Explaining The Gender Gap In Sentencing Outcomes

Running header: EXPLAINING THE GENDER GAP IN SENTENCING OUTCOMES 1

Analysis of Doerner’s Doctoral Dissertation Explaining the gender gap in sentencing outcomes:

An investigation of differential treatment in US federal courts

Name of the Student

Name of the Institution

EXPLAINING THE GENDER GAP IN SENTENCING OUTCOMES 2

Analysis of Doerner’s Doctoral Dissertation Explaining the gender gap in sentencing outcomes:

An investigation of differential treatment in US federal courts

This research was conducted in United States by Jill K. Doerner, for his PhD thesis in

Bowling Green State University in the year 2009. The paper is divided into seven chapters with

each chapter covering various thematic issues pertinent to the objective of the study. Chapter one

of the research is a preliminary introduction to the topic. Chapter two and three focus on the past

literatures in this field and methodologies applied to collect data for this study respectively.

Chapter two also covers the theories which the author has relied upon during his research.

Chapter four outlines the expectations of the research; besides providing comprehensive

findings. Chapter six states the effects caused by the problem identified in general legal

framework studies. Finally, conclusion and recommendations are stipulated in the last chapter;

which is seven. This paper will therefore critique the aforementioned scholarly article in order to

establish the general intent of the research, methodology used and its contribution to the context

of criminal justice system or related frameworks.

Fundamental intent of the research was to find or establish any relationship between

gender and sentencing- and how it influences the later. With diversity based on gender, race,

ethnicity and other factors, the question of uniformity in justice system is bound to arise. This

research focused on the issue of gender and tried to find an explanation for the disparity

witnessed in sentencing. From the study, which was conducted on the statistical records of the

year between 2002 and 2003, an empirical outcome established the hypothesis that women

receive leniency in courts; as compared to men of the same age and who have committed the

same offense.

EXPLAINING THE GENDER GAP IN SENTENCING OUTCOMES 3

The past researches had focused on other factors such as race and age; therefore, this

study filled the gap through conducting research based on the gender factor. In addition, this

paper based its problem statement on the fact that there was no recent study on the topic. The

latest researches focused on past cases through reliance of data collected in 1970s and 1980s.

This means that the aforementioned studies could not authentic or substantive to the current

contextual analysis (Parisi, 1982).

New laws regarding criminal justice system within United States have been formulated

since 1980s. This is besides the fact that most there are numerous precedents set by the courts.

To find out whether these changes in the legal system have impacted the criminal justice system,

it was important to conduct a study in the field. Focusing on the gender issue and excluding other

issues within the society was due to the fact that there is unlimited literature ion the field. This

means that there was a need to fit this gap and the most practical thing to do was to conduct the

research (Feinman, 1986).

In addition, with the existence of clear guidelines on federal sentencing which are

intended to be applied by judges, this research endeavored to find out if there is a deviation

based on gender factor. A comparison between women and men showed that legal factors

inferred during sentencing were uniform and guidelines as stipulated by the laws were adhered

to; however, extra-legal factors were highly impactful and contributed significantly to disparity

based on gender (Kruttschnitt, 1981). Social factors such as level of education, status and

marriage were also found to be significant to the context of procedural court’s system, and

consequently influenced the judgment (Miethe & Moore, 1985).

EXPLAINING THE GENDER GAP IN SENTENCING OUTCOMES 4

Doerner, in this found, also found out that race factor played a role in disparity in

sentencing male and female in Federal courts. This research did a comparative analysis of the

past statistics with the recent researches. From the statistics gathered in the early 1990s, it was

established that Black women were four times more likely to be incarcerated than white women

within the same category. The same Black women were two and half times more likely to be

incarcerated than Hispanic women.

Other statistical findings were that all the women incarcerated were likely to be poor,

with children, had run away from their homes or at least attempted to commit suicide. In

addition, these women had experienced other social problems such as gender-based violence and

sexual abuses. In this research, a contrasting outcome was found. Unlike in 1990s, women of

color and Hispanics were sentenced more leniently that their counterparts, whites. This was;

however, not the case in males of the races aforementioned.

Theoretical aspects such as those which shift the blame from women to men and need to

preserve the community were also inferred in this study. Past researches, as stated in this study,

had shown that the courts were likely to be more practical on women due to responsibilities

arising from the social structures. The gender factor was also influential on basis that the court

views women as the custodians of social responsibilities such as taking care of children; and this

became more evident when a woman exhibited the traits of responsibility towards other members

of the society. There are other practical concerns such as reducing the level of overcrowding in

jails through handing lighter sentences (Steffensmeier, 1980).

