Study Shows Enormous Sentencing Discrepancy Against Men

lego-prison

A study1 by Sonja Starr, a University of Michigan law professor, shows that men receive average sentences 63% longer than women who commit similar crimes. (Notably, Starr’s sample was of the federal justice system. 59% of the crimes in the sample were drug crimes.)

This is a significantly larger effect than most previous studies have found. Starr argues – I think correctly – that her study improves on previous sentencing studies because, rather than just comparing trial outcomes, her data covers decisions made by the justice system from arrest through sentencing (if there is a sentencing), including pre-trial decisions made by prosecutors. The inclusion of prosecutor decisions is crucial, because prosecutors have enormous discretion, and might use that discretion to discriminate based on factors that shouldn’t matter, like sex and race.

The largest cause of the 63% disparity seems to be decisions made by prosecutors before trial. That is, most of the gender disparity in sentencing comes about because prosecutors are “selectively lenient” in women’s favor. Some of this is arguably justifiable- for example, prosecutors are a bit more likely to take pity on single parents, most of whom happen to be women. But clearly, some of it is just plain old sexism, and cannot be justified. The system needs reform.2

Unsurprisingly, the discrepancy is harshest for Black men. Among Black people arrested, Black men receive sentences that are 74% longer, versus 51% for non-Blacks: (The “non-Blacks” in Starr’s sample were nearly all white.)

Starr writes (emphasis added):

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.

These estimates are much larger than those of prior studies, which have probably substantially understated the sentence gap by filtering out the contribution of pre-sentencing discretionary decisions. In particular, this study highlights the key role of sentencing factfinding, a prosecutor-dominated stage that existing disparity research ignores. Mandatory minimums—prosecutors’ most powerful tools—are also important contributors to gender gaps in drug sentencing. Understanding the relative roles of prosecutors and judges is important. Gender disparities have been cited to support constraints on judicial discretion, including when the Sentencing Guidelines were adopted. But such constraints typically empower prosecutors, so if prosecutors drive disparities, they could backfire.

That last point is essential. Insofar as discrimination in our judicial system is driven by prosecutors, typical attempts at reform will only make the problem worse.

It’s interesting to consider that there is, as far as I know, no good data for measuring any disparity in how likely women and men are to be arrested for the same crimes (Starr’s data sources measure from the moment of arrest). If women are systematically less likely to be arrested by police in the first place (and I suspect they are), then Starr’s results may be underestimating the sexist disparity.

  1. Starr, Sonja B., Estimating Gender Disparities in Federal Criminal Cases (August 29, 2012). University of Michigan Law and Economics Research Paper, No. 12-018. Link to paper. []
  2. For the record, I think our criminal justice system is generally far too harsh. So I would prefer that we equalize sentencing by reducing men’s sentences, rather than increasing women’s. []
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17 Responses to Study Shows Enormous Sentencing Discrepancy Against Men

  1. 1
    Protagoras says:

    It definitely sounds like sexism, but in our criminal justice system, I don’t think it should be described as being “selectively lenient” on women; saying it’s selectively harsh on men seems much more accurate.

  2. 2
    mythago says:

    Amp, the fact that this is a study of federal crimes is relegated to a footnote in your post, which is a bit misleading. This isn’t a sweeping survey of the ‘judicial system’ or an assessment of sentencing for ‘crimes’, especially given that the kinds of crimes handled by federal and state judicial systems are not identical, and the systems prosecutors operate within also can vary widely.

    The author also excluded certain categories of crimes: immigration crimes and those that were “95% male”, specifically weapons, sex and pornography, conservation, and family offenses. She says this was done to ‘reduce common support concerns’, which perhaps Elusis can explain but I don’t understand; if women are being treated lightly for weapons or sex offenses, is that not strong evidence of sexism? She restricts the categories to ‘non-petty’ offenses, meaning felonies or Class A misdemeanors. She rejects both the majority and minority analysis that attempt to come up with an equivalent of charges that do not lead to prison time in sentencing, in favor of her own model. She also (understandably) has trouble with drug crimes because they are a convoluted mess, and “in drug cases I cannot disentangle the effects of initial charging and subsequent charge-bargaining”.

