Do Monsters exist?
The purpose of this study is to examine gender bias in sentencing decreed by males vs. female judges, which is defined as a difference in the evaluation of the morality of an action depending on the gender of the person performing the action. Using the Micro Theory paradigm, I will compare civil and criminal case types for the states of Arizona, Arkansas and Colorado, by analyzing decisions made by female and male judges in cases of rape and assault, and workers compensation claims.
The foundation of our judiciary is to impart fair and impartial justice without bias or prejudice, and this study is important because it seeks to understand from an idiographic approach how gender plays a role in the judicial decisions handed down by courts with both male and female judges. Having a diversified bench is very important, as it is a representation of who we are as a nation, but the philosophy and science of our legal system is equally important. This study seeks to show that our judicial system can be fair and impartial, despite differences between genders, and I expect it will show that these differences are not detrimental to American system of law.
Understanding the behaviors a literature review
The issue of whether female and male judges approach sentencing in gender-specific ways is at the core of concern in law and criminology about the determinants of judicial decision making and the “law in action” (Peterson & Hagan 1984). It is hypothesized that decisions handed down by female judges are less lenient than those handed down by their male counterparts. Based on the hypothesis I will identify, using the gender of the judge, how “less lenient” will be determined.
For the purposes of my research, I plan to take a qualitative approach. A qualitative approach is appropriate because I will be analyzing written data on decisions for three distinct case types handed down in the states of Arizona, Arkansas and Colorado. My hypothesis will be tested by searching the WESTLAW electronic database for cases decided between 1998-2008 and analyzing the differences in decisions made between male and female judges in criminal cases involving rape and assault, and civil cases involving workers compensation claims, and whether the decisions handed down by female judges are less lenient or “for the Plaintiff” than those of their male counterparts.
To explore the impact of gender bias in the courtroom, Riger, Foster-Fishman, Nelson, and Curran (1995) conducted an analysis using data collected by the American Bar Foundation for the Illinois Task Force on Gender Bias in the Courts (Schafran, 1987). Although role, age, and experience had some importance in explaining the scores, gender offered the greatest predictive power. Question on the survey asked men and women about observations and experiences with behaviors in the courtroom. A 5-point Likert scale was used to measure responses to 24 statements regarding the behavior and attitudes of judges.
Other dimensions may exist that go beyond the scope of data collected. For example, informal social networks of judges and/or attorneys may exclude women and minorities; these networks may affect the disposition of court cases or appointments to the judiciary (Riger et al., 1995). In this study women were more biased than men judges in the presence of discrimination. Moreover, some respondents felt that women use their gender to gain advantage. I didn’t feel this research analysis study contained valid information which would allow my hypothesis to be accepted or rejected.
How we capture a method
To operationalize the word “lenient” is to say that female judges are less likely to rule in favor of the plaintiff in civil cases involving workers compensation claims, or to give the minimum state-allowed or discretionary sentencing in criminal cases involving rape and assault. By reviewing decisions made by female and male judges during the time period of 1998-2008 in the states of Arizona, Arkansas and Colorado, I will explain that sentences imposed by female judges appear to be less lenient than those handed down by their male counterparts. Other factors to be considered in my research will be the education level and race and how it applies to decisions made by female judges in those states being reviewed.
Although Riger et al., (1995) had a solid foundation for analysis, as with most studies, men and women differ in their perceptions regarding gender bias and one’s role as a lawyer or judge also appears to be related to perceptions. For my project I will utilize existing data; the data sets chosen are decisions made by female and male judges in criminal cases involving rape and assault, and civil cases involving workers compensation claims. These are being chosen because the judicial decisions handed down over a ten-year period between 1998-2008 of the previously identified three states is a large enough data set to collect valid information which will allow my hypothesis to be accepted or rejected.