This study also made a point or referring to paternalism hypothesis which states that

courts presume women to be of weaker gender; therefore, less likely to burden them with

EXPLAINING THE GENDER GAP IN SENTENCING OUTCOMES 5

responsibility of fully adhering to the laws in the society- as compared to men (Gruhl, Welch &

Spohn 1984). Further, justice system, by viewing women as weaker than men, was likely to shift

the responsibilities of their actions to other parties; precisely men. This hypothesis is also rooted

on social factors such as non-violence of women as compared to men; or presumption of the

same.

This research used the data collected form the United States Sentencing Commission

(USSC) and was collected in-between the year 2001 and 2003. The basis of relying on this data;

as stated by Doerner is that they are comprehensive, detailed and appropriate to the context of

this research. In addition, this data is compatible with the guidelines used by the Federal Courts

in sentencing. Being relatively, recent, the data will also reflect the true situation and therefore,

more reliable than other data relating to the subject matter.

Description of the Research Problem

The primary intent of this research was to identify any disparity in criminal justice

system; precisely on sentences; and how gender influences the decisions of the court. One of the

major foundations of the research was the constitutional requirement that men and women

should be treated equally. This also applies to criminal justice system whereby equality should

men that the sentences received by men are the same as those levied on women; as long as the

nature of crime is the same or other correlating factors are equal. In order to find the applicability

of the guidelines governing judicial system, there was a need to identify factors which influences

inequality; and gender is one them

EXPLAINING THE GENDER GAP IN SENTENCING OUTCOMES 6

In the past studies, race factor has been highlighted extensively. In addition, other

jurisprudential issues such as the background of the judges making the ruling have been widely

studied. Based on the hypothesis that women are treated unfairly in the society, most scholars

have endeavored to investigate the biasness towards women in general social context and

objectively in criminal justice system; however, what most of them have not researched is

whether the criminal justice system is more lenient towards women as compared to men. This

research; therefore, intended to find out any basis or contention vis-à-vis s this hypothesis.

The past researches as aforementioned focused on the racial factor. In addition, it was

established that Black women were more likely to be incarcerated than their counterparts,

Hispanic and white women. This statistics showed that indeed there was inequality in legal

system and forms of disparity based on other factors outside the legal context were evident. The

fact that past studies were done in the 1980s, showed that there was a need to reassess the

findings and come up with new hypothesis. Society being dynamic means that there was a

likelihood of several changes over the past years. To put it more clearly, this research intended to

cover the gap which was present in the criminal justice system and gender factors.

The issue of gender gap in criminal justice is addressed through finding whether there is

a form of uniformity across the cases handled by the court or other factors which were outside

the context of legal framework influenced the decisions made by the Federal courts. This gender

gap is re-focused on the leniency which the courts grant women. To put it into more empirical

context, the research intended to find out whether women within the same category as male

offenders were granted lesser sentences in terms of imprisonment; and what could be the major

reason behind this. By studying other theories formulated through research, this paper intended

to come up with a comprehensive findings of such relationship or lack of it. Practical approach to

EXPLAINING THE GENDER GAP IN SENTENCING OUTCOMES 7

the matter is another problem which this paper intended to address. a good example is

applicability of the guidelines given to the federal courts to ensure that equality was applied in all

the courts.

The research was not limited to the gender gap by comparing men to women; in

contrary, this paper went further to look into the context of the cases which the women studied

had been jailed for. What was to be answer was whether gender gap was most pertinent in some

areas than others. For instance, was there a greater gender gap in misdemeanors or felonies

involving the same categories of men and women or the other way round?

The question of gender gap was also put in the context of social aspects such as

education, economic status and social ties. This research wanted to consolidate the relationship

between the gender gap in criminal justice system and how other auxiliary factors such as

education of the offenders, their social standing and economic status played a role in influencing

the sentences levied by the Federal courts. Thorough analyzing these social factors, it is possible

to compare male offenders to female offenders and how in regard to the sentences given by the

Federal courts. By looking at the theoretical aspect of the female members of the society, it can

be concluded that they are given more responsibilities such as taking care of the children. This

culminates in inequality in court system due to paternalism hypothesis.

Whether the gender issue is a manifestation of racial and ethnical disparity in criminal

justice system or not is another question which this paper intended to address. By analyzing data

relating to racial and ethnic diversity, this research intended to come up with a substantive

hypothesis on the position of racial and ethnic factor in justice system; and at the same time, how

the two influence the gender factor. It later emerged that indeed the justice system was more

EXPLAINING THE GENDER GAP IN SENTENCING OUTCOMES 8

lenient to Hispanic and Black women, as compared to white women. This shows that there is a

change between the situation in the 1980s and modern era.

