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Sentencing disparity or sentencing discrimination [1] is defined as "a form of unequal treatment in criminal punishment". [2]
There is a distinct difference between differences that arise due to legitimate use of judicial discretion in the application of the law and those differences that arise due to judicial misconduct, discrimination or other causes unrelated to the issues found in the specific criminal case.
There is evidence that some U.S. federal judges give much longer prison sentences for similar offenses than other judges do. [3] This is a major problem because two judges could be faced with a similar case and one could order a very harsh sentence while another would give a much lesser sentence.
A 2001 University of Georgia study found substantial sentencing discrimination against men "after controlling for extensive criminological, demographic, and socioeconomic variables". The study found that in US federal courts, "males are... less likely to get no prison term when that option is available; less likely to receive downward departures [from the guidelines]; and more likely to receive upward adjustments and, conditioned on having a downward departure, receive smaller reductions than ... females". [4]
In 2005 Max Schanzenbach found that "increasing the proportion of female judges in a district decreases the sex disparity" in sentencing which he interprets as "evidence of a paternalistic bias among male judges that favors female offenders". [5]
In 2006 Ann Martin Stacey and Cassia Spohn found that women receive more lenient sentences than men after controlling for presumptive sentence, family responsibilities, offender characteristics, and other legally relevant variables, based on examination of three US district courts. [6]
In 2012 Sonja B. Starr from University of Michigan Law School found that, controlling for the crime, "men receive 63% longer sentences on average than women do," and "[w]omen are…twice as likely to avoid incarceration if convicted", also based on data from US federal court cases. [7] [8]
Natalie Goulette and her colleagues found 2014 support for the “evil woman” theory, which suggests that chivalry is reserved for certain groups of women who appear to be docile and in need of protection. [9] [10]
In 2019 The Guardian informed that a 2006 ACLU article is widely cited as saying that the average prison sentence is 2 to 6 years for men who kill their female partners and 15 years for women who kill their male partners. This claim was repeated by Women's March organization [11] or by journalist Mona Eltahawy. [12] ACLU states the source of this information is "National Coalition Against Domestic Violence. 1989." [13] However, a Bureau of Justice Statistics report on intimate partner violence from this period states that the average prison sentence is 17.5 years for men who kill their wives and 6.2 years for women who kill their husbands. [14]
A paper examining gender sentencing disparities in a large samples of assault, burglary and drugs offences found that male offenders are subjected to significantly harsher sentences, even when controlling for mitigating factors and case characteristics. Men were 2.84 times more likely than women to receive custodial sentence for the offence of assault, 1.89 more likely for the offence of burglary, and 2.72 more likely for offence related to drugs. For offences of assault, the gender factor was stronger than any other ‘harm and culpability’ factor with the exception of the ‘with intent to commit serious harm’ factor. [15]
A 2020 study shows that women receive 33% (15 days) shorter prison sentences than men, even when controlling for all observable characteristics – including a very precise description of the crime. When pairs of mixed-gender offender are convicted together the gender gap is even higher - men receive 38.7 additional prison days and 10.7 fewer suspended prison days.
From a procedural point of view, when controlling for the type of crime, men are on average judged after shorter investigations, and are more likely to be sentenced after an accelerated procedure. When taken to court, men are 20% less likely to be discharged (6% vs. 4%). In 2017, 19.9% of convicted men were sentenced to prison, compared to 8.5% of convicted women.
With decreasing number of female judges in the court the gender gaps in prison and probation sentences widens - prison and probation sentences are lighter for women, while suspended prison sentences are longer. The gender of the prosecutor seem to play no role. [16]
A 2001 University of Georgia study found substantial sentencing racism against African Americans "after controlling for extensive criminological, demographic, and socioeconomic variables". The study found that in US federal courts, "blacks... less likely to get no prison term when that option is available; less likely to receive downward departures [from the guidelines]; and more likely to receive upward adjustments and, conditioned on having a downward departure, receive smaller reductions than whites". [17]
A 2006 study by Crow and Bales gives evidence of sentencing disparity. The Florida Department of Corrections gave statistics of those prisoners who received probation or community control in the period 1990–1999. Prisoners were categorized as Blacks and Hispanics or Whites/Non-Hispanics. The study found that the Blacks and Hispanics received more intense and harsher penalties than the White/Non-Hispanic group.[ citation needed ]
A 2023 study found for grand juries in the USA no taste-based discrimination or statistical discrimination between black and white races based on data from a quarter million felony cases. [18]
Some have argued that race and gender are both valid reasons for disparity in sentencing. In 2016, Mirko Bagaric argued that African-Americans and Indigenous Australians should receive a sentencing discount in all but the most serious of crimes, in part to offset unacknowledged biases to the opposite effect, while women should "be treated more leniently when they commit the same crime as a man" - in this case, he did not make any exception for serious offending. [19] In the United Kingdom, Jean Corston's 2007 report planned as a "review of women with particular vulnerabilities in the criminal justice system" is described as making the case "that prisons should be scrapped for all but a tiny number of women", [20] which Corston justified on the basis "equality does not mean treating everyone the same". She proposed "Custodial sentences for women must be reserved for serious and violent offenders who pose a threat to the public" and that overt separate sentencing for men and women could be considered after then-pending equality legislation. [21] In 2024, UK's Secretary of State for Justice Shabana Mahmood unveiled plans to decrease the number of women in jail, close women’s prisons, or convert them to male prisons to tackle an overcrowding crisis. [22] For this purpose, Mahmood plans to establish a new public body, the Women’s Justice Board, and increase prison alternatives for women, such as community sentences and residential women’s centres. [23]
Some people argue that giving women lighter sentences is infantilizing, based on stereotyping, and incompatible with gender equality. [24] [25]
The average prison sentence for men who kill their female partners is two to six years [...] By contrast women, who kill their partners are sentenced on average to 15 years.
In large urban counties, the average prison sentence length on a murder or nonnegligent manslaughter conviction (excluding life sentences or the death penalty) was 17.5 years for men convicted of killing their wives 6.2 years for women convicted of killing their husbands.
Justice secretary Shabana Mahmood has set out plans to slash the number of women going to jail and ultimately close women's prisons amid an overcrowding crisis.
The strategy will also focus on enhancing alternatives to prison, such as community sentences and residential women's centres.
