Structural Gender Equality and Federal Sentencing Outcomes: A Test of the Ameliorative and Backlash Hypotheses

• Published date: 01 January 2019
• Date: 01 January 2019
• Author: Elena A. Windsong,Jeffrey S. Nowacki
• DOI: 10.1177/1557085117694083
• Subject Matter: Articles

https://doi.org/10.1177/1557085117694083

Feminist Criminology

2019, Vol. 14(1) 45 –64

© The Author(s) 2017

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DOI: 10.1177/1557085117694083

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Article

Structural Gender Equality

and Federal Sentencing

Outcomes: A Test of the

Ameliorative and Backlash

Hypotheses

Jeffrey S. Nowacki1 and Elena A. Windsong1

Abstract

While previous research has examined gender disparities in sentencing, most

explanations focus on individual-level differences. We argue that structural gender

equality has an important influence on gender disparities as well. Drawing from

previous research on victimization, we provide a test of the ameliorative and backlash

hypotheses. Using federal sentencing data from 1999-2003, we demonstrate how

measures of structural gender equality contextualize the relationship between gender

and sentencing. Our analyses suggest that structural gender equality is important

for understanding the relationship between gender and sentencing, but different

measures of gender equality lead to distinct patterns.

Keywords

courts, judges, quantitative research, gender equality, sentencing

One of the most robust findings in the sentencing literature is that women are generally

sentenced with more leniency than men. Numerous theoretical explanations have

attempted to demonstrate both the generality of this finding (Albonetti, 1991, 1997;

Doerner & Demuth, 2010, 2014; Steffensmeier, Kramer, & Streifel, 1993;

Steffensmeier, Ulmer, & Kramer, 1998), and also the nuances behind it (see Koons-

Witt, 2002; Rodriguez, Curry, & Lee, 2006; Tillyer, Hartley, & Ward, 2015). More

specifically, this body of research tends to agree that women are generally met with

1Southern Illinois University, Carbondale, IL, USA

Corresponding Author:

Jeffrey S. Nowacki, Southern Illinois University, Department of Criminology & Criminal Justice, 1000

Faner Drive, Faner Hall 4232–Mail Code 4504, Carbondale, IL 62901, USA.

Email: jnowacki@siu.edu

694083FCXXXX10.1177/1557085117694083Feminist CriminologyNowacki and Windsong

research-article2017

46 Feminist Criminology 14(1)

leniency in sentencing because they are deemed less culpable, less dangerous (e.g.,

less violent and less likely to recidivate), and carry with them more mitigating consid-

erations (e.g., dependent children) which warrant less punitive sentences. Other

research has indicated that leniency is reserved for only those women who adhere to

socially accepted gender roles (Daly, 1989; Farnworth & Teske, 1995; Rodriguez et

al., 2006) and those who do not are sentenced more similarly to men.

Although individual-level studies of gender disparity in sentencing are prevalent,

research that examines how aggregate-level variables might foster gender disparity in

sentencing are much more rare (see Farrell, Ward, & Rousseau, 2010; Ryon, 2013, for

examples). Criminologists have generally reserved the application of aggregate-level

gender equality processes for two forms of female victimization: homicide and rape.

These studies suggest that gender equality may affect victimization in one of two

ways. First, the ameliorative hypothesis suggests that as women make strides toward

equality, rates of victimization should fall (Bailey & Peterson, 1995; Whaley, 2001;

Whaley & Messner, 2002; Whaley, Messner, & Veysey, 2013). The accumulation of

resources serves as a protective factor, and as such, women are better able to defend

themselves because men exert less power over women. As an alternative, the backlash

hypothesis (Russell, 1975) suggests that as women move toward equality, men lash

out against them in an attempt to maintain the status quo. This represents an attempt to

exert social control on women as a penalty for entrenching upon men’s societal advan-

tage. These hypotheses have been tested extensively to predict victimization, but little

research has applied them to examine more formalized types of social control, such as

criminal sentencing.

This article attempts to fill an important gap in the sentencing literature by investi-

gating whether and how aggregate-level measures of gender equality might influence

gender disparity in sentencing. Using multiple measures of gender equality, we argue

that structural gender equality has an important influence on gender disparities in sen-

tencing outcomes. Moreover, different measures of gender equality lead to distinct

patterns; thereby some types of gender equality produce an ameliorative effect while

other types produce a backlash effect.

Gender Disparity in Sentencing

A large body of research has examined differences in the types of sentences meted out

to men and women. Broadly, the results indicate that women benefit from leniency at

the sentencing stage (Belknap, 2007; Daly & Bordt, 1995; Doerner & Demuth, 2014;

Nowacki, 2017). This individual-level disparity is generally explained through the

focal concerns (Steffensmeier et al., 1993; Steffensmeier et al., 1998), judicial pater-

nalism (Daly, 1989; Moulds, 1980), and selective chivalry (Farnworth & Teske, 1995)

perspectives.

The focal concerns perspective suggests that judges sentence offenders based on

three criteria: blameworthiness, danger to the community, and practical constraints

and consequences (Albonetti, 1991; Steffensmeier et al., 1993; Steffensmeier et al.,

1998). Blameworthiness relates to an offender’s level of accountability or culpability,