Gender, Race, and Sentencing

Race and gender pose empirical and policy problems that are both similar and different for the U.S. criminal justice system. They are similar in that blacks and women occupy subordinate social and economic positions in American life, and their interests are less likely to be represented in the justice system than are those of white men. They are different in that blacks are overrepresented in arrest statistics and jail and prison populations while women are underrepresented. If over(or under-) representation is assumed to result from similar effects of bias and subordination, the two patterns are hard to explain. The empirical literature on criminal courts reveals policy dilemmas in achieving "just" sentencing practices. Blacks (and especially black men) may be more likely than white men or women to benefit from tightly limited discretion and limited individualization of sentencing whereas women (both black and white) may be more likely to benefit from broader discretion and greater individualization. Future policies will need to confront the competing demands of justice that race and gender pose in the official response to crime. On June 30, 1995, federal and state prisons in the United States held 1,104,074 sentenced prisoners. Black men and women, who are 12 percent of the general population, were 51 percent of prisoners. Women of all racial and ethnic groups, who are 51 percent of the general population, were 6 percent (Bureau of Justice Statistics 1995b). Racial and ethnic disproportionalities in those charged, convicted, Kathleen Daly is associate professor, School of Justice Administration, Faculty of Humanities, Griffith University, Queensland, Australia. Michael Tonry is Sonosky Professor of Law and Public Policy, University of Minnesota Law School. © 1997 by The University of Chicago. All rights reserved. 0192-3234/97/0022-000602.00 202 Kathleen Daly and Michael Tonry and sentenced for crime in the United States have received renewed attention in recent years. Reports by The Sentencing Project, which showed that in 1990 and 1995, respectively, 23 and 32 percent of black men aged twenty to twenty-nine were in jail or prison or on probation or parole, received front-page attention in newspapers and electronic media. So did estimates from the National Center on Institutions and Alternatives, which showed that in 1991 in Baltimore and Washington, D.C., respectively, 56 and 42 percent of black men aged eighteen to thirty-five were under some form of criminal justice system control (Tonry and Hamilton 1997). Gender disproportionalities, while receiving relatively less media or political attention, are as great as or greater than those for race. For example, in 1995 the male incarceration rate for state and federal prisons, 789 per 100,000, was sixteen times the female rate of 47 per 100,000. In 1993, the black incarceration rate, 1,471 per 100,000, was seven times the white rate of 207 per 100,000 (Bureau of Justice Statistics 1995a, 1995b). At every stage of the justice system for which national data are available, the 51 percent of Americans who are female make up 6-14 percent of those prosecuted or confined in adult institutions. By contrast, the 12 percent of Americans who are black make up 40-54 percent of court and confinement populations. For example, the female share of convictions in state felony courts in 1990 was 14 percent; the black share, 47 percent (Bureau of Justice Statistics 1993a, p. 16).' The female share of jail inmates in 1994 was 10 percent; the black share, 44 percent (Bureau of Justice Statistics 1995c). The female share of new court commitments to prisons in 1991 was 9 percent; the black share, 54 percent (Maguire and Pastore 1994, p. 625). Just over 1 percent of those on death row in 1993 were female; 41 percent were black (Bureau of Justice Statistics 1994d, table 6).2 These data suggest distinctive influences of gender and race on patterns of lawbreaking and on the state's response to crime, yet racism and sexism are often decried in the same sentence as variants of the same problem: white men's social, economic, and political dominance over less powerful women and minority group men. This has led some to adopt the simple working hypothesis of racial and gender discrimiIThe black/white composition of felony court defendants varies by the source of data used (discussed below). 2 An additional 8 percent were Hispanic. Gender, Race, and Sentencing nation: institutions of criminal justice operate in ways that favor the interests of whites over blacks (or other minority groups) and of men over women. The cross-sectional data portray a more complicated pattern. Race operates as the hypothesis predicts: blacks are overrepresented in arrest, court, and prison populations. But women, members of the socially subordinate gender group, are underrepresented in arrest, court, and prison populations. Although the hypothesis holds within gender groups-that is, among both male and female prisoners, 65 percent are members of racial or ethnic minority groups (Bureau of Justice Statistics 1995a, p. 9)-it cannot explain the disproportionate presence of men under formal criminal justice control. The demography of crime and punishment poses challenges to feminist and nonfeminist explanations of crime and punishment. Feminist theorists have yet to explain why, if men have more power than women, men are at greater risk to be under criminal justice control. Nonfeminist theorists have yet to explain why, if disadvantaged members of society are most likely to be under criminal justice control, far fewer disadvantaged women than disadvantaged men are affected.3 This essay reviews race and gender patterns in adult arrest and imprisonment statistics, but our focus is on the criminal courts and the transformation of sentencing policy in