“Gender-neutral” sentencing policies aimed at treating individuals convicted of murder equally have in fact put women at a disproportionate risk of spending the rest of their lives in prison, according to a study released by The Sentencing Project.
The policies, which give courts little leeway to take account of mitigating factors such as trauma resulting from sexual abuse or coerced participation in crimes committed by spouses, unwittingly create a gender trap that has driven up the number of women serving life terms in prison by an “alarming” 43 percent since 2008, the study argued.
Under stricter sentencing guidelines established by “tough on crime” legislatures, judges must consider everyone involved in an incident resulting in homicide equally culpable, regardless of whether they actually pulled the trigger.
“Allegedly gender-neutral sentencing policies, such as mandatory minimums that do not account for differential involvement in crime between major participants and minor participants, place women at an extreme legal disadvantage,” wrote Ashley Nellis, Ph.D., senior research analyst at The Sentencing Project and lead author of the study.
“For instance, sentencing laws require the same punishment regardless of a defendant’s role in the crime, but women are frequently responsible for a comparatively smaller role in certain violent crime scenarios such as being a getaway driver.”
In addition, the study noted, “Because [women] are sometimes coerced into involvement in such crimes by romantic partners or husbands, they are also often disproportionately punished where laws require identical punishments for all defendants regardless of their role in the crime.”
The failure to take such mitigating factors into account is the result of a criminal legal system “designed principally by men and for men,” Nellis wrote.
There are 6,600 women prisoners currently serving “extreme sentences” such as terms of 50 years or more. Just under a third—about 2,000―were sentenced to Life Without Parole (LWOP), essentially meaning they will die in prison.
Some 52 women are currently on death rows across the U.S.
While all the women facing life sentences have been convicted of murder, about half of their victims were family members or intimate partners. For men, the percentage is 20 percent.
Moreover, older women are disproportionately serving extreme sentences, the study said.
Based on a survey sample of 1,000 female prisoners serving LWOP, researchers found that “a shocking 44 percent” are currently at least 55 years old, compared to 27 percent of the general population of incarcerees.
Gender bias is further exacerbated by systemic racial bias, researchers found. One of every 39 Black women in prison is serving LWOP, compared with one of every 59 imprisoned white women.
Taken together, the figures show that incarcerated females charged with murder are at a serious disadvantage compared to men.
“Women offenders are being swept up in a system that appears to be eager to treat women equally, which actually means as if they were men,” said the study, quoting scholars Stephanie Covington and Barbara Bloom. [i]
“Since this orientation does not change the role of gender in prison life or corrections, female prisoners receive the worst of both worlds.”
The report is a joint publication of The Sentencing Project, the National Black Women’s Justice Institute, and the Cornell University Center on the Death Penalty Worldwide.
In 2020, the three groups founded the Alice Project, a collaboration aimed at highlighting the experiences of incarcerated women who received the harshest sentences available in the U.S. corrections system.
The odds against women offenders getting equitable treatment begin long before they are ensnared in the justice system, said the study.
“Many women facing extreme sentences experienced trauma and abuse prior to their imprisonment,” Nellis wrote, “A majority of the women have endured sexual and/or domestic violence, and the legal system has consistently failed to take their experiences into account.”
Some state legislation, such as New York’s 2019 Domestic Survivors Justice Act, includes prior trauma as a mitigating factor in assessing culpability and determining punishment.
Considering the “nuanced life experiences” of women serving life terms should be part of sentencing reforms across the country, said the study.
“A wealth of evidence suggests that women encounter gender-based stigma and bias that negatively affects their court outcomes,” the study concluded.
“Their experience of violence—both as victims and as perpetrators—are distinct from the experiences of men, but women are subjected to a criminal legal system that does not acknowledge these important differences.”
Assistance for the study was provided by Skye Liston and Savannah En, Research Fellows at The Sentencing Project.
The complete study and tables can be downloaded here.
[i] Covington, S. and Bloom, B. (2003). Gendered justice: Women in the criminal justice system. In Gendered Justice: Addressing Female Offenders. 1. Richie, B. (2012). Arrested justice: Black women, violence, and America’s prison nation.New York University Press.