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August 24, 2011

Racial and gender disparities in death sentencing and federal kiddie porn prosecutions

Issues of race and gender arise throughout the criminal justice system and their impact on sentencing outcomes is often a subject of great debate and controversy.  In addition to encouraging you to consider the linkages between theories of punishment and race/gender issues, over the next few classes we will explore in various ways the relationships between sentencing discretion, disparity and discrimination.

Though there is (too) much to say on all these matters, I thought it useful in this forum to encourage focused consideration of these matter in two distinct contexts: the imposition of the death penalty for murder and the federal prosecution and sentencing of child pornography offenses.  

Death Sentencing: As you may know, the death penalty is often criticized for having a racial skew, and pages here and here from the Death Penalty Information Center provide lots of data and reports on this front.  One of many statistics on these pages I find notable is that out of roughly 1250 persons executed in the US in the modern era, more than 250 black defendants have been executed for killing white victims, but only 16 white defendants have been executed for killing back victims.  

Far less frequently discussed are the apparent gender disparities in the application of the death penalty in the United States, though this page from the Death Penalty Information Center and this report from Professor Victor Streib provides coverage of this issue.  The data from these sources reveals that women account for about 10% of all murder arrests, but that women make up less than 2% of death rows (55 / 3,261) and less than 1% of those executed (12 / 1,250+). Indeed, in the last 8 years, nearly 450 men have been executed, while only 2 women have been executed (0.45%).

Federal Child Porn Prosecutions: Federal sentencing for child pornography offense is a hot topic, in part because the number of prosecutions and the length of sentences imposed for these offenses has increased dramatically over the past decade.  What is rarely discussed, however, is the disproportionate involvement of white men in these cases, especially relative to the the general federal offender population.  The latest federal data from the US Sentencing Commission is in this report which provides a detailed racial and gender breakdown for offenders in each primary federal offense category (Tables 23 and 24 at pp. 44 and 45 of the pdf).  

Roughly speaking, when immigration offenses are excluded (because 90% involve hispanic offenders), the general population of federal defendants sentenced is about 1/3 white, 1/3 black and 1/3 hispanic.  But for child porn offenses, the sentenced defendants are almost 90% white and only 3% black and 6% hispanic.  Similarly, the general population of federal defendants sentenced is about 85% male and 15% female.  But for child porn offenses, the sentenced defendants are over 99% male and less than 1% female.

Do you find these data surprising?  disturbing?  What additional information would you like to have in order to make a judgment concerning these data?

August 24, 2011 in Data on sentencing, Race and gender issues | Permalink

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Comments

Incredibly interesting/disturbing statistics, but unfortunately not really surprising statistics.

For a better perspective on these discrepancies, I'd like to know:

- The raw # of black defendants murdering white victims and vice versa so we could get a % perspective. The stat above shows "250 vs. 16" but I think the relative % of blacks and whites receiving the death penalty for interracial violence would be helpful.

- The overall "type" of murders committed by women in comparison to men. From an outsider's point of view, I assume that certain "types" of murders (child/multiple victims, gruesome cause of death, etc.) receive the death penalty at a higher rate. And my instincts are that women commit fewer of these "murders that make me not want to watch the news at night" than men.

Posted by: JT | Aug 25, 2011 9:53:57 AM

This got me thinking about an article I edited for OSJCL this summer by Liebman on the localized nature of the death penalty. In the article, he used a lot of empirical evidence to show that the penalty is used at sentencing and actually carried out on a disproportionate basis in a small number of localities. The result is the death penalty is used on a disparate basis. There's a lot of assertions made about the usefulness of the penalty based on this and other data, which you can read for yourself in this fall's journal (not to make this an ad) but the geographic disparity struck me as surprising and indisputable.

To tie this back to the gender theme, since women are only arrested for 10% of murders and make up 2% of death row, maybe this is tied to geographic disparity. It's possible that as JT asserted, women are committing different murders that get death sentences at lower rates, but it's also possible that they are getting arrested in areas that less frequently use the death penalty. Maybe the disparity in sentencing is simply due to luck, or maybe it's because women who are arrested for murder in death penalty heavy localities are treated differently than men in those localities (which I think fits loosely into the rest of Liebman's article).

Anyway, kind of a long-winded comment, but I just wanted to throw that out there about geography, and that since the numbers of women are so low, maybe it's just an effect of chance.

Posted by: Colin P | Aug 25, 2011 6:29:40 PM

Unrelated to this post but I didn't know where else to put it and it's relevant to next week's discussion:

http://www.dispatch.com/content/stories/editorials/2011/08/26/a-noble-fight.html

Apparently, the Dispatch editorial board is made up of retributivists, lauding the work of a lawyer who specializes in fighting the parole board on behalf of victims' families. The editorial arises out of the parole board wanting to release a 57 year old murderer who has served 24 years of his sentence (25-50) and is now suffering from dementia and stroke complications.

This guy is pretty clearly incapacitated, no deterrent effect by keeping him in either. Retribution seems to be the only justification for keeping him imprisoned in his current state, as justice for the victim. I do love, however, that they made a one sentence effort to explain that because of his medical condition the convict "likely will remain dependent on the public" whether released or not. Great empiricism Dispatch.

Posted by: Colin P | Aug 26, 2011 7:54:29 AM

I don't find the data surprising at all.

With the gender disparity in capital cases, I think the premeditated murder requirement and felony murder rule help skew the numbers. Because women tend to kill in the heat of the moment, it becomes very difficult to prove premeditated murder. I think the % of women being charged with Murder 2 will be helpful. For the felony murder rule, I don't think women tend to commit violent felonies. So it should be helpful to see the % of women committing violent felonies and the % of capital cases that are felony murders.

