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ISSUE 054 · DEEP DIVE · MYTHS & MISINFORMATION

Sonja Starr, a law professor then at the University of Michigan, did something most sentencing researchers had not. Instead of picking up the case file at sentencing, she linked federal cases from the moment of arrest all the way through to the sentence handed down.

Controlling for arrest offence, criminal history and other things known before any charge was filed, she found that men received sentences averaging 63 per cent longer than women. Women were also significantly more likely to avoid charges and convictions altogether, and twice as likely to avoid incarceration if convicted.

For scale: in the United States, men are around fifteen times as likely to be imprisoned as women.

The comparison that should stop you, though, is this one. Starr noted that the gender gap she measured was roughly six times the size of the racial disparity earlier research had found in the same system. Racial disparity in American sentencing is a permanent national argument, taught in law schools, litigated, legislated about. The gap six times larger than it barely registers.

Now the part that keeps this honest, because if you go looking you will find wildly different numbers.

Mustard found around 12 per cent. Schanzenbach found 11. Sorensen and colleagues found 30. Starr found 63. At a glance that looks like a field that cannot make up its mind, and it is exactly the sort of spread that lets anyone pick the figure they like.

It is not disagreement. It is measurement at different points in the process.

The smaller estimates look at the sentencing decision itself, controlling for the charge the defendant faces. But the charge is not a fact of nature. Somebody chose it. Starr's point is that by the time a case reaches sentencing, most of the disparity has already been baked in by earlier decisions, and controlling for the charge quietly controls away the very thing you are trying to measure.

Her decomposition puts most of the gap in the stages before the judge: what the prosecutor charges, what gets bargained away in a plea, and the fact-finding at sentencing that prosecutors dominate. Mandatory minimums — the single most powerful lever a prosecutor holds — are a major contributor in drug cases, which made up around 59 per cent of her sample.

There is one finding here that is worth pausing on, because it runs the opposite way to the intuition.

The gender of the judge affects the size of the gap. The gender of the prosecutor does not. Using changes in court composition between 2000 and 2003, researchers found that a one standard deviation increase in the number of women on a court reduced the gender gap by about 10 per cent.

So more women on the bench narrows the advantage that women defendants enjoy. Whatever is producing the gap, it is not women looking after women.

Here is where this stops being a story about hidden prejudice and becomes something considerably more awkward.

In England and Wales, being a sole or primary carer for a dependent child is formal mitigation. It sits in Sentencing Council guidance, with particular weight when an offender is, in the guidance's own phrase, on the cusp of custody, and courts are directed to make sure they have the relevant information about dependent children before sentencing.

Women in prison are far more likely than men to have been the primary carer for a child before their sentence. So a policy that is gender-neutral on paper produces a systematic gender difference in practice, entirely on purpose, and entirely in public.

That is not unconscious bias. It is a deliberate choice, written down, that nobody particularly campaigned for and nobody voted on. And it is a real choice with a real argument behind it — the guidance exists because imprisoning a primary carer punishes the child too. You can think that is right. You just cannot call the resulting gap an accident.

Two facts sit awkwardly with the simple version of this story, and leaving them out would make the rest less believable.

First, English data have recorded conviction rates that are higher for women than for men, and women being more likely to receive short prison sentences rather than non-custodial ones. The advantage is not uniform across every stage or every jurisdiction.

Second, the gap varies enormously by offence. In one English breakdown the male-to-female ratio for immediate custody ran from about 1.1 in sex offences to 2.3 in fraud and forgery. A single average across all crime hides most of what is going on.

Starr's own reading of her results is the opposite of a call for retribution, and it deserves quoting because it is the part that always gets dropped.

The answer, she wrote, is not necessarily to lock up a great many more women. It is perhaps to reconsider the decision-making criteria being applied to men.

About one in every fifty American men is currently under some form of correctional control. If a system treats one group with markedly more leniency than another for the same conduct, there are two ways to close the gap, and only one of them makes fewer people miserable.

Starr, S. B. (2012). “Estimating Gender Disparities in Federal Criminal Cases.” University of Michigan Law and Economics Research Paper No. 12-018.

Mustard, D. B. (2001). “Racial, Ethnic, and Gender Disparities in Sentencing: Evidence from the U.S. Federal Courts.” Journal of Law and Economics 44(1).

Schanzenbach, M. (2005). “Racial and Sex Disparities in Prison Sentences: The Effect of District-Level Judicial Demographics.” Journal of Legal Studies 34(1).

Sorensen, T., Sarnikar, S. & Oaxaca, R. L. (2012). “Do You Receive a Lighter Prison Sentence Because You Are a Woman?” B.E. Journal of Economic Analysis & Policy.

Butcher, K. F., Park, K. H. & Piehl, A. M. “Comparing Apples to Oranges: Differences in Women's and Men's Incarceration and Sentencing Outcomes.” Journal of Labor Economics.

Hjalmarsson, R. et al. “The Persistence of the Criminal Justice Gender Gap.” IZA conference paper, 2018.

Sentencing Council (England and Wales), guidance on sole or primary carer status as mitigation; Ministry of Justice, Statistics on Women and the Criminal Justice System.

Minson, S. “Sentencing and Dependents: Motherhood as Mitigation,” and related work in Criminology & Criminal Justice.

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