The Impact of the Pennsylvania Sentencing Guidelines on Sex Differences in Sentencing

• Author: Brenda Sims Blackwell,David Holleran,Mary A. Finn
• Published date: 01 November 2008
• Date: 01 November 2008
• DOI: http://doi.org/10.1177/1043986208319453
• Subject Matter: Articles

Journal of Contemporary
Criminal Justice
Volume 24 Number 4
November 2008 399-418
© 2008 Sage Publications
The Impact of the Pennsylvania
10.1177/1043986208319453
http://ccj.sagepub.com
Sentencing Guidelines on Sex
hosted at
http://online.sagepub.com
Differences in Sentencing
Brenda Sims Blackwell
Georgia State University, Atlanta
David Holleran
The College of New Jersey, Ewing
Mary A. Finn
Georgia State University, Atlanta
Although it has been argued that sentencing guidelines reduce the favorable treatment
afforded female offenders, only one study has directly theoretically assessed the impact
of guidelines on sentencing outcomes for men versus women. This study examines the
influence of guidelines on the outcomes of male and female defendants sentenced in
Pennsylvania by examining three periods, including one period during which guide-
lines were suspended. Results indicate that female, compared to male, offenders were
less likely to be incarcerated in jail or prison and received shorter sentences in all peri-
ods; differences were not greatest when guidelines were suspended. Findings suggest
that Pennsylvania’s structured sentencing model has not affected the sex–sentencing
relationship in that state.
Keywords:
sentencing; gender; sex; sentencing guidelines
Research on the impact of gender on criminal justice processing generally has
concluded that women are treated more leniently than men throughout all
stages of the process (Daly, 1994; Kruttschnitt, 1996; Spohn & Beichner, 2000;
Steffensmeier, Kramer, & Streifel, 1993). With the exception of violent crimes,
women are less likely than men to be incarcerated and receive shorter terms of incar-
ceration (Kruttschnitt, 1984; Kruttschnitt & Green, 1984; Steffensmeier et al., 1993).
Beginning in the early 1980s, changes in female and male imprisonment rates indi-
cated that the trend favoring female offenders was dissipating; the incarceration rate
for females was expanding at a rate almost double that of males (Chesney-Lind &
Pollock, 1995; U.S. Department of Justice, 1999). Multiple explanations for the
shifts were advanced. Some posited that changes in state-level sentencing, such as
adoption of standardized decision-making models, which limited judicial and exe-
cutive branch influences on sanction type and length (Steffensmeier et al., 1993) and
modification of criteria considered relevant for determining sanction type and length
(Chesney-Lind, 1987), contributed to these changes.
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Journal of Contemporary Criminal Justice
Since 1980, sentencing in the United States has grown increasingly punitive and
more bureaucratized (Clear, 1994). This is exemplified by the move of several states
to ensure greater certainty and uniformity in sentencing by the elimination of inde-
terminate sentencing and implementation of structured sentencing models (Chesney-
Lind, 1987; Daly & Tonry, 1997; Ulmer, 1997). State-level changes included the
adoption of sentencing guidelines, determinate sentencing structures, mandatory mini-
mum sentencing statutes, habitual offender laws, and truth-in-sentencing laws. All
introduced formal legal rationality (Savelsberg, 1992) by limiting judicial discretion
in sentencing, focusing the criteria for punishment on the severity of the current
offense and the defendant’s prior record. Reforms were extensive; although every
jurisdiction in 1970 had indeterminate sentencing, by the mid-1990s only 27 states
and the District of Columbia retained such sentencing schemes (Spohn, 2002, p. 224).
Reforms advanced both retributive and utilitarian goals. It was believed that through
sentencing reforms, reduction in racial and class sentencing disparities and desires
to “get tough on crime” could be simultaneously accomplished (Chesney-Lind,
1987). Numerous scholars argued, however, that one consequence of this bureaucra-
tization of sentencing, particularly sentencing guidelines that preclude consideration
of defendant’s sex, could be less favorable sentences for women (Chesney-Lind &
Pollock, 1995; Daly, 1994, Steffensmeier et al., 1993).
Little research has directly explored the validity of this claim. Rather, the claim
has been indirectly supported by documenting that female incarceration rates increased
faster than those for males during the time frame of sentencing reforms (Chesney-
Lind & Pollock, 1995; Daly, 1992). Research comparing sentence severity before
and after enactment of guidelines reported that both percentages of offenders incar-
cerated and mean sentence lengths increased (Spohn, 2002, pp. 264-271). To date,
however, only one study (Koons-Witt, 2002) has had as its direct theoretical focus
the impact of sentencing guidelines on sex differences in sentencing.1 Because this
study was limited to a single jurisdiction, Minnesota, a need remains to explore
whether enactment of guidelines in additional jurisdictions differentially affected
male and female offenders. This study examines sex disparity patterns in Pennsylvania
across three periods differentiated by the presence and the absence of sentencing
guidelines to determine if guideline implementation affects the type and duration of
sentences imposed on males and females.
Offender Sex and Sentencing: Explanations for Disparity
The study of the impact of offender sex on criminal justice processing gained
popularity in the 1970s, with research purporting that females were less criminal and
were treated more leniently in criminal justice processing than were males. Indeed,
females were less likely to be arrested, convicted, and incarcerated than were their
male counterparts (Daly, 1994; Daly & Bordt, 1995; Kruttschnitt, 1996; Steffensmeier

