In the olden days of Second Wave Feminism, the goal was gender equality. A study published in the journal Social Psychological and Personality Science shows that the judiciary didn’t get the memo.
Judges may be just as biased or even more biased than the general public in deciding court cases where traditional gender roles are challenged, according to a new study published in the journal Social Psychological and Personality Science.
This study examined the role of gender bias relating to judges and legal decisions, and the sex discrimination worked both ways, sometimes against women and sometimes against men.
The study sought responses to two hypotheticals (which they called “mock” cases, because it seemed like a cooler name), one involving a discrimination case and another involving a child custody case.
In the sex discrimination lawsuit, the plaintiff alleged that he or she was denied a promotion after taking six weeks of paid parental leave to care for an adopted baby. The plaintiff also wanted to introduce expert evidence from a psychologist about research on sex discrimination. Judges who supported traditional gender roles were more likely than lay people with similar gender ideologies to dismiss the case or rule against a female plaintiff.
It appears the psychologists running the study had neither familiarity nor concern with the rules of evidence, preferring instead to chalk the ruling up to gender bias. They crafted a peculiarly complex fact pattern with an extremely dubious criterion for bias.
In the divorce case, the father and mother both sought primary custody of their two children. Both spouses worked full-time jobs and sometimes had conflicts with caring for their children. Judges and lay people who supported traditional gender roles allocated more custody time to the mother than to the equally-qualified father, but the judges were even more biased in favoring the mother than were laypeople. Only three percent of the judges in the sample gave the father more custody time than the mother.
The traditional bias in favor of the custodial mother persists, though the criterion between “equally-qualified” parents is the welfare of the child, not the qualification of the parent.
The study involved 500 state court judges and 500 laypeople, the purpose of which was apparently to determine whether judges were more biased, without regard to the obvious question of whether laypeople’s feelings about law were the equivalent to judges’ knowledge of law.
“The judges who participated in the study did so at great personal and professional risk because they care deeply about confronting the possibility that there might be social group disparities in case outcomes,” stated Miller, “This state court system has become a leader in the search for evidence-based solutions to the problem of implicit bias.”
It’s bizarrely unclear why this is raised at all, no less what they’re talking about with “great personal and professional risk.” Are they trying to make judges seem heroic for answering a survey? What risk? And why attribute feelz to judges for their willingness to participate in a study?
But does the outcome show bias in the judges, in the law, or sound judicial reasoning? In the discrimination case hypothetical, the issue of admitting an expert is less a matter of gender bias than basic evidence law. Lay people don’t get it? So what? Perhaps the outcome doesn’t reflect judges who support traditional gender roles, but judges who make better evidentiary rulings?
In the child-custody case, the bias favored women, as has long been the case. Are they complaining that the changed gender roles hasn’t produced judges equally willing to rule against mothers rather than fathers?
This is where the new school of Third Wave Feminism displaces the old notion of equality. While maintaining the rhetoric of equality (or, more often, equity, which makes it easier to fudge the edges), the goal is no longer equal treatment, but special favored status. So women seeking custody are getting it, just as they always have? And this is what needs to change?
But the “mock” case that wasn’t the subject of the study reveals a far more fundamental bias in the judiciary, that woman are treated far more leniently in sentencing than men.
Official federal sentencing guidelines don’t distinguish between female and male offenders. They often downplay or outright disregard circumstances that are common among women, such as the role of an offender as the sole caretaker for children or an offender having been coerced into committing a crime. But judges commonly compensate ad hoc, which has led to women on the whole receiving much shorter sentences than men when facing the same punishments.
This will come as no surprise to any criminal defense lawyer, who would be remiss not to argue that familial responsibilities militate for a lower sentence for female defendants. The problem here is that the same arguments that persuade judges to impose shorter sentences on women fall flat when the defendant is a man.
Critics say the sentencing benchmarks should provide more flexibility from the start — a change that would benefit women like James but also men in similar circumstances, whose extenuating factors may be even more likely to be overlooked.
“The notion that you simply deal with a complicated situation by saying, ‘Let’s ignore the complexity,’ is idiotic,” said former federal judge Nancy Gertner, now a lecturer at Harvard Law School.
And it is idiotic, as men can be caregivers to their children, just as it can be in the best interests of the children to be in the primary custody of their father rather than their mother. The point isn’t that bias in favor of traditional gender roles doesn’t exist, or persist, but that the changes in gender bias attitudes that would be necessary to serve the goal of equality would work against the interests of women at worst, and be neutral toward them at best.
Should gender equality be the goal? Third wave feminists might employ the rhetoric, but would they applaud custody being given to fathers over mothers? Would they argue against using their status as mothers to get shorter sentences if the same consideration was denied men?
As the prevailing ideology of feminism is for favored treatment rather than equality, it would seem that the gender biases that remain firmly in place in the judiciary are working in their favor. As Judge Gertner says, it’s idiotic, but if women achieved equality in the legal system, would that make their heads explode with the unfairness of being treated as poorly as men?
H/T Stephanie West Allen
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SHG,
Two points from my experience sentencing men and women over the last 26 years and with no statistical work to back up my anecdotal analysis:
1. I agree that if your take exactly the same fact pattern, exactly the same role in the offense, exactly the same criminal history, and exactly the same family circumstances that male offenders and female offenders of the exact same age and race are treated differently when it comes to sentence length. While the sentencing Guidelines tend to reduce that disparity, they have not been entirely successful. There is, in my opinion, a latent or implicit bias in favor of women.
