Gender-Related Issues in a Post-Booker Federal Guidelines World

Abstract

This article updates, expands and revises the author's previous works concerning gender in sentencing in light of Booker. It describes the dramatic increase of the female incarcerated population in the federal system due primarily to drug offenses. It discusses the Guidelines concerted effort to produce identical sentences for men and women who commit similar crimes, which imposed draconian costs on families as well as on women who do not resemble the violent male drug dealers who inspired the severe federal drug penalties. Gender related differences concerning the impact of sentencing policy on children and on loss of parental rights by mothers are discussed. Booker's reasonableness analysis is analyzed as providing the flexibility to approve non-guidelines sentences based on gender-related factors. The practice of requiring judges to decide the appropriateness of discouraged downward departures before issuing non-guidelines sentences is critiqued as hindering more holistic sentencing of defendants. The author also criticizes the guidelines discouragement of family ties departures, and argues that a completely gender-neutral sentencing scheme is bad policy because it has the potential of increasing intergenerational crime by ignoring the gendered realities of caregiving in our current society. A Guidelines amendment is proposed making children a legitimate departure factor in assessing the sentence of nonviolent sole and primary caretakers in light of constitutional and policy considerations viewing the family as a fundamental liberty interest. The difficulty posed by the Girlfriend Problem in drug conspiracy cases is addressed, and reasons are advanced as to why gender related issues are legitimate sentencing factors in relation to other departures that have gendered applications. In addition, issues currently viewed as only relevant to corrections are posited as legitimate sentencing factors. Thus, concerns relating to pregnancy and childbirth, family visits, privacy, staff sexual misconduct and lack of access to appropriate programming are viewed as relevant to determining a just sentence. Finally, the Bureau of Prisons regulations concerning community correctional centers are critiqued and the author urges the expanded of community corrections for women offenders and their children.

Keywords: gender, sentencing, prisoners, children, collateral consequences, criminal law

JEL Classification: A13,D19,D63,H19,H59,I39,J12,J78,K14,K42,Z00