Gender Bias in the U S Court System Research Paper

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Gender Bias in the U.S. Court System

Statistics regarding male and female criminality

Types of cases involving women and men

Sentencing guidelines for judges imposed to diminish disparities

Feminists say women should get less jail time

Number of women vs. men arrested

Women committing misdemeanors get little or no jail time

Death penalty cases

10% of murder cases are perpetrated by women

Leniency of juries on women defendants

Easier for women to be treated leniently by juries

Sex crimes involving men and women adults vs. teens and children

Women are always given less punishment than men in this area

Reaction of judges towards female defendants

Male judges

Female judges


a. Chivalry Theory of women perpetrators


Focal Concerns theory of women perpetrators


In both the Constitution and Declarations of Independence, two of the most important documents in American history, it is promised by the very foundations of the government that all people will be treated the same way throughout the nation and in all circumstances, no matter what. The basis of the United States' court system is that all people are equal and should be treated as such under the law of the land. If a person chooses to commit a crime, either violent of nonviolent, in this country, then they will be suitably punished according to the severity and the nature of their crime. However despite the national identity of pride and equality, the United States' court system shows that there is an inherent bias in the proceedings. Disparity is frequent in the sentencing phase of criminal proceedings. Some criminals have been treated more harshly or more leniently if they are from a minority ethnicity or have certain religious beliefs, but also if the criminal happens to be a woman in which case lighter sentences are normal. History has shown that traditionally there is an opinion which makes it so people do not view criminals of both genders in the same way. On the occasions where women have decided to commit crimes, they have been historically judged less harshly than a man who performed the same action. In the United States, if a woman commits a crime, she will likely receive a lighter sentence than a man.

Statistically, men commit more crimes than women at a universal rate of approximately five to one (Gelb 2010,-page 3). However, this number does not differentiate between the number of people who are suspected of crimes, but are let off of the hook because of social factors. Sociologists believe that when compared to other factors which might influence sentencing, such as class, age or race, gender is by far the most influential characteristic (Rodriguez, Curry, & Lee 2006,-page 319). Research shows that the gender of a criminal is most affected in the in or out decision phase of the criminal justice system. That is to say, gender as an influential factor is most important when deciding whether or not the criminal will receive jail time for their actions or if they will avoid incarceration and receives probation or community service (Crew 1991,-page 59). In one study, researcher Kathleen Daly found a huge difference in the numbers of men incarcerated and the number of women who were imprisoned. The gender gap in incarceration rates according to this study was 29%, meaning that sentences for male prisoners, in general, were longer by 13.3 months compared to the sentences women received (Goldman & Portney 1997,-page 7). Her study examined forty men and women all accused of the same crime and of equal severity in order to prove that women were in fact given preferential treatment when it came to receiving the sentence for their illegal activities. Other studies pinpoint the gender bias gap as allowing for a two-year sentence difference between male and female convicted criminals ((Sarnikar, Sorenson, & Oaxaca 2007,-page 31). In certain cases, there is a less divisive gender gap, such as in cases of fraud or those which involve drugs (Doerner 2012). Under circumstances with nonviolent crime, the difference is not as noticeable, but there is still a better chance at an easy sentence if the criminal is female than if the person happened to be male.

The disparity in sentencing between men and women was even more pronounced before the implementation of sentencing guidelines because judges had more individual discretion in their sentencing decisions. The federal criminal sentencing guidelines were struck down by the Supreme Court in 2005 because they did not allow judges to take sociological situations into consideration. Many pro-feminist activists have stated that women should receive preferential treatment because traditionally they have more difficult circumstances which force them to commit crimes whereas men, simply by being male, have more opportunities.

Facts support the suggestion that women are indeed given preferential treatment when they commit crimes. Instead of serious violent crimes, women are traditionally involved in things like prostitution, larceny or theft, fraud, forgery, and embezzlement (Gelb 2010,-page 3). Men are far more likely to commit serious or violent crimes like assault, armed robbery, or rape which are more disturbing crimes and thus should theoretically inspire stronger punishments. However, even in cases of the same crime, women are granted preferential treatment in sentencing. According to the Sentencing Advisory Council in the country of Australia, "Arrest rates for women are substantially lower than are those for men: for all offences combined, men's arrest rates (7,480 per 100,000 men) are more than four times greater than women's (1,475 per 100,000 women)" (Gelb 2010,-page 3). Small crimes or misdemeanors are usually given a small prison term or some other form of punishment like community service or a fine. But women who are convicted of things like shoplifting are less likely to be sent to prison for any length of time than men convicted of the same crime (Gelb 2010,-page 15). In comparisons of almost all individual crime types, women criminals have been treated with less severity than male criminals.

One more serious example of this is the fact that since the death penalty was reinstated in the United States in 1976, only a dozen women have been executed while more than one thousand men have been (Jones 2010). This holds true historically as well. In the past century, only around 40 women have been executed as opposed to thousands of men who have been convicted of serious or violent crimes, often in serial form. As of early 2010, 61 women in the United States were on death row, a number which is equal to approximately 1.87% of the total population currently on death row in this country. Far more males have been executed than women and far more men are convicted of serious crimes than females. Part of the reason for this has to do with the types of crimes which people tend to receive the death penalty for. Death penalty cases are generally those where a murder has been committed while the person was committing another crime, such as during a robbery or a rape both of which are crimes that men tend to commit far more often than women. Usually it is only crimes like murder, called capital crimes, which can receive the death penalty, also known as capital punishment. Women only comprise approximately 10% of all convicted murderers in this country which explains the difference, but this number does not take into consideration how many women were guilty of murder, but that there was not enough evidence or not enough intent on the part of authority figures to follow through.

Even when women are found to have committed a serious crime that could potentially earn them the death penalty, the women are far less likely to receive this punishment. Instead of death, they will likely be sentenced to jail time. Juries are more likely to be forgiving of female criminals and recommend a more lenient sentence. Professor Victor Streib who specializes in criminal science and criminology said, "It's also easier to convince a jury that women suffer emotional distress or other emotional problems more than men" (Jones 2010). The stereotypes of women, such as their emotionality, lack of self-control, inability to reason, and their unimportance in the general identity of the sociological psyche all allow those who decide their fate to be willing to let them off the hook.

One area where this trend is most obvious is in the epidemic of inappropriate sexual relationships that occur between adults and teens. In cases where men are the perpetrators the media rightly portrays them as authorities who took advantage of their positions and the insecurities of pubescent teens, particularly teachers who abuse the trust they are given by parents and their children. Men are given harsh prison sentences which they rightly deserve. However, in the cases where women have been found to be the perpetrators of child molestation and child sexual abuse, the circumstances are different. Not only do they receive more positive attention from the media but in the courtroom as well. A study by Kansas State University…[continue]

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