THE INTERSECTIONALITY OF AGE AND GENDER ON THE BENCH: ARE YOUNGER FEMALE JUDGES HARSHER WITH SERIOUS CRIMES?

• Author: Hoffman, Morris B.

Abstract

We analyzed sentencing data from sixteen years of criminal trials in the State of Colorado, consisting of almost 3,000 individual sentences, and discovered an interaction effect of harm, gender, and age not reported in any of the empirical or experimental literature. Young female judges punished high harm crimes substantially more than their male and older female colleagues. These results, if confirmed, could have significant strategic and tactical implications for practicing lawyers. They may also inform policies surrounding judicial selection, education, training, and retirement.

INTRODUCTION

In 2019, the United States Senate confirmed the nomination of Judge Allison Jones Rushing to the United States Court of Appeals for the Fourth Circuit. Among Rushing's many impressive credentials, including graduating from a top law school and clerking for a Supreme Court Justice, one demographic fact stood out: She was only thirty-six years old. She is the nation's youngest federal judge, (1) joining a group of other young, female appointees such as Holly Teeter (age thirty-nine; District of Kansas), Rebecca Jennings (age forty-one; Western District of Kentucky), Emily Marks (age forty-six; Middle District of Alabama), and Jill Otake (age forty-five; District of Hawaii).

Both major political parties have sought to nominate and appoint younger candidates to life-tenured federal judgeships, no doubt in part to maximize their lingering influence on the federal judiciary when those political parties might no longer be in power. (2) Despite this trend, almost no academic literature exists examining whether young judges differ from their older peers on the bench. In particular, uo one has looked at how age and gender interact in the context of criminal sentencing. This is a significant oversight, as criminal sentencing is a core function of the judiciary. In the words of federal judge Jack Weinstein, criminal sentencing is "perhaps the most difficult task of a trial court judge." (3) Will trial judges in their thirties sentence the same thirty years later, when they will likely still be on the bench?

In this Article, we begin to answer this question by presenting the first study to examine longitudinally the interactive effects of judicial age, gender, and crime level in determining sentences in actual criminal cases. After two years of work--including data requests, ensuring data integrity, detailed coding, and extensive statistical analysis--we report here results from a unique database of 2,995 individual state criminal sentences imposed in Colorado, covering 183 different types of crimes and 285 different judges--180 male and 105 female--over a sixteen-year time span (2001 -2016). (4) Because we observed in the dataset the same judges sentencing similar crimes as they grow older, the data allowed us a window into the complex interaction of age, gender, crime seriousness, and sentencing patterns.

The results of our analysis are striking, as we uncovered a three-way interaction not previously reported in the empirical or experimental literature: For high harm crimes, younger female judges sentenced convicted defendants more harshly than their male and older female colleagues. We controlled for the independent effect of judicial experience, leading to the conclusion that age--and not just experience on the bench--is driving the results. On average, young female judges sentenced offenders convicted of high harm crimes to 24% more incarceration (4.9 years more) than did their male colleagues, and to 25% more incarceration (5.1 years more) than did their older female colleagues. This finding has implications for sentencing theory, for practical lawyering, and perhaps even for public policy.

On the theoretical side, although a growing number of studies have examined the impact of a judge's background on sentencing, these studies have typically not accounted for factors that change over time, the most obvious of which is age. The research reported here should pave the way for longitudinal studies examining how different judges' sentencing patterns might change over time. Our results also serve as a reminder for future empirical research of how important it is not just to control for different variables, but also to pay attention to their interactions. In our data, age alone had no impact on sentencing; neither did gender. Even when we considered age and gender together, without distinguishing between the harm levels of the crimes, this two-way interaction had no impact. Only when we considered age, gender, and harm levels together did we see these three factors impact--and impact substantially--the sentences imposed by these judges.

Our results could have practical implications as well. When the stakes are high--as they are with the types of high harm crimes in which our interaction effect emerges--both prosecutors and defense attorneys will look to every possible angle to move the sentence toward their preferred outcome. The complexities of individual sentencing, and the limitations of a single empirical study, caution against the conclusion that all older female judges and all male judges will always be more lenient than young female judges with all serious offenders. But the study's real-world data provides both prosecutors and defense attorneys with a stark warning: The interaction of a judge's age and gender, together with the seriousness of a case, likely matters in determining the sentencing outcome. These findings might even impact public policy in arenas including the selection, education, training, and retirement of judges.

In Part I, we survey the existing literature on the impact of judge demographics on criminal sentencing and on "punitiveness" and "third-party punishment" more generally. In Part II, we introduce our new study and discuss its analysis of judicial background variables on sentencing. In Part III, we present the results of our analysis and consider limitations and cautions for interpreting those results. In Part IV, we discuss the implications of these results for future research on judicial sentencing, for practical lawyering, and for judicial selection, education, and retirement policies.

1. Gender, Age, and Sentencing: Conventional Wisdom and Empirical Literature

   There is a robust but largely disconnected body of work across multiple disciplines examining the effect that individual background characteristics have on punishment decisions. We briefly review this literature, focusing on "punitiveness" and "third-party punishment," and then review empirical studies examining actual criminal sentences by real judges.

   1. Punitiveness

      Research on "punitiveness," conducted mostly in sociology, psychology, and criminology, typically asks experimental participants or survey respondents questions about how they would react to certain hypothetical situations--not necessarily criminal situations--and measures their "punitiveness" based on their responses. Investigators then attempt to correlate the subjects' measured punitiveness with various individual characteristics, including race, ethnicity, gender, age, educational background, socioeconomic status, and even religious and political affiliations and beliefs. (5)

      Measures of criminally-relevant punitiveness typically focus on four areas: (1) questions about criminals' rights and the punishment of criminals; (2) questions about the death penalty; (3) questions about support for spending on fighting crime and on the criminal justice system; and (4) questions that relate to confidence and trust in the police and the criminal justice system. (6)

      Researchers have explored several individual background variables that affect punitiveness measures. Demographic characteristics, such as gender, age, race, and geographic region, may all influence punitive attitudes to different degrees. (7) Some studies show that men are, on the whole, more punitive than women. (8) However, other studies indicate that women are more punitive than men with regard to specific types of crimes. (9) Age and punitive attitudes appear to have a curvilinear relationship, with the oldest and youngest people being the least punitive. (10) Although members of all races may be punitive, they may have different reasons for their punitiveness (11) or be punitive in different ways. (12) Finally, while some scholarship suggests the idea of a "southern vigilantism," (13) other research has found no significant direct effect of geography on punitive attitudes. (14)

      Political beliefs, religiosity, and economic perspectives may also play a role. Research has consistently found that people who have conservative political views are more likely to support punitive policies, (15) though of course those policies themselves may be definitionally part of being conservative. Research on religious beliefs and punitiveness has produced less consistent findings, with some studies finding that conservative theological beliefs are correlated with increased punitiveness and other research showing no correlation. (16) Studies have also found that support for welfare and support for punitive sanctions are inversely related, (17) while a belief in economic individualism is positively related to punitiveness. (18)

      Not surprisingly, punitive attitudes may vary depending on the type of offender or offense, with people tending to be harsher toward crimes they perceive to be more violent (19) and offenders they believe to be less capable of rehabilitation. A person's belief that others can change results in less punitiveness, (20) but evidence that people continue to commit crimes increases punitiveness. (21) Relatedly, studies have generally found that individuals have less punitive attitudes when juvenile offenders are involved compared to adults. (22) People are also generally more punitive with sex offenders compared to other kinds of offenders. (23)

      Although informative to a certain extent, the...