Abstract

This brief will examine the causes and impacts of gender inequality in the United States criminal justice system. It examines the effects of gender-based persecution across various gender identities and proposes legislation to combat sexist systems and conduct.

‍

Overview

A. Pointed Summary

• Sexism affects those of all gender identities
• Both men and women are discouraged from reporting assault due to gender-based stigmas
• While men are generally more likely to go to prison, female incarceration has been increasing
• Transgender individuals face unique struggles regarding hormone therapy and unfair prejudice

B. Relevance

Sexism in law enforcement impacts all gender identities, specifically in cases of sexual assault. According to Meghan Stroshine, Chair and Associate Professor of Cultural Sciences at Marquette University, “Males are far less likely to report their victimization and therefore far less likely to seek or obtain help.” She attributes this to a stigma around victimization, pushing that victims are weak and helpless, conflicting with the portrayal of masculinity in American culture. Stroshine also cites the fear that society will not believe them — a fear that men and women have in common.

According to the Department of Justice, only 20% of female college students report sexual assault. The most commonly cited reasons were a fear of retaliation from the perpetrator, belief that the crime was a “personal matter,” or a feeling that the crime was unimportant. Additionally, many women fear the blame will be placed on them, most commonly for “asking for it” by wearing revealing clothing. According to a study conducted by Jane E. Workman and Elizabeth W. Freeburg, which analyzes the impact of dressing on the perception of a sexual crime, “Both men and women who viewed a photograph of a victim in a short skirt attributed more responsibility to the victim than those who viewed a photograph of a victim in a moderate or long skirt.” This shift in responsibility for the crime (from perpetrator to victim) causes many women to stay silent and thus not receive justice.

Studies by the Department of Justice show that men are generally eight times more likely to go to jail than women. Authors of the paper “From Initial Appearance to Sentencing: Do Female Defendants Experience Disparate Treatment?” hypothesize that judges may give leniency to women who embody a “housewife” archetype and that they subconsciously identify female defendants with women in their lives. Despite this theory, however, female incarceration is on the rise. According to the Prison Policy Initiative, women’s state prison populations have grown over two times faster than men’s over the last 30 years. Additionally, the The National Resource Center on Justice Involved Women states that the number of female offenders since 1980 has increased by 700%, leading to women becoming one of the fastest-growing populations within the system and being the most significant minority that faces gender inequalities. The Sentencing Project believes this change results from “more expansive law enforcement efforts, stiffer drug sentencing laws, and post-conviction barriers to reentry that uniquely affect women.”

Transgender individuals also face unique challenges within the prison system. Many trans people opt to use hormonal therapy as part of their transition; however, once incarcerated, the abrupt termination of this therapy can cause side effects and emotional dysregulation. Transgender identity could also “affect decisions to arrest, influence jury verdict decision-making and could lead to disproportionate sentences exceeding what is typical for the crime committed,” according to the American Psychological Organization. An individual’s gender identity can impact their likelihood of incarceration, treatment in prisons, and ability to receive justice.

‍

History

The history of gender inequality within the criminal justice system is a complex and long-standing tale that has spanned well over a couple centuries, both in the United States and other countries. During the 19th century, women were systematically marginalized throughout all branches of the justice system. They often faced limited access to legal services while being sentenced to higher terms than their male counterparts for similar crimes. However, vast progress has been made within the realm of this crucial issue, which is further supported by a rise in women’s rights movements and an increase in widespread legal reforms addressing this discrepancy within the criminal justice system. Nevertheless, these inequities have continued to persist over the past decades, as gender disparities within the justice system have continued to negatively affect women of color, especially those within historically marginalized communities.

A. Current Stances‍

There is not much research available on public opinion surrounding gender disparities in criminal justice. However, most Americans believe that criminal justice reform is needed. Most Americans would rather attack the underlying causes of criminal activities rather than impose harsh sentences, says the Open Society Foundations.

