Form of unequal treatment
Sentencing disparity or sentencing discrimination [1] is defined as "a form of unequal treatment in criminal punishment". [2]
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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]
Measure 11, also known as "One Strike You're Out", was a citizens' initiative passed in 1994 in the U.S. State of Oregon. This statutory enactment established mandatory minimum sentencing for several crimes. The measure was approved in the November 8, 1994 general election with 788,695 votes in favor, and 412,816 votes against.
The Juvenile Delinquents Act, SC 1908, c 40 was a law passed by the Parliament of Canada to improve its handling of juvenile crime. The act established procedures for the handling of juvenile offenses, including the government assuming control of juvenile offenders. It was revised in 1929 and superseded in 1984 by the Young Offenders Act.
Incarceration in the United States is one of the primary means of punishment for crime in the United States. In 2021, over five million people were under supervision by the criminal justice system, with nearly two million people incarcerated in state or federal prisons and local jails. The United States has the largest known prison population in the world. It has 5% of the world’s population while having 20% of the world’s incarcerated persons. China, with more than four times more inhabitants, has fewer persons in prison. Prison populations grew dramatically beginning in the 1970s, but began a decline around 2009, dropping 25% by year-end 2021.
Mandatory sentencing requires that offenders serve a predefined term of imprisonment for certain crimes, commonly serious or violent offenses. Judges are bound by law; these sentences are produced through the legislature, not the judicial system. They are instituted to expedite the sentencing process and limit the possibility of irregularity of outcomes due to judicial discretion. Mandatory sentences are typically given to people who are convicted of certain serious and/or violent crimes, and require a prison sentence. Mandatory sentencing laws vary across nations; they are more prevalent in common law jurisdictions because civil law jurisdictions usually prescribe minimum and maximum sentences for every type of crime in explicit laws.
In Canada and England and Wales, certain convicted persons may be designated as dangerous offenders and subject to a longer, or indefinite, term of imprisonment in order to protect the public. Dangerousness in law is a legal establishment of the risk that a person poses to cause harm. Other countries, including Denmark, Norway, and parts of the United States have similar provisions of law.
A habitual offender, repeat offender, or career criminal is a person convicted of a crime who was previously convicted of other crimes. Various state and jurisdictions may have laws targeting habitual offenders, and specifically providing for enhanced or exemplary punishments or other sanctions. They are designed to counter criminal recidivism by physical incapacitation via imprisonment.
In England and Wales, life imprisonment is a sentence that lasts until the death of the prisoner, although in most cases the prisoner will be eligible for parole after a minimum term set by the judge. In exceptional cases a judge may impose a "whole life order", meaning that the offender is never considered for parole, although they may still be released on compassionate grounds at the discretion of the home secretary. Whole life orders are usually imposed for aggravated murder, and can only be imposed where the offender was at least 21 years old at the time of the offence being committed.
Collateral consequences of criminal conviction are the additional civil state penalties, mandated by statute, that attach to a criminal conviction. They are not part of the direct consequences of criminal conviction, such as prison, fines, or probation. They are the further civil actions by the state that are triggered as a consequence of the conviction.
A presentence investigation report (PSIR) is a legal document that presents the findings of an investigation into the "legal and social background" of a person convicted of a crime before sentencing to determine if there are extenuating circumstances which should influence the severity or leniency of a criminal sentence. The PSIR is a "critical" document prepared by a probation officer via a system of point allocation, so that it may serve as a charging document and exhibit for proving criminal conduct. The PSIR system is widely implemented today.
Race in the United States criminal justice system refers to the unique experiences and disparities in the United States in regard to the policing and prosecuting of various races. There have been different outcomes for different racial groups in convicting and sentencing felons in the United States criminal justice system. Although prior arrests and criminal history is also a factor. Experts and analysts have debated the relative importance of different factors that have led to these disparities.
