Download Gender & Criminal Justice

Gender & Criminal Justice
Crime 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 Justice
Defining Gender-neutral & Gender-specific Law
Gender-neutral
No formal distinctions in applicability to males or
females
Gender-specific
Application 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 Justice
Gender-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 Justice
Discrimination & 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 Justice
Perspectives on gender-biased processing:
1. Equal Treatment (Null) Hypothesis
No sex discrimination exists; the system is neutral, fair, impartial
2. Chivalry (Paternalism) Hypothesis
CJS is more lenient towards women offenders
(discriminates against men?)
Chivalry is an exchange – placing ♀ on a pedestal
Paternalism is based on the premise of weakness or
dependency
A. Typicality-Chivalry operates only when consistent with gender
B. Selectivity-Chivalry is reserved for white females
C. Differential Discretion-discretion varies by stage & visibility
3. “Evil” Woman Hypothesis
CJS is biased against female offenders; More harsh. Females are
punished for 1) crimes & 2) inappropriate gender display
Gender & Criminal Justice
Evidence on gender-biased processing:
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Early studies support Chivalry
Adequate studies need to account for a variety of extralegal factors:
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Individual characteristics (race, class, gender, age, etc.)
Situational characteristics/Legal variables (seriousness of the
offense, victim-offender relationship, etc.)
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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
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Findings are nuanced by race, class and age
Juveniles
Stage of CJS
Offense type
Gendered stereotypes
Gender & Criminal Justice
Findings 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
Incarceration
Trends in Women’s Incarceration
Incarceration should reflect 2 realities:
1. Offending patterns
2. CJS Policy
The recent trend has been an explosion of
incarceration for women
Over the past 20 years,
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women’s imprisonment rate has increased ~400%
Men’s increased ~200%
What does this reflect?
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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 Racism
The 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 firsttime 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
Crack offenses:
84%
Powder cocaine offenses: 30%
Hispanics
9%
50%
whites
6%
18%
*2000 Sourcebook of Federal Sentencing Statistics, U.S. Sentencing Commission.
War on Drugs and Sexism/Racism
Women 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
Incarceration
Invisibility 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
Incarceration
Brief History of Women’s Prisons:
– Co-corrections prior to 1850s in US
– Influence of Eliz. Fry
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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
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Women are likened to children in need of help
Women tended to be sentenced for sexual offenses
Emphasis on Domesticity in reformation process (reenforces gender division of labor and inequality)
Incarceration
Contemporary Prison for Women:
• Residual of Reformatory Philosophy
– Impacts treatment programs, prison conditions,
and ultimately chances for successful reintegration
– Evidence of institutionalized sexism
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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
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Conditions are typically significantly worse than the
poor conditions evident in many men’s penal settings
Women & Work in the CJS
Legal 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
Incarceration
Organizational perspective of Corrections
Departments reflects Androcentrism:
– Institutions designed with men in mind (70%)
– Body Searches are sexualized
– Sexual activity
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Rape and sexual assault
– Guards
– Other inmates
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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