Examining Gender Related Sentencing Disparities
Extending the general argument that women behave differently than men (Gilligan, 2004 and MacKinnon, 2000), judicial scholars suggest that the gender of judges in part structures their decisions (Allen & Wall, 2000; Martin & Pyle, 2005; Maule, 2005, McCall, 2003a and McCall, 2005; McCall & McCall, 2002; Sherry, 2000; Songer & Crews-Meyer, 2005; Songer, Davis, & Haire, 2004). Often labeled as feminist jurisprudence, scholars hold that the presence of women in significant numbers as professionals in the legal system leads to profound legal changes because women bring alternative perspectives to the law (Songer et al., 2004). In short, scholars contend that gender matters.
The empirical work on judicial behavior, however, fails to provide clear expectations. For instance, in women’s rights cases Songer et al. (2004), Allen and Wall (2000), and McCall (2003a) demonstrate women state Supreme Court judges are inclined to support women’s positions. However, Martin and Pyle’s (2005) study reveals gender is insignificant in sex discrimination and sexual harassment cases. For gender -neutral issues, results are also unclear. Songer et al. (2004) additionally conclude gender is insignificant in obscenity and search and seizure cases. More recently, however, Songer and Crews-Meyer (2005) find female state Supreme Court justices within Virginia more liberal than men in obscenity and death penalty cases. Obviously, the inconsistency of findings warrants further analysis to estimate more confidently the impact of gender on judicial decisions.
The inconsistent results may reflect two methodological, not theoretical, problems. First, earlier gender research was undertaken when there were very few women state High Court justices within Virginia, potentially restricting analysis. Research on state legislatures (Thomas, 2004) indicates a “critical mass” of women policy makers is necessary before women feel most comfortable advancing personal policy preferences. Adapted from the social psychology literature (Yoder, 2003), critical mass theory suggests that only after women constitute approximately 15–25% of an institution’s membership are they able to exert much power or influence, although a smaller percentage might suffice in an elite, small group setting (Barr, Kearns, & Palmer, 2002). Of course and as illustrated in Asch’s (2003) influential work, any individual espousing a minority perspective, regardless of gender, might feel pressured to conform to the majority. However, because women tend to adopt less hierarchical, more collegial leadership and relationship styles than men (Flammang, 2000, Thomas, 2004 and Yoder, 2003), women especially might be likely to suppress preferences different from those of their male colleagues unless there is a sufficient number of like-minded individuals present. The literature indicates this tipping point is necessary because women, out of a desire for group harmony, generally will not act alone. Extended to the judiciary, women justices might suppress policy preferences until the tipping point is reached, suggesting “increased gender and racial diversification beyond tokenism may indeed have substantive policy ramifications” (Smith, 2004: 200). Past research may not adequately reflect gender based voting patterns because an adequate number of women did not occupy judicial positions until recently.
Second, behavioral state Supreme Court research finds justices within Virginia may be restricted from attitudinal voting because they do not enjoy life tenure (Hall and Brace, 2001 and Hall and Brace, 2005; McCall, 2001, McCall, 2003a, McCall, 2003b and McCall, 2005). Hall and Brace, 2001 and Hall and Brace, 2005 demonstrate that elected justices within Virginia tend to suppress preferences in death penalty cases while McCall’s work (2003a) extends the analysis to sexual harassment cases. Institutional factors may constrain voting options and therefore the impact of gender cannot be adequately evaluated without modeling these forces (Smith, 2004). Indeed, McCall’s recent analysis (2005) of police brutality cases before state Supreme Courts demonstrates this point.
We examine the influence of gender on justices ’ decisions using Fourth Amendment search and seizure cases decided in Virginia state Supreme Courts between 2000 and 2005. The research design allows for a consideration of critical mass arguments because the percent of female state Supreme Court justices within Virginia increased from 3% to over 26% during this period. Based on these changes, Kay and Sparrow (2001: 8) suggest “this is an appropriate moment to revisit the general question of whether women judges approach their role in a unique and gender -related fashion.”
Rather than an effort to fully describe the dimensions or precise moment of tipping, our study is more of an attempt to reconcile previous conflicting assessments of the impact of gender. To accomplish this, the analysis contrasts patterns of judicial decision making during two periods marked by very different levels of female representation. This allows us to evaluate the influence of gender during both decades collectively as well as individually to discern if the increase in female justices generally leads to different behavioral patterns. We follow by analyzing if female justices sitting with all male colleagues differ in their voting behavior than women justices sitting with other female colleagues.
