Friday, September 20, 2019

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Article Index

IV. National Increases in Female Offender Rates: Meaner Women or Tougher Law Enforcement?

      The public has been misinformed about the character of the female offender and the challenges she faces due to the stereotype-reifying way in which women are portrayed in the media. Therefore, the public unnecessarily fears her and believes she automatically deserves to be incarcerated. One such media-portrayed notion is that the nationwide increase in female incarceration is due to women getting “meaner” and more violent. However, the increased incarceration of women is explained best through harsher drug and zero tolerance policies nationwide that disproportionally affect women.

      In general, it has been shown that the incarceration rate is tied to how much people fear violent crime. This theory assumes that both the state and federal governments have enough money to fund rigorous incarceration programs. When states do not have the funding they want for incarceration, they consistently turn to cheaper alternatives. In addition, as fear of violent crime decreases, so does the incarceration rate, as again the criminal system turns to alternatives. This, however, does not explain why the public would fear the generally nonviolent female population.

      The inaccurate portrayal of incarcerated women in the media is partially responsible for generating the fear that propels the incarceration of women. In a study of ten news programs, documentaries, and talk shows depicting incarcerated women, these programs generally ignored the specific challenges facing female prisoners and focused on those women incarcerated for violent crime. While approximately two-thirds of all incarcerated women have minor children, only one-third of the women in the programs mentioned that they had children. In addition, mental health issues and the status of these women as victims were underrepresented. Only 3 percent of the inmates discussed being diagnosed with a mental illness, only 6 percent discussed abuse as a child, and 12 percent discussed abuse as adults. These programs enforced the violent female offender image through the host's description of the women as violent by nature and through the host “highlighting issues of institutional violence by Thus, the media presents a picture of incarcerated women that focuses on violence and does not discuss the extent to which these women are nonviolent offenders, victims, mothers, substance abusers, and in need of mental health treatment.

      Since women are disproportionately depicted as violent in the media and the female percentage of arrests has increased, citizens are more fearful of female offenders and think that women are, stereotypically, getting “meaner.” This behavioral change in women is theorized to be a result of one of three different social changes. One change is that as society allows women more freedom, they become more “masculinized” and, therefore, more violent. A second hypothesis cites violence as a coping mechanism for dealing with abusive homes. A third is that women are feeling more role strain created by an overlap of new and old stresses due to greater “role strain.” These theories fail to explain the specific offenses in which the gender gap is closing (simple and aggravated assault) and those where it remains steady

      Instead, increased female violence is best understood in the context of increasingly strict criminal policies such as the “charging up” of less serious forms of violence, pro-arrest policies, and the more gender-neutral nature of law enforcement. Through “charging up” and zero tolerance, a greater number of minor offenses result in arrest, and charges that would have been simple are charged as aggravated assault. Pro-arrest policies were originally set in place to encourage police to arrest the abuser in domestic violence situations. Men have learned how to work the system, however, in order to either avoid arrest themselves by calling the police first, or making sure the victim is also arrested by telling officers that he was assaulted as well. When the abuser alleges assault, the police must arrest the true victim as well due to their zero-tolerance policies, because any violence is cause for arrest, even if it is in self-defense.

      In addition, gender-neutral law enforcement makes the arrest of women more socially acceptable in that she is no longer viewed as needing protection. Therefore, while the basic numbers of simple and aggravated assault arrests suggest that women are becoming more violent, the failure of the trend to reach homicide is indicative of “net widening” arrest policies being the true offender.

      In terms of nonviolent offenses, there is a consensus that the “war on drugs” is really a war on women. The “war on drugs” introduced zero-tolerance drug policies, and harsher punishments for possession and distribution, which were shortly followed by sentencing reforms, such as the 85 percent rule. This rule requires that offenders serve 85 percent of their sentences. Women are more likely than men to be incarcerated for drug crimes. With harsher drug policies, women were more likely to be arrested and because of sentencing reform, more likely to be incarcerated and serve longer sentences. Because of these new drug and sentencing policies, the rate of incarcerated women disproportionately increased. Then, as the incarceration rate of women increases, people fear the female offender more, assume she is incarcerated for a violent crime, and push for harsher punishments. Legislators and judges respond with harsher policies because they do not want to appear soft on crime.

      These policies are indicative of a general acceptance of formal equality for female offenders. Formal equality is the feminist theory that women should be treated the same way as men by the law. In application, the unintended consequence of formal equality is that “the same” translates to treating women like men because most laws were made with men as the standard for application. Formal equality in the context of criminal law means that both victims and abusers have been arrested when the victim hit the abuser in self-defense because zero tolerance policies are not able to treat women differently just because she is usually the victim. In addition, the criminal system does not recognize and accommodate offenders who are primary caregivers, since men do not usually fill this role. Thus, while formal equality is an ideal to work toward, it will not effect enough change within the criminal justice system to address the needs of women, since the standard that formal equality works toward is based on men.

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Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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