The problem statements based in this research are pertinent to gender issues. This study

endeavors to find an explanation to the presumption that criminal justice system was more

lenient to women than men. In the course of the study, other issues such as race, ethnicity and

nature of crimes are referred to in order to have an in-depth analysis of subject matter.

Research Methodology

The research used the data collected between the year 2001 and 2003 by various parties

such as United States Sentencing Commission (USSC) and Monitoring of Federal Criminal

Sentence program. These were statistically based data which had been reported to the above two

parties, either by virtue of statutory laws or self- initiated program. The number of subjects

assessed in this research were about 109181; therefore, providing a diversity of the study. In

addition, data collection considered other factors such as race and ethnicity in order to get a

comparative aspect of gender and other factors. Education, social backgrounds and economic

statuses of the subjects studied were also put into consideration.

Comparing the past methodologies used and this study’s, it is evident that Doerner used

a comprehensive and detailed form of data which brought out the aspect of diversity of the

parties used. By using a huge number of subjects, the level of accuracy and reliability of the

research was increased. In addition, different races and ethnicities used bring out the actual

diversity of the American society. It also gave the researcher an opportunity to eliminate subjects

who were deemed to be ineligible or unfit for the research, without incurring the problem of low

number of subjects studied.

EXPLAINING THE GENDER GAP IN SENTENCING OUTCOMES 9

Several groups were eliminated from the research. For instance, subjects who were not

citizens of United States were not included in the tallying. One of the major reason behind this;

as states by Doerner, is because the Federal Courts normally take a different approach when it

comes to sentencing non-citizens. Using the data relating to non-citizens, the validity of the final

outcome would have been compromised. In addition, this research stated that non-citizens’ cases

were more likely to be based on immigration issues which are essentially different from the

normal cases in Federal courts (Demuth, 2002).

This study excluded subjects who were below the age of 18 years; jurisprudence

governing juvenile offenders tend to be different from the one which governs the adults. Using

the data of this category of offender; as stated by Doerner, would compromise the true depiction

of the criminal justice system as intended by the research. In addition, most Federal courts are

more lenient to juvenile offenders as compared to adults; therefore, it would out of the context to

compare them with the majority of the population as far as gender and criminal justice systems

are concerned.

The research also eliminated all the subjects who did not have other correlated data or

rather the same was not available from the source of data. Aspects such as race, ethnicity, history

of the subject and economic and social background were of critical importance; therefore, any

missing information regarding those which have been mentioned was summarily eliminated from

the tallying.

Dependable variable in the research was the sentence which the subjects received from

the Federal courts. The data was therefore coded on various factors. For instance, a subject who

did not receive any sentencing was equated to 0 while those who were imprisoned indicated as 1.

EXPLAINING THE GENDER GAP IN SENTENCING OUTCOMES 10

Any imprisonment which lasted more than 470 months was equated as life sentence as treated as

such. Other variables such as the gender of the incarcerated subject were outlined in a clear

codification in order to bring out the comparative aspect of the research. For instance, women

were coded 1 while men were code 0. Race as a non-legal variable was also a major concern in

the research. They were categorized into four distinct groups, namely; whites, Hispanics, Blacks

and other races.

Marriage, education, age and number of dependents were also coded and indicated

accordingly. Identifying the differences would be important to get the genuine results based on

the fact that these variables impacted the way judges viewed the case- or rather, the study

intended to prove otherwise. The legal variables used centers on the Federal courts’ procedures

and guidelines on sentencing the offenders. Judges are however, allowed to apply the uniqueness

of the circumstances in order to hand down appropriate sentence. Various things which they can

consider are mostly not legal factors which may have influenced the offenders to commit the

crime in question. Through this, courts are able to dispense justice in a manner which will

consider non –legal aspects which contributed to the offense in question.

Contributions to the Literature

It is evident that this research has contributed immensely to the literature; on gender

issues of criminal justice system in America. By using comprehensive source of data, this study

reflects the diversity of our society. Existence of race and ethnic factor in the study brings out a

comparative analogy on how non-legal factors play a critical role in influencing the sentencing if

offenders. The past studies failed to address gender factor and how it influences our criminal

EXPLAINING THE GENDER GAP IN SENTENCING OUTCOMES 11

justice system. Most of these researches only focused on other issues such as race, ethnicity,

economic and social statuses without considering how gender may be a crucial factor in

impacting our criminal justice system.

