Crime and Punishment, accountability gap locked in - HBR Talk 17
 
 

For the past few weeks, we’ve been discussing the accountability gap, a gender disparity in the degree to which people are held accountable for the impact of their choices on themselves, and on others. This gap both influences and is influenced by the way our gynocentric society subordinates men’s interests and even their welfare to women’s interests. That results in egregious double standards and inhuman treatment of men. We’ve already described how this has resulted in false beliefs such as the wage gap myth. We’ve gone over how it has led to discriminatory law and policy, as is seen in family law where its effect is unchecked even to the detriment of children. We’ve discussed its impact on sexual conduct standards and their impact on law and policy.

Today we’re going a little further along that train of thought to discuss the gender disparity in accountability for criminal acts. 

Jill K. Doerner in her 2009 doctoral thesis, and Sonja B. Starr in a 2012 paper published in the University of Michigan Law School, Law & Economics Research Paper Series, both noted unexplained gender gaps in outcomes in federal criminal cases. 

Both papers described variations in the scope of outcome disparity depending on ethnicity, legal factors, and type of offense committed, but none of these factors completely eliminated the gender gap. For instance, Dorner pointed out in her 2009 report, “Explaining the Gender Gap in Sentencing Outcomes: An Investigation of Differential Treatment in U.S. Federal Courts” that prior research had found greater racial disparities in sentencing in drug crimes. In her research, she also found that the gender gap in both the odds and length of incarceration in drug crimes is larger for black and hispanic offenders than whites. As with other factors, controlling for the intersection of race and gender did not eliminate the gender gap for any ethnic group.

Starr’s writing was in agreement. According to her 2012 report, “Estimating Gender Disparities in Federal Criminal Cases,”

“This study finds dramatic unexplained gender gaps in federal criminal cases. Conditional on arrest offense, criminal history, and other pre-charge observables, men receive 63% longer sentences on average than women do. Women are also significantly likelier to avoid charges and convictions, and twice as likely to avoid incarceration if convicted. There are large unexplained gaps across the sentence distribution, and across a wide variety of specifications, subsamples, and estimation strategies. The data cannot disentangle all possible causes of these gaps, but they do suggest that certain factors (such as childcare and offense roles) are partial but not complete explanations, even combined.”

Both women noted that the most prevalent beliefs about the reasons for this disparity were not supported by evidence, but instead involved theoretical arguments - in other words, they were rooted in existing biases. 

For instance, some attempt to explain the gap by pointing to women charged as accessories to crimes committed by men, but Starr noted that such cases do not account for a significant portion of the gap, and they do not explain crimes committed individually by women. 

She even found that the same factors can influence judges in different directions depending on the sex of a defendant. For instance, being a parent would gain a female defendant some leniency, but according to Starr’s report, 

“Among single men, conditional on observables, having children significantly increases sentences, and among married men, children make no significant difference.”

So, differing factors related to crimes and their perpetrators are not the main causes of the gender gap in criminal sentencing. What are they, then?

One clue to this is in Starr’s explanation for differences between her study, and studies showing a narrower gap. She wrote in her report that previous studies may not have shown such a sharp difference because they had not looked at the role of plea bargains and other pre-sentencing steps in the criminal justice system. The difference this makes is in the role of prosecutorial influence. 

She wrote, “The United States in effect has a system of negotiated justice, and prosecutors hold most of the chips. They have broad discretion to choose charges from numerous overlapping criminal statutes, and then to determine the terms of plea deals. Plea-bargaining does not necessarily focus mainly on dropping of charges—indeed, the lead charge was dropped only 17% of the time in this study’s sample. The parties also often negotiate stipulations to key “sentencing facts”—for instance, the quantity of drugs trafficked or the defendant’s major or minor role in a conspiracy. The prosecutor also may make non-binding sentencing recommendations or request special leniency to reward cooperators.”

Public relations is another area described  in Starr’s report, as she cited prosecutorial discretion as a potential in-road for gender bias. A prosecutor faced with a defendant who is able to effectively play victim of her own choices risks being seen as an overzealous bully going after a poor, helpless, wayward waif who dindu nuffin but get caught up in circumstances beyond her control. What a nightmare when attempting to persuade a jury to find her guilty should the case be anything but sensational… even more so if the case is remembered as prosecutorial bullying the next time that prosecutor is up for re-election. Starr reported findings from previous research indicating that prosecutors’ choices in what charges to bring and the resulting determination of sentences sought were affected by factors such as these. 