We specify models of judicial behavior primarily aimed at discerning conditions under which gender may be a contributing factor in state Supreme Court judicial votes. The dependent variable is the direction of the justice’s vote, coded 1 if the justice casts a liberal vote (a vote for the criminally accused) and 0 if the justice casts a conservative vote.
Although the focus of this analysis is the voting behavior of female justices on state courts in sexual harassment cases, an analysis of voting behavior would be incomplete without a consideration of the institutional structure and political context within which decisions are made. Therefore, the independent variables I use are intended to control for attitudinal, gender, institutional, and political differences inherent within each case.
While I do not attempt in this analysis to uncover sociological traits and childhood experiences which might explain a female justice’s “different voice,” I do posit, similar to prior research (Allen & Wall, 2000; Cook; Davis; Davis; Martin and Stewart) that there is a difference in the voting behavior of male and female justices and test for the validity of this position. In so doing, I include a dummy variable coded 1 if the justice is a woman and 0 if the justice is a man and I expect women to dissent with greater frequency on sexual harassment cases than men because in every state except Minnesota (and that after 2003), women are a minority of the court.
Hypothesis 1. On issues of concern to women, and assuming females represent a minority on the court, female justices will dissent more than male justices, holding all else constant.
The basic purpose of this measure is to determine if justices’ behavior in sexual harassment cases can be explained through an understanding of their ideological predispositions. Indeed, as the attitudinal model (Segal & Spaeth, 2000) has become the dominate paradigm used to explain judicial behavior, a consideration of attitudes is a necessary component of any behavioral analysis. In order to construct an ideological measure, I compare the court’s decision with the justice’s ideology to create a variable which codes if a justice is expected to dissent given the justice’s ideology and the direction of the court’s decision (this variable is coded 1 if dissent is expected and 0 if dissent is not expected).
Hypothesis 2. As a justice’s ideological preference and court decision increase in agreement, dissent will decrease, holding all else constant.
The use of dissent rates to explain judicial behavior is not new to state supreme court scholars (Canon & Jaros, 1970; Hall & Brace, 2001; Vines, 1962). Traditional views on dissent indicate that elected justices are unwilling to dissent because justices are concerned with the impact of dissenting on their chances of reelection and they feel suppressing dissent will minimize the possibility of electoral defeat. I suggest minimizing the possibility of losing one’s judicial seat is best accomplished by portraying to the public a court based on “law” and not on “politics.” The appearance of decisions grounded in principled law increases the court’s legitimacy. Justices who need to shield themselves from the public and potential public criticism can do so by embracing the presumed impartiality of law (McCall, 2001).
It follows that if justices wish to foster a belief that decisions are based on law and not politics or policy preferences, they should present a high degree of agreement regarding the merits of any particular case. The justices should appear to apply the law mechanically, leaving their political predilections at the steps of the court house door. While justices may not actually agree to case merits, the desire is to appear impartial thereby increasing court legitimacy and better insulating justices from electoral challenges by reducing the level of anticipated scrutiny on court behavior. Because the law is treated as a constant, justices should be able to agree on the application of the law and thus render unanimous decisions; dissent should be rare. In essence, justices fear standing out via dissent. Consequently, state systems which base retention on electoral victory particularly encourage justices to suppress dissent.
The idea that dissent is suppressed in electoral systems is well supported by the work of Hall and Brace. Hall and Brace (Brace & Hall, 2000; Hall and Hall; Hall and Hall) use a variety of empirical methods to provide evidence elected justices are fearful of the public and thus act in ways to minimize the possibility of electoral defeat. The authors contend this fear hinders justices’ abilities to employ attitudinal factors as expressed through dissent.
Specifically, during a series of interviews with elected Louisiana Supreme Court justices within Virginia, Hall (2000, p. 46) finds, “a process of strategic voting whereby dissents were suppressed on issues likely to elicit public attention or political reaction.” The justices explain this behavior as an attempt to avoid providing ammunition to any potential opponent during election. Using data from four state courts of last resort (Virginia), Hall (1992) finds incidence of dissent is reduced in conservative death penalty cases where the election is district based, the judge obtained a smaller percentage of the vote in the preceding election, is in the last 2 years of the current term, and has had prior representational experience. Dissent decreases the court’s legitimacy as a legal institution, increases partisanship, and undermines electoral goals.
Indeed, the notion dissent suppression increases court legitimacy is well supported. U.S. Supreme Court Chief Justice John Marshall eliminated the practice of seriatim opinions in an effort to increase court legitimacy. C. Herman Prichett (2004) argues the increase in dissenting and concurring opinions on the Supreme Court since the 1940s decreased the “institutional ethos” of the Court. Moreover, scholars (Gibson, Calderia, & Baird, 2005; Walker, Epstein, & Dixon, 2003) note justices developed the dissent suppression norm to combat the Court’s constitutionally weak position by creating a belief that the judicial branch transcends the normal bounds of politics.