What cannot be ignored is the fact that this research uses more current form of data

compared to previously conducted researches in the same field. Society being a dynamic entity

means that there are new changes which ought to be considered. Other comprehensive researches

were based on the data collected in the 1970s and 1980s, therefore, largely unreliable. A good

example will be the racial factor based on women incarcerated. From the data collected in the

1970s, as stated by Doerner, federal courts were more biased towards black women and Hispanic

and white women. Fast forward to the findings of this study, it was established that black and

white women were in fact more favored by the court system than their counterparts, white

women. This depicts the changing nature of the society; and the best way of capturing these

changes is through conducting studies more often.

With the introduction and implementation of the laws governing the criminal justice

system, there are several changes which have occurred or ought to occur. This research provided

an insight into the impact which these laws have brought to the criminal justice system; or at

least the shortcomings which detriments achievement of the intended purpose of the laws.

Another important aspect which this research has captured is the relationship between

the criminal justice system and other social aspects such as marriage, family ties, social statuses

amongst others and how they influence the outcome of sentencing of men and women; albeit

differently. Various roles played by women, e.g. taking care of children and acting as the

foundation of families have been established to have an impact on the way federal courts make

EXPLAINING THE GENDER GAP IN SENTENCING OUTCOMES 12

their ruling. From the findings of this research, it has been established that the courts were more

lenient to women on basis of the roles which they played in the society e.g. taking care of the

children.

This study has confirmed other theories formulated through previous researches. One of

them is the focal concerns perspective theory ((Steffensmeier & Kramer, 1982) (Steffensmeier,

1980) which was formulated by Steffensmeier. This theory established that the courts normally

make their rulings based on non-legal factors such as practicality of sentence, social concerns of

the offender and the burden of blame. In most cases, women play a major role in the society e.g.

bring up children; therefore the court normally as critical to the wellbeing of the community. In

addition, the past actions are also influential to the way courts make their ruling. This research

found out that offenders with past criminal records were more likely to be sentenced to a longer

prison term

Another theory which this research affirmed is the social control and paternalism (Daly,

1987) (Chesney-Lind, 1977). Fundamentally, this theory stipulates that the courts normally

consider the dependency of other people towards the offender before sentencing them. The fact

that most women have dependents such as children means that they will receive more leniency

than men. Inasmuch as men also have dependents, the court believes that day-to-day affairs of

the families are handled by women; therefore, necessitate a practical approach to the issue.

EXPLAINING THE GENDER GAP IN SENTENCING OUTCOMES 13

Critique of the Article

A critical analysis of this research brings out various aspects which relates to gender and

criminal justice system in United States of America. It highlights very important issues on how

extra-legal factors can influence the court’s ruling. Due to the findings of the study, it can be

stated that offenders will not only have to deal with the legal aspects of their offences or cases

but also other issues which will greatly impact the course of the outcome. Inasmuch as some

factors such as gender race and ethnicity cannot be changed (exclusively in this context), other

factors such as past criminality can be minimized through abiding to the law. What this study

came up with is pertinent to federal legal system; considering that issues such as race and gender

are well entrenched in our society.

In most cases, some people feel that the criminal justice system is bias towards some

groups of people such as women, Hispanic or Blacks. In some cases, there has been widespread

condemnation from the public that Federal courts were not operating in an independent and

unprejudiced manner. When this study in viewed from that angle, it is evident that it has brought

out very crucial statistical data which can dispute or prove such claims.

The methods used by the author of this research paper were excellent; however, there

are few shortcomings. To start with the positive side, he applied a very comprehensive form of

data which captured the diversity of our society. By using more than 109,181 subjects to come

up with the findings, it is undoubted that the work was comprehensive. Unlike other past

researches in the same field, this research was able to cover a wider spectrum of the society. the

number of subjects is crucial to the whole research due to the fact that the data gained are

EXPLAINING THE GENDER GAP IN SENTENCING OUTCOMES 14

rationed to the whole population. The higher the number of the subjects, the greater the chances

that accuracy will be achieved.

Using other variables besides gender was also something which needs to be

commended. By including race, ethnicity and other social backgrounds such as family ties

amongst others, the author was able to break free from narrow approach of the research. Failure

to do so would have brought out a limited basis of arguments which has not considered other

underlying reasons such as family issues, economic situation of the offenders and past

criminality. Race factor in American society cannot be ignored. It has played a major role in the

past and still an integral element in all spheres of our society; including the criminal justice

system. On this basis, it is important to put it into consideration when conducting the research.

The data collection procure was also commendable. Through elimination of the subjects

who were below the age of 18 years, the research captured the fact that legal system in federal

courts do not approach juvenile cases the same way it do on adult cases. In most cases, courts are

more lenient towards juveniles than adults. In addition, eliminating the offenders facing

emigration charges is also commendable. In most cases, emigration laws focus on deportation of

the offenders rather than punishing them. Using the data involving immigrants would have

brought out false findings.