    Her theories about what explains the disparity to varying degrees are laid out starting at page 14 of the study.

    It’s an interesting read, and the author is quite upfront about acknowledging what the data shows and where it’s difficult to draw conclusions. I think it would be very hard to claim that sexism doesn’t affect the disparity at all, particularly given that some factors – such as the ‘girlfriend effect’ – are pretty blatantly sexist. The author also points out that some of the leniency may be a proxy for taking into consideration other factors (mental health issues, custody of minor children) that aren’t formally permitted to be part of the sentencing guidelines. But no, it doesn’t say that 63% of all sentencing disparity in crimes is explained by sexism.

  3. 3
    Maureen Coffey says:

    ““selectively lenient” in women’s favor” – maybe, maybe not. A sentence is based on several factors, and the “gravity of the crime” is but one of them. Others are the personal history of the defendant, i.e. has he or she committed crimes before and which. But equally the prognosis (however fraught with error as all prophecy) of how he/she might comport him/herself in the future and how much “probational pressure” he or she might need to make them desist in the future. Another factor might be, though that would warrant a much closer look, if the women have to look after children (or parents) even and which is why a justice might come to the conclusion that a mother in jail for too long might just be a recipe for creating more criminal offspring (yes, that argument could be made for fathers too, however, statistically there are still more single mothers with children then men or fathers).

  4. 4
    Elusis says:

    She says this was done to ‘reduce common support concerns’, which perhaps Elusis can explain

    I have no idea!

    Is this paper peer reviewed? Is “University of Michigan Law and Economics Research Paper” a publication, or just a description of what’s being offered here in an open-source format? Mythago’s quote of the author saying, basically, “when it comes to drug crimes, I got nothin’” seems a little unusual IMHO.

  5. 5
    Mookie says:

    The average prison sentence for men who kill their intimate partners is 2 to 6 years. Women who kill their partners are sentenced, on average, to 15 years.

    This is a statistic I used to see pretty regularly. The ACLU currently cites it, and the source is the National Coalition Against Domestic Violence from 1989. I’d be interested if anyone has some contemporary numbers with which to compare. Starr’s paper doesn’t appear to mention spousal abuse, domestic violence, or the murder of a domestic partner.

  6. 6
    Harlequin says:

    The author also excluded certain categories of crimes: immigration crimes and those that were “95% male”, specifically weapons, sex and pornography, conservation, and family offenses. She says this was done to ‘reduce common support concerns’

    Common support is a statistical term. I’m not a statistician, but I think the basic idea here is, the author wants to compare how men and women are treated for the same crimes, but in order to do that you need to pick cases where the cases against men and women are similar. When very few women are perpetrators of those crimes, you may not cover much of the range of the crimes the men are accused of, so your answer could be heavily affected by which particular crimes you have analogues for in the women’s sample.

  7. 7
    Dean says:

    Mookie,

    Unless official crime statistics completely changed in only 6 year period between 1989 and 1995, which is extremely unlikely, the numbers you are quoting were fabricated by National Coalition Against Domestic Violence.

    http://www.bjs.gov/content/pub/ascii/SPMUREX.TXT
    http://www.bjs.gov/content/pub/pdf/SPMUREX.PDF

    U.S. Department of Justice
    Office of Justice Programs

    Bureau of Justice Statistics
    Executive Summary

    September 1995, NCJ-156831

    “On average, convicted wives received prison sentences that were about
    10 years shorter than what husbands received. Excluding life or death
    sentences, the average prison sentence for killing a spouse was 6 years for
    wives but 16.5 years for husbands.”

    Also worth nothing is that the same sentencing disparity remained even after accounting for provocation and self-defense:

    “No explanation for why State prison sentences were, on average, 10 years shorter for wife defendants than husband defendants.

    Wives received shorter prison sentences than husbands (a 10-year difference, on average) even when the comparison is restricted to defendants who were alike in terms of whether or not they were provoked.”

  8. 8
    Dean says:

    Upon closer reading the U.S. Department of Justice Executive Summary I cited used statistics from 1988, a year before National Coalition Against Domestic Violence published the exact opposite.

    It if unfortunate that their false statistics have been perpetuated, either ignorantly or maliciously, to this day.

