Explaining the Gender Gap in the Criminal Justice System: How Family-Based Gender Roles Shape Perceptions of Defendants in Criminal Court

By Katharina Geppert
2022, Vol. 14 No. 02 | pg. 1/1

Abstract

Numerous studies have investigated why women are vastly underrepresented in prisons across the United States. In explaining this “gender gap,” scholars have found that women are treated more leniently than men at various stages of the judicial process. Explanations for women’s lenient treatment are often oversimplified as “sex differences” in criminal behavior and could benefit from further investigation. Through qualitative interviews with federal judges and attorneys, as well as observations of criminal court proceedings, this study examines how the family, as a site of inquiry, produces lenient court outcomes for women, specifically at the detention and sentencing stages. This study hereby considers the role of the “caretaker” in the American nuclear family ideal, as well as the gendered norms, rules, and expectations for women’s performance of this role. The findings of this study show that female defendants are treated leniently not because of their gender alone, but rather due to the responsibilities they are expected to uphold in the family.

Introduction

Women are vastly underrepresented in the criminal justice system in the United States (Motivans 2019). According to the Federal Bureau of Prisons (2021), women account for 6.7% of the federal prison population — a “gender gap” that has led criminologists, legal scholars, and sociologists to investigate disparities in the treatment of male and female defendants in criminal court (Nagel & Weizman 1971; Daly 1989b; Spohn & Beichner 2000; Starr 2012; Frazier et al., 1983). Many have argued that differences in men’s and women’s criminal behavior, or so-called “sex differences” in criminality, explain the gender make-up of the federal prison population (Steffensmeier & Clark 1980; Bennett et al., 2005). Based on arrest and conviction rates, for one, women commit crimes at significantly lower rates than men (Nagel & Hagan 1983; Reckless 1957; Raeder 1993). Additionally, the crimes most often committed by women are non-violent and carry milder sentences (Nagel & Hagen 1983; Haney 2013).

While divergences in criminal behavior could explain women’s underrepresentation in the federal prison system, they do not explain why women are treated leniently across several stages of the judicial process (Daly & Tonry 1997; Moulds 1978; Nagel & Weitzman 1971; Reckless 1957; Starr 2012). For instance, even among defendants accused of similar offenses, women are between 12-23% more likely to receive non-incarceration sentences (Rodriguez et al., 2006; Gruhl et al., 1984; Starr 2012; Spohn & Beichner 2000; Frazier et al., 1983). Similarly, women receive between 10-63% shorter prison sentences and are 26% more likely to be released on bail pending trial (Starr 2012; Nagel & Weitzman 1971; Kruttschnitt & Green 1984; Spohn 2009). The full picture as to why women receive greater leniency in criminal court and are more sparingly incarcerated remains unclear. To explain the gender gap in the criminal justice system, we must examine other explanations for the disparate treatment of male and female defendants.

The family as a social force and institution has rarely been considered as a source of gender bias in criminal court. As a fundamental pillar of American society, the family is the primary site of gender role socialization — the process through which we learn to distinguish between feminine and masculine behavior and adapt the corresponding attitudes, norms, and expectations for manhood and womanhood (West & Zimmerman 1987; Liao & Cai 1995; Carter 2014). It is well documented that the family shapes children’s perceptions of gender starting at infancy (Brim 1958; McHale et al., 1999). Yet, the idea that the family also influences judges’ perceptions of gender and leads to biases in court remains vastly underexplored. Some aspects of the family have been examined in the context of the criminal justice systems. Numerous scholars have linked certain relationships to downward departures from the sentencing guidelines, priviledging defendants with families (Markel et al., 2009; Berman 2001; Burke 2010; Ellingstad 1992). For instance, it is widely accepted that the presence of local family ties during bail and detention hearings increases defendants’ chances of release pending trial (Daly 1987a; 1987b). While pro-family attitudes and gender discrimination in the criminal justice system are well established individually, few have examined family and gender in tandem.

This study explores the multifaceted relationship between family and gender in criminal court. Using qualitative interviews with federal judges and defense attorneys, as well as observations of court hearings, this study investigates how family circumstances, ties, and responsibilities affect judicial perceptions of male and female defendants. Building on Kathleen Daly’s (1987a; 1987b; 1989a; 1989b) work, this study specifically focuses on judicial considerations of family-based gendered roles, norms, and expectations for women. Within this discussion, I consider the gendered division of labor characteristic of the 1950s nuclear family ideal, specifically women’s roles as caretakers, mothers, and wives. I will discuss the social construction of these roles and explore how women’s positioning within the home affects their treatment in criminal court. To explain my findings and ground them in the existing literature, I use judicial paternalism and social cost theory as frameworks — each of which offers a unique perspective of the gender gap in the criminal justice system.

Background: The Nuclear Family Ideal

In American society, a nuclear family consisting ofa heterosexual married couple and their biological children is seen as ideal (Coontz 1992; Collins 1998; Barker & Feiner 2004). In this family archetype, each parent fulfills a distinctly gendered role: the female parent fulfills all homemaking and childcare obligations as the “caretaker” while the male parent ensures financial stability as the “breadwinner” (Barker & Feiner 2004; Woods 1995; Zuo & Tang 2000).

