Mattie Lou Thomas was the sole support and caretaker for two mentally disabled adult children and the guardian and caretaker for her four-year-old grandchild. When a U.S. district court judge sentenced her for possession of four kilos of heroin, he thought he should take these family responsibilities into account: As a result, he sentenced her to probation rather than the six years that the prosecution had recommended per 21 U.S.C. [section] 841(b)(1) and that the Federal Sentencing Guidelines seemed to call for.(2) The Seventh Circuit reversed.(3) The Guidelines, it held, did not permit judges to impose probation rather than incarceration on the basis of even extraordinary family responsibilities.(4) Although other courts have rejected the Seventh Circuit's position that family responsibilities never justify a downward departure from incarceration to probation,(5) all have recognized that the Guidelines at least narrowly constrain judges' discretion to take such factors into account.(6) According to the Guidelines, "Family ties and responsibilities ... are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range."(7)
The Guidelines -- like much of criminal law, criminal law policy analyses, and academic criminology -- seem to have been designed around a paradigm of the criminal as male.(8) The Commissioners who drafted the Guidelines thought that including family responsibilities as a factor in sentencing would advantage largely white middle-class criminals, who could present themselves as responsible and loving husbands and fathers, to the relative disadvantage of lower-class, minority federal felons.(9) They apparently did not consider the impact of the rule on female federal felons and the singleparent families disrupted by their loss.(10)
Traditional criminology has followed a similar pattern.(11) Criminologists study criminal men, though they rarely discuss the maleness of the criminal population.(12) Studies of women criminals have been marginalized and ghettoized.(13) Even as feminist concerns and methodologies have become part of the normal discourse of law and of other aspects of sociology, criminology "remains essentially untouched."(14) Yet gender is the most accurate single predictor of criminal record,(15) and prisons are perhaps the most gendersegregated American institutions.(16)
Kathleen Daly's(17) new book, Gender, Crime, and Punishment, promises to make a major contribution to the de-masculinization of criminology. There have been other excellent and insights feminist studies of both criminals and the criminal justice system in recent years.(18) Daly, however, applies her feminist insights to the analysis of the criminal justice system and its responses to both male and female or, perhaps more accurately, to both female and male criminals. The book puts women first and then uses the insights thus obtained in its parallel analysis of men.
In this review, I want to focus on and explore the implications of Daly's insights about the relationship between gender and sentencing. Statistics in previous studies indicate that judges treat women defendants more leniently at sentencing;(19) the authors of those studies set out a variety of theses to explain the apparent differences. Women, or at least some women, they suggest, are treated with chivalry and thus given lesser sentences than similarly situated men.(20) Women are also generally seen as embedded in familial relationships that provide informal social controls and thus as less in need of the formal social controls of the criminal justice system. Daly's narratives indicate that life is not so simple. Apparent gender disparities almost all evaporate when one examines the richer data of the narratives. Men and women are sentenced differently. Those differences in sentencing, however, seem to reflect differences between the crimes committed. A man kills an intimate as an expression of rage or jealousy. A woman kills an intimate to protect herself from potential future abuse. These differences in criminal activity may be real, or they may be characteristics that probation officers and judges recognize more readily in the women defendants because they, like the rest of us, expect to see certain characteristics in women but not in men. What is clear is that the differences are not the reflection of gender as such; rather, they are gendered.
As Daly suggests and as I explore here, once we see the gendered nature of sentencing differences, our normative response becomes complicated. Women should not receive leniency simply because they are women. They should receive leniency, however, for legitimate differences. Statistical evidence that women do receive lower sentences may be either the legitimate effect of real gender differences or the less legitimate effect of gendered preconceptions. It is difficult at best to disentangle these forces. Are the differences in punishment between men and women attributable to something essentially distinctive about men and women? To actual though socially created differences? To different treatment of women and men who are relevantly similar? The justice of taking difference into account turns, we become aware, on whether differences are real or perceptual, natural or constructed. Yet none of our methodological tools allows us to determine with certainty which characterization is correct.
Daly's innovation of first studying women's crimes and sentences and then men's, though it does not directly answer these questions, helps us to move beyond the approach of prior statistical studies, which had judged gender disparities against simplistic norms rooted in notions of formal gender equality. Through Daly's analysis, we can see the gendered nature of both crime and punishment and begin to examine the implications of those practices for achieving justice.
The Daly book has two significant, and interrelated, innovations. In addition to the substantive, gendered approach described above, the book embodies a new methodological approach. Daly consciously uses both statistical, logico-scientific methods and narrative methods in her study. She provides an argument and, more importantly, an illustration of how we can develop and test knowledge most productively by an oscillation between the two methodologies, sensitive to the benefits and inadequacies of each.(21)
In the remainder of this review, I first briefly summarize the structure of the book. I then examine and assess the validity and significance of Daly's findings. Finally, I consider the possible implications for both scholarship and public policy if we apply Daly's methodology and the insights of her findings.
THE BOOK -- A SUMMARY
Daly bases her book on data from her study of sentencing patterns in the New Haven, Connecticut felony court between 1981-1986. Her statistical base is a wide sample of all women, 163, and a random sample of men, 154, convicted during the time period (pp. 26-27 tbl. 2.1). Her narrative materials use a matched deep sample of forty women and forty men, selected from the wide sample cases.(22) She compares sentences for defendants across gender lines, examining both the percentages of men and women in various categories who received a sentence of incarceration -- the "in-out decision" -- and sentence length. In addition to analyzing the actual sentences received, Daly uses the transcripts of the sentencing colloquies to examine the process of sentencing and the judge's rationale for the sentence imposed.(23) Her narratives for the eighty deep sample cases depend primarily on the presentence investigative report (PSI) prepared for each defendant and, to a lesser extent, on these colloquies.(24)
After a brief discussion of her research questions and methodology and a summary of the statistical profile of her wide sample, Daly provides information on the backgrounds of her deep sample felons. Her data allow the reader to compare the male and female felons in her samples on such characteristics as race stresses in family of origin (for example, single parent, financial difficulties, abuse or neglect) educational achievement, substance abuse, job status, and current family status.(25) Both groups had troubled backgrounds and current stresses, but significant differences between the genders are also apparent. According to the PSI reports, more of the women suffered abuse as children or ran away from home or a detention facility. More women suffered from substance addictions, or psychological problems, or both, but fewer had significant prior criminal records (pp. 43-45, 63-65). The statistically most striking difference was that two-thirds of the women said they had children, and one-third said that they were currently caring for a child; only just over a third of the men said they were fathers, and none bore current responsibility for a child (pp. 44, 64).
Using PSI reports as the data source on the defendant's characteristics presents a complex problem, however. There may in fact be such a striking difference in parenting rates among male and female felons, or the data may instead reflect a difference in questions asked or answers given. If, for example, probation officers considered parenthood status more important in developing an accurate picture of female defendants, they might be more sure to ask about it. Conversely, men might, as Daly notes, be inclined to hide their parenthood status from authority figures if they were not paying support (p. 81 n.3). Such data problems may be even more intractable for factors more difficult or delicate to determine, such as patterns of sexual abuse.
Daly also provides, with considerable depth and subtlety, a richer description of the biographies of her deep sample felons. She divides the women into five typologies. Most common are "street women" and "harmed and harming women," who together comprise twenty-five out of the group of forty...