Gender and Differential Treatment through the Criminal Justice Process - Free Paper Sample

Generally speaking, female offenders have always been at the margin of the criminal justice process. There usually is an undocumented agreement among prosecutors as well as other criminal justice professionals that females tend to pose a considerably lesser risk to public safety. Even more, historical sentencing outcomes, pre-trials, studies of arrests, as well as theories of criminal behavior have always centered on issues generally derived from studying male criminals. Even though these studies and theories are obviously skewed on a particular gender, and mostly portray a lack of interest among female wrongdoers, the majority of criminal justice professionals still argue that men have been more frequent and predicted offenders, especially when it comes to violent criminal offenses. Most apparently, however, in most theories and studies, is the limited attention given to the role of gender during sentencing and whether both male and female wrongdoers should be accorded similar or different treatment in the criminal justice process. Overall, even in the current judicial systems, the role of gender is still viewed as a legally irrelevant element in decision-making and guideline systems; however, there still remain a number of ways in which biased judges and other criminal justice professionals take gender into account during sentencing. For instance, due to biased criminal justice guidelines, prosecutors and judges may consider factors such as family responsibilities and ties to grant women better sentencing compared to their male counterparts based on the fact that such issues are more applicable to them. Even so, gender should not matter or be taken into account for the differential treatment through the criminal justice process for many reasons.

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In many judicial systems, female offenders tend to receive more favorable sentencing outcomes compared to their male counterparts across all racial-ethnic groups. Indeed, at the sentencing level, gender tends to have a significantly independent influence on the decisions of many judges and prosecutors. In many cases according to Jeffries (2002), female offenders are usually granted lenient dispositions irrespective of the seriousness of an offense, criminal history, or total counts compared to male wrongdoers. Even in situations where offenders may affirm their deeds by pleading guilty, women defendants are less likely to be incarcerated and more likely to have their whole sentencing dismissed. To many people, and particularly feminist scholars, the differential treatment in criminal justice, where women are given fair sentencing is warranted since women have been historically disadvantaged. However, this narrow view of gender-based differential treatment in the criminal justice process may actually be problematic. Overall, this is due to the fact that special treatments usually granted to women by judges and other criminal justice professionals for whatever reason tend to reaffirm the long-standing dominance of men over women (Jeffries, 2002). Many view this sentencing protection of female offenders as an ideological front for patriarchy where women are traditionally considered to be weak, dependent, emotional, and generally weaker than men. As a result, differential treatment may negatively impact women’s psychological, political, economic, and social fight for equality and self-determination. For women to claim equal treatment, when equal means dominance as it does with gender, then they must certainly accept the qualities, characteristics, as well as consequences that come with it. In this case, the same treatment between men and women is subsequently proposed in the criminal justice process since accepting differential treatment may affirm the initial notion that women, in general, are different from, and thus, lesser than their male counterparts.

Besides the debate within feminism on why courts should grant female offenders differential treatment, there are certain myths that are often misleading but are still peddled around to justify the bias currently happening in the criminal justice process. As shocking as it may seem, the majority of people still believe that in the current judicial system, female offenders are more likely to be sent to prisons, and at the same time very likely compared to male offenders to be given custodial sentencing. Of course, this analogy is simply untrue if not misinformed. Although many studies have been slow to examine female offenders and why historically women tend to be accorded a more lenient treatment than men during the sentencing process, empirically, it is quite evident that the majority of the incarcerated individuals are male offenders when compared to female wrongdoers of all ages. According to Covington and Bloom (2003), just about 5 percent of the prison population at any one time in the recent history of incarcerated individuals has been female while the remaining 95 percent are male. It begs the question as to why so much time, concentration, and effort have taken place over this small number of females in prison; some actually advocating for the numbers to reduce significantly. As Covington and Bloom (2003) find, although female offenders were no more likely than their male counterparts to be sent to jail, criminal justice professionals tend to accord them suspended sentences than men. For some unethical reasons, judges view women as a weaker gender and, therefore, are more likely to give them fines, probation, and suspended sentences. On the other hand, many are usually considered to be hardcore offenders and dangerous, therefore, judges are more likely to give them fixed terms of imprisonment and not indeterminate terms usually accorded to women. In addition, the research findings suggest that most offenders who are usually sentenced to incarceration for less than a year tend to be female criminals while males are most likely to be given extended sentences (Covington & Bloom, 2003). These findings clearly indicate some of the few reasons why the majority of incarcerated individuals across many state prisons are male.

