When Seattle criminal defense lawyer Stephan Illa saw the headline at Doug Keene’s Jury Room, it was a smack upside the head. Keene posted of a new study that showed that women convicted of “white collar crimes” were sentenced more harshly than men. What?
How much longer? 300% longer if you are a White woman and 450% longer if you are a Black woman. Seriously. Wow. A new report has been released comparing the federal white-collar crime sentences of men and women.
Stephan was astounded. After 30 years in the trenches, it defied every experience he’s ever had. Me too. But then, how many times have we learned that “common wisdom” turns out to be total marlarky and reality is just the opposite? So Stephan read through the report. He was unimpressed:
I believe the study’s conclusion is the result a seriously flawed methodology:
1. Only female inmates currently serving sentences in federal prisons were included. Since only inmates sentenced to terms of a year or more are housed in federal prisons, any defendants who receive sentences of probation or less than a year and a day were excluded from consideration. As a result, any gender disparities manifested in low-end dispositions disappear.
2. The study examined only one variable (“loss amount”) in comparing the sentences imposed on the defendants. While the amount of loss is a significant factor in calculating a defendant’s advisory guideline range, many other considerations can drive the range up or down. The study ignores a myriad of offense-related adjustments for things like a defendant’s role in the offense, the number of victims, and the extent and sophistication of the fraudulent conduct. Likewise, the study makes no attempt to account for each defendant’s criminal history. Nor does the study consider the effect of the defendants’ plea agreements (if any) or decisions to go to trial and/or testify at trial. The study also fails to consider the effect of convictions on multiple counts (which, if not “grouped”,” may add further points to a defendant’s offense level).
3. The study’s claim to have considered the “loss amount” is itself questionable. It is no easy task to determine the precise loss amount that was used by the court at sentencing in a federal criminal case. In some cases, the parties stipulate to a loss amount in the plea agreement, but that stipulation need not be accepted by the court. The Probation Department, operating in its role as a sock puppet for federal law enforcement, often advocates for a different (i.e., higher) amount. And the judge may or may not identify a specific loss amount on the record at sentencing. The judgment itself does not identify the loss amount, just the sentence imposed. How did the study determine the loss amount in each case? Did it use the amount calculated in the discovery? Or did it use the amount identified in a complaint or an indictment? Did it accept the amount listed in a plea agreement? Or did it rely on statements in a sentencing memorandum filed by one of the parties? Did the authors examine the amount alleged in a presentence report? Or were the transcripts of a sentencing hearing examined? The study does not say.
4. At least one of the 29 female defendants is said to have been convicted of aggravated identity theft in addition to a different “white collar” offense. The federal identity theft statute carries a 24-month mandatory consecutive term of imprisonment irrespective of the loss amount. The study considered only the total term of imprisonment imposed on that defendant and compared her sentence to those imposed on all of the other inmates (none of whom where tagged with identity theft convictions).
5. The data were collected in a nonrandom fashion. The 29 female defendants studied were selected because they all were serving their sentences at Danbury Federal Prison Camp. They were convicted in federal district courts located in 13 different states. All but five of the 29 female defendants were convicted in the Northeastern region (NY, NJ, MA, NH, PA, CT, DC). Two were convicted in the South (GA, VA) and Midwest (OH, WI), and one in the West (CA). The study says it selected 31 male defendants for comparison, “compiled from court records limited primarily to the same states (or regions) from which the women came.” Id. at 2. The men were convicted in federal courts in 11 different states. How these particular male defendants were selected for comparison is not specified, although the study assures us that “[t]here is no evidence that the selection of the individuals comprising the database was done with the intent of influencing the results of the study.” Id. at 2. A little over half (18) of the 31 male defendants were convicted in the Northeast region. Of the remaining 13 convictions, ten were from the South (4 in FL, 4 in VA, and 1 each in TX & NC), two from the Midwest (MO, IL), and one from the West (CA). The study does not bother to consider whether regional differences might affect sentencing decisions. Finally, the propriety of comparing sentences imposed by different judges with different sentencing philosophies and attitudes toward the guidelines remains unaddressed. Federal judges are not fungible. Regardless of a defendant’s gender, it makes a great deal of difference whether the sentencing judge wears a skirt, a beard, a scowl, or a smirk.
The study has many other inane features (the graphs are delightfully unintelligible) and includes a series of particularly maladroit mixed metaphors (involving canaries and smoke).
The company that did the study, Culture QuantiX, doesn’t facially appear to have an agenda, though it’s unclear whether they take on work for the purpose of demonstrating what their patrons want demonstrated. But Stephan’s points raise some very significant issues.
If you’re going to do a study to challenge common experience and the results show that our experience is significantly wrong (who you gonna believe, me or your lying eyes?), then you’d better make sure your methodology is sound. This study appears exposed on every flank.
So why would Doug Keene promote this study without any apparent scrutiny as to its validity? Within opponents of the prison-industrial complex, there are competing interests for who gets screwed worse, and therefore who needs reform more. It’s a shame that this happens, as it pits over-incarcerated women against over-incarcerated men against over-incarceration for everybody.
It also creates an undesirable secondary effect, where questioning a study like this creates the impression of denigrating the problem of incarcerated women. No one wants to suggest that the over-incarceration of women isn’t an issue, anymore than over-incarceration itself is an issue. But it takes the fight away from the core problem to focus on a subset and creates an internal competition for concern, resources, and potentially reform.
It’s a bad thing. Rather than fight among ourselves, the problem of over-incarceration for everyone needs to remain the focus, and not by gender by contending that women suffer disproportionately. Even if my experience, that women are sentenced less severely than men, is correct, it does not mean they are not over-incarcerated or that they do not suffer far beyond any societal value in their imprisonment.
But when someone promotes a study that flies in the face of experience, it’s irresponsible to promote its results without scrutiny. Just as junk science in the courtroom leads to wrongful convictions, junk studies lead to wrongful beliefs. Neither is tolerable. Both make us worse for it. Don’t do it.