While this division of labor might seem natural given women’s biological role as child-bearers and men’s perceived physiological advantages, it is socially constructed (Woods 1995; Holstein & Gubrium 1995). As Barker and Feiner (2004) wrote, the word “family” derives from the Latin “familius” which translates to “a man and his servants.” Although patriarchal family structures have existed for a long time, western conceptions of family have constantly evolved (Mintz 2001). The 17th-century Colonial family had an extremely homogeneous division of labor: men, women, and children alike performed domestic and agricultural tasks to survive (Coontz 1992; Barker & Feiner 2004; Mintz 2001). It was not until the Victorian era in the 1830s and 1840s that roles were divided by sex and age, creating separate spheres for men and women in affluent white families (Coontz 1992; Woods 1995). Men left domestic production to pursue new employment opportunities created by the industrial revolution, establishing the role of the breadwinner. Women, specifically white, affluent, non-immigrant women, were positioned exclusively within the home as domestic caretakers (Gordon & Nair 2006; Coontz 1992; Barker & Feiner 2004; Kerber 1988). In contrast, most working-class women, immigrant women, and women of color worked outside of their homes in addition to maintaining their own households, creating a “second shift” that many women still experience today (Coontz 1992; Hochschild & Machung 2003).

In the 1950s, the gendered division of labor in the “ideal” family was exacerbated. White, middle- and upper-class women had entered the workforce during World War II to fill the roles of enlisted men but were forced to return to homemaking or demoted to lower-paying jobs after the war (Creese 2014; Coontz 1992; Peterson 1964; Mintz 2001). Legal restrictions such as women’s exclusion from voting, college education, and professional training, coupled with the idealization of housewives reinforced white, affluent women’s centrality in family life (Filene 1986; Coontz 1992; Barker & Feiner 2004). While white men set out on quests for self-realization in the public sphere, white middle- and upper-class, non-immigrant women were restricted to the private sphere of the home, giving rise to the “cult of True Womanhood” — the idea that a woman’s most important attributes are piety, purity, submissiveness, and domesticity (Welter 1966; Coontz 1992; Woods 1995; Kerber 1988).

While this archetype of the 1950s nuclear family continues to be idealized in the U.S. it has never described the reality of most and has excluded people of color, immigrants, and working-class families (Coontz 1992; Barker & Feiner 2004; Collins 2015). In fact, the “cult of True Womanhood” as well as the separation of the private and public spheres have only existed for affluent white families because of the work that many women of color, immigrant women, and women from lower socio-economic backgrounds performed as domestic workers (Coontz 1992; Collins 2015). Yet, our society continues to uphold its associated norms, rules, and expectations, which shape our understanding of gender, race, and class (Barker & Feiner 2004; Collins 1998; Zuo & Tang 2000). Historically, white, affluent men have maintained control over public institutions by hindering women’s ability to achieve economic independence and by relying on women’s work in the home (Coontz 1992; Filene 1986; Barker & Feiner 2004). Despite differences in family responsibilities among class and racial groups, this caretaker/breadwinner dichotomy has broadly disenfranchised women economically, politically, and socially, feminizing housework and childcare (Filene 1986; Collins 1998; Hochshild & Machung 2003). It is this gendering of family responsibilities that needs to be accounted for to understand gender disparities in our criminal justice system.

Judicial Guidelines for the Consideration of Gender & Family

To analyze judicial decision-making practices, one must acknowledge the legal guidelines on the use of gender and the family. The United States Sentencing Commission (USSC) (2018) states that race, sex, national origin, creed, religion, and socio-economic status may not be considered during the determination of a sentence. While judges are instructed to disregard a defendant’s sex, the gender gap in our criminal justice system shows that this rule is often disregarded, demonstrating the need for observational research.

The guidelines on the use of family circumstances are less clear. The USSC (2018) points to the “general inappropriateness” of considering offenders’ family ties (p. 458). Nonetheless, ambiguous language and the provision of exceptions allow the family to become relevant. For instance, the USSC (2018) states that “the court may consider, without limitation, any information concerning the background, character and conduct of the defendant” (p. 33). The vagueness of the terms “background,” “character,” and “conduct” allows judges to acknowledge various aspects of defendants’ family lives. Childhood can certainly be deemed “background” given that one’s upbringing affects socioeconomic status.

More overtly, the USSC (2018) provides a “non-exhaustive list” of reasons that justify family-based departures from sentencing guidelines. Many of these reasons rely heavily on the caretaker/breadwinner model. For example, downward departures may be justified if there is a “substantial, direct and specific loss of essential caretaking, or essential financial support, to the defendant’s family” (USSC 2018, p. 462). While family-based justice may be well-intended, it undermines other necessary rules that protect defendants from discrimination. To qualify the loss of financial support, for one, judges must consider the defendant’s employment history, which is undoubtedly an aspect of socio-economic status. Given that the roles of the breadwinner and caretaker are distinctly gendered and shape perceptions of men’s and women’s roles in our society, a defendant’s gender may also become relevant. Consequently, the assessment of family responsibilities introduces biases that prevent the judicial process from being neutral to gender, race, class, and other social identities.