B. Tried Policy

Various federal and state-level legislation and initiatives have been implemented over the past decades to decrease the prevalence of gender disparities within the justice system. An example of this is the Texas House Bill 650, which implements requirements such as gender-responsive training for correctional officers, the prohibition of solitary confinement and shackling for specific time periods after birth, and the expansion of access to numerous feminine hygiene products. All of these measures have been written into their law as part of extensive efforts to improve conditions for incarcerated women within the prison system. Other states, such as California, have also passed or are considering the implementation of laws to substantially address the systematic gender inequity issues that incarcerated women face on a constant basis.

Gender-based policing is a critical issue, preventing thousands of women who have been victims of sexual assault, domestic violence, and other serious crimes from seeking justice due to stereotypes and biases held by police officers. Numerous major police departments in places such as Washington D.C., Philadelphia, and New Orleans have been shown to systematically oppress female victims of aforementioned crimes while also failing to act against officers who have conducted these sorts of misconduct. In order to combat this issue, federal laws such as the Violence Against Women Act and Safe Streets Act contain statutes that forbid actions of sex/gender discrimination by law enforcement officials. Legislation such as these have shown to be crucial towards ensuring equitable treatment for women in the criminal justice system, and it is vital that laws like these continue to be debated and implemented across the nation in order to significantly decrease gender discrimination and disparity outcomes throughout our justice system.

Policy Problem

A. Stakeholders

Gender is prevalent in the criminal justice system, and it is crucial to discuss the inequalities faced by gender minorities that prevent the justice system from being fair. The prominent gender minority affected by gender bias within the justice system is cis-women, who make up around 9.8% of the federal prison population in the United States. When discussing gender inequalities, it is also essential to take female legal professionals and law enforcement into the equation, as they face many disparities.

There is not as much information regarding other gender minorities. However, there still is recognition that minorities, such as transgender women, are discriminated against based on their background and gender. It has also been shown that women of color are more prone to be convicted, as “black women are overrepresented within the justice system”. (U.S Department of Justice, Office of Justice Programs)

B. Risks of Indifference‍

Gender disparities and inequalities are important to discuss to tackle all kinds of discrimination and inequity within criminal justice to make a better system that is fair to all. Gender minorities within the legal system suffer from deep-rooted discrimination. Therefore, it is vital to address them. For example, women legal professionals are often billed at a lower rate or given a lower pay rate than equally qualified men. In addition to the low pay rates, women are more likely to be interrupted and have to do more of the office “housework,” which means that they automatically have to do more of the non-legal work within the office. The  character of women is also often demeaned and penalized if they possess more substantial characteristics, such as assertiveness, even though these characteristics are crucial for lawyers and legal professionals. For the criminal justice system to be fair, it is necessary that the discrimination faced by female judges, prosecutors, attorneys, support staff, and more is addressed and resolved so that it becomes a healthy environment for all.

Other than within legal professions, it is also imperative to discuss gender inequalities and how gender plays a role when dealing with female offenders and their rehabilitation. Women often have different pathways into prisons and crime compared to men. According to the US Department of Justice and the Office of Justice Programs, women offenders or at-risk girls and women are more likely to have a history of different abuses like sexual abuse and emotional or physical trauma, which often leads them to crime as well as recidivism; they usually have an unstable mental status which affects their ability to think and act rationally. Their previous history is vital to consider when talking about rehabilitation, as only after taking their experiences into account would we be able to find better solutions that genuinely help incarcerated individuals and their reentry into society. The conditions in the jails and prisons are also different compared to male prisons; women are said to experience high rates of mental health problems in prisons. The National Resource Center on Justice Involved Women also states that “Substance abuse among justice-involved women is at least as prevalent, if not more so, than men, with 65-80% of women in prisons or jails reporting at least some drug involvement. A particular concern for women is that they are twice as likely as men to have co-occurring substance abuse disorders and mental illness (40.5 percent for women vs. 22.9 percent for men).” Therefore, the approach needs to be varied, and new programs and reform ways are to be implemented. Addressing these gender minorities are various ways we can reduce crime and try to give holistic reform options to gender minorities that cater to them and their needs. 