the 1970s. We are interested in understanding why sentencing reform unfolded as it did and with what consequences for contemporary justice system practices, including dramatic increases in imprisonment for members of all race and gender groups. We are also interested in the varied ways that race and gender work in the criminal process and in criminological discourse. Sentencing and its reform can be seen as one component of a criminal justice system that operates as a "social ordering practice" (Garland 1990; Lacey 1994, pp. 28-35). Sentencing, and punishment more generally, contain symbolic and instrumental elements. The justice system produces a good deal of injustice, but some of its elements are positive, indeed indispensable. Moreover, the rhetoric of sentencing reform must be set alongside the practices: the two do not necessarily coincide. For example, the rhetorical focus of sentencing reform in the 1970s was on "just deserts," but utilitarian considerations could not be IThis claim is contextual (i.e., within a neighborhood or city) and historically and culturally specific. It would be wrong to assume that women are (or will be) more lawabiding than men (or less likely to be criminalized) across time, place, nation, and culture. Kathleen Daly and Michael Tonry avoided or eliminated. The story of sentencing reform was (and is) partly about "doing justice" better and partly about relegitimating the state's power to punish in a society rife with "background conditions of inequality and injustice" (Lacey 1994, p. 33). Beginning in the early 1970s and with the stated aim of reducing race and class disparities in the justice system, sentencing reformers advocated strong equality policies, often expressed in terms of "just deserts" or proportionality theories that emphasized the current offense and the defendant's criminal history as the primary criteria for sentencing. The central rationale was that the broad discretionary power permitted in indeterminate sentencing systems was exercised in ways unfavorable to poor and minority defendants; in particular, by allowing officials to take into account a defendant's biographical information (e.g., education, employment prospects, and familial circumstances), it was believed that white and middle-class defendants were advantaged over others. Throughout the debates on sentencing reform, the presumptive sentencing subject was male: women and gender differences were not featured. What might explain this silence? First, like their academic counterparts, criminal justice policy makers would argue that "there were too few women" to warrant inquiry on the gendered dynamics of crime and crime control. This seems curious in that men are no less gendered than women. However, because women are the marked gender category, when the question of "gender" enters criminological discourse, attention centers on "women's issues" or "the female offender." As the unmarked gender category, men are "the norm," the universal nongendered offender. Second, in feminist criminological and legal inquiry, and in feminist activism during the 1970s and 1980s, attention was paid primarily to violence against women. By contrast, research on women's lawbreaking and its response were (and remain) less developed. Third, even for those with research and policy interests in gender, courts, and prisons, it was difficult to know how to engage in policy debates; it was not clear what to recommend. 4 The early sentencing reform movement in the United States emerged from a race-centered civil rights movement and from the prisoners' rights movement that began in the 1960s (e.g., American 'Examples of dilemmas and ambivalences surrounding feminist engagement with criminal justice are given by Chesney-Lind (1991), on whether to push for building a women's prison or not, and by Daly (1992) and Howe (1990) on how to represent women lawbreakers and prisoners. Gender, Race, and Sentencing Friends Service Committee 1971; Messinger and Johnson 1978). During 1965 to 1975, 96-97 percent of prisoners were men, and approximately 40 percent were black. Sentencing became the object of reformers' attention not only because of widespread interest in sentencing processes per se but because of concern for racial injustices in sentencing. Thus, sentencing reform, which developed from the civil rights movement and was motivated by concerns for fairness to prisoners, was primarily focused on eliminating racial bias and primarily committed to values of equal treatment. Without giving it much attention, sentencing reformers assumed that the logics of racial and gender injustice were similar, requiring similar methods of redress. In every jurisdiction that changed its sentencing policies and attempted to establish sentencing guidelines, three propositions were taken as self-evident. First, race and gender were believed to be illegitimate considerations in sentencing. Second, other factors like education and employment were considered to be forbidden or discouraged because they would work systematically and directly to the detriment of poor defendants and, because proportionately more blacks than whites were poor, indirectly to the detriment of black defendants. Third, because most judges then (as now) were white men, it was assumed that, if given broad discretion, they would be influenced by conscious or unconscious prejudice toward members of minority groups. Thus, it was decided that sentencing should be based on the nature and seriousness of the crime and that judicial discretion should be tightly constrained. Gender was largely absent from the debates and calculations: if race was a forbidden consideration, so self-evidently was gender. Equal treatment was (and is) a seductive criminal justice ideology; there appeared to be no legal or policy alternative. An immediate difficulty