Literature Review

This paper examines and builds on the works of a few authors who have used aspects of the family to explain the lenient treatment of women in criminal court. Candace Kruttschnitt (1982a; 1982b) used statistical analyses of female offender data provided by a California Probation Department to explain women’s lenient treatment using social control theory. While she found convincing evidence for women’s lenient treatment due to their susceptibility to economic dependence, Kruttschnitt’s findings on the effect of family-based social control were less consistent (Kruttschnitt & Green 1984; Kruttschnitt & McCarthy 1985). As a result, the author calls for the inclusion of “not only an array of gender-related statuses but also the attitudes of the judiciary” in future studies (Kruttschnitt & McCarthy 1985, p. 170).

To fill these gaps, Kathleen Daly (1987a; 1987b; 1989b) used qualitative interviews with judges that offer a more inclusive perspective on the role of family ties. Daly (1987a; 1987b; 1989b) found that men and women with families are treated more leniently but argued that judges value caretaking more than breadwinning responsibilities, leading to more favorable outcomes for women. In her conclusion, Daly (1987a) recommended that “future research should consider the joint influences of gender and familial status, not gender alone, as this interacts with the nature of offenses charged” (p. 169).

Using federal sentencing data from pre-sentence investigation reports and other court records, Bickle and Peterson (1991) found statistically significant effects of family variables, such as marital status and presence of dependents, on sentencing decisions for male and female defendants. While the authors confirmed that family-based criteria influence court outcomes, they also stressed the need for additional research of the “possibly unique expectations regarding family structure and role occupancy/performance for different combinations of racial, ethnic, class, and gender groups” (Bickle & Peterson 1991, p. 392).

Despite compelling findings brought forth by studies of the 1980s and 1990s, the relationship between family and gender has been neglected in recent decades. This study offers an updated, contemporary view using 21st-century criminal court outcomes and sheds light on dynamics that were previously unacknowledged, particularly by quantitative studies. While statistical analyses can show that a relationship exists, they cannot identify the specific biases, perspectives or expectations that shape judicial decision-making. Like Daly, I used observational research to determine why and how judges utilize aspects of the family to evaluate defendants. This study further developed Daly’s findings by digging deeper into the intersections between family and gender that shape social norms, rules, and expectations for men and women. By acknowledging that gender impacts our social standards for the family, this study uncovered explanations for the lenient treatment of female defendants that have been oversimplified or overlooked. To do so, I examined two theoretical frameworks that are associated with the gender gap in the criminal justice system: judicial paternalism and social cost theory.

Judicial Paternalism

One frequently used explanation for the gender gap is judicial paternalism, which refers to male judges’ chivalrous or protective attitudes toward female defendants (Daly 1987b; Armstrong 1977; Herzog & Oreg 2008; Frazier et al., 1983). In greater society, paternalistic attitudes are rooted in the sexist stereotype that the women are “weak” and need to be protected (Nagel & Weitzman 1971; Nagel & Johnson 1994; Daly 1987b). Numerous scholars have argued that paternalism has long shaped the criminal justice system. Moulds (1987) referenced the case Bradwell v. The State of 1872 during which members of the U.S. Supreme Court stated that “man is, or should be, a woman's protector and defender” due to the “natural and proper timidity and delicacy” of the female sex (p. 418). Similarly, Giallombardo (1966) argued that women’s criminal behavior is often characterized as erring and misguided rather than malicious and dangerous. Others have suggested that judges treat female defendants leniently to protect them from the dangerous prison environment (Daly 1987b).

Some scholars have questioned the relevance of judicial paternalism or found that it can lead to harsher court outcomes for women (Chesney-Lind 1986; Parisi et al., 1982). Anderson (1976) contended that the chivalrous treatment of female defendants is a myth that trivializes women’s criminal capacity. Rasche (1974) wrote that women are typically viewed as righteous but are punished more severely when they fall off “the pedestal” their morality is placed on (p. 307). Nagel and Hagen (1983) shed light on the “evil woman thesis” – the idea that women are sanctioned more harshly because their criminality defies gender norms. Scholars have also determined that not all women benefit from judicial paternalism equally (Gruhl et al., 1984; Herzog & Oreg 2008). Race, for instance, has been studied in connection to judicial paternalism, though with mixed results. Nagel and Weitzman (1971) found that white women benefit more from paternalistic attitudes than Black women, while Gruhl et al. (1984) argued that Black and Hispanic women are more often subjected to judicial paternalism than white women. Due to the racial homogeneity of my sample group and the scarcity of female defendants in the federal court system, this study cannot further clarify how race affects the judicial paternalism hypothesis. It is nonetheless critical to acknowledge that the family-gender relationship also intersects with race and class — intersections that should be considered in future qualitative studies.