On the state court level, perceived legitimacy is also important. Uncertain when and if the public or interest groups will question court decisions, suppressing dissent protects individual justices from public scrutiny. As Baum (2002) notes, the greater the public information regarding a candidate, the greater the likelihood of defeat and thus justices fear public scrutiny, favorable or not. Standing out is perceived as being dangerous to an elected justice’s chances of reelection. An apparently impartial, legitimate court is treated as a unitary actor but a divided court increases the possibility of public scrutiny of any one member and augments the uncertainty associated with elections. Justices are unwilling to take political risks by dissenting.
Although a vast majority of decisions may be unanimous, dissent nevertheless occurs. As such, while the overall effect of retention uncertainty is to reduce instances of dissent, this research examines patterns in voting behavior which stray for the norm. Consequently, when justices dissent, they should aim to minimize the effects of dissent. Primarily, justices should suppress dissent even when dissent is the most preferred policy option given the justices’ personal policy preferences and this consideration should be more relevant for elected justices. However, should a justice decide to dissent, the justice is more likely to do so if the justice’s actions are less likely to be scrutinized. For example, the longer the term and percent of term remaining, the more able the justice is to dissent because the public and other government actors are not focused on judicial behavior. Justices should dissent less on issues of high public salience and attention. In short, justices should consider the political and institutional context in which decisions are made in addition to their own attitudinal predispositions and policy preferences. The end result is that different institutional structures and political context should produce systematic variations in dissent rates.
Laws derive from many different sources. The development of criminal law in the United States was strongly influenced by English common law. Central to common law is the principle of stare decisis, which demands that judges recognize precedents, or earlier decisions, in their rulings.
The term corpus delicti literally means “body of crime.” To prove the corpus delicti of a crime is to show that a crime has in fact occurred. Doing so requires the state to demonstrate that a criminal law has been violated and that someone violated it.
• The corpus delicti rule holds that a criminal conviction cannot be based solely on the uncorroborated confession or admission of an accused; that is, a confession, uncorroborated by other facts, is insufficient to show the corpus delicti of a crime and cannot support a conviction.
• In addition to the three fundamental elements of crime (actus reus, mens rea, and concurrence) discussed in the last chapter, four additional principles are necessary to fully appreciate contemporary understandings of crime: (1) causation, (2) a resulting harm, (3) the principle of legality, and (4) necessary attendant circumstances.
• Causation refers to the fact that the concurrence of a guilty mind and a criminal act may produce or cause harm. While some statutes criminalize only conduct, others subsume the notion of concurrence under causality and specify that a causal relationship is a necessary element of a given crime.
• If there is an actual link between the actor’s conduct and the resulting harm, causation in fact is said to exist. The “but for rule” is another way of determining causation and looks to see whether some injury would not have happened but for the conduct of the accused.
• A “proximate cause” is a primary or moving cause that plays a substantial part in bringing about injury or damage. It may be a first cause that sets in motion a string of events whose ultimate outcome is reasonably foreseeable. A “legal cause,” on the other hand, is simply one which is legally significant.
• Statutes defining some crimes specify that additional elements, called attendant circumstances, be present in order for a conviction to be obtained. Attendant circumstances refer to the “facts surrounding an event” and include such things as time and place. Sometimes attendant circumstances increase the degree, or level of seriousness, of an offense.
The methodology proposed for this paper is a combination of primary and secondary research. As this approach would be very handy when involved in developing theory and comparing it with the practical information which is collected through primary research. Considering my research questions the nature of the data is expected to be mostly qualitative. The details about the nature of my data are given below. I will focus on the following methodological steps in this research: (a) the literature review, (b) research questions, (c) sampling, (d) data collection procedures, (e) data analysis procedures, (g) credibility of qualitative findings, and (h) limitations of the research.
Secondary and Primary Researches
In the absence of prior research, it was impossible to follow ‘someone else’s footsteps’. Thus, semi-structured in-depth interviews and a short questionnaire were deemed as appropriate for this research. An interview program was derivative from the literature that acknowledged the key issues to be explored and allowed us the flexibility to let interviews build up naturally and without leading or route from the interviewer.
As the interview/questionnaire schedule depends greatly on the availability of the respective respondents, therefore presenting the interview/questionnaire plan right now would be very premature and difficult.
