I’ve just been reading a 2001 study by David Mustard, of the University of Georgia, called “Racial, Ethnic and Gender Disparities in Sentencing: Evidence from the US Federal Courts.” ((The Journal of Law and Economics, vol. 44, no. 1, pages 285-314. Pdf link.)) Mustard’s study appears better-designed than other sentencing studies I’ve read. His sample is large and comprehensive: he essentially includes every federal sentence handed down for three consecutive years (1991 through 1993) in his analysis. Rather than focusing only on sex or on race, he simultaneously controls for the effects of race, sex, U.S. citizenship, and class on federal sentencing. (Legally, none of those four factors are supposed to have an effect on what sentence a judge hands down.)
The results aren’t pretty. Especially for drug crimes and for bank robberies, being white is a big advantage if you’re being sentenced for a federal crime:
Bank robbery and drug trafficking exhibit the largest black-white differentials. Blacks receive 9.4 and 10.5 months longer than whites in bank robbery and drug trafficking, respectively. The percentage difference is greatest for those convicted of drug trafficking, where blacks are assigned sentences 13.7 percent longer than whites. The aggregate Hispanic-white difference is driven primarily by those convicted of drug trafficking and firearm possession/trafficking, the only two crimes with significant Hispanic coefficients. For these two crimes, Hispanics receive 6.1 and 3.7 additional months compared to whites, or 8.0 percent and 7.0 percent longer in percentage terms.
Note that Mustard’s analysis only compared felons who were convicted for the same crime. So the above sentencing disparities do not include the infamous disparities caused by the much harsher sentences given for crack cocaine possession (usually a Black crime) than for powder cocaine possession (usually a white crime).
Being a woman is an even larger advantage for bank robbers:
The female-male difference is statistically significant for all six categories, the largest of which is for bank robbery, where females receive 21.6 months less than males.
Although the bank robbery differential was largest, women received a break on sentencing compared to men across the board. ((Mustard’s report didn’t include a discussion of the death penalty, but it appears that women are less likely to receive the death penalty than similarly-situated men. See, for example, Victor L. Streib (2006), “Rare and Inconsistant: The Death Penalty For Women,” Fordham Urban Law Journal, Vol 33 pp 609.))
I was particularly surprised that controlling for dependents didn’t significantly alter the male/female difference – so the sentencing disparity is apparently not being caused by judges taking mercy on single mother defendants.
Class made a significant difference, but mainly for the very poor. That is, people who earned less than $5,000 a year get fewer breaks in sentencing than people who earn more than $5,000 a year; but there doesn’t appear to be much difference in the sentences given those who earn $10,000 a year and those who earn $50,000. An exception was sentencing for fraud: “Those with incomes greater than $50,000 receive significantly shorten sentences for fraud.”
Finally, being a U.S. citizen leads to lighter sentencing across the board.
Having no high school diploma resulted in an additional sentence of 1.2 months. Income had a significant impact on the sentence length. Offenders with incomes of less than $5,000 were sentenced most harshly. This group received sentences 6.2 months longer than people who had incomes between $25,000 and $35,000. Those with U.S. citizenship receive lower sentences by about 1.7 months, perhaps because they take advantage of their greater knowledge about the court systems and legal representation. Age is positively related to the sentence length. […]
The income and education results could be generated if people with higher levels of education and income use their resources to obtain more favorable sentences. However, if offenders utilize education and income to reduce their sentences, the impact is limited. The marginal productivity of income in hiring legal resources diminishes quickly after income hits a minimum threshold, because individuals with the highest incomes do not receive reductions in sentence length.
According to Mustard’s analysis, most of the sentencing disparities are caused by judges departing from the official sentencing guidelines; when judges decide to take mercy on a felon and offer a very light sentence – or to not sentence the felon to prison at all – they are significantly more likely to do so if the felon is not poor, is white, is female, and is a U.S. citizen.
Feminist readers are likely to take particular note of the harsher sentences given to men, compared to women convicted of the same crimes. Mustard suggests that this may be caused by sexist paternalism among judges; women are seen less as full adults, and as being less capable of being responsible for their own actions, and as a result judges depart from sentencing guidelines to give women lighter sentences. Although I can’t know if that’s true or not, it certainly seems plausible to me, and also compatible with feminist analysis of how women are treated and viewed by society.
