The Role of Gender in a Structured Sentencing System: Equal Treatment, Policy Choices, and the Sentencing of Female Offenders under the United States Sentencing Guidelines
Nagel, Ilene H., Johnson, Barry L., Journal of Criminal Law and Criminology
Historically, female offenders have been at the margins of the criminal justice system. Theories of criminal behavior, as well as studies of arrest, pre-trial, prosecution, and sentencing outcomes, have tended to focus on patterns of criminality derived from studying male offenders.(1) This does not reflect a lack of interest in female offenders, but rather the empirical fact that the vast majority of criminal offenders, especially violent criminal offenders, have been male.(2) In other words, the traditional preoccupation of theorists, researchers, and criminal justice professionals with male offenders derives from the gender-skewed demographics of criminal behavior.
Recently, however, the combination of the women's rights movement, the rise of feminist scholarship, and the noted increase in female criminality,(3) has begun to reverse this long-standing neglect of female criminality and inattention to the outcome of decisions involving females in the criminal justice system. And, "a rich and complex literature . . . devoted to the issues of gender and crime" has emerged.(4) A good deal of this literature examines the treatment of women by key criminal justice decisionmakers, such as police, prosecutors, and judges. One commonly tested hypothesis is that when these decision-makers are free to exercise discretion, they systematically favor female offenders over similarly situated male offenders.(5) This pattern of gender-based leniency is particularly evident at the sentencing phase. Female offenders tend to benefit at sentencing from what many presume to be a benign form of reverse discrimination.(6)
Despite the recency of the "women and crime' literature, it may describe sentencing patterns that no longer exist. Much of the research contained in these works is based on data collected in the 1960s and 1970s. In the 1980s, however, significant efforts were made to reform sentencing systems at both the state and federal levels. These reforms were designed to substantially reduce judicial sentencing discretion, to reduce unwarranted sentencing disparities, and to reduce race, gender, and class discrimination. Moreover, these reforms, at least at the federal level, shifted the focus of sentencing from "offender" characteristics, such as family and community ties, education, and employment, to "offense" characteristics and the offender's criminal history.(7) If successful, these reforms will reduce the favorable treatment previously afforded female offenders, by increasing both their incarceration rate and the length of their sentences.
One desired effect of these sweeping efforts at sentencing reform was to increase the visibility of policy choices underlying sentencing decisions.(8) As a result, many issues with potentially significant impact on female offenders, previously obscured by a system of unfettered and unreviewed discretionary sentencing, are now ripe for revisitation and debate. These issues include whether a convicted offender's pregnancy or child care responsibilities should affect the type and length of her sentence; whether courts should consider evidence of psychological coercion that does not rise to the level of a complete defense; and whether courts should consider the offender's emotional condition or the offender's role in the offense. While these issues are relevant to all offenders, some authorities believe that they have more, or at least potentially different, relevance for female offenders. These highly complex policy issues raise difficult questions for feminists, who must balance theories of criminal justice against theories of gender equality. Furthermore, people disagree about how to define gender justice and about how to achieve it.
This article explores some of these issues through an analysis of the impact of federal sentencing reform on the sentencing of female offenders. It begins with an examination of the literature analyzing the sentencing of female offenders under the indeterminate, rehabilitative approach which prevailed before the adoption of the Sentencing Reform Act of 1984. …