Despite the prevalence of the paternalism hypothesis, its roots in the family are largely unacknowledged. Deriving from the Latin term “pater” (father), paternalism mirrors the power dynamic between an authoritative, protective father and a defenseless child (Fernández-Ballesteros et al., 2019). Mirroring the patriarchal family hierarchy, male judges may treat female defendants in a “fatherly” manner to compensate for women’s subordinate social status (Nagel & Weitzman 1971; Moulds 1978). For instance, Daly (1989b) showed that male judges frequently associate female defendants with women they are protective of in their families, such as their daughters, wives, and sisters. Given its roots in the family, it is important to consider that judicial paternalism might be aimed at the protection of families rather than women (Gruhl et al., 1984; Daly 1987a; Daly 1987b). This study builds on this hypothesis by exploring how family-based factors shape the use and application of paternalistic attitudes and, in turn, produce gendered court outcomes.

Social Cost of Punishment

Another prominent conjecture is social cost theory which argues that judges weigh the benefits and costs of imprisonment to society. Daly (1987a; 1987b; 1989b) found that judges are extremely concerned about the well-being of defendants' family members. Jailing defendants with child care obligations, for example, negatively impacts children — a vulnerable population that the government aims to protect (Hagen & Dinovitzer 1999; Daly 1987b; Dodge & Pogrebin 2001). Similar concern is shown for the dependents of breadwinners who rely on the defendants' incomes (Daly 1987b; 1989b).

While female and male defendants benefit from the presence of dependents, judges associate a higher social cost with the removal of caretakers than with breadwinners (Daly 1987b; 1989b). The state can supplement financial losses with social security and unemployment benefits but cannot easily replace physical and emotional caretaking labor (Daly 1987b; 1989b; Hagen & Dinovitzer 1999; Dodge & Pogrebin 2001). Given womens’ overrepresentation in the caretaker role, Daly (1987a; 1987b; 1989b) found that female defendants are more often granted leniency than male defendants, creating a gender gap in the criminal justice system.

Beyond the logistical challenges of imprisoning female defendants with children, Harris (1977) argued that those who most frequently make and enforce the law – white middle- and upper-class men – do not benefit from obstructing women’s performance of caretaking labor. Although judges might not consciously consider this, the removal of caretakers from the private sphere of the home does not serve men’s governance of the public sphere (Harris 1977). As a result, jailing female defendants disrupts childrens’ lives and threatens the foundation of white male hegemony (Harris 1977; Barker & Feiner 2004).

This study draws from judicial paternalism and social cost theory to explain the gender gap in the criminal justice system via the family. My findings substantiate Daly’s (1987b; 1989b) research but address aspects of the family that have previously been neglected. Earlier studies, for instance, fail to ground their findings in the historic construction of the nuclear family ideal. By considering how social norms, expectations, and rules for the family shape our understanding of gender and vice versa, this study unveils additional layers of complexity to judicial paternalism and social control theory. Additionally, to determine how perceptions of womanhood and manhood, and, in tandem, motherhood and fatherhood, shape evaluations of defendants, it is crucial to examine the opinions, biases, and attitudes that influence judges. This is only possible through interviews with judges and other legal officials, as well as observations of real-life interactions between legal decision-makers, defendants, and their families.

While most federal court proceedings are public and easily accessible, gaining access to judges, attorneys, and prosecutors can be challenging. Due to the sensitive nature of their work and expectations of strict impartiality, judges are generally disinclined to converse with members of the public regarding their legal practices, particularly in regards to biases. Likewise, attorneys may be hesitant to share their experiences to protect their clients and preserve their relationships with judges and prosecutors. Consequently, qualitative methodologies are understandably underutilized. In light of such difficulties, it is all the more important to give due consideration to the data that is available.

Methodology

This study uses qualitative interviews with federal judges and defense attorneys alongside observations of court proceedings to uncover how discourses of the family and gender contribute to the lenient treatment of female defendants. The data for this study was collected at two urban U.S. Federal Courthouses in the northeastern region of the United States. I interviewed four active federal judges — one woman and three men — and five criminal defense attorneys — one woman and four men. Furthermore, this study draws from observations of 15 federal court hearings, including eight detention and seven sentencing hearings that were chosen randomly using the daily court dockets. Among the 15 defendants that were observed, only three were women, which is not surprising given the above described differences in criminal behavior. In terms of racial composition, twelve of the defendants were Latinx, two were white, and one defendant was Black. This was determined through self-identification by defendants or their attorneys during court sessions. The overrepresentation of Latinx defendants, particularly Latino men, is especially noteworthy as it may be indicative of discriminatory policing practices and criminal injustice toward Latinos as outlined by numerous scholars (Salinas 2015; Rios 2011).

During my observations, I sat behind the bar amongst other visitors. Dressed in a business-casual style, I attempted to blend in with frequent observers like law students to avoid being mistaken for a family member of defendants. Most hearings lasted between 15-30 minutes, although some took up to an hour. During each session, I took detailed notes on all interactions and dialogues between defendants, attorneys, prosecutors, and judges. Additionally, I paid close attention to visitors in the audience. In all cases, I was able to determine the nature of the relationships between visitors and defendants based on interactions with and references by attorneys and judges. I fully transcribed and coded my field notes using Dedoose software. The codes I applied ranged from key concepts about the family, such as the narratives surrounding childhood and parenthood, to language relating to gender norms, including employment status and responsibilities in the family.

