted of selling 500 grams of powder cocaine or five grams of crack cocaine receive five-year sentences. For five kilos of powder cocaine and 50 grams of crack, the penalty is 10 years. Thus there is a 100:1 ratio. Simple possession of any quantity of powder cocaine by first-time offenders is considered a misdemeanor, punishable by no more than one year in prison. Simple possession of crack cocaine is a felony, carrying a five-year mandatory sentence – even for first-time offenders

15. War on Drugs and Racism 1995 report of the U.S. Sentencing Commission found little inherent difference between crack and powder cocaine. Concluded that the 100:1 ratio was unfair. Congress rejected a subsequent amendment by the Sentencing Commission to eliminate the sentencing disparity between crack and powder. Other efforts to alter the ratio failed. US v. Booker (USSC 2005) has made fed. Sentencing guidelines advisory. Some judges are sentencing based on 20:1 after Booker. FY 2000 fed convict* Blacks Hispanics whites Crack offenses: 84% 9% 6% Powder cocaine offenses: 30% 50% 18% *2000 Sourcebook of Federal Sentencing Statistics, U.S. Sentencing Commission.

16. War on Drugs and Sexism/Racism Women are roughly twice as likely as men to be imprisoned for street drug offenses. Control rate of young black men is mirrored by the control rate of young black women. Policy issue: Police strategies in waging war on drugs focuses on street drug use and low-level operators Mandatory-minimum sentencing ignores this reality

17. Incarceration Invisibility of Women Prisoners: Small (but growing portion) of all inmates Convictions of less serious crimes Less of a penal social control problem concern about riots, disruption, escape, etc. is reduced in female prison

18. Incarceration Brief History of Women’s Prisons: Co-corrections prior to 1850s in US Influence of Eliz. Fry Sex segregation Female supervision of female inmates Gendered prison experience (less labor for women) Emphasis is to Re-mold rather than punish Custodial Institutions & Reformatories Women are likened to children in need of help Women tended to be sentenced for sexual offenses Emphasis on Domesticity in reformation process (re-enforces gender division of labor and inequality)

19. Incarceration Contemporary Prison for Women: Residual of Reformatory Philosophy Impacts treatment programs, prison conditions, and ultimately chances for successful re-integration Evidence of institutionalized sexism Limited facilities (5-10% of total inmate population) isolates women geographically Used to Justify Lack of commitment to providing resources Limited or absent specialization in treatment Conditions are typically significantly worse than the poor conditions evident in many men’s penal settings

20. Women & Work in the CJS Legal Approaches to Addressing Discrimination: Formal Equality Laws All persons to be treated identically (“gender neutrality”) Assumes that “neutral settings” work the same for both sexes. Organizations (bureaucracies) claim to operate in neutral ways Effects are gendered to the disadvantage of women clients vs. Compensating Equality Laws Sex-specific in providing advantages to women in addressing historical discrimination Dilemma of Difference

21. Incarceration Organizational perspective of Corrections Departments reflects Androcentrism: Institutions designed with men in mind (70%) Body Searches are sexualized Sexual activity Rape and sexual assault Guards Other inmates Consensual sex Reproductive Rights Pregnancy

22. Models of Women Prison Philosophies Differential Needs Model Vs. Parity (equal treatment) Model Equal Protection (14th Amendment) Strip searches Chain Gangs Pattern of rule enforcement