That being said, if these disparities are not addressed, an unequal system will continue to remain, which gives unequal access to justice to minorities and impacts rehabilitation and the potential to have a well-functioning society.

Policy Options

For criminal justice to be more inclusive and incorporative of different gender and sexes, efforts must be made toward restitutional and incriminatory policies. One of the major problems that women and non-binary people face in restitutional processes is accessing legal justice services. This involves a lack of financial resources to initiate legal processes and socio-psychological support, specifically in cases of sexual offenses. Furthermore, it includes the insufficiencies in the incriminatory processes, such as lack of gender diversity amongst the judicial officials, and a basic understanding of issues related to women and non-binary people, alongside personal biases and loosely defined laws. ‍

The Bangkok Laws or the United Nations Rules for the Treatment of Female Prisoners and Non-Custodial Measures for Women Offenders were voted on by the United Nations General Assembly in 2010, laid down guidelines for the participant states to reform non-custodial measures and provided further gender-focused guidelines. This was in response to the Tokyo rules (adopted in 1990) which lay down ground rules for non-custodial justice measures and alternatives to imprisonment. They also focus on larger community management of offenses, such as a greater responsibility toward society, implementation of restorative justice, and protection. They lay an even greater emphasis on gender-based imprisonment policies such as local allocation and medical and mental health services to be provided for women prisoners. This includes the responsibility of the state to allocate women offenders to prisons close to their place of residence, access to gender-specific medical care, state-sponsored treatment for diseases like HIV/AIDS, substance abuse prevention and treatment, and self-harm prevention. 

Reforms for handling female prisoners and invasive screening procedures are suggested to be scrapped. More liberty has been allocated in terms of familial and maternal communication alongside specific guidelines for juvenile female offenders. Although the US agreed to the Bangkok Laws, many of the guidelines have not been taken as seriously and are either superficially implemented or not at all. The geographical location, demographics like ethnicity and race, and state-wise budgetary allocations are some of the deciding factors in the implementation of the suggested reforms. 

Healthcare necessities remain an ongoing issue for incarcerated women in the United States prisons as well. From mental health resources to support for pregnant women, the United States prison system, created with the needs of men in mind, fails to encapsulate the essentials of imprisoned women effectively. Lack of access to healthcare, sanitary products, and other supportive resources for menstruation negatively impacts women’s mental health and sanitation in these prisons. Therefore, to decrease anxiety over access, it remains crucial to address the basic needs of women. With a healthy emotional prison environment, rehabilitation in prison systems becomes a relatively more straightforward job, eventually leading to lower recidivism rates and prison numbers. 

Another aspect of women’s health care that the current prison system fails to consider is reproductive health care (contraceptives, abortion, sex education, adequate wages). Almost 5% of women in jails, 4% of women in state prisons, and 3% of women in federal prisons are pregnant when incarcerated. Given the number of pregnant incarcerated women, the lack of health care standards for pregnancy care in prisons even today reflects the urgency for policies supporting investment in educational and adequate medical resources for these women. Even though organizations and institutions are working toward pregnancy care in prisons in the United States, several institutions rely heavily on donations that are irregular and unequally distributed throughout the country. Therefore, community-based programs supported by state and federal governments could help eliminate the disparities in allocating these resources. 

Furthermore, according to the National Institute of Justice, in order to maximize the effectiveness of reentry programs for women and to decrease recidivism rates, rehabilitation and reentry programs should be gender-informed. Gender-informed reentry programs could ensure that the specific needs, patterns, and healthcare resources for specific genders and sexualities are catered accordingly.  

In addition to homophobia and transphobia, disparities in arrests and treatment of the LGBTQ+ communities in prisons are other examples of gender disparities observed in the criminal justice system. Due to high rates of contact with the criminal justice system, lesbian and bisexual women are four times as likely to be arrested than straight women. In addition, several transgender people in prisons report feeling unsafe in the prison environment due to their gender orientation, and BIPOC LGBTQ+ people are twice as likely to be put in solitary confinement under the illusion of being protected from discrimination behind bars. 