Another study, by Max Schanzenbach of the Northwestern University School of Law, ((Max M. Schanzenbach, “Racial and Gender Disparities in Prison Sentences: The Effect of District-Level Judicial Demographics” (April 2004). American Law & Economics Association Annual Meetings. American Law & Economics Association 14th Annual Meeting. Working Paper 4. Pdf link.)) looked at sex disparities in sentencing according to the sex of the judge. He found that, for serious crimes, female judges did not give harsher sentences to men, but male judges did:
The greater the percentage of female judges on a district’s bench, the smaller the gender disparity. These results are hard to square with the suggestion that unobserved accomplice status or blameworthiness is behind the gender disparity. At the very least, male and female judges view the dangerousness, accomplice status, or blameworthiness of female offenders differently.
The female offender/percent female judge effects […] were not evident at all in the category of less serious crimes. (There was some evidence in the case of less serious crimes that more Democratic districts treated men and women alike when granting downward departures.) However, paternalistic views about the dangerousness or blameworthiness of female offenders may well be most evident in the case of serious crimes.
Schanzenbach also found that racial and ethnic disparities were only slightly decreased, or not decreased at all, in districts with more black and hispanic judges. However, he argues that this finding does not prove a lack of racial and ethnic bias in sentencing, only that if such bias exists, it’s not dependent on the race or ethnicity of the judge.
[Crossposted at Creative Destruction, where moderation is light and frothy and tickles your nose. If your comments aren’t being approved here, try there.].
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Interesting. Who knew that Clinton appointed so many sexist, racist judges?
Just kidding. Seems like a very solid study.
Some of the disparities seem easy enough to explain. Law or no law, female privilege gets women out of taking full responsibility for their crimes; judges hate to send “that poor gal” to stir for twenty years so they find ways to justify lower sentences.
I find it interesting that the two crimes with the largest black-white disparity are bank robbery and drug trafficking. Bank robbery I don’t know about, but I have a hypothesis for the drug trafficking: the judges are concerned about neighborhoods. Black dealers mainly traffic in poorer areas, and white dealers mainly traffic in richer areas. The judge doesn’t feel too bad about the degradation the white dealers are doing to Cherry Creek because they don’t see any; they also see what Capitol Hill looks like so they come down harder on people trafficking in those areas.
I also wonder about the impact of lawyer quality. Sentencing isn’t supposed to take class into account, but surely lawyer quality has an impact on what the judge is working with, and surely rich people have better lawyers.
I can’t imagine that the author DIDN’T control for this, but you didn’t mention criminal history points–I assume they were balanced out? The other thing I”m wondering about is drug use: I have seen judges increase sentences for users.
I am sure he controlled for both of those, to be honest. I confess to being surprised at how LOW the disparity was. I suspect it is higher in state cours.
Sailorman – I skimmed the study to verify that point and yes, he controlled (very well, it seems) for criminal background and history. He was comparing apples to apples.
The author was also, impressingly, very forthright that the two hypotheses that could explain his findings (one: judges are racists and sexists, two: there were other legitimate sentencing factors that a study can’t get at) would both produce the same observed outcome, making it hard to know which was going on. (My guess is: both).
Sorry, didn’t pick up the footnote-link. I’ll read it myself.
On the male-female point, I wonder if the study captured differences in violence in enough granularity — two crimes could be charged identically and have significant differences in the actual underlying conduct which might affect sentencing.
LizardBreath, if that were the case, it would be hard to explain the other study’s finding that there’s less disparity in sentencing in districts where there are more female judges.
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Robert –
I suspect there is a pervasive belief that ONLY poor, black n’hoods have a widespread drug problem.
Lawyer quality is definitely an issue. I would not say that the rich man’s lawyer is better per se. The Federal Public Defender has a HELL of a lot more cases than private defense. FPDs go toe-to-toe w/ US Attorneys. They are damn good at what they do. I think there is definitely an issue with previous convictions/pleas and the quality of defense in state cases. Especially regarding juveniles. A wealthy kid’s parents will likely know about the possibility of expungement, hire a lawyer who has more time than the state PDs (which are not as plentiful or as well-funded as FPDs), and will have that record expunged (particularly in light of the above results).
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Well that study proves the class of people that are more violent, more likely to commit crimes, and most needed to be locked up or executed.
