https://www.ncjrs.gov/pdffiles1/Digitization/105796NCJRS.pdf

https://files.deathpenaltyinfo.org/legacy/documents/FemDeathDec2012.pdf

• women account for only 2.1% of death sentencing imposed at the trail level
• women account for only 0.9% of persons actually executed in this modern era (1973-2012)
• Texas, California, and Florida are leading the US in women sentenced to death from 1973 through 2012

Mitigating the Crime that is the Over-Imprisonment of Women: Why Orange should not be the New Black

• Women responsible for 20% of crime, yet comprise half of the population
• Women generally receive less serious sanctions than men
• Women are the fastest growing prison population
• 30% of incarcerated women in the world are in the US, despite only 5% of the world’s population living in the US

Gender Differences in Criminal Sentencing: Do Effects Vary Across Violent, Property, and Drug Offenses?

• Effect of gender on sentencing varies by crime type, but is not consistent
• Less likely to receive prison sentences for property or drug offenses
• Less likely to receive prison time, and when they do, receive shorter sentences than males for violent offenses
• Chivalry thesis and Dynamics of judicial decision making have been used to explain this preferential treatment
  • Chivalry thesis: gendered stereotypes influence sentencing outcomes as women are characterized as childlike and not responsible for their behavior; men are portrayed as wanting to minimize suffering of women; incorporated into the CJ system as it is a male-dominated field -male police officers, prosecutors, and judges
  • human error during judicial process
  • dynamics of judicial decision making:
  • focal concerns theory: because judges are unable to spend a large amount of time on cases and often receive incomplete information; as a result, judges rely on generalizations or personal biases to guide sentencing decisions

Gender and Sentencing: A Meta-Analysis of Contemporary Research

• Women generally have an “advantage” over male defendants in sentencing decisions
• focal concerns and chivalry thesis

Role of Gender In a Structured Sentencing System

• sentencing reform to reduce sentencing disparity and eliminate impact of extralegal factors (such as race, gender, SES) on sentencing
• Issues of Special Concern for Female Offenders: pregnancy - not a basis for downward departure, family ties - single parenthood, parental status, double punishment (imprisoned and often lose parental rights), collateral damage for children
• coercion, duress, and abuse: justify downward departures for battered female offenders, victims of physical and verbal abuse
• dominance, manipulation, and role in the offense: minor role and less culpability may result in a lesser sentence

Sentencing Women: Reassessing the Claims of Disparity

• gender disparity in criminal sentencing is more pronounced than differences between race, ethnicity, or geography
• women punished less often than men and less severely (fines, probation, or another custodial sentence); only 2/3 to 3/4 of the sentence length of their male counterparts
• Women prosecuted at a rate lower than men
• capital punishment: "death penalty employed to men, not women"; women less likely to receive a death sentence and ever less likely to actually face execution; women are more likely to receive executive clemency, despite these women having more aggravating sentencing factors
• Federal Sentencing Guidelines - means of preventing preferential treatment to particular genders, ethnicities, and races

Drafted Content

Throughout the history of the Criminal Justice System in the United States, women have been held responsible for only 20 percent of total crime.^[1] Despite only committing a small portion of crime, women in the United States remain over-represented in the Criminal Justice System. The United States generates 30 percent of all incarcerated women in the world, despite only comprising five percent of the female population.^[1] As such, multiple studies have been conducted to analyze the differences in the crimes committed by men and women, as well as the sentencing of such offenders. Typically, women have been found to hold an advantage over men in sentencing; however, the degree of preferential treatment varies by the type of offense committed.^[1][2][3][4] In regard to property and drug offenses specifically, women are less likely than male offenders to receive a prison sentence. When female offenders do receive a prison sentence, research has found women receive shorter sentences than male offenders for the same offense.^[2][5] The level of preferential treatment shown to female offenders was lower when the offense was in violation of gender norms. Women who committed more "masculine crimes," such as violent offenses or crimes against children, were not treated preferentially during sentencing.^[2] During his concurring opinion in Furman v. Georgia, Justice Thurgood Marshall stated, "There is also overwhelming evidence that the death penalty is employed against men and not women."^[5]:76 Within the scope of capital punishment, women are far less likely to receive a death sentence and even less likely to actually face execution. Between 1973 to 2012, women comprised only 2.1% of death sentences imposed at trial and merely 0.9% of persons executed.^[6] Women who are sentenced to death at trial are more likely to receive executive clemency than their male counterparts, despite their crime having more aggravating factors that may increase sentencing outcomes.^[7]

In an attempt to explain the preferential treatment that is shown to female offenders in criminal sentencing, researchers have developed theories that concentrate on the differences between the treatment of each gender by society. A possible explanation for disproportionate sentencing is the chivalry thesis which states that gendered stereotypes influence sentencing outcomes as women are considered childlike, less threatening, less dangerous, and not responsible for their behaviors.^[2][3] This theory also maintains that men are traditionally inclined to minimize the suffering of women as a result of their paternalistic desire and this behavior has been incorporated into the justice system as it is a male-dominated field.^[2][3] Judges primarily explained sentencing differentials as a result of childcare responsibilities that would create a larger social cost if mothers were incarcerated, illustrating direct applications of the chivalry thesis.^[3] It is also argued that the disparity in sentencing is merely the result of human error as a result of the dynamics of judicial decision-making.^[2] The focal concerns theory reaffirms this belief as this theory states that the sentencing disparity is the result of a judge's inability to spend a large amount of time on a single case and the incomplete information given to them minimizes their ability to make an fully informed decision.^[2][3] As a result, judges may unknowingly rely on generalizations of personal biases to guide sentencing decisions.^[2] In an attempt to prevent preferential treatment to particular genders, races, ethnicities, or socio-economic classes, the Federal Sentencing Guidelines were enacted to create sentencing uniformity and equality.^[5] The enactment of these Guidelines has since increased sentences given to women at trial; however, the disparity between male and female offenders persists as the internal biases influencing preferential sentencing have not been addressed . ^[5]

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