The interviews with judges and attorneys were conducted in person and lasted between 30-60 minutes. Using the roster of active judges on the U.S. District Court website, I randomly chose judges and emailed their courtroom/docket clerks with requests for interviews. Out of 15 contacted, four agreed to be interviewed. For the attorneys, I internet-searched for law offices in the same area that specialize in criminal law. I then emailed 15 attorneys requesting interviews out of which five agreed to be interviewed. The interview questions were open-ended and focused on the legal officials’ experiences with and perceptions of gender and family in criminal court. Questions for judges focused on the extent to which they acknowledge the presence or absence of relatives in the courtroom and the criteria they use to evaluate defendants. My interviews with criminal defense attorneys offered an alternate perspective on the judicial decision-making process. Questions for attorneys concentrated on the use and effectiveness of family- and gender-based defense strategies as well their observations of common themes, trends, and outcomes across their cases.

Findings

This section offers an analysis of the family/gender relationship that manifested during interviews and observations. My findings substantiate not only that women are assumed to be the caretakers in their families, but that defendants with caretaking responsibilities are generally granted leniency, particularly when they are the primary caretakers of children Furthermore, this study explains why judges take a special interest in maintaining female defendants’ roles in the family.

Women are Assumed to be Primary Caretakers

This study finds that court officials assume women to be caretakers and men to be breadwinners in their families. More importantly, my observations show that court officials expect this gendered division of labor to hold true regardless of how responsibilities are actually divided in defendants’ families. During a detention hearing for a middle-aged Latino man facing a drug distribution charge, the attorney asked the defendant’s wife during testimony whether he cared for their seven-year-old twin daughters.

Attorney: “Does he [the defendant] ever help take care of the girls?”

Defendant’s wife: “Yes, he often brings the girls to school, helps them with their homework, and he does chores around the house.”

In their inquiries of parenting responsibilities, court officials presume women’s roles as primary caretakers of children, both when women are the defendants themselves or related to male defendants. The attorney used the phrase “does he ever help” to ask about the defendant's involvement in childcare, implying that he only has a supporting role in the lives of his daughters. In doing so, the attorney assumed that the defendant’s wife performs most childcare and homemaking tasks. The following exchange between the prosecutor and the defendant’s wife further highlights how ingrained the breadwinner/caretaker dichotomy is in the criminal justice system.

Prosecutor: “Is it correct that you would lose your husband’s social security income if he is not released until the trial?”

Defendant’s wife: “Yes.”

Prosecutor: “So you have a financial interest in having your husband released?”

Defendant’s wife: “Yes.”

In this exchange, the prosecutor suggested that the defendant’s wife had financial interest in her husband’s release. While this may well be the case, the prosecutor here used the wife’s financial interest to discredit her testimony and, consequently, argue against the defendant’s release. In doing so, the prosecutor sets an expectation of economic dependency and positions the defendant as the breadwinner. This is remarkable because preceding exchanges had revealed that the defendant’s wife held a stable, paying job while the defendant’s legal income consisted of smaller-sized social security checks. The prosecutor’s expectation of financial reliance reduces the wife’s familial responsibilities to that of the caretaker despite evidence of her breadwinning responsibilities. This hearing exemplifies that court officials often have rigid expectations of gender roles in the family. Whether women also fulfill all or some breadwinning responsibilities seems less relevant in criminal court than their role as mothers and wives.

Caretakers Receive Leniency

The finding that court officials typically think of women as primary caretakers is critical because it shapes court outcomes for defendants. My interviews revealed that judges are uncomfortable giving lengthy prison sentences to mothers due to their presumed caretaking responsibilities.

Judge C: “Mothers usually receive shorter sentences because jailing mothers with kids is a bigger deal given their responsibilities.”

Judge A: “Occasionally, a woman will get arrested and have small children. If they have small children they are taking care of, that’s going to be a very big deal to incarcerate that person. That really would make everyone think twice about locking the person up if they are the primary caretakers of the children.”

Judge B: “Women with young children get a break. I remember a woman who committed identity fraud which calls for a minimum sentence of two years in prison, but the defense talked about her children. I tried to shut it down, but one of them had a disability and there was school and all that, so that woman got a break.”

All the judges I spoke to reiterated that the prospect of incarcerating female defendants with children is troublesome due to their perceived caretaking duties. The desire to avoid the negative effects of maternal incarceration on children, such as diminishing their health or school performance (Judge B), can offset the need for punishment especially since women rarely commit violent crimes (USSC 2020). As a result, judges’ concerns for children can lead to downward departures from the sentencing guidelines for defendants who are mothers, as indicated by Judges C and B. This finding suggests that judicial leniency toward primary caretakers is not intended to protect women, but rather children.

Mothers Tug At The Heartstrings

What remains unclear is whether “women with young children get a break” (Judge B) due to the logistical challenges of jailing primary caretakers or due to other factors that shape judicial perceptions of motherhood. My interviews with attorneys revealed that judges’ motives for treating mothers leniently extend beyond the social costs of removing primary caretakers of children from their families. According to attorneys, judges frequently display paternalistic attitudes in their evaluations of mothers.