Another myth that many peddle so as to fuel differential treatment through the criminal justice process is that many incarcerated women are in prison for petty and non-violent offenses. Many pro-differential treatments argue that there are already too many women in prison serving unfair sentences and should instead be allowed to serve their sentences in a community setting. This is an unfair argument because even male offenders in prisons are serving the same if not longer sentencing terms for the same crimes that their female counterparts committed. It is also quite ridiculous for many campaigners to argue that most female offenders only commit petty offenses since this is not the case when one looks at the actual details of all those poor women serving prison sentences, who should apparently, be freed from the oppressive prison system. Indeed, if one examines the records closely, many women, just like the majority of their male counterparts are incarcerated for serious crimes (Roberts, 1994). Just like men, there are women serving prison sentences for murder, manslaughter, or attempted suicide. Such kind of offenders in any view should receive similar sentencing as men. Moreover, some women are in prison for wounding, serious assaults, and other violence against the person, rape, cruelty to children, violent robbery, drug trafficking, burglary, arson, and even kidnapping. Such offenders should receive the same kind of sentencing irrespective of gender. Some campaigners also argue that not every incarcerated woman is bad, and those incarcerated for petty crimes such as theft and handling stolen goods should be granted a fair hearing and released from prison. If that is done and 200 incarcerated females are released, for example, to be fair, the same should be done to over 5000 male offenders incarcerated for similar crimes.

Some myths within the judicial system argue that differential treatment should be granted to women since the majority of them are often remanded in custody and then do not get sentenced to the same. The analogy here is quite untrue since according to the Ministry of Justice, female offenders are more likely to be granted bail than men (Whitman, 2009). Overall, although gender differences in the criminal justice system have not been static, it is quite evident that female offenders are often less likely to be arrested leave alone remanded to custody. As a matter of fact, whenever women are arrested, they are more likely to be sentenced leniently compared to similarly situated male wrongdoers. It is also evident in most cases that the system is a double-edged sword since many guidelines still allow judges to convict male offenders for minor public order offenses such as DUI for which women would only receive tickets or warnings (Whitman, 2009). In some cases, judges tend to recommend harsh guidelines for men since they are considered violent while the law allows judges to accord women indeterminate sentences since they are viewed as more amenable to rehabilitation. Even more, such criminal justice professionals deem women as “trainable” and, therefore are usually sent to reformatories, while their male counterparts are seen as masculine and often subject to incarceration in penal institutions.

When it comes to differential treatment through the criminal justice process, many campaigners contend that prisons unfairly punish mothers as they separate them from their young ones. It is usually said that thousands of children are separated from their mothers since more than half of female offenders in custody have children under the age of 18 (Whitman, 2009). While this might sound like a genuine argument for differential treatment in court, it is imperative to note that it is not the judicial system that separates mothers from their young ones, but rather the actions of these parents in breaking the law that has driven them to incarceration camps. Although the judicial system may seem harsh to mothers, data from the Ministry of Justice indicate that the majority of these mothers who usually end in prison tend to neglect their children, and are sometimes not even looking after their young ones at the time of the arrest (Whitman, 2009). Some of them do not have their children living with them during their repeated acts of crime. Even with the benefit of the doubt for those who actually take care of their children, it would be inappropriate to assume that they are perfect parents because some continue living chaotic lifestyles that are not fit for children. Consequently, these so-called “perfect” mothers may eventually drag their young ones into their web of criminal lifestyles, a scar that can follow them into adulthood. Generally speaking, if the criminal justice system is seriously concerned about the children of female offenders, then it is only fair to consider thousands of children who are growing up without fathers because they are in prison. Indeed, if equality is in question, then the justice system should consider the numbers and decide which gender is separated more from their children.

There is also a misconception that women are generally treated more harshly compared to men in the criminal process. Ideally, the argument is misleading because, given the figures, it is quite clear that female offenders are favored especially in courtrooms than male offenders of similar crimes (Maluleke, 2012).