Principal investigator: Bruno Benevit
Original title: The Persistence of the Criminal Justice Gender Gap:
Evidence from 200 Years of Judicial Decisions
Authors: Anna Bindler and Randi Hjalmarsson
Location of the Intervention: England.
Sample Size: 192.701 trials
Sector: Public Sector Economics
Primary Variable of Interest: convictions
Type of Intervention: Institutional reforms
Methodology: OLS, DID
Summary
Judicial bias in favor of women is a topic that generates intense debate in various areas of law, even when considering the characteristics of the cases. Unlike other gender inequalities, especially in the labor market, the perception that women receive more favorable decisions in courts raises discussions about the impartiality of the judicial system and the impact of social norms on gender in legal decisions. To investigate this dynamic, this study analyzed jury verdicts in London trials over the past 200 years. The results indicated that the mechanism explaining this difference stems from a paternalistic behavior of preference-based discrimination, where predominantly male judicial environments protected women from the most severe possible punishments.
- Policy Problem
Judicial bias in favor of women is a topic that generates intense debate in various areas of law, even when considering the characteristics of the cases. According to the authors, it is possible to observe a discrepancy between judicial decisions favoring women over almost 200 years of trials held at the Central Criminal Court of London and Middlesex, known as Old Bailey, between 1715 and 1900 (BINDLER; HJALMARSSON, 2020). Similar patterns are also observed in the United States, where men receive sentences 63% longer than women in federal courts, even considering observable characteristics of the cases (STARR, 2015).
In contrast to gender inequalities favoring men in the labor market, the perception that women receive more favorable decisions in courts raises discussions about the impartiality of the judicial system and the impact of social norms on gender in legal decisions. According to the authors, this difference could be explained by aspects such as the types of crimes, forms of sanctions available at the time, the possibility of their application, and/or the preferences of the juries involved in judicial decisions.
In this sense, institutional changes inherent to all these aspects have undergone modifications since 1715, providing natural experiments to identify the possible causes of judicial inequality in favor of women. Thus, understanding what influences judicial decisions, such as the gender of the defendant, is important due to its social and economic impacts on the defendant and on society.
- Policy Implementation Context
In the context of England, the Old Bailey It was the site of trials for almost two centuries, reflecting social, demographic, and legal changes in London. During the 18th century and the second half of the 19th century, property crimes were the most frequently tried, with a significant increase in the number of cases during the early 1800s, likely due to population growth and the expansion of jurisdictional areas. However, from 1843 onwards, there was a sharp decline in property crime trials, partly due to jurisdictional changes that transferred less serious crimes to lower courts. Over time, the profile of trials in Old Bailey It evolved, focusing on more serious crimes, especially after 1850, when the number of trials for violent crimes and fraud increased.
The composition of cases also underwent significant transformations over time. During the early 1700s, approximately 40% of defendants were women, a proportion that progressively decreased to about 10% by 1900. This reduction was particularly pronounced in property crime cases, where female participation fell most drastically. This trend was driven not only by an increase in the number of male defendants but also by a decrease in the number of women brought to trial. In contrast, female participation in violent crimes remained relatively stable, hovering around 10% over the years. This phenomenon illustrates the changes in prosecution practices and gender dynamics within the judicial system of the time.
During this period, sentencing reforms in Old Bailey These events represent the evolution of English penal policies between 1715 and 1900. Initially, sentences were dominated by the transportation of criminals to the Americas, mainly in cases of property crimes, while the death penalty was applied primarily for violent crimes. With the American Revolution in 1776 and the subsequent loss of penal colonies, the English penal system faced a crisis that led to the temporary use of makeshift prisons and forced labor. Transportation was resumed with the establishment of a penal colony in Australia in 1786, but never reached previous levels. The gradual abolition of the death penalty throughout the 19th century and the growth of prison sentences marked the transition to a regime in which incarceration became the predominant sanction for most crimes. The replacement of transportation with imprisonment and the reduction in the application of the death penalty implied significant changes in the English criminal justice system during this period, affecting not only the sanctions applied but also the gender composition of those judged.
- Evaluation Details
Jury verdicts in the court of Old Bailey They allowed juries to convict the defendant on the original charge, on a lesser charge, or acquit them. Generally, conviction on a lesser charge was more common in property crimes, where the value of the property influenced the severity of the crime, than in violent crimes. During the 18th century, the conviction rate remained stable at around 60%, with a slightly higher conviction rate for property crimes compared to violent crimes. In the 19th century, there was a general increase in jury conviction rates, especially after the abolition of the death penalty for certain crimes, which influenced jury decisions, particularly regarding women.
Gender differences in verdicts over the 200 years studied revealed a significant difference between conviction rates for men and women. In all crime categories, the conviction rate for men was between 4 and 13 percentage points (pp) higher than that for women. This difference was most pronounced in the 18th century, decreasing throughout the first half of the 19th century, but increasing again at the end of the century. Sentencing reforms, such as the abolition of the death penalty and the introduction of the presumption of innocence, had different impacts on convictions for men and women, with female convictions being more sensitive to these changes.
To assess how gender disparity in verdicts manifested itself over the period, the study relied on an extensive database drawn from the records of Old BaileyThe study encompassed approximately 192.701 trials between 1715 and 1900. The sample included 23 detailed crime types, categorized as property crimes, violent crimes, fraud, or other, excluding gender-specific crimes such as rape and infanticide. The data considered verdicts, defendants' criminal history, and eligibility for capital punishment. Due to legal changes brought about by institutional reforms, the data considered the range of possible sentences throughout the analyzed periods. Approximately 23% of the cases involved female defendants, and the main sentences throughout the period included death, transportation to penal colonies, imprisonment, and corporal punishment.