One factor is not noted by either researcher, and I have not seen research on gender disparity in criminal court that did look at this. Disparity in outcomes for reported intimate partner violence and sex crimes is written into the law. In western countries influenced by feminist jurisprudence, intimate partner and sexual violence law is embedded with the assumption that perpetrators are male, and victims are female. In some countries, including the U.S., this is so blatant that national law itself has a gendered title. It’s called the  “Violence Against Women act.” 

Throughout the law, gendered language is used liberally in an indication that the law’s protection is reserved for female citizens, and its repercussions for males. Section 40291 of the Violence Against Women act establishes an effort to prove a pattern of specifically male violence against specifically female victims. Section 40121 establishes an effort to train law enforcement and prosecutors to look strictly for male violence against female victims. Section 40231 establishes a financial incentive for arrests, offers state-funded legal advocacy for accusers in domestic violence cases, and funds influence of judicial handling of cases, all with a female victim, male perpetrator portrayal of these crimes. The combination is specifically designed to ensure harsh treatment for men and boys accused of partner violence while establishing leniency for accused women and girls. 

This has resulted in more than gender disparity in conviction and sentencing outcomes. Included in a 2011 report, “The Helpseeking Experiences of Men Who Sustain Intimate Partner Violence: An Overlooked Population and Implications for Practice” by Emily M. Douglas and Denise A. Hines is the statement that some male victims of partner abuse report having been arrested upon seeking help from police, rather than their perpetrators being arrested. In other words, in this area, not only is there a disparity in outcomes for perpetrators. Male victims of female perpetrators face potential punishment for attempting to hold their perps accountable at all.

Another influence affecting the accountability gap in criminal cases is that of women’s advocates. The National Organization for Women has actively promoted some of the myths surrounding gender disparity in sentencing and gender-stereotyped beliefs about criminal offenders in their advocacy for leniency in female criminal cases. This is the same organization that has published lobbying agendas which included demands for increases in prosecution of men unable to keep up with child support obligations. In NOW’s book, a single mom who sells drugs in front of her kids deserves a break, but a noncustodial father who cannot earn enough money to support two households? Throw the book at him!

#FeministLogic.

That isn’t just a U.S. feminist attitude, either. Guidelines handed down in the UK in 2010 admonished judges to go easier on female offenders. In 2011 a UK Women’s Justice Task Force report offered the suggestion that women’s prisons in the UK be replaced with community service and mental health treatment. While the research done by the group making the suggestion is of interest, there is nothing in it to suggest that it is applicable only to women… yet the suggestion has not been extended to apply to male offenders.

This leaves us with some uncomfortable questions. Are we, as a society, responding to criminal offense in the most productive way we can, or are we using the criminal justice system as a vehicle for the perpetuation of our species’ tribalism?

If the point of the penal system is the use of punishment as an effective deterrent to crime and a containment system for the criminally incorrigible, what does that say about society’s attitude toward female criminals… and their victims?

Are crime victims less victimized if their perpetrators are women? Are their experiences - and their rights - less important?

Does society think women less possessed of the self-control necessary to keep their behavior within the bounds of the law? Isn’t having less culpability an indication of less capability? And wouldn’t that indicate justification for restricting women’s freedoms as one would those of children, in order to prevent serious, life-impacting errors? I wouldn’t think that would be what feminists would want to advocate for… but isn’t it the logical conclusion of their gendered position on criminal sentencing?

What if, as feminists argue when lobbying for alternatives to incarceration for women, such measures really are a more effective way of dealing with many criminal offenders? If that is what works, why wouldn’t we want to use such alternatives with both sexes? Surely we don’t want rehabilitation from women, but recidivism from men. 

And if, as feminists argue, harsh sentencing is a human rights issue, shouldn’t the push for reforming the system be inclusive rather than gender discriminatory? After all… men are human. They’re as human as women… aren’t they?