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Document Type

Article

Publication Date

Fall 2019

Publication Citation

94 Indiana Law Journal 1247 (2019)

Abstract

Across wide-ranging contexts, academic literature and the popular press have identified pervasive gender disparities favoring men over women in society. One area in which gender disparities have conversely favored women is the criminal justice system. Most of the empirical research examining gender disparities in criminal case outcomes has focused on judges’ sentencing decisions. Few studies have assessed disparities in the steps leading up to a defendant’s conviction, where various actors make choices that constrain judges’ ultimate sentencing discretion. This Article addresses this gap by examining gender disparities in the plea-bargaining process. The results presented in this Article reveal significant gender disparities in this stage of the criminal justice system.

Female defendants are about twenty percent more likely than male defendants to have their principal initial charge dropped or reduced. These gender disparities are greater in cases involving misdemeanors and low-level felonies. In cases involving serious felonies, male and female defendants achieve similar outcomes. Defendants’ criminal histories also play a key role in mediating gender disparities. While female defendants with no prior convictions receive charge reductions more often than male defendants with no prior convictions, male and female defendants with prior convictions are afforded similar treatment. These patterns in gender disparities suggest that in these “low information” cases gender may be being used as a proxy for a defendant’s latent criminality and likelihood to recidivate.

Building upon these results and the existing literature documenting racial disparities in criminal case outcomes, the Article explores the intersection of gender and race in determining disparities in the plea-bargaining process. The results indicate that gender and racial disparities complement each other in a way that yields additive effects. The charge reduction rate for white female defendants is more than double that of black male defendants. White male and black female defendants experience similar charge reduction rates, in between those of white female and black male defendants. Consistent with the pattern of gender disparities documented in the Article, these intergroup disparities are greater in cases involving misdemeanor offenses and defendants with no prior convictions.

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