I have chosen to incorporate a previous study from my research to support my methodological approach. This approach has been done previously in Songer, Davis, and Haire (1994) study which suggest that early views of affirmative-action female judges had a perception of being more liberal than male judges. On the other hand, studies suggest that there are no gender differences. To test the hypotheses, Songer et al., (1994) coded the dependent variable “1” for a liberal vote and “0” for a conservative vote. Votes which could not be unambiguously classified as either liberal or conservative were excluded from analysis. In order to assess gender-based effects while controlling for a large number of independent variables Songer et al., (1994) employed logit in a multivariate analysis. Logit, which is preferred to regression when the dependent variable is dichotomous (Aldrich and Nelson 1984), permits the calculation of a maximum-likelihood coefficient for the effect that each independent variable has on the probit that the dependent variable will assume a specified value.
In this study a search utilizing the WESTLAW electronic data base identified the universe of cases whose decisions were published in the Federal Reporter. Measured was the impact of gender on judges for cases on obscenity, search and seizure, and employment discrimination. The analysis of obscenity and search and seizure cases conclude that there is little difference between male and female judges. In employment discrimination cases, females were noted to support alleged victims of discrimination as opposed to male colleagues. In summary, each of the models includes identical measures of region, the appointing president of each judge who participated on the panel, and the gender of each judge.
Ethical issues my research design might face, as with most research designs involves the task of analyzing data. It is important to work hard toward avoiding bias in data analysis and data interpretation. Riger et al, (1995) research analysis suggested that direct experience has an impact on attitudes, especially for women. Female lawyers who had experienced bias not only were more likely to believe that bias exists, they also were less optimistic about reductions in discrimination in the courts and were less likely to see bias merely as a trial tactic. Another issue potentially facing my research would be that of remaining objective versus subjective about the data. Objectivity is important in research because it is a “conceptual attempt to get beyond our individual views” [Babbey p.41]. Additionally, even if I find that my hypothesis is falsifiable I still have a duty to report on the data and findings accurately.
Finally, while my research project will utilize public records, it is important to note that the identity of judges whose cases will be analyzed for this project shall remain anonymous, since it may be harmful to their reputations if there was an appearance that said judges were being “singled out.”
Predictable Findings because they’re children
As Epstein (1988) states, the quest to identify gender differences may focus too much on differences rather than similarities and thus sometimes impair our ability to understand social phenomena. It is predicted that my findings will support my hypothesis that decisions handed down by female judges are less lenient than those handed down by their male counterparts because, even when researchers uncovered a difference in gender sentencing, results indicated that female judges were significantly more likely than their male counterparts to defer to positions taken by government rather than those of the plaintiff (in a civil case) or defendant (in a criminal case).
So what does all this mean? Studies of gender and race in the field of judicial politics have largely focused on the various roles particularly that female judges might play in their decision-making patterns (Allen & Wall, 1993). In the bigger picture, research of gender and judging highlights the debate of whether there are differences in gender and judging. As King and Greening (2007) have suggested, future research should continue “building on the general assumptions that are being made about decision-makers and test whether assumptions about gender are correct” and as research expands, it should “build better theories regarding gender-based explanations for behavior rather than assume a priori that there are simple gender relationships between men and women. Such research moves us away from “just seeing gender” to examining larger concepts about “gender justice.”
Given what I have found, the status of my hypothesis must be considered tentative. Most of the research used was conducted with archival data. This reliance on archival methodology reflects an absence of information about the sentencing behavior of female judges. In most jurisdictions the majority of judges are male leaving a few offenders to be sentenced by female judges. Despite the status of my hypothesis, research data provided support for the expectation that female judges sentence rape offenders more harshly than their male counterparts. The gender of the presiding judge might have a significant effect on the perception on an offender of either the other or the same gender. The limitations on this research point to the need for further study, again, these differences are suggestive rather than definitive.
In this study, I attempted to assess whether decisions handed down by female judges were less lenient than those handed down by their male counterparts. In particular, I found that female appeals court judges tended to vote more conservatively in criminal procedure cases, but more liberally in civil rights and liberties cases than their male colleagues. Objectivity is important in research because it is a “conceptual attempt to get beyond our individual views” [Babbey p.41]. Additionally, even if I find that my hypothesis is falsifiable I still have a duty to report on the data and findings accurately.