Attorney A: “Even though the guidelines do not permit the court to take gender into consideration, obviously separating a mother from her children is something that just tugs at the heartstrings for any judge.”

Attorney B: “The reality is that everybody in there [in court] is human, so if I am representing a woman who is a single mother, who is looking at jail time, I am going to make the pitch that ‘this is a single mom.’ As sexist as it may be, I am pulling on the heartstrings of every judge who has a mother.”

The attorneys I interviewed shared the perspective that separating mothers from their children appeals to the emotions and compassions of judges. The repeated use of the word “heartstrings” and Attorney B’s reference to the humanity of court officials suggest that judges’ sentimental attitudes toward mothers are indicative of paternalism. This finding is not surprising given the prevalent use of the judicial paternalism argument in the literature (Daly 1987b; Armstrong 1977; Herzog & Oreg 2008; Frazier et al., 1983; Nagel & Weitzman 1971). However, unlike what many authors suggest, this study shows that the paternalistic attitudes of judges do not necessarily stem from the desire to protect the “weaker” female sex; rather, they are rooted in the wish to safeguard children by preserving women’s roles as mothers. Furthermore, Attorney B’s strategy to pull “on the heartstrings of every judge who has a mother” supports Daly’s (1989b) findings that judges are influenced by their relationships with the women in their own families, including their mothers, when judging female defendants in court.

“Bad Mothers” Are Punished

While female defendants with children are assumed to be primary caretakers and often receive corresponding benefits in court, this study also finds that there are familial circumstances under which mothers are not granted leniency. In 2004, 63% of federal prison inmates were parents of minor children, including 65,600 mothers (Nellis & Rovner 2016). Although fathers vastly outnumber mothers in the prison system, many mothers serve prison sentences, which shows that motherhood is not always a “get out of jail free card.” For instance, my findings show that female defendants can lose the privileges attached to the caretaker role if judges believe them to be “bad mothers.”

Judge A: “In one of our programs we had a married couple. They had been selling drugs and the wife had all kinds of mental health issues and she ended up going back to jail but the husband was taking really good care of the kids and he ended up not getting a sentence.”

The example shared by this judge indicates that female defendants who defy childcare expectations may lose the privileges associated with motherhood. The woman described above faced jail time while her husband — her co-conspirator — remained free, because “he was taking really good care of the kids” (Judge A). This supports Rasche’s (1974) hypothesis that women are punished more harshly if they cannot maintain the superior moral status associated with the female sex. Similarly, according to Roberts (1995), “legal rules reward conduct that fulfills a woman's maternal role, while punishing conduct that conflicts with mothering” (p. 100) — a dynamic reflected in the judge’s reference to the female defendant’s “mental health issues.” Beyond confirming the “evil woman thesis,” however, my findings suggest that men may benefit if their female partners are perceived to be “bad mothers.” In this case, the male defendant secured a better outcome by filling in as the primary caretaker for a woman who failed to uphold judicial expectations of motherhood.

Fathers Are Treated Less Leniently

The previous section indicated that fathers can receive judicial leniency under certain circumstances. It is thus critical to examine how fatherhood is perceived and evaluated by court officials. Given judges’ concerns for children it would be expected that fathers, like mothers, benefit from family ties in criminal court. In fact, observations of court hearings reveal that judges do acknowledge male defendants’ roles as breadwinners in the family. The following excerpt captures a judge’s sentencing decision for a Latino man in his 20s facing a recommendation of 30 to 37 months in prison or a fine between $10,000 and $1,000,000 for a drug crime. The defendant’s infant son and girlfriend were present in the courtroom.

Judge: “I do realize that the defendant has a family, people who he feels responsible for, like his child and the mother of his child. I acknowledge his recognition that he must do what he can to avoid the impact on his son, so it’s not as much about the defendant as it is about the son. I have a choice between exposing the son to what he shouldn’t be exposed to, or in other words, the impact on the community compared to the impact on the family. In cases like this, the law doesn’t sufficiently individualize. What does prison do? It keeps him away from his family and from his life. I won’t impose a fine because he could use that money to support his family. The defendant is going to be on supervised release but he will be required to get a job or get involved with a training program to provide support for the people he loves.”

During this sentencing, this judge weighed the best interest of the community and the costs for the defendant's family — a quandary indicative of social cost theory. More importantly, the judge repeatedly expressed concern for the defendant’s son, even stating that the decision was less about the defendant than the son. While the judge’s attentiveness to the son could be interpreted as family-oriented paternalism, the numerous references to the defendant’s breadwinning responsibilities suggest that this judge primarily aimed to protect the defendant’s dependents from economic hardship by declining prison time. The judge also rejected the recommended fine and required the defendant to obtain a job to enable him to fill the breadwinner role. This case demonstrates that male defendants, too, benefit from family-based leniency. More importantly, this insight into judicial decision-making indicates that the courts intend to maintain “traditional” gender roles in the family.