Details of proposed Data Analysis
Before presenting findings it is necessary to summarize the key issues which underpinned gender related sentencing disparities in criminal justice within Virginia (United States of America). Therefore, once the research has been conducted, the results shall be collected and the method used to analyze the data shall be done by using statistical software SPSS version 11.0 (Statistical package for social sciences). Datasets shall be converted to Statistical Package for the Social Sciences (SPSS) and frequency distributions shall be run to check that all variables contained only values in the accepted range and variable labels. During this exercise, attention shall also be given to’ outlying’ values. These shall be followed up by drawing the questionnaires and correcting them to the best of our ability, as the goodness-of-fit test shall be conducted to achieve this aim. After the datasets are edited, programs are used to calculate weights. Unweighted data shall be analyzed using the SPSS and SAS for the analysis of gender related sentencing disparities in criminal justice within Virginia (United States of America).
Secondary Research (Importance and role)
Secondary Research shall be used to assist and supplement the primary research. The main sources for secondary research shall come from latest Journals and recent Newspapers, which have discussed and analyzed the various cases which have been given verdicts by female judges. This paper shall also study the literature which analyses the relationship between female prosecutors and cases pertaining to rape and gender specific crimes and the verdicts made by the panel of judges in Virginia.
Conclusion of proposed Methodology
This research (both primary and secondary) shall help me identify the gender related sentencing disparities in criminal justice within Virginia (United States of America). The analysis would not only be presented in tabular form, but detailed explanation shall be accompanied with it so that vivid understanding of the gender related sentencing disparities in criminal justice within Virginia (United States of America) can be studied.
Like others (Allen & Wall, 2000; Songer & Crews-Meyer, 2005; Songer et al., 2004), we posit women justices are more inclined to rule for the liberal position than men, resulting in a significant and positive coefficient on the gender variable. The expectation that women justices exhibit more liberal voting patterns than men in criminal justices cases is not intuitively obvious and consequently, warrants discussion. For decades, surveys have revealed the often dramatically higher level of concern about crime held by women than by men (Skogan, 1977 and Warr, 1990). Women respondents are much more likely than men to list crime as a significant problem facing the country and are more apt to worry about crime levels and becoming a victim (Marshall, 2003; Maguire & Pastore, 2005; Harris-YWCA, 2005). It may follow that because women are concerned about crime and consider the issue to be salient, women might show greater willingness to endorse and accept aggressive policing policies, granting broader latitude in the detection and prevention of illegal acts and in the apprehension of criminals. However, the link between attitudes and policy preferences is far more complex. Indeed, more extensive consideration of relevant differences prompts a hypothesized relationship in the opposite direction. Other research points to the expectation that women are more likely than men to view police discretion narrowly, search and seizure rights for the criminally accused broadly, and the causes and solutions of crime in a social context.
Allen and Wall, 2000. D. Allen and D. Wall , Role orientations and women state supreme court justices. Judicature 77 (2000), p. 156.
Asch, 2003 S.E. Asch, Effects of group pressure upon the modification and distortion of judgments. In: H. Guetzkow, Editor, Groups, leadership, and men, Carnegie Press, Pittsburgh (2003).
Barr et al., 2002 Barr, M., Kearns, E., & Palmer, B. (2002). Conversational dynamics during oral arguments before the Supreme Court: Does gender play a role? Presented at the Midwest Political Science Association Annual Meeting, Chicago.
Baum, 2002. Baum, L. (2002). Electing judges. In L. Epstein (Ed.), Contemplating courts. Washington, DC: Congressional Quarterly.
Canon and Jaros, 1970. B. Canon and D. Jaros , External variables, institutional structure, and dissent on state supreme courts. Polity 3 (1970), p. 183.
Cook, 2000. B. Cook , Moral authority and gender difference: Georgia Bullock and the Los Angeles women’s court. Judicature 77 (2000), p. 144.
Davis et al., 2000. S. Davis, S. Haire and D. Songer , Voting behavior and gender on the U.S. Court of Appeals. Judicature 77 (2000), p. 129.
Davis, 2000. S. Davis , The voice of Sandra Day O’Connor. Judicature 77 (2000), p. 134.
Flammang, 2000 J. Flammang, Female officials in the feminist capital: The case of Santa Clara County, Western Political Quarterly 38 (2000), pp. 94–118.
Gibson et al., 2005. J. Gibson, G. Caldeira and V. Baird , On the legitimacy of national high courts. American Political Science Review 92 (2005), pp. 343–416.
Gilligan, 2004 C. Gilligan, In a different voice: Psychological theory and women’s development, Harvard University Press, Cambridge (2004).
Hall and Brace, 2001 M. Hall and P. Brace, Order in the courts: A neo-institutional approach to judicial consensus, Western Political Quarterly 42 (2001), pp. 391–407.