From the little that I know about Federal child porn cases, I think the expense associated with child porn implicates economic disparities that may help explain the racial disparity. Child porn requires a computer, internet connection, and some expertise in the file-sharing software. With the price of computers and broadband connection falling and the availability of user friendly file-sharing software, I would not be surprised at all if we see the numbers start to even out.

Posted by: Marco | Aug 26, 2011 1:20:32 PM

Racial Inequality -- Considering this country's history, I don't find the racial statistics for imposing the death penalty at a higher rate for Blacks killing Whites over Whites killing Blacks surprising... however, that does not negate the fact that I find it disturbing the statistic has not lessened over the years and has made it into the year 2011.

My mother was raised in Mississippi, so growing up, we heard of many cases of trials by a "jury of your peers" (whose peers??) where White defendants were found "innocent" with surmounting evidence against them and Black defendants were found "guilty" merely by hearsay and circumstantial evidence. Therefore, imposing the death penalty on a Black murderer was "the right thing to do" down south because not only were emancipated Black slaves deemed as animals to begin with, but a Black murderer must be a savage who could not be rehabilitated, so must be sentenced to death.

Because of what I saw and heard growing up in the south, I need no additional information to know why the data is skewed this way.


Gender Inequality -- I am also not surprised at the gender statistics. Considering the fact that most people look at women as nurturing, loving, and maternal, it is difficult to believe that a woman is violent or has the capacity to murder. As a result, it is far more difficult to convict a woman of murder let alone sentence her to death. Males, who have been deemed hunters by nature, are easier to imagine as well as convict or sentence on the basis of murder.

However, in this category, I would like to know the degree of murder statistically between males versus females.

Posted by: Crystal M | Aug 28, 2011 9:09:36 PM

These statistics do not surprise me at all. However, the more saddening fact is that I do not know how we can prevent such injustice. It seems to me especially as it relates to the ratio of black males that receive the death sentence compared to all other groups that it is a reflection of racial bias. However, in the past we were faced with overt racial bias. While this still exists in some forms the more common form of racial bias is covert racial bias. This form is more common today and I think more damaging because most people do not even perceive that they are racially biased. A common example is when we are walking alone on a street or an alley and someone approaches us. Most of us if we would be honest will feel different based on the gender and race of this person. We will be likely quicker to hold on to our purse and tense up if it is a black man than any other group. For example Jesse Jackson once said, "There is nothing more painful to me at this stage in my life, than to walk down the street and hear footsteps and start thinking about robbery—then look around and see somebody white and feel relieved.” From this we note the reality that even black people have an implicit bias against their own people. This bias has been rooted in most of us through the media. Base on this implicit bias that most hold it is no wonder that juries are quicker to give black men the death penalty and prosecutors are quicker to seek the death penalty for black men. The sad reality is until we can change and eliminate implicit racism it seems the only way to prevent such injustice is to eliminate the death penalty.

Posted by: Carmen Smith | Aug 29, 2011 10:10:00 PM

Like several of my classmates, I'd like to find out more information about the types of murders committed by men and women. My instinct is that the disparity between men and women on death row and executed is largely due to the difference in the types of murder they have committed. For example, we have reviewed how women convicted of killing their abusers have received lesser sentences. Perhaps this is merely the statistical result. However, I'd like to find out more. It seems unlikely that all (maybe even nearly all) women convicted of murder are victims of abuse.

Posted by: Krystin Brehm | Aug 30, 2011 11:55:02 AM

This isn’t completely relevant to this thread, but the recent sentencing of the “hot sauce mom" made me think of a possible gender consideration in the judge’s decision. The woman was given three years probation, a 180-day suspended jail sentence, and a $2,500 fine as a result of her conviction for misdemeanor child abuse. Her story was on Dr. Phil, and there is video of her squirting hot sauce in the boy’s mouth for lying and putting him in a cold shower as punishment on a different occasion. The video is really disturbing, as you can hear the boy screaming in pain while in the shower.

There was a piece on the Today Show about it last week (along with a link on Professor Berman’s Sentencing blog), and it stated that the judge’s main goal in the sentence, which many thought to be far too lenient, was to educate. I can’t help but wonder if the sentence would have been the same had the father been the one punishing the boy in this way. The woman faced a maximum sentence of one year in jail and a $10,000 fine, and while I do not know the judge’s rationale, I am inclined to think that had the father been the one acting in this manner it might not have seemed as much like rogue/inappropriate punishment, but rather actual abuse…

Posted by: Andrea G | Sep 4, 2011 4:23:07 PM

From my experiences over the past few years in federal court, I have to say these statistics don't surprise me in the least. While I think we can speculate a number of reasons as to why there exists such a disparity in federal sentencing, I believe we should always remember exactly who the first “actors” are in brining the cases to court in the first place. The AUSAs, as the federal prosecutors, have a lot of discretion as to which criminal defendants they choose to prosecute. Whatever their reasoning may be (whether it’s lack of resources, manpower, time, etc.), I believe it’s not an unfair representation to say that AUSAs, for the most part, are really only going after the “big fishes.” Those criminal defendants who are the leaders of say drug rings or those who have a significant amount of evidence against them, where the AUSAs truly hope a conviction will deter others while simultaneously having a large (and hopefully better) impact on the community in general. For me, in order to really see whether death sentences and child porn are discriminatory based on race and gender, I’d like to see further empirical evidence from state courts. In this manner, I believe we see view a more complete picture of the kind of sentencing disparities we have on our hands between both big and small fishes alike.

Posted by: Isabella | Sep 6, 2011 9:28:34 PM

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