Use of diverse forms of variances is another import aspect which this research achieved.

Non-legal and legal various are always crucial to determine how the issues relating to the court

systems and outside court systems, can influence the rulings or judgments. Use of specific

sentence length s of each subject as a variance rather than generalization of is commendable. It

was able to bring out the findings from the perspective of statistics- which of course are more

EXPLAINING THE GENDER GAP IN SENTENCING OUTCOMES 15

evidential than generalized data on prison lengths. Consideration of other non-incarceration

sentences such as probation and community services aided in bringing out the comparison.

When it comes to collection of the data, the only issue which can be considered as a

shortcoming is lack of specification of where the data was collected. United States uses federal

system of governance. This means that there is a diversity of the laws within each state, and this

may influence the general outcome of any research conducted on that basis. For instance, it is

legal to do one or two things in a certain state but definitely illegal in the other. Generalization of

the data collected fails to bring out this important aspect, therefore, makes the whole method of

collection a generalized work which lacks specification of each state. Inasmuch as the laws in the

country are relatively the same; except some few, other social aspects within each state ought to

have been brought out in order to establish how social issues in those states influence the

criminal justice system.

Another shortcoming of this research is use of limited study duration. By limited the

research to a period of 3 years (2001-2003), there is a high possibility than the several things

were not captured well. In a normal social setting, changes occur more often than imagined. This

must be captured through using data which were collected within a long period of time. Maybe

the best thing in which the author of this research paper would have done was to increase the

framework of the years in which the data was collected from 3 years to 10 years. This would

have at least captured the changed which may have happened before or after the data was

analyzed.

Other than non-legal variables such as social dependents, family ties amongst others, the

author of this research failed to emphasize on the criminal categories as a variable. What was

EXPLAINING THE GENDER GAP IN SENTENCING OUTCOMES 16

only provided was comparison of men and women in drug-related cases. In normal criminal

justice system, the nature of crime plays a major role; especially when put in the context of

gender. A good example is gender-based violence. Courts; or rather the whole jurisprudence,

view women as victims more than villains. In consideration of paternalism theory of Daly, courts

tend to protect women more than men; and the argument arising from this is that women are the

custodians of social order, in addition to their day-to-day responsibilities such as taking care of

children or even offering emotional support to the family. On this basis, it was important to bring

out the nature of cases in which these women have been accused of.

The same scenario applies to crime such as manslaughter which occurs out of emotional

outburst. Society tends to believe that women have fragile emotions than men. The same

hypothesis is manifested in court through sentencing. Mitigation of women; based on emotional

factors may be a contributory factor in the general court system. This research ought to have

captured that.

Finally, it can be stated that the research was an eye-opener as far as understanding well

our criminal justice system. It brought out very important aspects of our criminal justice system

and captured very vital factors which influence equality, equity and justice in our institution.

Inasmuch it is not possible to attain equality in our society, steps can be taken in order to make

equity a weapon against any form of discrimination or biasness. It is also important to understand

that the federal courts have discretion to make judgments based on not only legal issues

presented but also other factors which influence the offender to commit the offense and which

will impact the offense afterwards. This may be the reason why women; according to this

research, are more likely to receive a lenient sentences than men.

EXPLAINING THE GENDER GAP IN SENTENCING OUTCOMES 17

References.

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Sentencing.” Social Problems 38(3), 372-394.

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Criminology 30, 293-325.

Chesney-Lind, M. (1977). “Judicial Paternalism and the Female Status Offender.” Crime and

Delinquency 23(2), 121-131.

Crew, B.K. (1991). “Sex Differences in Criminal Sentencing: Chivalry or Patriarchy?” Justice

Quarterly 8(1), 59-83.

Daly, K. (1986). “Gender in the Adjudication Process: Are Judges Really Paternalistic Toward

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Demuth, S. (2002). “The Effects of Citizenship Status on Sentencing Outcomes in Drug Cases.”

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Parisi, N. (1982). “Are Females Treated Differently? A Review of the Theories and Evidence on

Sentencing and Parole Decisions.” In Judge, Lawyer, Victim, Thief. N. Han Rafter and

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Paternoster, R., R. Brame, P. Mazerolle, and A. Piquero. (1998). “Using the Correct Statistical

Test for the Equality of Regression Coefficients.” Criminology 36(4), 859-866.

Steffensmeier, D., and J. Kramer. (1982). “Sex-Based Differences in the Sentencing of Adult

Criminal Defendants.” Sociology and Social Research 66, 289-304.

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