The results of the models provide further evidence that judge gender is an important factor in determining the voting behavior of courts of appeals judges (Songer et al.1994). A factor I found very interesting was that results of judge gender varied across issue areas. I feel it may be time to re-examine the application of Rosabeth Moss Kanter’s classic work on gender and organizations, Men and Women of the Corporation (1977), and its applicability to our judicial system. Kanter’s organizational analysis focused on structural conditions to predict behavior rather than essential sex differences to explain why tokens may conform to the dominant group.
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Aldrich, J., & Nelson, F. (1984). Linear Probability, Logit and Probit Models. Sage Journals Online. Retrieved June 13, 2009, from website: http://cps.sagepub.com.
Boyd, C., Epstein, L., & Martin, A. (2007). Untangling the Causal Effects of Sex on Judging. Midwestern Political Science Association. Retrieved from Cline Library database.
Allen, D. & Wall, D. (1993). Role Orientations and Women State Supreme Court Justices.
Judicature, 77, 156-165.
Babbey, E. (2007) The Practice of Social Research. Belmont: Thomson Higher Education. Retrieved June 13, 2009, from website: http://www.ebabbie.net/resource/practice/practice.html.
Epstein, C. (1988). Deceptive Distinctions: Sex, Gender, and the Social Order. Yale University Press. Retrieved June 13, 2009, from website: http://books.google.com.
Florida Supreme Court Task Force. (1990). Report of the Florida Supreme Court Gender Bias Study Commission. Tallahassee: Supreme Court of Florida. Retrieved from Cline Library database.
Kanter, R. (1977). Men and Women of the Corporation. New York: Basic Books. Retrieved June 13, 2009, from website: http://books.google.com.
Kenney, S. (2008). Thinking about Gender and Judging. International Journal of the Legal Profession, 15(1-2), 87-110. Retrieved from Cline Library database.
King, K., & Greening, M. (2007). Gender Justice or Just Gender? The Role of Gender in
Sexual Assault Decisions at the Criminal Tribunal of the Former Yugoslavia. Social
Science Quarterly, 1049-1071. Retrieved from Cline Library database.
Martin, P., Reynolds, J., & Keith, S. (2002). Gender Bias and Feminist Consciousness Among Judges and Attorneys: A Standpoint Theory Analysis. Signs, 27(3), 665–702. Retrieved from Cline Library database.
Peresie, J. (2005). Female Judges Matter: Gender and Collegial Decision Making in the Federal Appellate Courts. Yale Law Journal, 114, 1759–90. Retrieved from Cline Library database.
Peterson, R. & Hagan, J. (1984). Changing Conceptions of Race: Towards an Account of Anomalous Findings of Sentencing Research. American Sociological Review, 49, 56-70. Retrieved from Cline Library database.
Riger, S., Foster-Fishman, P., Nelson-Kuna, J., & Curran, B. (1995). Gender Bias in Courtroom Dynamics. Law and Human Behavior, 19(5), 465-80. Retrieved from Cline Library database.
Schafran, L. (1987). Documenting Gender Bias in the Courts: The Task Force Approach. Judicature, 70, 280-290. Retrieved from Cline Library database.
Solimine, M., & Wheatley, S. (1995). Rethinking Feminist Judging. Indiana Law Journal, 70(3), 891-920. Retrieved from Cline Library database.
Songer, D., Davis, S., & Haire, S. (1994). A Reappraisal of Diversification in the Federal Courts: Gender Effects in the Courts of Appeals. Journal of Politics, 56(2), 425–9. Retrieved from Cline Library database.
Steffensmeier, D., & Hebert, C. (1999). Women and Men Policymakers: Does the Judge’s Gender Affect the Sentencing of Criminal Defendants?. Social Forces, 77(3), 1163-96. Retrieved from Cline Library database.
Walker, T., & Barrow, D. (1985). The Diversification of the Federal Bench: Policy and Process Ramifications. Journal of Politics, 47(2), 596-617. Retrieved from Cline Library database.