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.
- 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. [↩]
- 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. [↩]