Vol. 5 No. 6 (June, 1995) pp. 176-178

GENDER, CRIME, AND PUNISHMENT by Kathleen Daly. New Haven: Yale University Press, 1994. 338 pp.

Reviewed by Ann Chih Lin, Department of Political Science, University of Michigan.

Kathleen Daly's book, GENDER, CRIME, AND PUNISHMENT, shows how numbers, narrative, and expectations can, if used separately, operate like the proverbial blind men discovering an elephant. In this case, the elephant is gender disparity in felony sentencing, and each blind man finds something different. The numbers say disparities exist, but actual crime narratives explain them away; expectations of gendered behavior may be discriminatory, but may not cause discrimination. Daly's conclusion, quite naturally, is to try to reconcile these contradictions. Gendered presuppositions do exist in the world of criminal justice, but they do not seem to influence punishment. Sentencing, she believes, is not generally biased, at least in terms of its own rules.

All this balancing, however, makes the elephant a bit too balky for Daly to harness. Three challenges confront Daly: explaining an empirical phenomenon, reconciling different methodologies, and creating a new approach to the study of gender disparities and crime. On the empirical question, Daly does an excellent job of explaining why different sentencing outcomes may not be disparate, even when they correlate with gender differences. In the methodological realm, Daly makes a strong case for combining quantitative with qualitative analysis, and social construction with outcomes. In her efforts to get the first two tasks right, however, the last -- "devising a measure of justice" (p. 264) -- takes the form of interesting but scattered insights, rather than a consistent focus throughout.

Daly's empirical question is one which bedevils legal advocates and legal scholars: why are women's felony sentences generally less severe than men's? Is this a case of prejudice against men? Or is this an artifact of paternalistic attitudes towards women, under which feminine women are considered less responsible and thus more reformable? These two arguments seem incompatible, but lead logically to the same conclusion -- that the abolition of gender stereotypes requires longer sentences for women. (The obvious alternative, that men be punished less harshly, faces some obvious political obstacles.) As Daly says, "In the name of a restricted notion of equality with men, more women may lose their freedom." (p. 271).

Daly's approach to this dilemma is to step back from the sentencing decision to the original crime. Her regression analysis of a sample of over 300 cases in New Haven's felony court shows evidence of gender disparity. After controls are added, men are 17% more likely to be incarcerated than women, and receive, on average, an additional year of prison time. But then she challenges the implicit assumption of this research: that like charges (robbery, larceny, assault) actually represent like crimes. To do so, she selects 40 male-female pairs from her data set, matching them on offense and, when possible, on previous record, age, and race. She then examines the written pre-sentencing reports for each case, to determine the circumstances of the crimes and background of the offenders. In almost every case of sentencing disparity, she finds that a difference in the

Page 177 follows: seriousness of the crime or the length of the offender's record explains the difference in sentencing.

To understand how this might be so, take the case of Simon and Toni (p. 303-304). Each had a handgun and attempted a robbery. In Simon's case, however, the victim was accosted in an alleyway and the robbery seemed to be gang-related, while in Toni's case the jewelry store clerk did not take Toni's slight, well-dressed appearance as a threat, even after Toni pulled out a handgun. Simon's victim ran away as Simon and an accomplice chased him through a housing project, guns visible, while Toni left the jewelry store frustrated when the clerk refused to take her seriously. Especially when Simon's previous arrest and incarceration are taken into account, the difference between Simon's four-year prison term and Toni's four-year suspended sentence makes sense.

Daly's analysis makes clear that ease of categorization does not always correlate with adequate explanation. Basing an analysis of sentencing on easily coded categories -- the charge, the use of weapons, the presence of accomplices -- can be more misleading than helpful. Such categories not only exclude important information; they also mean different things in different contexts. To a robbery victim, being robbed by someone known may make the experience less frightening. In some cases of larceny or assault, however, being cheated or injured by someone known may make the experience worse, because the crime is compounded by a betrayal of trust and made easier by opportunity. The critical question is, therefore, whether the judge's ability to see a crime as a whole, and not merely as the sum of its parts, allows her to make consistent decisions about the seriousness of a crime. Daly argues that, with a few exceptions, it does. Consistency -- and not discrimination -- leads, in the case of felony sentencing, to different aggregate outcomes for men and women.

But does this mean that judges are not particularly paternalistic towards women, or punitive towards men? To answer this question, Daly turns to transcripts of the sentencing hearings for her 40 matched pairs of offenders. Data problems make her judgments more tentative in this section. From what she has, however, Daly concludes that women and men are addressed in gendered ways in the courtroom -- women are more likely to be thought reformable or victimized, and their roles as family caretakers are affirmed. Men, by contrast, are more likely to be addressed as troublemakers or as unreformable. Interestingly enough, however, these judgments of character are not related to justifications for punishment: spoken rationales for the sentence primarily reflect the harm suffered by the victims or the length of the offender's prior record. Women are not told that prison is meant to reform them, and men are not told that they must be imprisoned to "protect society." Daly concludes that gender presuppositions in the courtroom exist, but that their effect upon sentencing has yet to be explored.

The combination of these two studies shows how qualitative and quantitative research can enrich each other. In her study of sentences, Daly shows that qualitative

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research can answer questions which quantitative research raises. In her study of sentencing remarks, Daly suggests that simply finding gendered frames of reference is not enough; research on outcomes must be added before one knows how and if those frames matter. Daly is also careful to give critics of either method some assurance that her results are objective. In this quest, she shows every step of her work; explains the various controls she uses; discusses data problems extensively; and includes long excerpts from transcripts and descriptions of cases, to allow readers to draw their own conclusions from the evidence.

In some ways, however, the care that Daly takes with both research results and research method distracts from the argument. Daly's chapters focus on comparisons -- pair after pair, transcript after transcript. Only at the end of chapters, and in summary essays at the end of sections, does she advance the conclusions to which her comparisons lead. For the reader, this raises two problems. One is that readers are simply not as familiar with the cases as Daly is: we do not see the relevant details immediately, we cannot recall them when they are raised again later. Each individual case is fascinating, but no thread links them. The second is that this style keeps Daly from making a sustained general argument about criminal justice and gender. The sections of the book progress from descriptions of the offenders' pathways to crime, to descriptions of the crimes, to descriptions of the sentencing hearings. This is an utterly logical research order. But compare it to a book which might progress from chapters about where gender isn't, (not in the rules for judging the seriousness of crimes, not in rationales for punishment), to chapters which notice where gender is: in the different responses to abuse, addiction, discouragement, and poverty; in the use and context of violence; and in the judgments of character made about lives which include these elements.

Such a book would then be able to suggest why a larger proportion of men's crimes and men's characters require longer sentences. It would also be able to consider if "seriousness of offense" and "character" -- dimensions on which, Daly argues, "women looked better" (p. 263) -- matter not only when women are punished (and come out ahead) but for general considerations of justice. Do we really want a conception of justice that does not code a well-dressed, white female Toni as threatening, but would code a well-dressed, black male Tony as more threatening, his crime as more serious? It is not that Daly does not notice these questions -- she does -- but that she does not raise them systematically. Similarly, Daly discusses various punishment philosophies in her section on sentencing hearings, but these philosophies do not seem to inform the discussions of pathways to crime, sentencing disparities, or the meaning of discrimination.

Given the great potential of Daly's study to make sustained arguments about gender and justice, their absence is a bit like staring at puzzle pieces of an elephant: each piece shows that the animal must be fascinating, but one can't see how it all fits together. But this is still much better than the blind men's elephant; those looking for the whole picture should begin with Daly's book.