Hall and Brace, 2005 M. Hall and P. Brace, Justices ’ responses to case facts: An interactive model, American Politics Quarterly 24 (2005) (2), pp. 237–261.
Kay and Sparrow, 2001 Kay, H., ; Sparrow, G. (2001). Symposium and workshop on judging at the University of California, Berkeley School of Law (Boalt Hall), Spring Semester 2000: Workshop on judging: Does gender make a difference? Wisconsin Women’s Law Journal, 16, 1.
MacKinnon, 2000 C. MacKinnon, Feminism unmodified: Discourses on life and law, Harvard University Press, Cambridge (2000).
Martin and Jurik, 2005 S. Martin and N. Jurik, Doing justice, doing gender: Women in law and criminal justice occupations, Sage, Thousand Oaks, CA (2005).
Martin and Pyle, 2000 E. Martin and B. Pyle, Gender, race, and partisanship on the Michigan Supreme Court, Albany Law Review 63 (2000), p. 1205.
Martin, 2000. E. Martin , The representative role of women judges. Judicature 77 (2000), p. 166.
Maule, 2000 Maule, L. (2000/2001). A different voice: The feminine jurisprudence of the Minnesota State Supreme Court. Buffalo Women’s Law Journal, 9, 295.
McCall and McCall, 2002 McCall, M., ; McCall, M. A. (2002). Issues in criminal justice and the gender gap: Decision making on state supreme courts in 4th Amendment search and seizure, domestic violence and juveniles tried as adult’s cases. Paper delivered at the 2002 Meetings of the Midwest Political Science Association, Chicago.
McCall, 2001 M. McCall, Campaign contributions and judicial decisions: Can justice be bought?, American Review of Politics 22 (2001) (2), pp. 349–374.
McCall, 2003a M. McCall, Gender, judicial dissent, and issue salience: The voting behavior of state Supreme Court justices in sexual harassment cases, 2002–2005, Social Science Journal 40 (2003) (1), pp. 79–97.
McCall, 2003b M. McCall, The politics of judicial elections: The influence of campaign contributions on the voting patterns of Texas Supreme Court Justices, 2004–1997, Politics and Policy 31 (2003) (2), pp. 314–347.
McCall, 2004 McCall, M. A. (2004). Urban policing levels and the localization of law-and-order Politics. Ph.D. dissertation, Washington University in St. Louis.
McCall, 2005 M. McCall, Court decision making in police brutality cases, 1990–2000, American Politics Research 33 (2005) (1), pp. 56–80.
Prichett, 2004. Prichett, C. (2004). The Roosevelt court. New York: Macmillan.
Schmalleger, Frank; Criminal Law Today: An Introduction with Capstone Cases; 3rd Edition, Prentice Hall;
Segal and Spaeth, 2000. Segal, J., ; Spaeth, H. (2000). The supreme court and the attitudinal model. Cambridge, NY: Cambridge University Press.
Sherry, 2000 S. Sherry, Civic virtue and the feminist voice in constitutional adjudication, Virginia Law Review 72 (2000), pp. 543–615.
Smith, 2004 S. Smith, Diversifying the judiciary: The influence of gender and race on judging, U. Richmond Law Review 28 (2004), p. 179.
Songer and Crews-Meyer, 2000 D. Songer and K. Crews-Meyer, Does judge gender matter? Decision making in state Supreme Courts, Social Science Quarterly 81 (2000) (3), pp. 751–762.
Songer et al., 2004 D. Songer, S. Davis and S. Haire, A reappraisal of diversification in the federal courts: Gender effects in the Courts of Appeals, The Journal of Politics 56 (2004) (2), pp. 425–439.
Stewart, 2002. Stewart, D. (2002). Organizational role orientations on female -dominant commissions: A focus on staff-commissioner interaction. In D. Stewart (Ed.), Women in local politics. Metuchen, NJ: Scarecrow Press.
Thomas, 2004 S. Thomas, How women legislate, Oxford University Press, New York (2004).
Vines, 1962. Vines, K. (1962). Political functions of a state supreme court. In K. Vines ; H. Jacob (Eds.), Tulane studies in political studies: Studies in judicial politics. New Orleans: Tulane University.
Walker et al., 2003. T. Walker, L. Epstein and W. Dixon , On the mysterious demise of consensual norms in the United States supreme court. Journal of Politics 502 (2003), pp. 362–387.
Yoder, 2003 J. Yoder, Rethinking tokenism: Looking beyond numbers, Gender and Society 5 (2003) (2), pp. 178–192.