To address these direct and indirect disparities in the treatment of LGBTQ+ communities in the criminal justice system, it remains necessary to bring about policy reform both in and out of prisons. Homophobia and transphobia in societies, in general, contribute to homophobic and transphobic environments within prisons. According to the Prison Policy Initiative, the first steps toward reducing discrimination at any level are increasing support for LGBTQ+ youth and advocating for equality and education on equity among genders and sexualities. 

A current threat to the treatment of LGBTQ+ communities within the criminal justice system remains Sodomy Laws. Although struck down 20 years ago by the United States Supreme Court under the decision of Lawrence v. Texas, specific legal codes inherited from the British Common Laws against sodomy within the LGBTQ+ communities remain in Florida, Georgia, Kansas, Kentucky, Louisiana, Massachusetts, Michigan, Mississippi, North Carolina, Oklahoma, South Carolina, and Texas. As long as these legal codes remain, according to Amanda Holpuch in the New York Times, these laws can still be used to discriminate. Therefore, now more than ever, after the overturn of Roe v Wade, it remains essential to remove such laws from every state. It is imperative to look deeper into the contributing factors that have prevented the reforms from being impartially implemented. The suggestions act as a guiding light for the rectification of criminal justice policies in relation to gender disparities and allow for a more significant space to be created both in terms of discourse and practice for just, equitable, and inclusive justice policies.

The pervasive gender disparities within the criminal justice system necessitate immediate attention and policy reform. The effects of gender-based discrimination extend across various gender identities, affecting reporting, sentencing, and rehabilitation. To address systemic unfairness, lawmakers must craft policies aimed at remedying disparities confronted by gender-diverse groups and sexual minorities such as cisgender women, transgender people, and LGBTQ+ collectives facing inequity. The Bangkok Laws and United Nations Rules provide a blueprint for gender-focused reform, but their effective implementation remains inconsistent. By addressing reproductive and mental health needs, removing biases, and providing comprehensive rehabilitation programs, the criminal justice system can evolve into an inclusive and equitable framework. The imperative lies in dismantling discriminatory practices, advocating for policy change, and championing the rights of all genders within the criminal justice landscape.

Acknowledgment

The Institute for Youth in Policy wishes to acknowledge Ahad Khan, Donovan Zagorin, Nolan Ezzet, and other contributors for developing and maintaining the Policy Department within the Institute

Works Cited

1. “86(R) HB 650 - Senate Committee Report Version - Bill Text,” n.d. https://capitol.texas.gov/tlodocs/86R/billtext/html/HB00650S.htm

2. Asquith, Christina. 2016. “Recruiting More Women Could Help Solve Many of the Problems With American Policing.” The Atlantic. https://www.theatlantic.com/politics/archive/2016/08/police-departments-women-officers/497963/.

3. California, State of. “Taking on Historic Homophobia in Justice System, California Governor Newsom Launches Process for Pardoning People Prosecuted for Being Gay.” California Governor, February 5, 2020. https://www.gov.ca.gov/2020/02/05/taking-on-historic-homophobia-in-justice-system-california-governor-newsom-launches-process-for-pardoning-people-prosecuted-for-being-gay/ 

4. “Changing Public Attitudes toward the Criminal Justice System.” Open Society Foundations, February 2002. https://www.opensocietyfoundations.org/publications/changing-public-attitudes-toward-criminal-justice-system. 

5. “Crime Prevention & Criminal Justice Module 9 Key Issues: Topic 1 - Gender-based discrimination and women in conflict with the law.” n.d. UNODC. Accessed August 28, 2023. https://www.unodc.org/e4j/en/crime-prevention-criminal-justice/module-9/key-issues/1--gender-based-discrimination-and-women-in-conflict-with-the-law.html.

