Women Lifers: What the United States Sentencing Commission Data Tell Us about Women Eligible for and Sentenced to Life Without Parole

ABSTRACT

The current study builds on recent research assessing the decision to impose life imprisonment without the possibility of parole (LWOP), focusing on females convicted in US District Courts. Using USSC data from 2010 to 2017 and an intersectional approach, we described the characteristics of life-eligible and life-sentenced women and examined the factors that predict life eligibility among females and males . Black women faced higher odds of life eligibility than White or Hispanic women and life experiences and case processing factors affected life eligibility differently for women and men. These results highlight the importance of intersectionality for understanding gendered sentencing pathways.

KEYWORDS:

• sentencing
• theories
• feminist
• women as offenders

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. A note on terminology: The goal of our analysis is to identify possible sources of disparity in the processes that result in men and women becoming eligible for LWOP. Our expectations and analyses are guided by the belief that a person’s gender influences both their life experiences and how others perceive them. Hence, we are interested in the effects of gender on LWOP eligibility, not the effects of biological sex. However, we recognize several limitations in the USSC data that affect our ability to properly operationalize gender in our analyses. First, although the USSC data assess gender – the codebook describes this variable as the “offender’s gender” not their biological sex – the variable is measured as a male-female binary, which excludes the possibility of exploring the effects of other gender identities in sentencing outcomes. Second, the USSC codebook is unclear in how gender is assessed, stating only that the variable comes from information gathered by the probation officer and consolidated in the Pre-sentence Report. A review of the Presentence Investigation Interview Guide that probation officers use to collect initial information from defendants has questions about defendants’ gender. However, the codebook does not specify how the probation officer determines the individual’s gender, such as if this is self-identified, based on the probation officers’ perceptions, or based on official documents like a driver’s license or birth certificate. To the extent that the practice of determining gender is not standardized, gender in the USSC data could reflect a combination of these operationalizations. Despite these limitations, we use the term “gender” rather than “sex” when describing differences across men and women in sentencing outcomes and the factors affecting these outcomes (USSC, 2013).

2. Virtual life sentences are those that exceed an individual’s natural life expectancy.

3. For more on the historical use of life sentences and related policy changes, see, Johnson et al. (2021).

4. Johnson et al. (2021) noted that the Hamilton study examined the overall likelihood that a life sentence would be imposed, regardless of whether individuals were statutorily eligible for LWOP. It included certain types of cases (e.g., immigration offenses) that are virtually precluded from life sentences and it combined virtual life sentences (sentence lengths of 470 months or longer) with sentences in which the judge imposed an official life sentence.

5. We use the term “legally eligible” for a life sentence (or alternatively, “life-eligible”) to reflect the fact that individuals cannot receive a life sentence unless their presumptive sentence under the federal sentencing guidelines includes life as either the maximum punishment allowed or as the mandatory minimum punishment.

6. At the time that we began this project, the data from FY2010 to FY2017 were the most recent data available from the USSC. We analyze several years of data due to the fact that few of those convicted in the federal courts are eligible for a LWOP sentence and even fewer receive LWOP.

7. In 1984, Congress passed the Sentencing Reform Act, which established the U.S. Sentencing Commission and charged it with promulgating guidelines to structure federal sentencing. In 1987, federal guidelines went into effect. As part of this process, Congress prospectively eliminated parole, replacing it with truth-in-sentencing provisions that limited good time credit to 15%. Prior to sentencing reform, federal inmates, including those sentenced to life, were eligible for parole after ten years (Hoffman, 2003); under the current system, those with life sentences are no longer eligible for release.

8. For a detailed discussion of LWOP sentences in the federal courts, see, Johnson et al. (2021).

9. In addition to immigration cases (N = 193,222), cases with incomplete guideline application information are excluded (N = 43,571). This removes cases with incomplete or conflicting guidelines calculations as well as cases with no known or applicable guidelines. Consistent with prior work, we also remove 8,788 cases sentenced in foreign territories (U.S. Virgin Islands, Guam, Puerto Rico, the Mariana Islands), because they may differ from domestic cases in important ways (Johnson et al. 2008).

10. Cases with missing data on demographic factors were rare, constituting less than one percent of the sample (N = 3,616), so they were listwise deleted rather than opting for imputation methods.

11. Among all females who were eligible for a LWOP sentence (N = 171), 32 (18.7%) received a LWOP sentence. Among all males who were eligible for a LWOP sentence (N = 4583), 1100 (24%) received a LWOP sentence. As these data suggest, most of those who are eligible for a LWOP sentence in federal court do not receive a LWOP sentence. This is largely due to the fact that prosecutors and judges can use downward guidelines departures to mitigate life sentences. There are several types of departures in the federal system, some of which require prosecutorial motions, such as “substantial assistance” departures for providing information in the prosecution of another federal case. Substantial assistance is especially important because it allows court actors to circumvent applicable mandatory minimums, meaning mandatory life statutes do not always result in life terms. Other downward departures can be given at the discretion of the judge when atypical circumstances exist.

12. The “other” category includes property offenses (arson, burglary, auto theft, and larceny), which make up less than 2.5% of the full sample (and only 0.27% of those eligible for a life sentence), as well as White-collar offenses (fraud, embezzlement, forgery/counterfeiting, bribery, tax offenses, money laundering, and antitrust violations) and other miscellaneous crimes such as civil rights, prison offenses, administration of justice, environmental and wildlife offenses, gambling/lottery, national defense, food and drug offenses, and offenses classified as “other” by the USSC.

13. Models using district-level fixed effects in lieu of circuit-level variables produce parallel findings. We report the circuit-level analysis because it is consistent with prior work on life sentences (Hamilton, 2016) and because not all districts experienced life sentences for some subsets of offenses during our time frame.

14. We used Paternoster et al.’s (1998) test of difference in coefficients to assess if the effect sizes of factors that statistically significantly predicted life eligibility for both males and females varied across gender. None of the tests reached statistical significance, indicating that the factors that affect life eligibility for both women and men have the same effects (i.e., similar effect sizes), regardless of gender.

15. The odds ratios were 0.55 (P ≤ .5) for White females, 0.27 (P ≤ .05) for other race females, and 0. 56 (P ≤ .10) for Hispanic females.

16. The operationalization of other variables of interest, such as dependents, is also limitation. Like the measure of gender, the USSC data codebook is unclear on what the variable describes, or how it is assessed. Specifically, dependents is described as “the number of dependents whom the offender supports” and notes this information is collected from the Presentence Report compiled by a probation officer. The nature of this support – if the defendant lives with children, cares for sick parents, is the primary caretaker or an occasional babysitter, if support is financial only and the frequency/quantity of support, etc – is not specified.