In the United States, sentencing law varies by jurisdiction. The jurisdictions in the US legal system are federal, state, regional, and county. Each jurisdictional entity has governmental bodies that create common, statutory, and regulatory law, although some legal issues are handled more often at the federal level, while other issues are the domain of the states. Civil rights, immigration, interstate commerce, and constitutional issues are subject to federal jurisdiction. Issues such as domestic relations, which includes domestic violence; marriage and divorce; corporations; property; contracts; and criminal laws are generally governed by states, unless there is federal preemption.
A sex offender registry is a system in various countries designed to allow government authorities to keep track of the activities of sex offenders, including those who have completed their criminal sentences.
Indefinite imprisonment or indeterminate imprisonment is the imposition of a sentence of imprisonment with no definite period of time set during sentencing. It was imposed by certain nations in the past, before the drafting of the United Nations Convention against Torture (CAT). The length of an indefinite imprisonment was determined during imprisonment based on the inmate's conduct. The inmate could have been returned to society or be kept in prison for life.
Crime in New Zealand encompasses criminal law, crime statistics, the nature and characteristics of crime, sentencing, punishment, and public perceptions of crime. New Zealand criminal law has its origins in English criminal law, which was codified into statute by the New Zealand parliament in 1893. Although New Zealand remains a common law jurisdiction, all criminal offences and their penalties are codified in New Zealand statutes.
Life imprisonment in Canada is a criminal sentence for certain offences that lasts for the offender’s life. Parole is possible, but even if paroled, the offender remains under the supervision of Corrections Canada for their lifetime, and can be returned to prison for parole violations.
Approximately 741,000 women are incarcerated in correctional facilities, a 17% increase since 2010 and the female prison population has been increasing across all continents. The list of countries by incarceration rate includes a main table with a column for the historical and current percentage of prisoners who are female.
Women in American prisons encounter numerous difficulties that often involve mental health problems, drug and alcohol issues, and trauma. These challenges not only make navigating the criminal justice system more difficult for women but also highlights broader societal issues such as gender-based violence, economic inequalities, and lack of mental health support. People in prison are more likely than the general United States population to have received a mental disorder diagnosis, and women in prison have higher rates of mental illness and mental health treatment than do men in prison. Furthermore, women in prisons are three times more likely than the general population to report poor physical and mental health. Women are the fastest growing demographic of the United States prison population. As of 2019, there are about 222,500 women incarcerated in state and federal prisons in the United States. Women comprise roughly 8% of all inmates in the United States. This surge is largely attributed to the rising use of imprisonment for drug-related offenses rather than violent crimes. A considerable portion of incarcerated women are serving time for drug-related offenses, with the proportion increasing significantly between 1986 and 1991. Even among those in maximum security facilities, a majority are not imprisoned for violent felonies. The data also reveal that in states like New York, a substantial proportion of incarcerated women are serving time for drug-related offenses, with a smaller percentage incarcerated for violent crimes or property offenses.
Lifetime probation is reserved for relatively serious legal offenders. The ultimate purpose of lifetime probation is to examine whether offenders properly maintain good behavior as well as capability of patience under lifetime probation serving circumstance. An offender is required to abide by particular conditions for rest of their entire life in order to nurture superior social behaviour as a punishment for their criminal offence. Condition of probation orders contain supervision, electronic tagging, reporting to his or her probation or parole officer, as well as attending counselling. The essential component of lifetime probation carries the sense of being examined for well-being character and behaviour for life term period. Legislative framework regarding probation may vary depending on the country or the state within a certain country as well as the duration and condition of probational sentencing.
The Lammy Review is a 2017 review on discrimination within the policing and criminal justice systems in the UK, led by David Lammy and commissioned by David Cameron and Theresa May. The Lammy Review found significant racial bias in the UK justice system.
Double deviance theory states, "women are treated more harshly [than men] by the criminal justice system... because they are guilty of being doubly deviant. They have deviated from accepted social norms by breaking the law and deviated from gender norms which state how woman should behave."
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.