- Method
To estimate gender differences in court convictions, the first analysis used the Ordinary Least Squares (OLS) regression method adjusted to control for both observable and unobservable features. Initially, it was assessed whether gender differences in verdicts and sentences could be explained by the distribution of crimes and case characteristics between men and women. Observable variables such as the number of defendants, the detailed type of crime, eligibility for capital punishment, and fixed-year effects were included to capture unobservable features common to all defendants. Subsequently, subgroups of data with additional available information were considered, using the number of words per trial as a metric. proxy for unobservable variables, seeking to control for unobservable factors in the cases that could influence the observed gender differences.
The authors also conducted analyses considering potential biases related to jury composition and the marital status of the women, known as “girlfriend theoryTo investigate the impact of jury composition, gender differences in convictions within the same jury and in sentencing decisions within the same judge were estimated, using data available between 1751 and 1822. Furthermore, the hypothesis that married women might be treated more leniently because they were seen as less responsible for crimes, indicating a paternalistic bias in juries, was tested.
Additionally, a difference-in-differences (DID) analysis was conducted to investigate the impact of punishment reforms after the American Revolution and subsequent changes in punishment regimes, including the introduction of prisons and the resumption of prisoner transport to Australia. Interactions between gender variables and periods of change were estimated, allowing for the identification of variations in gender differences in response to the new punitive conditions. The study examined how these changes affected gender differences in convictions and sentences, considering three conviction outcome variables and four sentencing variables.
The study also presented an analysis using the DID method to assess the effects of the abolition of the death penalty and transportation as punishments, as well as the influence of the quality of evidence on convictions. First, the abolition of capital punishment was examined, revealing how this change impacted conviction rates, especially in violent and property crimes, with an analysis focused on how these effects varied between men and women. Next, the study addressed the abolition of transportation in 1853, investigating whether the reform had different impacts on conviction rates and sentences for men and women, considering the dynamics of previous reforms and the composition of the cases. Finally, the quality of evidence in the cases was analyzed, focusing on how the number of witnesses influenced convictions, suggesting a possible bias of discrimination based on preferences.
- Main results
The results indicated that the gender difference in convictions was not explained by observable variables or by unobservable variables other than gender. Models adjusted for observable variables showed that the gender difference remained consistent over time, suggesting that case characteristics did not explain the disparity in convictions between men and women. Additionally, incorporating the number of words per trial as proxy For unobservable characteristics of the cases, the results remained unchanged, suggesting that unobservable factors also did not justify this difference. However, the authors highlighted that it was not possible to completely rule out the possibility of biases arising from omitted variables.
Regarding the results of the analyses on biases associated with jury composition and women's marital status, the identified results did not explain the gender disparities in convictions. When controlling for the fixed effects of judges and jurors, gender differences in conviction and sentencing outcomes remained similar, indicating that leniency was not related to these factors. Regarding the "girlfriend theory," the analysis of the data from... Old Bailey The study revealed that being a wife or mother was not the primary factor in the observed gender difference. Gender differences persisted even in cases involving individual defendants, and mentions of children in the trials were limited, suggesting little influence of these factors on the verdicts.
Analyses of the impacts of institutional reforms have revealed that, following the American Revolution and changes in punishment regimes, gender disparities in convictions and sentences were affected, but not eliminated. Although this difference diminished with the emergence of prisons as a punishment option, women continued to be less likely to be convicted on the original charge and more likely to receive a lesser sentence on a given charge. During the postwar period, women were sentenced to prison more frequently and less subjected to corporal punishment, indicating a qualitative protection in the punishments applied.
Analyses of the abolition of punishments revealed that the abolition of capital punishment increased the chances of conviction for violent crimes and property crimes, but reduced the gender gap in convictions for violent crimes. However, the gender gap in death sentences was completely eliminated after abolition. Regarding the abolition of transportation as punishment, a significant increase in prison sentences was observed, with women being more likely to receive prison sentences before 1853, but less likely after abolition. As for convictions considering qualitative evidence, it was observed that women needed more witnesses against them to achieve conviction rates similar to those of men. This result suggests gender discrimination on the part of jurors, although the authors are not conclusive as to the origin of the discrimination (preferences or statistics).
- Lessons in Public Policy
In this article, the authors investigated gender-based sentencing inequality in the London court system. Old Bailey Throughout the 18th and 19th centuries, this study analyzed how institutional and case characteristics influenced these disparities. The results indicated that, even after controlling for case characteristics, institutional factors, and jury composition, women had lower conviction rates compared to men. Furthermore, the analysis revealed that the abolition of capital punishment and other sentencing reforms differentially affected convictions between genders, demonstrating that protection for female defendants intensified over time.
The evidence presented in this article helps to understand the factors that contribute to gender inequality in sentencing, providing information for policymakers. Thus, consideration of the institutional framework and mitigation of biases have the potential to promote a more balanced and just justice system in relation to gender disparities in sentencing.
References
BINDLER, A.; HJALMARSSON, R. The Persistence of the Criminal Justice Gender Gap: Evidence from 200 Years of Judicial Decisions. The Journal of Law and Economics, v. 63, n. 2, p. 297–339, 1 May 2020.
STARR, SB Estimating Gender Disparities in Federal Criminal Cases. American Law and Economics Review, v. 17, n. 1, p. 127–159, 1 Mar. 2015.