Fathers Are Treated Less Leniently than Mothers

While it is important to establish that male defendants, like female defendants, benefit from gendered expectations for the division of labor in the family, it is more compelling to ask whether men and women benefit to the same degree to solve the gender gap conundrum. Interviews with judges and attorneys reveal that women are significantly more likely than men to receive family-based leniency, especially due to the presence of children.

Attorney A: “When the defendant is a man and has children, and this probably sounds heartless, it’s rarely argued by defense attorneys but even when it is, in my opinion, it’s not a factor that judges focus on too much.”

Attorney B: “I mean I don’t say it, but everybody’s mother has had problems and this woman should not be put in jail because she is doing the best she can. I tend to feel that judges and prosecutors are more sympathetic in that situation than a guy, who is a dad – still a dad – but he’s a guy, so I definitely think that, I don’t know what you want to call it, I don’t call it biased because it’s helpful for my clients, but it obviously is a bias.”

As these quotes indicate, a male defendant does not typically benefit from parenthood to the same extent as a female defendant because “he’s a guy” (Attorney B). Judges perceive motherhood as different and preferable to fatherhood, introducing a gender bias that disproportionately benefits women. Given that judges hold women responsible for childcare, the imprisonment of fathers is viewed as less disruptive for children than that of mothers. This confirms that judges use what Daly (1989b) calls a “labor hierarchy” — a ranking system for familial labor that places greater value and social cost on caretaking than on breadwinning. Consequently, female defendants are more likely to receive family-based leniency than male defendants.

Male “Caretakers” Are Devalued

The disparities in the treatment of fathers and mothers in criminal court reveal that the family is a significant source of gender bias. What remains unclear is why judges perceive motherhood differently from fatherhood. One explanation is that women are treated more favorably because they outnumber men in the caretaker role (Daly 1987a). However, if the court’s primary objective is to maintain childcare in the family, caretaking fathers should receive the same leniency as caretaking mothers. This study shows, however, that this is not the case.

Attorney E: “Occasionally they [male defendants] are also in a caretaker role. It seems to be rare, but my impression is that they are most likely not the primary caretaker, and sometimes it seems that they are involved with their children, but it’s not the same as with women whose immediate concern is ‘what’s going to happen to my kids if I get locked up.’”

As this attorney indicates, the caretaking contributions of fathers are not considered on par with that of mothers. For one, male defendants are not assumed to be the primary caretakers of children as previously shown. Secondly, even when male defendants fulfill caretaking responsibilities, their contributions as fathers are disparaged as “not the same” as that of mothers (Attorney E). Unlike men, women are assumed to instinctively prioritize the wellbeing of children — an institutionalized social expectation of motherhood that extends far beyond the courtroom (Roberts 1995). This shows that judges use gender in two intersecting ways: they favor the caretaker — a role historically assigned to women — and view childcare as innately feminine, creating two vessels for gender to produce disparate court outcomes. This duality demonstrates that social cost theory alone does not capture the complexity of the gender/family dynamics at play. Although judges may place greater value on the caretaker, they are intent on preserving women’s performance of that role. Consequently, judges do not only utilize and reinforce “traditional” gender roles in the family but employ the associated norms, expectations, and stereotypes to evaluate defendants.

Conclusion

This paper sought to illuminate the relationship between the norms, expectations, and roles associated with the 1950s nuclear family ideal and the lenient treatment of female defendants in federal criminal court. Through interviews with judges and attorneys and observations of detention and sentencing hearings, this study shows that female defendants are not granted leniency primarily because of their gender, but due to gendered expectations of their roles in the family as caretakers, mothers, and wives. As shown, judges prioritize the well-being of dependants, particularly children, and consequently hesitate to imprison mothers because of their presumed roles as primary caretakers. While male defendants can receive leniency in light of their supposed roles as breadwinners, they are granted leniency at lower rates than women. Due to the gendered division of labor between the male breadwinner and the female caretaker in the idealized nuclear family, male defendants’ roles as fathers are devalued in respect to childcare, while female defendants’ roles as mothers are idolized. In summary, this study shows that judges’ forgiving attitudes toward female defendants are not pro-women, but pro-family — attitudes that are, in turn, riddled with gender biases that further contribute to the gender gap.

This study examined two theoretical frameworks: judicial paternalism and social cost theory. According to the paternalism hypothesis, judges hold chivalrous attitudes that lead to the protection of female defendants (Nagel & Weitzman 1971; Nagel & Johnson 1994; Daly 1987b). Using this definition, many scholars blame institutionalized sexism for sympathetic attitudes toward women (Anderson 1976). While sexism certainly shapes the criminal justice system, the paternalistic attitudes displayed by the judges in this study primarily reflected concerns for children, whom they aimed to protect by keeping their mothers out of jail. In the same vein, several legal officials confirmed Daly’s (1989b) observation that judges are reminded of women they are protective of in their families when evaluating female defendants. In either case, it is clear that the institution of the family shapes judicial perceptions of defendants and produces court outcomes that disproportionately benefit women.