arose, however, from reviews of the statistical research literature (Blumstein et al. 1983; Nagel and Hagan 1983). After controlling for the defendant's prior record of arrests or convictions, and the type and severity of the convicted charge, women's sentences appeared to be less severe than men's. If future sentences were to be based on past average sentences for men or on an average of men's and women's sentences (no jurisdiction considered using average sentences for women), the policy choice was between "equal treatment" (i.e., using past averages and applying them both to men and women) or "special treatment" (i.e., preserving a two-track system in which it appeared that women were sentenced less severely). Every jurisdiction we are aware of, including Minnesota, Pennsylva206 Kathleen Daly and Michael Tonry nia, Washington, Oregon, Kansas, North Carolina, and the federal sentencing commission, opted for equal treatment. They used the seriousness of the current offense and measures of previous lawbreaking to set sentencing standards. This translated to harsher sentences for women. In Minnesota, policy makers were conscious of the trade-offs. They decided that it was preferable to endorse the symbolism of gender-neutral equal treatment than to be concerned with potential increases in sentences for women (Parent 1988). An evaluation of the first three years of implementing the guidelines suggests that gender disparities in sentencing were reduced and that women's sentences became more severe (Knapp 1984). Monitoring data from most guideline systems show the same pattern of increased sentencing severity for women (e.g., Bogan and Factor 1995, p. 13). While raceand gender-based disparities may be reduced with "equal treatment" sentencing policies, there are negative consequences, as well. First, the decision to restrict sentencing criteria to current and past lawbreaking makes it difficult for judges to mitigate sentences to take account of offenders' personal circumstances. Since relatively few felony defendants come from middle-class backgrounds and close to half are black, an equal treatment policy disadvantages those poor, minority defendants whose lives show some social and economic success. Second, it is difficult for judges to tailor sentences to the distinctive demands of justice that are linked to racial, class, and gender differences. Race and gender relations have different histories and logics; at the same time, criminal justice policies may also suffer from viewing race and gender as being on separate tracks. By separatetrack thinking, we mean policies that address what are seen as special or unique problems of minority group members or of women. How to imagine the intersections of racial-ethnic and gender relations, while also appreciating their different logics and demands of justice, will continue to pose dilemmas for crime and justice policy. This essay examines the sentencing literature with the following questions in mind. What does the research show? How are race and gender conceptualized in the criminal process? What are the policy implications of theory and research in this area? The essay has five parts. The first summarizes data on arrest, confinement, and sentencing trends by race and by gender over the past two decades. The second surveys the statistical literature on race and gender disparities in sentencing; the third reviews several theoretical perspectives that have been proposed for thinking about race-gender intersectionalities; and Gender, Race, and Sentencing the fourth considers racial and gender politics in sentencing reform. The last offers recommendations for policy and future research. Before turning to these discussions at the beginning of Section I we discuss problems with terms such as "race," "crime," and "justice" and the limits of available data. I. Race and Gender in Official Statistics As anthropologists have long emphasized, "race" does not exist, that is, "there are no clearly isolatable populations of human beings that vary from one another significantly on... physical dimensions" (Meneses 1994, p. 139). Race refers instead to socially and historically constructed categories and identities. Like ethnicity and cultural identity, race may be best understood as a "means of group formation rather than the cause of it" (p. 141) (see also Georges-Abeyie 1989; Roediger 1991; Hall 1992; Frankenberg 1993; Ang 1995). However much anthropologists, historians, and biological scientists (among others) may stress that race, as a set of biological categories for human populations, does not exist, or that ethnic identities are actively constructed without clear origins or consistent elements, it is difficult to convince people of these ideas. Meneses (1994, p. 139) suggests that the reason is that people hold a "firm commitment to a folk theory of race ... because of the convenience of marking ethnic groups.., with physical features and because the symbolism of common ancestry . . . is powerful to maintain ethnic group coherence." In addition to fixed notions of "race," in the United States, the "black-white" racial dualism obscures a more complex picture of racial and ethnic relations, especially the relational histories of Hispanic Americans, Native Americans, African Americans, and Asian Americans to each other (Mann 1993; Martinez 1993; Takaki 1993; Omi and Winant 1994). There is a sharp disjuncture between a contextual and socially constructed understanding of race and ethnicity and how statistical data on crime, courts, and prisons are gathered. Statistical categorization presumes a fixed quality or "essence" to racial and ethnic differences, when such differences are more fluid. But even if one wanted to work with extant statistical categories, the data on racial and ethnic categories may be available in some sources (e.g., arrest