David Dagan has this interesting new piece at FiveThirtyEight under the headline "Women Aren’t Always Sentenced By The Book. Maybe Men Shouldn’t Be, Either." As this title suggests, the piece is about gender disparities in sentencing, and here are excerpts:
Official federal sentencing guidelines don’t distinguish between female and male offenders. They often downplay or outright disregard circumstances that are common among women, such as the role of an offender as the sole caretaker for children or an offender having been coerced into committing a crime. But judges commonly compensate ad hoc, which has led to women on the whole receiving much shorter sentences than men when facing the same punishments.
Critics say the sentencing benchmarks should provide more flexibility from the start — a change that would benefit women ... but also men in similar circumstances, whose extenuating factors may be even more likely to be overlooked. “The notion that you simply deal with a complicated situation by saying, ‘Let’s ignore the complexity,’ is idiotic,” said former federal judge Nancy Gertner, now a lecturer at Harvard Law School.
Congress established the U.S. Sentencing Commission in 1984 with the Sentencing Reform Act, partly in response to concerns that sentencing was marred by racial and geographic disparities. The commission was charged with writing the federal guidelines to remedy those problems, and it updates them occasionally.
But people of different races and genders still fare differently under the guidelines. Race looms large, according to a November 2017 report from the sentencing commission. It found that black men in federal court are sentenced to 19.1 percent more time, on average, than white men who, at least on paper, committed the same crimes and have similar criminal histories. Women receive much shorter sentences than even white men — though the difference also varies by race.
That disparity grows even larger when the full scope of discretionary decision-making is considered. Prosecutors exercise at least as much power as judges in sentencing because they decide what charges to bring after an arrest. A 2015 study from the University of Michigan Law School found that when such decisions are taken into account, sentences for men are on average 63 percent longer than sentences for women.
But women’s criminal involvement often looks different than men’s: They may be minor players in drug rings, are sometimes pushed into crime by a violent partner and often carry trauma from physical and sexual abuse.... More than 56 percent of the women in federal prison are there for drug offenses, compared with about 47 percent of men. In drug cases involving multiple people, each defendant can be held responsible for the full weight of the drugs involved, even if he or she were far down on the organizational chart. That approach is hard on women, who are often low-level players in such operations, experts said.
The guidelines do compensate by offering “role adjustments” for people who were merely drug mules, for example. But for many women, Gertner said, “those adjustments don’t begin to capture their insubstantial role.” So judges, who must consider the guidelines but since 2005 have not been compelled to follow them, may be responding with lower-than-recommended sentences.
Also largely excluded from the guidelines is any consideration of how a defendant got into crime in the first place. Yet research on incarcerated women shows that abusive relationships can put them on the wrong side of the law. Most women who assault their intimate partners have also been victimized by those partners, and they often cite self-defense as a motive. Researchers have also turned up many cases of incarcerated women who reported being forced into committing a crime by threats of violence.
A broader history of victimization is also common among female offenders. When researchers interviewed 125 women awaiting release from North Carolina prisons, they found that almost two-thirds had experienced childhood physical or sexual abuse and more than a quarter had been sexually victimized in the year before they went to prison. (Most studies do not draw explicit comparisons with men, but a survey of about 7,500 state prisoners conducted in 2005 found that while men and women had similar rates of childhood physical abuse, women had far higher rates of childhood sexual abuse.)
The sentencing guidelines set a high bar for considering such life experiences, and then only in cases involving nonviolent crimes. Judges are also discouraged from factoring in the role of drug addiction except in extraordinary circumstances.
The upshot is that the guidelines “disproportionately disadvantage anyone who has a significant trauma,” said Christine Freeman, who runs an Alabama organization that provides lawyers to poor clients charged with federal crimes. The exclusion of life experience may have been motivated by an effort to ensure that people of higher socioeconomic status could not work the system to their advantage, Freeman said. “But what it did was tell the courts that it was OK to ignore all these factors that obviously have motivated this situation and led a person to this point.”...
And the federal guidelines specifically discourage taking family considerations into account, declaring them “not ordinarily relevant” to sentencing. But they are certainly relevant to defendants like James who face separation from their children — and women appear to be particularly affected. Among federal prisoners in 2004, a higher share of men than women reported being the parents of minor children, but almost 80 percent of the mothers reported that they lived with their children just before incarceration, compared with half of the fathers. Gertner said that judges might be particularly sensitive to the consideration that sending parents away is bad for public safety: “We know as a public-safety measure that (in) families that have been fractured by imprisonment, there’s actually a risk to the next generation.”...
Whatever contributes to the sentencing difference, there are few voices arguing that the solution is longer sentences for women. Instead, as the University of Michigan study said, “Policymakers could equally sensibly ask: Why not treat men like women are treated?”
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