Using data from the United States Sentencing Commission (USSC) from 2001 to 2003, I examine the role of gender in the sentencing of defendants in federal courts and investigate the multiple ways in which gender influences legal decision making and sentencing outcomes. Researchers have been slow to investigate female defendants and why women tend to be treated more leniently than men at the sentencing stage, with a majority of past studies focusing on male defendants and differences between racial and ethnic groups. To be sure, a small body of research has emerged that examines the gender gap in sentencing. However, many of these studies have not sought empirically to explain the gender gap or outline the different sources of gender-based sentencing disparity, relying instead on theoretical arguments and less than robust statistical analyses. Furthermore, prior investigations of the gender gap are dated; most existing studies rely on data from the 1970s and 1980s and use smaller state data sets or single city samples.
In the present study, I address three related questions concerning the gender gap in sentencing. First, is the existence of a gender gap uniform across all kinds of cases or does it only exist under certain circumstances? For example, is the gender gap larger in drug cases than in non-drug cases? And, does gender play a larger role in cases sentenced according to the prescribed guidelines or in cases that fall outside the sentencing guidelines? Second, can the gender gap be explained by legal (e.g., departures) and extralegal (e.g., number of dependents) differences between men and women that have yet to be examined by other researchers? Furthermore, do these legal and extralegal factors have the same impact for male and female defendants that is, are gendered explanations required? Third, do the effects of gender and race/ethnicity interact such that the meaning and impact of gender at sentencing depends in part on race and ethnicity? This research is grounded in three theoretical perspectives that speak to the potential importance of gender in legal decision-making: Steffensmeier's (1980) focal concerns perspective, Black's (1976) theory of social control, and the paternalism hypothesis/perspective.
Overall, I find that female defendants receive more lenient sentence outcomes than their male counterparts. However, the gender gap is not uniform across all kinds of cases. For instance, a smaller gender gap exists in fraud cases than in drug trafficking and firearms cases. And, the gender difference in the likelihood of receiving an incarceration sentence is smallest among those defendants sentenced within the guidelines vis-à-vis those receiving some form of sentencing departure. However, for sentence length decisions, the gender gap is smallest for defendants receiving substantial assistance departures. Also, female defendants are more likely to receive a sentencing departure than male defendants.
Analyses show that legal factors account for a large portion of the gender differences found between male and female defendants. But, even after controlling for these legal characteristics, a substantial gap in sentencing outcomes remains. Looking at the effects of extralegal factors, despite their influence on sentencing outcomes, these characteristics do not help to close the gender gap. However, when male and female defendants are examined separately, I find that although legal factors weigh equally for both groups, extralegal factors do not. More specifically, level of education plays a significant role in the decision to incarcerate males, while having dependents plays an important role in the sentence length terms given to females.
Finally, I find that female defendants in all racial/ethnic categories receive less severe sentences than male defendants in the same racial/ethnic groupings. But, the race gap is larger among males than among females. Hispanic males are more likely to be incarcerated than whites and black and Hispanic males receive longer sentences than do white male defendants. Interestingly, among women, white female defendants receive more severe sentence outcomes than black females. I also find significant gender x race/ethnicity interactions for different offense types, types of departures, and the likelihood of receiving a departure sentence.
The findings of the current study show that gender continues to influence the sentencing process in U.S. federal courts despite guidelines designed to avoid differential sentencing. For instance, judges and prosecutors circumvent the guidelines through the use of sentencing departures and ultimately treat female defendants more leniently than male defendants. Although many explanations may exist for this behavior, one possibility may be that judges treat women more leniently for practical reasons, such as their greater caretaking responsibility. Furthermore, theories of sentencing and social control suggest that the increasingly harsh punishments demanded by formal rational sentencing guidelines may be viewed as inappropriate for women and have been rejected in favor of a substantive rational approach.