V. Women and Equity in the System
The issue of gender equity in the criminal justice system is one that has remained contentious. As stated earlier, the criminal justice system has largely been defined and built around what we know about male offending and has merely been applied to women. Many consider this to be equitable treatment. However, given what is known about female pathways to offending, the “add gender and stir” approach to criminal justice policy is not equitable. Laws, policies, punishment, and programs have mainly been developed with males in mind and are assumed to be good enough for females.
The current manner in which women enter and are treated in the system often leaves them disadvantaged relative to their male counterparts. Equitable treatment for a female offender would likely involve considering her gender-specific needs and crafting a system that would specifically target these areas. These gender-specific factors rarely enter into discussions of criminal or penal policy; thus, the possible negative impact on female offenders is not discussed or analyzed ahead of time.
Women are affected at many different stages in the system. For example, at the time of arrest, women are less likely to be able to post bail, because they typically do not have the same economic resources as male offenders. Women are more likely to be addicted to drugs or using drugs to self-medicate and are thus at greater risk of exposure to mandatory minimum prison sentences. In terms of classification schedules, female offenders tend to be overclassified in security risk levels relative to their male counterparts.
Because women, compared with men, are more likely to have been the primary caregivers of their dependent children, they are also more likely to be affected by the 1997 Adoption and Safe Families Act, which allows for the termination of parental rights if the parent has been consecutively without his or her child for 15 months. Because the average sentence for females is currently greater than 15 months, they are at greater risk than males (who are much less likely to have remained the caregiver of the dependent child) to permanently lose custody of their children.
Supervision strategies in prison and for probation and parole have been crafted with the male offender in mind. Equitable treatment for women would include supervision strategies designed for female offenders and would be cognizant of the histories of abuse that the majority of women in the system demonstrate. Furthermore, the competing demands of many female offenders in the community (child care, lower vocational skills and pay, familial responsibilities) often translate into a need for greater support if the goal is to improve success while under community supervision.
Many scholars argue that the current criminal justice laws, from which other criminal justice processes certainly flow, involve gender discrimination, even though they appear gender neutral on their face. However, laws may be differentially applied to males and females, or they may punish male victimizers more than female victimizers (e.g., aggravated assaults vs. assaults related to domestic violence). Some laws, such as mandatory arrest in domestic violence cases, have actually created more difficulty for female victims than was intended.
Some scholars have argued that women are in fact treated in a chivalrous fashion and are given lighter punishment than men or that women are treated more harshly than men because they appear to be nonnormative, or they are “evil.” Neither the chivalry nor the evil-woman hypothesis is fully supported by the research. Although there is some evidence for both of these, the weight of the evidence indicates that criminal justice decision makers, from law enforcement through corrections, tend to consider different factors when considering how to treat males versus females.
Regardless, when it comes to differential treatment, the problem is one of translation, or lack thereof. Rarely is the growing and emerging research on female offenders used in meaningful discussions of criminal justice treatment. The existing research clearly demonstrates meaningful qualitative differences in the nature and extent of female offending. Females are represented in certain offender groups more than men and, in the main, commit crimes for different reasons than men (e.g., the pathways perspective). Thus, the contemporary challenge to the system is to find a way to use existing research and knowledge to inform equitable treatment. The corresponding challenge is to also educate policymakers of the difference between equitable and exactly the same—the two are not synonymous. Many see “equal under the law” as meaning “to be treated exactly the same”; however, applying policies made for men in exactly the same way to women does not constitute equitable treatment.