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Blackwell et al. / Sex Differences in Sentencing
401
et al., 1993); moreover, when incarcerated, women received shorter sentences than
did men (Steffensmeier et al., 1993). Explanations for this differential treatment have
included paternalism (e.g., Ulmer, 1997) or chivalry, judicial focal concerns (e.g.,
Steffensmeier, Ulmer, & Kramer, 1998; also see Albonetti, 1997), and bureaucrati-
zation of sentencing (e.g., Koons-Witt, 2002).
Early explanations for lenient treatment of female offenders included paternalism
or chivalry (Daly, 1989; Moyer, 1992). The chivalry hypothesis assumes that “ladies”
do not share equal status with men and are considered less capable than men of com-
mitting criminal acts, yielding leniency (Belknap, 2001). The paternalism thesis, in
contrast, attributes lenient treatment of females to beliefs that females are weak,
powerless, and dependent; in other words, females are less capable than males of
committing criminal acts, particularly by themselves. Most scholars referencing
these hypotheses have not distinguished between them (for exceptions, see Moulds,
1978; Nagel & Hagan, 1983), primarily because such an outcome is difficult to
determine (Belknap, 2001), and the ultimate prediction is the same—women should
be less likely to receive a sentence of incarceration and, if incarcerated, should
receive a shorter sentence than men.2
More recently, generalized stereotypes regarding females have been incorporated
into the focal concerns framework. Steffensmeier et al. (1998) noted that sex, as well
as race, age, and class, likely plays a role in sentencing decisions, albeit in an indi-
rect manner as judges consider the defendant’s attributes and his or her offenses
when rendering a sentencing decision. The focal concerns framework suggests that
when meting out justice, judges are concerned with the defendant’s degree of blame-
worthiness, the threat posed by the defendant to the community, and the practical
consequences of imposing various sanctions (Steffensmeier et al., 1993). When con-
sidering these concerns, judges rely on the defendant’s current crime and prior
record as well as generalized stereotypes based on the defendant’s race, gender, age,
and/or social class. This framework offers numerous explanations for the lenient
treatment of women compared to men. Women are seen as less dangerous, hence
posing a lower threat to public safety. Furthermore, when practical consequences for
female incarceration are considered, costs are viewed as higher for females than
those for males. Females, for example, are more likely to be the primary caretakers
of their children. In sum, when considered individually or as a whole, focal con-
cerns, based on stereotypes about female offenders, serve to lessen the need for them
to be incarcerated. Research examining sentencing outcomes in Pennsylvania has
consistently reported that females are treated more leniently in pretrial release
(Demuth, 2002; Demuth & Steffensmeier, 2004) and sentencing decisions (Kramer
& Ulmer, 2002; Steffensmeier et al., 1993); moreover, the sex effect is not attenu-
ated by age (Kurlychek & Johnson, 2004) or race (Steffensmeier et al., 1998) and is
consistent across court contexts (Johnson, 2005).
Although chivalry and focal concerns frequently guide research on sex differ-
ences in sentencing outcomes, this study examines the effect that bureaucratization,3

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Journal of Contemporary Criminal Justice
in the form of sentencing guidelines, plays in the sentencing process because it has
been largely unexplored, despite its importance in earlier sentencing research.
Indeed, although bureaucratization and sentencing initially were linked to discus-
sions of court size (e.g., Hagan, 1977; Tepperman, 1973), the impact of bureaucrati-
zation on sex differences in sentencing was highlighted. Tepperman (1973) reported
that small courts, which were less likely to...