A recent UTSA study suggests female defendants are treated differently than similarly situated male counterparts in federal narcotic cases, depending on their criminal history.

UTSA Associate Professor Dr. Robert Tillyer, Associate Professor Richard Hartley and Assistant Professor Jeffrey T. Ward conducted a study examining whether females receiving different sentencing lengths was consistent across all situations when considering particular factors — criminal history and gender.

Tillyer explained that criminal history is a common factor among all criminal convictions and is calculated through standardized guidelines in the federal court system as each individual works their way through the court system. For this reason, criminal history could serve as a foundation to measure gender discrepancies through sentencing lengths, since guidelines should be fair and consistent among all cases.

“It’s really fascinating, especially at the federal level, because the federal system is supposed to promote uniformity and consistency,” said Tillyer. “If you and I are both sentenced and you’re in Texas and I’m in Minnesota, we should be getting a similar sort of treatment. I wouldn’t say that is wholly untrue, but there is a surprising amount of difference because you’re dealing with different legislative processes, prosecutors and judges.”

Through comparison of 2007-2008 federal narcotics sentencing and gender data from the United States Sentencing Commission, the study showed a connection between an individual’s criminal history and gender; that is, female defendants who had lower criminal history scores — a less severe criminal background — received lower or more lenient sentences compared to males with similar low scores in their criminal history.

However, when criminal histories were far more extensive, females received longer sentencing lengths compared to their male defendants with similar criminal histories.

Tillyer explained that when given an extensive criminal history, a longer sentence is expected, but in this instance, the correlation was more pronounced for females. On the lower end of the spectrum, where defendants have much shorter criminal histories, females received less severe sentences than males; when the defendant has a longer criminal history, females received distinctly longer sentences than their male counterparts.

Possible explanations for this gender disparity fall on two theories: the evil woman hypothesis and the chivalry theory. The evil woman hypothesis suggests that when a woman violates a law, she is not only breaking laws, but also violating gender norms and expectations, and thus may receive a harsher sentence. Conversely, the chivalry theory claims that women will receive more lenient sentences if they are perceived as conforming to gender roles when compared to men who have committed similar crimes.

“The idea of conforming to social norms and expectations can be speculat(ive), and what really needs to be done to help us understand that is to actually talk to the decision makers. In this case, judges who make those sentencing decisions, because we’re sort of one step outside of the decision making process,” said Tillyer. “Think about the role of gender across periods of time — think about the 50’s — the role of women is much different today and so is the expectation for behavior. Whether you’re a man or woman, the expectation is you should be somewhat law abiding and do what you’re supposed to do.”

Despite these findings, Tillyer maintained that the results were suggestive and with merit but not definitive. Multiple factors such as marital status, employment, income and number of dependents could influence sentencing lengths. The data showed some discrepancies among different drug offenses — marijuana offenses received less severe sentences than much more serious drugs such as heroin or methamphetamines.

Most importantly, determining a concise definition of gender roles can produce a convoluted standard that does not represent a female’s societal role; essentially, are females held to a higher standard to follow gender norms and expectations?

“There’s a lot of work to be done; there’s lots of questions unanswered. Better measurement (methods) of these factors would help us understand why different individuals and groups are treated differently,” said Tillyer. “(What) I would like to pursue — in terms of sentencing — is looking at what prosecutors do. We’ve got a long history of research on judges and decisions around sentencing, but we know very little in comparison about prosecutors and how he or she proceeds with charges and plea-bargaining. That’s very much a black box that hasn’t been unpacked.”