[Note added February 2016: A pdf of the talk I gave at UCL is here.]
[Note added May 2016: An update on the analysis herein can be found here]
The above graphic shows the prison population of England & Wales from 1900 to 2014. The persistent rise in the number of prisoners since the end of WW2 is due primarily to the rise in the number of male prisoners. One hundred years ago there were about five male prisoners for every female prisoner, now there are about twenty. To be precise, at the end of January 2014 there were 81,045 men and 3,932 women in prison in England and Wales: 20.6 times as many men as women, Ref..
Most people would say that it is because men commit more crimes. And so they do. But twenty times more? Really?
The number of crimes committed by each sex can be gauged from the number of sentences passed each year – that is, the number of cases coming to court in which the verdict is guilty and a sentence is required. And the answer? In England and Wales there have recently been just over three times more men sentenced per year than women, and this ratio has been falling – see Table 1 for the actual data (taken from Ref.).
Table 1: Numbers of Men and Women Sentenced per Year (England & Wales)
|year||Men sentenced||Women sentenced||Ratio Men:Women|
But if only three times more men are sentenced, why are there twenty times more men in prison?
Well, not all sentences are prison sentences. In fact, only a small percentage are. The rest are fines, community service, suspended sentences or enforced remedial treatments. There are three contributing causes to there being a disproportionate number of men in prison. These are,
- A larger percentage of male offenders than female offenders are sentenced to prison;
- Men receive on average longer prison sentences than women; and,
- Men serve on average a greater proportion of their sentences.
We shall see that these three effects explain the factor of 6 by which 3.3 more men being sentenced becomes 20 times more men in prison (i.e., 6 x 3.3 = 20). But is this factor of 6 fair? Does it arise because men’s crimes are, on average, 6 times more heinous than women’s? Or is it simply gender bias?
Consider firstly the proportion of all sentences which are prison sentences. The data for a couple of example years are given in Table 2 (from Refs.[2,3]). In 2009, 8.8% of male offenders were sent to prison, but only 2.6% of women offenders. So, 3.4 times as many men are sent to prison than women (per 1000 offenders of each sex, say).
Does this disparity factor of 3.4 represent justice at work because men’s crimes are worse to a degree which justifies this disparity? This can be examined by looking at the disparity factor separately for specific categories of crime – see Figure 1 (data from Ref.). This reveals that men are substantially more likely to be sent to prison than women for the same category of crime – whatever the category of crime (the only exception being drug offences for which there is negligible disparity). Thus, it is not the case that men are being sent to prison more often because they are committing more serious crimes (for example violent crimes as opposed to, say, minor shop-lifting). It does not matter what crimes a man commits – whatever it is, he will be far more likely to go to prison than a women committing the same crime. I conclude that the average disparity factor of 3.4 is predominantly due to gender bias.
Note also that this average disparity factor has been increasing (Figure 1) whilst men’s overall criminality, as judged by the number of men being sentenced, has been falling (Table 1).
Table 2: Numbers of Men and Women Sentenced to Prison as a Percentage of the Total Sentenced (England & Wales)
|year||Men sent to prison||As percentage of total men sentenced||Women sent to prison||As percentage of total women sentenced||Disparity Factor|
For people who are sent to prison, how do the lengths of their sentences compare between the sexes? In 2009/10, over all crimes, and averaging only over cases where a prison sentence is awarded, men received on average a sentence which was 64% longer than for women (Refs.[2-4]). Again we can ask, is this justice or is it gender bias? Are women receiving lesser sentences because they are committing less serious offences? Again we can examine this by looking at the sentences awarded to men and women for the same category of crime. For 2009, Figure 2 shows a histogram of the ratio of men’s sentence length to women’s for the same category of crime over 42 different crime categories (data from Refs.[2-4], see Table S5.8). This shows that men receive substantially longer sentences than women for the same category of crime – for virtually all categories of crime, with only a few minor exceptions. Why should men receive longer sentences for, say, “theft from a vehicle”, or “false accounting” or “fraud” or “causing death by reckless driving”, etc., etc.? The disparity in sentence lengths is again clearly gender bias.
Finally I looked at the effect of parole: what proportion of their sentence do men and women actually serve? Women serve rather less of their sentence than men, 48% versus 53% respectively on average (Ref.), a disparity factor of 1.1. Again we can ask if this is fair, or is it gender bias? The key issue is the prisoners’ behaviour whilst in prison. You might think that women behave better in prison. But not a bit of it. Quite the opposite. Women prisoners are subject to between 20% and 50% more prison disciplinary actions (per 100 prisoners) than are men (Ref.). This includes women prisoners being disciplined more frequently for acts of violence. So, the preferential treatment of women by parole boards would appear to be another case of gender bias.