[I’m not sure whether the “class” referred to above is immigrants, men, poor people, or black people. In any case, JustaDog, I don’t think your posts here are helping to move the discussions on “Alas” in a positive direction. For that reason, I’m asking you to not post to “Alas” any more. Thank you. –Amp]
How about a study that shows a direct relationship between being responsible and respecting others? Those people – whatever their race – will find they are less likely to be locked up.
I don’t believe in making excuses for criminals or trying to be sympathetic to them.
This is nothing new under the sun. It is humorous how no matter what study you look at–the poor education provided in this country for minorities just keeps coming up. Of course, it is the largest result of the lack of education–poverty–that ends up being the scapegoat.
Well, prison provides free or cheap labor. Schools do not. That’s why in Colorado for example, a town called Canon City decided to support the building of a prison and not a university when given the choice. They needed that free or cheap labor to build their town and their roads.
You’d get similar or worse results with the states.
radfem, this is talking about *federal* judges/prisons; those are generally pretty harsh places and I don’t think they supply a lot of work crews. Not that one can’t theoretically work, I suppose, but for some reason (must have been something I read) I’m pretty sure that those types of work crews are rarely federal folks.
There ARE financial reasons for preferring a prison anyway, though: universities are tax exempt (don’t generally pay property tax) so if they’re on expensive land it can be a huge cost to the town. Also, depending on the town, the jobs provided by a prison may be better suited to the population that needs more work.
My opinion? Not compelling–I’d take the university over a prison every time. But those are two of the reasons I’ve heard cited most often.
Sorry to all those gals who think we’re just not “equal” to the guys unless we’re just as mean and criminal and BAAAAD as they are and get punished “just the same,” otherwise there’s some funny business female preferential treatment going on here.
Women killers throughout the 20th century, for example, have never gone above 10% of all killers, despite enormous changes in society, technology, gender role expectations. Those getting the death penalty tend to be less. But in the earlier centuries where the percentages of women executed were somewhat higher, it was only because women were getting executed for “crimes” like witchcraft, adultery, and slave insurrection activities.
When women do kill, there is more often a history of severe mental illness (schizophrenia) and the killing is typically limited to their children. They don’t tend to “prey” on people on the street. The number of female spree killers or mass killers is so small that you can practically find a book on every single one of them. And even in those cases, it’s not always clear how much the woman was an active participant in the crime vs. a clueless, intimidated enabler partner type. (Think of all the women who are in prison for drug offenses, like helping their boyfriend make a delivery, who were no where near major dealer status, but are still in prison for 20 years.)I know it’s not cool to say that women often act as clueless enablers. We like to think that we’re just as big and tough as the guys, and that we often, for some reason, act embarrassed when the marketing people and the statistics show that we aren’t. Yea, a few individuals are. The Arlene Wuorno’s of the world. But as a group, our “Cool” violent tendencies just don’t measure up.
Nevertheless, female executions are up, especially in those chivalrous southern states, which suggests that female equity in this area is not a sign of progressive politics, but general social backwardness and reaction. Female executions account for 1.22% of the total post 1977 executions up to the end of 2002. From 1900-1962, there was an average of 0.634 per year, nationwide. Over the last 5 years the female execution rate has increased to almost 2 per year.
And very often, when gender “equality” is trumpeted, it really has nothing to do with equality at all. But it has everything to do with ignoring evidence and/or special circumstances which are very sexist. Take this 1934 execution, discussed at the Crime library site. Anna Antonio by all accounts was a severely battered wife whose life was controlled by her husband. She was accused on arranging for a contract killing. The killer himself said she had nothing to do with it. There was no real evidence to link her to her husband’s death. But she got fried at Sing Sing anyway. How did then Governor Lehman explain away this travesty of justice? GENDER EQUITY BY GOD! “The law makes no distinction of sex in the punishment of crime; nor would my own conscience permit me to do so.”
So it seems to me that when women start getting “equal” sentences, it has less to do with fair treatment and more to do with double standards. “Iffy” cases involving women have to get longer sentences–the schizophrenic, the battered wife exercising the right to self-defence as opposed to the kid who deliberately shot down three people in a drive-by shooting or the serial rapist-killer. Treating those cases “the same” is not progress. It’s proclaiming a double standard. Mentally ill women will be treated more harshly than mentally ill men so as to even out the numbers. Women acting in self-defense will be treated more harshly then men acting in self-defense.
That ain’t progress, ladies and gentlemen.
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