6. Miller, Holly Ventura, Female Reentry and Gender-Responsive Programming.” National Institute of Justice. Accessed August 29, 2023. https://nij.ojp.gov/topics/articles/female-reentry-and-gender-responsive-programming 

7. Geppert, Katharina. n.d. “Explaining the Gender Gap in the Criminal Justice System: How Family-Based Gender Roles Shape Perceptions of Defendants in Criminal Court.” Inquiries Journal. Accessed August 28, 2023. http://www.inquiriesjournal.com/articles/1936/explaining-the-gender-gap-in-the-criminal-justice-system-how-family-based-gender-roles-shape-perceptions-of-defendants-in-criminal-court.

8. Gordon, Eleanor. n.d. “Justice and Gender.” OSCE. Accessed August 28, 2023. https://www.osce.org/files/f/documents/8/9/442525.pdf.
9. Goulette, Natalie, John Wooldredge, James Frank, and Lawrence Travis. “From Initial Appearance to Sentencing: Do Female Defendants Experience Disparate Treatment?” Journal of Criminal Justice, August 29, 2015. https://www.sciencedirect.com/science/article/abs/pii/S0047235215000665#preview-section-snippets. 
10. “History of VAWA | Legal Momentum,” n.d. https://www.legalmomentum.org/history-vawa.
11. Holpuch, Amanda. “The Supreme Court Struck down Sodomy Laws 20 Years Ago. Some Still Remain.” The New York Times, July 21, 2023. https://www.nytimes.com/2023/07/21/us/politics/state-anti-sodomy-laws.html. 
12. “Identifying and Preventing Gender Bias.” n.d. Department of Justice. Accessed August 28, 2023. https://www.justice.gov/crt/file/799316/download.
13. “Incarcerated Women and Girls - the Sentencing Project.” The Sentencing Project. Accessed August 28, 2023. https://www.sentencingproject.org/app/uploads/2023/05/Incarcerated-Women-and-Girls-1.pdf. 
14. Initiative, Prison Policy. “Visualizing the Unequal Treatment of LGBTQ People in the Criminal Justice System.” Prison Policy Initiative. Accessed August 29, 2023. https://www.prisonpolicy.org/blog/2021/03/02/lgbtq/ 
15. “Judicial Notebook: Incarcerated Transgender People.” Monitor on Psychology. Accessed August 28, 2023. https://www.apa.org/monitor/mar06/jn. 
16. Kim Elsesser. 2021. “Female Lawyers Face Widespread Gender Bias, According To New Study.” Forbes https://www.forbes.com/sites/kimelsesser/2018/10/01/female-lawyers-face-widespread-gender-bias-according-to-new-study/?sh=6bbb4794b55e.
17. “Lifetime Likelihood of Going to State or Federal Prison.” Department of Justice. Accessed August 28, 2023. https://bjs.ojp.gov/content/pub/pdf/Llgsfp.pdf. 
18. “Majority of Americans Think U.S. Criminal Justice System Is Broken, Ineffective; See Need for Change.” Open Society Foundations, February 12, 2002. https://www.opensocietyfoundations.org/newsroom/majority-americans-think-us-criminal-justice-system-broken-ineffective-see-need. 
19. Mannerfelt, Caroline, and Anders Håkansson. “Substance Use, Criminal Recidivism, and Mortality in Criminal Justice Clients: A Comparison between Men and Women.” Journal of addiction, March 11, 2018. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5866866/ 
20. Martinez, Matthew. “Underreporting among Males Likely Due to Gender-Based Stigma.” Marquette Wire, February 27, 2018. https://marquettewire.org/3988006/news/underreporting-among-males-likely-due-to-gender-based-stigma/. 
21. Monazzam, Niki, and Kristen M. Budd. 2023. “Incarcerated Women and Girls – The Sentencing Project.” The Sentencing Project. https://www.sentencingproject.org/fact-sheet/incarcerated-women-and-girls/.

21. Marfin, Catherine. “Texas Senate Passes Bill to Improve Conditions for Women in Prison.” The Texas Tribune, May 10, 2019. https://www.texastribune.org/2019/05/10/lawmakers-pass-bill-that-addresses-conditions-of-women-in-prison/.

23. Ohsumi, Tomohiro, and Maurice Chammah. 2016. “Two Parties, Two Platforms on Criminal Justice.” The Marshall Project. https://www.themarshallproject.org/2016/07/18/two-parties-two-platforms-on-criminal-justice.