We can now see why there are 20 times more men in prison than women. This factor of 20 is composed of four effects which numerically are: 3.3 x 3.4 x 1.64 x 1.1 = 20. Only the first of these (3.3) is fair, representing the greater number of crimes committed by men. The other three factors are all the result of gender bias. Men are 3.4 times more likely than women to be sent to prison for the same crime, men receive sentences which are 1.64 times longer than women’s for the same crime, and men actually serve 10% more of their sentence on average than women, for no obvious reason. So, all told, the discrimination against men is about a factor of 6. This leads me to the following staggering conclusion,
Men are subject to massive gender discrimination in the criminal justice system. If male offenders were treated in the same way as female offenders there would be only one-sixth of the number of men in prison. About 68,000 men would not be in prison if they were female, leaving a male prison population of only 13,000.
In passing I note that similar discrimination against men has been reported by studies in the USA, for example that of David B. Mustard, Ref.. He too concluded that women were markedly less likely to be sent to prison than men. In terms of prison sentence length, Mustard showed that men’s sentences were double that of women after controlling for offense severity – see Table 3. In fact the discrimination on the basis of gender is substantially worse than the discrimination due to race, though that is bad enough (Table 3). It is also worth noting that Mustard concluded that 70% of the male-female disparity in sentencing is caused by departures from the sentencing guidelines, rather than differential sentencing within the guidelines.
Table 3: US Data on Sentences and Offense Level from Mustard’s 2001 Paper
|Disparity||1.63 against blacks||2.0 against men|
A broadly similar picture emerges from the more recent paper by Starr, Ref.8, namely that in the USA men received 63 per cent longer sentences on average than women, and women were twice as likely to avoid incarceration if found guilty.
The Laughably Named “Equal Treatment Bench Book”
As if this staggering degree of anti-male bias were not enough, I make some alarming observations regarding the UK government’s Judicial College “Equal Treatment Bench Book”. This is the official guidance on how to treat people within the UK criminal justice system. The section on Gender Equality is headed by a summary of its Key Points, which are as follows,
- Women remain disadvantaged in many public and private areas of their life; they are underrepresented in the judiciary, in Parliament and in senior positions across a range of jobs; and there is still a substantial pay gap between men and women. (Aside: one might ask what a remark about the so-called “pay gap” is doing in guidance on criminal justice. This document couldn’t have been written by feminists, by any chance?).
- Stereotypes and assumptions about women’s lives can lead to unlawful discrimination.
- Factors such as ethnicity, social class, sexual orientation, disability status and age affect women’s experience and the types of disadvantage to which they might be subject; assumptions should not be made that all women’s experiences are the same.
- Discrimination is often unconscious and based on a person’s own experience and perceptions; it is important to be aware of the wide diversity of women’s experiences.
- Women may have particular difficulties participating in the justice system, for example, because of child care issues, and courts may need to consider adjustments to enable women to participate fully.
- Women’s experiences as victims, witnesses and offenders are in many respects different to those of men.
- As judges, we can go some way to ensuring that women have confidence in the justice process and that their interests are properly and appropriately protected.
If you are surprised that an official government guidance document with “Equality” in the title is concerned only that women should be treated nicely – but shows no concern for men at all – then I can only assume that you have not read one previously.
In the 2013 edition of the Bench Book the following final bullet point has been added,
Of course, men can suffer from gender discrimination too; this section reflects the reality that this is rarer.
What? When the very criminal justice system of which this guidance forms a part is guilty of massive discrimination against men, as proved conclusively by the data presented above? That the authors of the Bench Book have the audacity to include such a statement can mean only one of three things. Either they have not noticed the issues discussed above, in which case they are incompetent (this is the most benign possibility). Or they are completely unable to make a balanced and fair judgment due to being blinded by an anti-male sexist mindset. Or, finally, the authors are well aware of the injustice and are happy to see it persist, or even worsen.
Worsen? Yes, it seems that the degree of discrimination against men (or preferment of women, if you prefer) is not yet sufficient. The Equal Treatment Bench Book includes the following infamous quote from Lady Justice Brenda Hale:-
It is now well recognised that a misplaced conception of equality has resulted in some very unequal treatment for the women and girls who appear before the criminal justice system. Simply put, a male-ordered world has applied to them its perceptions of the appropriate treatment for male offenders…. The criminal justice system could … ask itself whether it is indeed unjust to women.
Words fail me. A factor of 6 preference in favour of women is not enough for them, clearly.
This is “women’s equality”. Women’s equality means, not merely preferential treatment for women, but ever increasing preferential treatment for women. One really shouldn’t treat women like we treat men. That would be insupportable. That is a “ misplaced conception of equality “.
With 60% of law graduates in the UK now being women, it’s set to get worse.
- Prison population data for England & Wales are published weekly and can be found, for example, at https://www.gov.uk/government/publications/prison-population-figures-2014 and similar web sites.
- Criminal Justice Statistics, Quarterly Update to March 2012, Ministry of Justice Statistics Bulletin (and similarly for the other years).
- As , specific file “sentencing-stats-09-supp-tables”
- Ministry of Justice publication “Statistics on Women and the Criminal Justice System”, November 2010.
- David B. Mustard, “Racial, Ethnic and Gender Disparities in Sentencing: Evidence from the US Federal Courts” by, University of Georgia, in Journal of Law and Economics, vol. XLIV (April 2001).
Sonja B. Starr, “Estimating Gender Disparities in Federal Criminal Cases”, University of Michigan Law School, August 29, 2012