2. However, in the great majority of the cases, and particularly in drug cases, women tend to have lesser roles in the offense, lesser criminal histories, and greater family obligation. Moreover, and this aspect cannot be stressed too much particularly for drug cases, women offenders are often controlled and abused by their male codefendants.
So, in sum, when there is utter equality of culpability females are treated better than men when it comes to sentence length but there is seldom utter equality of culpability. Men tend to be more culpable than women.
All the best.
RGK
Not that I would ever do such a thing, but some might suggest that the occasional zealous CDL would argue that the female deft was merely a mule at the behest of some narco-miscreant knowing that a judge would be far more inclined to accept such a representation because everyone knows men are more evil.
I might also note that the reason men have a longer sheet is that they get tossed with greater frequency by the local cops, who arrest them for crap, resulting in a quickie plea at arraignment that gets them out immediately, as opposed to bail they can’t make and a trial three years down the road. The local cops don’t toss women at nearly the same rate, thus giving them fewer priors and a lower crim history score.
SHG,
The points you make are all true. The problem is that I believe the points I make are also true.
Both of our viewpoints can be true without necessarily rebutting the other. And that is why the question of gender bias at sentencing is so difficult to untangle and address.
All the best, you disgusting misogynist,
RGK, aka “the woke.”
Dear Judge Kopf,
I know you made the anecdotal disclaimer, but “women offenders are often controlled and abused by their male codefendants” is one of your more interesting statements, especially so after you admit a latent or implicit bias. How can you be sure the “damsel in distress” narrative isn’t so powerful if not for the bias? Women have agency, I’ve heard, and make their own choices for good or worse. You’ve had too many good CDLs in front of you taking advantage of that implicit bias, maybe. It’s not god, but bias, that works in mysterious ways.
In blunt terms, pointing to culpability and other factors to excuse sentence disparities while admitting bias smacks of putting lipstick on a pig, great majority or no.
Best,
PPK
PK,
How dare you abuse your own son.
There is some truth in what you say. I am aware of the “damsel” syndrome and work hard to banish it to the fairy tale books.
Now, I will argue something unfair because you can’t possibly have seen what I have seen and therefore can’t be expected to respond rationally. (I love doing that.)
A large number of the white (meth), brown (meth and cocaine) and black (mostly crack) women I see in drug cases have about as much agency over their lives as abused dogs. So, don’t give me any nonsense about female agency. In many of the worlds I see, there is, in reality, no such thing. It is a fiction.
By the way, why do you hate pigs who like lipstick? Pig shaming does not become you.
All the best.
RGK
PS Consistency is the hopgoblin of small minds. That’s dictum I live by every day.
[Ed. Note: I fixed it, PK. That’s what a father does for his descendants.]
In my personal experience older male judges give the most deferences to the “damsel in distress” storyline that seems to flow through many civil case. Whether it’s family law or landlord tenant cases, once the crocodile tears come out, the case is firmly in the female hands. These same judges are very happy to throw the book at male pro se litigants. The best crop of judges in St Louis are courts are the female (probably second waive) with criminal and civil law background. Thr judges who come from state agencies and public interest law firms are garbage, but that’s not the topic. An attorney at the family law conference stated it best Mother’s overwhelming get custody in Missouri because of male judges.
The current waive of femanists are not going to like the results of destroying the male patriarchy. Even though they actively work to destroy it with every twitter post.
As Mencken said, they should get what they wish for, good and hard.
Well, custody, support and job bias are minor markers on the current feminist path. It is starkly apparent from their approach to all matters relevant to sexual assault that “gender equality” is not the goal.
But sexual assault is completely different because
due processreasons.“These results show that judges’ ideology and life experiences might influence their court decisions,” said Andrea Miller, PhD, a visiting assistant professor of psychology at the University of Illinois Urbana-Champaign. “Many judges are not able to factor out their personal beliefs while they are considering court cases, even when they have the best possible intentions.”
Remarkable. Who would have guessed?
For a psychologist, this was apparently an amazing discovery. They need to get out more.
Dear Judge Kopf,
Awareness is the first step in recovery. You might not think sentencing is a tough task, but it seems you do have a lot to ponder. The danger of personal bias in sentencing is a specter that can’t be completely banished, but that doesn’t mean we ought not try. I guess that’s why there’s comfort in the guidelines. If the chart says so, there can’t be bias. It’s all very scientific.
I love pigs, you just chose the wrong shade for the lipstick. Gotta make them feel pretty before they become dinner. Pork rib chops are the way to go. A fattier cut with the bone in makes for a delicious meal.
Best,
Papa PK
One word: bacon.
Huh your “fix” of Judge Kopf’s reply kicked mine out to a comment. Like father like son I guess. You can add bacon and lard to the pork chops. I want something more substantial.
Bacon with a side of bacon. It’s substantial.
SHG,
Once again, you prove that you are a father to us all!
All the best.
RGK
The Sentence-O-Matic 2000 might disagree with the choice of the word “bias.” If beliefs are a fairly accurate match to reality they aren’t “biased”.
Believing is seeing. What makes you assume it’s reality?
You really need to get out of the house more often…
Ivanka and her Punk phase got nothing on Sentencing Funkadelic bands.
https://i.imgur.com/P2QJnyS.jpg
The BAR never had “style” it really wants too though and that is a gonna be a increasingly troubling problem.