and prison populations) but fragmentary or absent in others (e.g., victimization and national court data). This makes comparisons across data sources difficult. Another major problem is that, with some exceptions, crime and justice system data lack measures of class standing; thus, analyses 208 Kathleen Daly and Michael Tonry use "race" as a surrogate for discussing class and crime, when a more satisfactory approach would be to analyze class and race together. Despite these recognized problems, we use the national data available to us and the folk theory of race on which the data are based: black and white as dichotomous race groups, and without reference to class standing. "Male" and "female" have a more secure biological referent, and the statistical categorization of gender groups is somewhat less contentious than that for race and ethnicity (but for feminist challenges, see Gatens [1996]). Yet serious problems remain. Arrest and court data examine race and gender separately, but not together. This is a major problem because the most interesting analytical and political questions center on the intersections of race and gender, not merely the separate categories of "black," "white," "male," and "female." Crime and justice system data are limited by the very terms in which these phenomena are counted and explained: crime is a state-created definition and phenomenon. That is not to say that harms of various types are not "real" or that people do not suffer them, but that certain harms are more easily counted and detected than others (common law crimes compared with various organizational and occupational crimes, or crimes between strangers compared with crimes between intimates) and that certain offenses become a targeted focus of policing and criminal justice activity. The historical shifts in the meaning and content of particular crime categories, themselves heterogeneous groupings of diverse harms, must always be kept in mind. Although this essay does not address the sociological and philosophical literature on crime, punishment, and justice, we find Hudson's (1996, pp. 151-52) distinction between punishment and justice a useful one. She argues that "punishment cannot be a synonym for 'justice' ": whereas the former concerns the infliction of pain, the latter concerns "the balance between individual freedom and social responsibility [and] . . . the fair distribution of the rights and responsibilities of citizenship." When we use the phrase "the distinctive demands of justice," we have in mind a meaning of justice as the "right" response to the particulars of the harm and the case. We argue that race and gender relations have different histories and logics, and by that we refer to the mechanisms and practices by which racial and gender oppression are structured, enacted, reproduced, and challenged. Ultimately, more "just" decisions in individual cases (or across groups of cases) would address these broader configurations of inequality. Current sentencing policy remains rooted in notions of individual responsibility, denying Gender, Race, and Sentencing the larger societal inequalities and histories of race and gender relations. Within these narrowly circumscribed terms, however, there remain competing demands of racial and gender justice, which scholars and policy makers have not yet addressed. A. Arrests Because arrests are the starting point of the criminal process, they set basic patterns on which later official decisions embroider. They also provide the first indication that patterns of lawbreaking differ for blacks compared with whites and for women compared with men, even though blacks and women both occupy subordinated social positions. Arrests do not give an optimal picture of criminal behavior, and no one is sure how good a picture they do give. Some unlawful behavior results in people being taken into custody, and some takings into custody result in arrests being officially entered in police records. Policies and conventions governing such decisions vary over time and place; arrest data are as much a measure of official behavior as of criminal behavior. Thus, when examining gender, race, and arrest statistics over time, it is unclear whether apparent shifts in the black or female share of arrests reflect "real" changes in lawbreaking or changes in police responses to crime. Varied data sources suggest that there are "real" race and gender differences in crime involvement, especially with street forms of violent crime (blacks higher and women lower) and elite or white-collar forms of property crime (men and whites higher) (see Blumstein 1982; Daly 1989c; Harris and Meidling 1994; Tonry 1995, pp. 49-80). However, cross-national trend data on gender and arrests suggest that enhanced police record-keeping practices, coupled with credit-based currency systems, can explain increases in women's arrests for the less serious forms of property crime and fraud (Steffensmeier, Allan, and Streifel 1989; Steffensmeier 1993, 1995). 1. Gender and Arrests. The data on gender and arrests show three patterns (table 1, pts. A-C).5 First, arrest rates for women are lower than for men. For all offenses combined, men's arrest rates are over four times greater than women's. Second, men's and women's arrest I Our tables are similar to Steffensmeier's (1993, 1995) method of arraying gender and arrest data in that we group the offense categories to reflect similar clusters of behavior rather than by index and nonindex offenses. Our rates of arrest differ from his, however, in that our base is the entire U.S. population whereas his is the population aged ten through sixty-four years. Also, when calculating the female (and black) shares of arrests, we use the raw numbers, not the arrest rates as Steffensmeier does. Readers will notice slight differences in our calculations as a result.