Responsible researcher: 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
Intervention Location: England
Sample Size: 192,701 trials
Sector: Public Sector Economy
Variable of Main 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 regarding gender on legal decisions. To investigate this dynamic, this study analyzed jury sentences in London trials over the last 200 years. The results indicated that the mechanism that explains this difference arises from a paternalistic behavior of discrimination based on preferences, where predominantly male judicial environments protected women from the most severe punishments possible.
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 gender judicial decisions favoring women over almost 200 years of trials held at the Central Criminal Court of London and Middlesex, known as the Old Bailey , between 1715 and 1900 (BINDLER; HJALMARSSON, 2020). Similar patterns are also observed in the United States, where men receive 63% higher sentences than women in the country's federal courts, even considering observable characteristics of the cases (STARR, 2015).
In contrast to gender inequalities favoring men in the job 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 regarding gender on 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. Therefore, understanding what influences judicial decisions, such as the defendant's gender, is important due to its social and economic impacts on the defendant and society.
In the context of England, the Old Bailey was the scene of trials over almost two centuries, reflecting social, demographic and legal changes in London. During the 18th century and the second half of the 19th century, crimes against property were the most prosecuted, with a significant increase in the number of cases during the early 1800s, probably due to population growth and the expansion of areas of jurisdiction. However, from 1843 there was a sharp drop in property crime trials, partly due to jurisdictional changes that transferred less serious crimes to lower courts. Over time, the profile of trials at the Old Bailey 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 declined until about 10% by 1900. This reduction was particularly pronounced in property crime cases, where female participation fell most sharply. This behavior was driven not only by the increase in the number of male defendants, but also by the decrease in women brought to trial. In contrast, female participation in violent crimes has remained relatively stable, hovering around 10% over the years. This phenomenon illustrates changes in prosecutorial practices and gender dynamics within the judicial system at the time.
During this period, sentencing reforms at the Old Bailey represented developments in English penal policy between 1715 and 1900. Initially, sentences were dominated by the transport of criminals to the Americas, mainly in cases of property crimes, while the sentence of death was mostly applied to 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. Transport 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 entailed significant changes in the English criminal justice system during this period, affecting not only the sanctions applied, but the gender composition of those tried.
Jury verdicts at the Old Bailey allowed jurors to convict the defendant on the original charge, a less serious charge, or acquit him. In general, conviction on a less serious 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 conviction rates by juries, especially after the abolition of the death penalty for certain crimes, which influenced juries' decisions, particularly in relation to women.
Gender differences in verdicts over the 200 years studied revealed a significant difference between the conviction rates of men and women. Across all crime categories, men's conviction rate was between 4 and 13 percentage points (pp) higher than women's. This difference was more 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, have had different impacts on the convictions of men and women, with women's convictions being more sensitive to these changes.
To assess how inequality of verdicts between the sexes manifested itself over the period, the study drew on an extensive database drawn from the records of the Old Bailey , covering some 192,701 trials between 1715 and 1900. The sample included 23 types detailed descriptions of crimes, categorized as property, violent, 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 the legal changes brought about by institutional reforms, the data considered the set of possible sentences throughout the periods analyzed. Approximately 23% of cases involved female defendants, and the main sentences throughout the period included death, transportation to penal colonies, imprisonment, and corporal punishment.
To estimate gender differences in judicial convictions, the first analysis used the Ordinary Least Squares (OLS) regression method adjusted to control for both observable characteristics and unobservable proxies. 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 number of defendants, detailed type of crime, eligibility for capital punishment, and year fixed effects were included to capture unobservable characteristics common to all defendants. Next, subgroups of data with additional information available were considered, using the number of words per judgment as a proxy for unobservable variables, seeking to control for unobservable case factors that could influence the observed gender differences.
The authors also carried out analyzes considering possible biases related to the composition of the jury and the marital status of the women, known as " girlfriend theory ." To 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. Additionally, the hypothesis that married women could be treated more leniently because they are seen as less responsible for crimes, indicating a paternalistic bias on the part of juries.
Additionally, a difference-in-differences (DID) analysis was carried out 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 drug transportation. prisoners to Australia. Thus, interactions between gender variables and periods of change were estimated, allowing 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 and four sentencing outcome variables.
The study also presented an analysis using the DID method to evaluate 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 analysis focusing 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 cases. Finally, the quality of evidence in the cases was analyzed, focusing on how the number of witnesses influenced convictions, suggesting a possible discrimination bias based on preferences.
The results indicated that the gender difference in convictions was not explained by observable variables nor by unobservable variables other than gender. Models adjusted for observable variables showed that the gender gap remained consistent over time, suggesting that case characteristics did not explain the disparity in convictions between men and women. Additionally, when incorporating the number of words per judgment as a 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 analyzes on the biases associated with the composition of the jury and the marital status of women, the results identified did not explain the gender disparities in convictions. When controlling for judge and jury fixed effects, gender differences in conviction and sentencing outcomes remained similar, indicating that leniency was not related to these factors. Regarding the "girlfriend theory," analysis of the Old Bailey revealed that wife or mother status was not the main factor in the observed gender difference. Gender differences remained even in individual defendant cases, and mentions of children in trials were limited, suggesting little influence of these factors on verdicts.
Analyzes of the impacts of institutional reforms 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 narrowed with the emergence of prisons as a punishment option, women remained less likely to be convicted of the original charge and more likely to receive a lesser sentence for a charge. During the post-war period, women were sentenced to prison more frequently and were less subject to corporal punishment, indicating qualitative protection in the punishments applied.
Analyzes of sentencing abolitions 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. In relation to 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. Regarding convictions considering qualitative evidence, it was observed that women needed more witnesses against them to achieve conviction rates similar to men. This result suggests gender discrimination on the part of the jurors, although the authors are not conclusive regarding the origin of the discrimination (preferences or statistics).
In this article, the authors investigated gender sentencing inequality at London's Old Bailey throughout the 18th and 19th centuries, analyzing how institutional and case characteristics influenced these disparities. The results indicated that, even after controlling for case, institutional and jury composition characteristics, women had lower conviction rates compared to men. Furthermore, the analysis revealed that the abolition of capital punishment and other sentencing reforms affected convictions differently between genders, demonstrating that protection for female defendants has intensified over time.
The evidence in this article helps to understand the factors that contribute to gender inequality in sentencing, providing information for public policy makers. Thus, considering the institutional framework and mitigating bias has the potential to promote a more balanced and fair 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 , vol. 63, no. 2, p. 297–339, 1 May 2020.
STARR, SB Estimating Gender Disparities in Federal Criminal Cases. American Law and Economics Review , vol. 17, no. 1, p. 127–159, 1 Mar. 2015.
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