24. “Opinion Asking for it.” n.d. Morning Star. Accessed August 28, 2023. https://morningstaronline.co.uk/article/f/asking-it.

25. “Omnibus Crime Control and Safe Streets Act of 1968 | Office of Justice Programs,” n.d. https://www.ojp.gov/ncjrs/virtual-library/abstracts/omnibus-crime-control-and-safe-streets-act-1968#:~:text=The%20Omnibus%20Crime%20Control%20and,at%20all%20levels%20of%20government.

26. “Patriarchy on trial: double standards in the criminal justice...” 2023. Revolving Doors. https://revolving-doors.org.uk/women-criminal-justice-double-standards/.

27. “Rape and Sexual Assault Victimization among College-Age Females, 1995–2013.” US Department of Justice, December 2014. https://bjs.ojp.gov/content/pub/pdf/rsavcaf9513.pdf. 

28. “Reentry Considerations for Justice Involved Women.” n.d. National Resource Center On Justice-Involved Women. Accessed August 28, 2023. https://cjinvolvedwomen.org/wp-content/uploads/2016/07/Reentry-Considerations-for-Justice-Involved-Women-FINAL.pdf.
29. “The Gender Divide: Tracking Women’s State Prison Growth.” Prison Policy Initiative. Accessed August 28, 2023. https://www.prisonpolicy.org/reports/women_overtime.html. 
30. “The mission of the American Bar Association Commission on Women in the Profession is to secure full and equal participation of women in the ABA, the profession and the justice system.” n.d. American Bar Association. Accessed August 28, 2023. https://www.americanbar.org/groups/diversity/women/.

31. Villa, Manuel. “The Mental Health Crisis Facing Women in Prison.” The Marshall Project, June 22, 2017. https://www.themarshallproject.org/2017/06/22/the-mental-health-crisis-facing-women-in-prison 
32. “Women and Girls in the Justice System | Overview.” 2020. Office of Justice Programs. https://www.ojp.gov/feature/women-and-girls-justice-system/overview.

32. “Women and the Criminal Justice System.” American Civil Liberties Union. Accessed August 29, 2023. https://www.aclu.org/women-and-criminal-justice-system#:~:text=Women%20and%20Girls%20Behind%20Bars&text=Certain%20practices%20such%20as%20strip,and%20other%20mental%20health%20issues 
33. “Women in Criminal Justice & Law Enforcement: Career Advice & Resources.” 2020. Public Service Degrees. https://www.publicservicedegrees.org/college-resources/women-in-criminal-justice/.
34. “Women’s Healthcare in the Criminal Justice System.” Womens Healthcare in the Criminal Justice System Comments. Accessed August 29, 2023. https://sites.lafayette.edu/trianoj/ 
35. Workman, Jane E., and Elizabeth W. Freeburg. “An Examination of Date Rape, Victim Dress, and Perceiver Variables within the Context of Attribution Theory - Sex Roles.” SpringerLink. Accessed August 28, 2023. https://link.springer.com/article/10.1023/A:1018858313267. 
36. “World Female Imprisonment List.” 2022. World Prison Brief. https://www.prisonstudies.org/sites/default/files/resources/downloads/world_female_imprisonment_list_5th_edition.pdf.

38. “Understanding Gender-Biased Policing: Police Misconduct, Domestic Violence, and Sexual Assault.” American Civil Liberties Union. American Civil Liberties Union, May 2016. https://www.aclu.org/sites/default/files/field_document/aclu_memo-understanding_gender_biased_policing-2016_0.pdf.

39.  “United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules)”, 1990, Office of the United Nations High Commissioner for Human Rights. https://www.ohchr.org/sites/default/files/Documents/ProfessionalInterest/tokyorules.pdf 

40. “The Bangkok Rules”, 2011, United Nations Office on Drugs and Crime. https://www.unodc.org/documents/justice-and-prison-reform/Bangkok_Rules_ENG_22032015.pdf 

‍