Gender & Criminal JusticeCrime Processing

CJS is composed of three stages:

•Police

•Courts

•Penal system

All 3 are sites for gender discrimination to play out in crime processing.

What is discrimination?

Most of the decision-making in processing is located in the first 2 stages

Gender & Criminal JusticeDefining Gender-neutral & Gender-specific LawGender-neutral No formal distinctions in applicability to males or femalesGender-specificApplication is limited to one sex Application of same law varies according to sex of parties involved

Both types have the potential to produce gender-based discrimination in the CJS

Gender & Criminal JusticeGender-based Discrimination in the CJS:

–Under-developed idea when applied to gender–Most discrimination research in legal & CJS outcomes is focused on race/class

Discrimination & Criminal Law •How can gender discrimination result from criminal law?

–Implementing/applying gender-specific laws»Statutory rape

–Applying gender-neutral laws differently to fe/male offenders»Prostitution

–Applying gender-neutral laws in a way that values male victimization over female victimization

»Homicide & capital cases

Gender & Criminal JusticeDiscrimination & 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

–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

•1960-70s challenged on 14th Amendment grounds

Gender & Criminal JusticePerspectives on gender-biased processing:1. Equal Treatment (Null) Hypothesis

No sex discrimination exists; the system is neutral, fair, impartial

2. Chivalry (Paternalism) HypothesisCJS is more lenient towards women offenders (discriminates against men?)Chivalry is an exchange – placing ♀ on a pedestalPaternalism is based on the premise of weakness or dependency

A. Typicality-Chivalry operates only when consistent with genderB. Selectivity-Chivalry is reserved for white femalesC. Differential Discretion-discretion varies by stage & visibility

3. “Evil” Woman HypothesisCJS is biased against female offenders; More harsh. Females are

punished for 1) crimes & 2) inappropriate gender display

Gender & Criminal JusticeEvidence 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 • Juveniles• Stage of CJS• Offense type• Gendered stereotypes

Gender & Criminal JusticeFindings 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?– Racial minority, poor

Juveniles• The criminalization of status• What is a status offense?• Sexual activities

IncarcerationTrends in Women’s IncarcerationIncarceration should reflect 2 realities:1. Offending patterns2. CJS PolicyThe recent trend has been an explosion of

incarceration for womenOver 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

War on Drugs and RacismThe 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

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.

War on Drugs and Sexism/RacismWomen 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

IncarcerationInvisibility of Women Prisoners:

1. Small (but growing portion) of all inmates

2. Convictions of less serious crimes

3. Less of a penal social control problem

IncarcerationBrief 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)

IncarcerationContemporary 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

Women & Work in the CJSLegal 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

IncarcerationOrganizational 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

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