Sentencing Women

Abstract

The Federal Sentencing Reporter has provided an important service by publishing this symposium, Gender and Sentencing. I am honored to participate by offering a few introductory comments. A thoughtful group of commentators tum our attention to the distinctive issues facing women who are defendants in the federal criminal justice system. While many may aspire to a legal system in which gender has no relevance, we live in a world in which gender, race, and ethnicity structure so many aspects of our lives that one cannot but ask: What, if any, are the effects of gender on women who are defendants and/or incarcerated under federal law? The question is both asked and answered in this series of essays, which explore problems from sentencing to incarceration and probation. Professor Kathleen Daly provides an overview; in her aptly titled essay, "Gender and Sentencing: What We Know and Don't Know From Empirical Research," she reviews the literature (including data from her own studies) and discusses the difficulties of comparing women and men. Because gender is reflected in occupational status, role in offenses, and a host of other variables, it is difficult to determine what, if any, effects gender has, qua gender. As she puts it, "[m]ost sentencing criteria are, in fact, gender-linked." The federal sentencing guidelines do not assume women are the "presumptive subjects" of sentencing; instead the prevailing assumption is that men are defendants. Norms of so-called "neutrality" are not in practice neutral because women and men are not currently similarly situated outside the criminal justice system. Daly finds that, while women and men are treated similarly in some respects, women and men with obligations of care for others ("familied women" and "familied men") are not treated similarly.