Furthermore, this research reveals that judges view most primary caretakers as indispensable, which is indicative of social cost theory. Previous studies rely on women’s overrepresentation in the caretaker role to explain their lenient treatment (Daly 1987b). This study shows, however, that the role of the family and gender in criminal court is more complex. For instance, past studies do not consider judges’ gendered expectations for the caretaker role, which influence their assessments of social costs. For judges, mothers’ relationships with their children are innately distinct from and implicitly superior to that of fathers — a reflection of the "cult of True Womanhood” that has long shaped women’s role in society (Welter 1966; Coontz 1992). Female defendants receive leniency not solely because they outnumber men in the caretaker role but because judges perceive caretaking labor as innately feminine and best performed by women. This increases the social cost of imprisoning female defendants with children. Conversely, male caretakers are further devalued, which explains why men rarely receive leniency due to the presence of children alone.

While this trend seems quite pervasive, there are instances when female caretakers are not granted leniency. Consistent with Roberts’ (1995) and Murphy’s (1998) findings, this study reveals that the criminal courts reward “good mothers” – women who parent “right” by society's standards – and sanction “bad mothers” – women who defy social expectations of motherhood. As a result, female defendants who are deemed “bad mothers” lose the privileges associated with the role of the caretaker and may even be treated more harshly. On the contrary, male defendants may benefit if they step in as primary caretakers for women who defy judicial expectations of motherhood. In the same vein, it is important to recognize that not all forms of motherhood are treated the same in criminal court. Numerous scholars have found, for instance, that Black women’s performance of motherhood is more heavily scrutinized, devalued, and disparaged than that of white women, which may explain why Black mothers are disproportionately overrepresented in U.S. prisons (Collins 2015; Roberts 1993; Roberts 1995; Murphy 1998).

Suggestions for Future Research

The existing literature on the gender gap in the criminal justice system overwhelmingly uses statistical analyses of court outcomes. As Daly (1987b) writes, “many explanations have been proposed for gender differences in criminal court outcomes, but none has been grounded in a systematic study of the reasoning processes used by court officials in sanctioning male and female defendants” (p. 267). While quantitative studies are helpful in analyzing gender differences in criminal court outcomes and can better control for variables like race and class, it cannot capture the sentiments, opinions, and expectations that judges utilize to make decisions in criminal court. Studying the undercurrents that shape court outcomes, such as family ties, is necessary to fully understand the intersecting biases, prejudices, and stereotypes that cause systematic inequalities in the criminal justice system. Given the homogeneity of the sample group in this study, the field could benefit from additional qualitative studies of a more diverse sample group to examine a greater variety of family structures in relation to gender. Similarly, a more diverse population of court officials and defendants could allow for a more extensive analysis of the ways that race and class shape family-based narratives in court.

Implications

The gender gap in the criminal justice system, along with women’s lenient treatment in court, are not indicative of feminist progress, nor the advancement of women’s rights; rather they reflect women’s positionality in our patriarchal society. Although some women benefit, judicial leniency that is rooted in benevolent sexism does not advance women’s social status, but rather reinforces the gender roles that have historically limited and disadvantaged women, particularly women of color, immigrant women, and women from lower socio-economic classes. Consequently, the treatment of women within the microcosm of the courtroom mirrors the subordination of the female sex, femininity, and the labor that women often perform in society, which has a reinforcing effect on hegemonic masculinity.

Additionally, it must be recognized that family structures as well as norms and expectations for familial gender roles vary across racial, ethnic, and socio-economic groups (Coontz 1992; Collins 2015). Latino families, for instance, have had a long tradition of maintaining male-headed families and separate spheres for men and women (Chant 2002). Throughout history, African American families have been disrupted, violated, and shaped by the institution of slavery which has lead to a greater reliance on communal childcare and kindship networks (Collins 2015; Roberts 1993; Roberts 1995; Coontz 1992). Similarly, racial stereotypes, or what Collins (2015) calls “controlling images,” have long stigmatized Black mothers as unfeminine, aggressive, and failing matriarchs who are unable “to model appropriate gender behavior” for their children and cause Black poverty (p. 103). To this day, Black families are subjected to the myth that “black poverty exists because black men are irresponsible, black women are immoral, and black children run wild” (Coontz 1992, p. 312). As a result, it must be considered that the family, as a site of intersecting systems of oppression, does not only produce gendered, but racialized, and classed outcomes in criminal court. This is especially critical in light of the fact that 39% of today’s federal prison population is Black even though Black people and African Americans only account for 13% of the population in the U.S. (Federal Bureau of Prisons 2021; United States Census Bureau 2019).

Lastly, I want to note that I do not advocate for the exclusion of family-based factors from judicial decision-making, which can keep people out of jail and maintain the families of defendants. That said, the intention of this study is not to argue whether or not the family should be considered in criminal court; instead, I simply hope to shed light on the systemic ways that the criminal justice system privileges those who uphold “traditional” gender roles in the family and punishes those who do not or cannot uphold these expectations due to their exclusion from the 1950s family ideal. By uncovering the ways that heteronormative, institutionalized norms for gender and family shape judicial decision-making, I hope that we, as a society, can better examine and deconstruct the intersecting social forces and institutionalized biases that create inequality and inequity within the criminal justice system.


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