  9. 9
    Hugh says:

    @maureen: Surely if those who make sentencing decisions are reluctant to send a mother to prison but view sending a father to prison as relatively harmless, then that’s part of what Amp is talking about?

  10. 10
    Franz says:

    If the NCADV are just counting killings, as they say they are, they must be including the range of negligent homicide, vehicular manslaughter, dui homicide etc, which would explains why their quoted sentences are so low and the difference with the BJS statistics (which only count non-negligent or more severe homicides).

    I think it’s a bit harsh to say they are false or fabricated, they would literally be what they said they were – sentences for killing. It is totally shitty and misleading of them to use that statistic in that context though.

  11. 11
    Ampersand says:

    “Wives/husbands” and “intimate partners” are not identical categories. And just because the two stats came out within a year of each other doesn’t tell us that their samples came from either the same time period or the same geographic location. (The BJS study is only of large urban counties).

    In short, to say that they are “lying through their teeth” (as I just saw someone do) or that the statistic is “fabricated” seems unjustified by the information you’ve provided, Dean. (In your followup comment, you seemed to acknowledge this.) To know that, we’d have to be able to find the original source’s methodology, and in a brief search just now I wasn’t able to find it online.

    That said, unless someone can show that the statistic is valid or has been replicated in more recent studies, I think there’s ample reason to consider it a zombie statistic and wrong, and it’s a problem that so many respected websites like the ACLU are quoting it.

  12. 12
    mythago says:

    Elusis @4: I believe it’s a law review article.

    Hugh @9: The paper doesn’t suggest that judges are more reluctant to jail mothers than fathers per se.

  13. 13
    Ampersand says:

    Mythago:

    Thanks for a good comment.

    But no, it doesn’t say that 63% of all sentencing disparity in crimes is explained by sexism.

    I agree. Did I say otherwise anywhere in my post? On the contrary, I think I made it clear that a mix of factors went into the 63% (“Some of this is arguably justifiable- for example, prosecutors are a bit more likely to take pity on single parents, most of whom happen to be women. But clearly, some of it is just plain old sexism, and cannot be justified.”)

    Good point about a footnote not making it clear enough that this is a study of federal sentencing. I changed the footnote to a parenthetical comment, so it’ll actually appear in the first paragraph.

  14. 14
    Ampersand says:

    Maureen, “gravity of the crime” was not the only factor the paper considered – for instance, the criminal history of defendants was controlled for in the statistics. And here’s part of what the author says about

    Another possibility is that prosecutors and/or judges worry about the effect of maternal incarceration on children. The estimates are robust to controls for marital status and number of dependents, but these variables do not capture all differences in care responsibilities, including custody status. Other research shows that female defendants are far more likely than men to have primary or sole custody, and incarcerating women more often results in foster care placements (see Hagan and Dinovitzer [1999] for a review of the literature; Koban 1983). In an experiment asking judges to give hypothetical sentences based on short vignettes, Freiburger (2010) found that mentioning childcare reduced judges’ probability of recommending prison, but mentioning financial support for children did not.

    The childcare theory suggests that one would expect to see the largest gender disparities among single parents, and the smallest among defendants with no children. That expectation is borne out by the data: compare Table 5, Columns 6-8. The TUT estimate is still over 50% among childless defendants, however, so the childcare theory appears not to fully explain the gender gap, but it probably explains part of it.

    It’s always possible, in any study, that there are relevant factors that aren’t being controlled for. But I do think this study makes a reasonably persuasive case that sexism is a significant part (but not 100%) of what’s going on here.

  15. 15
    Ann Queue says:

    I just wanna know where you got that illustration. It’s brilliant.

  16. 16
    Harlequin says:

    (TW) You know, I hadn’t really looked at the illustration before, and–is that a shower rape scene in the middle? (Or, I guess, shower sex.)

    Ah, the fun of scrutinizing Lego tableaux…

  17. 17
    Ampersand says:

    Yipes! I hadn’t noticed that either. Let’s assume it’s consensual?

    Ann: You can often find a great illustration for practically any subject by doing a google image search for “lego [subject], ” although it works better when [subject] is a noun. :-)