K.B. Turner, Ph.D.
Department of Criminology and Criminal Justice
James B. Johnson, Ph.D.
Department of Political Science
University of Nebraska at Omaha
Literature Review: Gender and Bail
Theoretical Considerations
Methods
Results
Discussion/Conclusions
SCHOLARS HAVE LONG been interested in learning whether males and females are treated differently by criminal justice officials, including police, prosecutors, judges, and probation officers. Research has examined the effect of gender on police discretion. For instance, Visher (1983) found some evidence that the gender of the suspect influences arrest decisions, although this depends on the perceived (masculine or feminine) type of criminal behavior of the woman. Additionally, Visher found that older white female suspects were less likely to be arrested than younger African American female suspects. Women defendants who conform to traditional gender role stereotypes are likely to be treated more leniently than men who are suspected of the same offenses.
Women who violate gender role expectations, however, do not receive preferential treatment. For example, Chesney-Lind (1987) found that women who commit traditionally “masculine” crimes are expected to be treated more harshly than men. Yet, other research suggests that as women progress further into the criminal justice system, they are more likely to receive preferential treatment from a judge at sentencing than they are from the police officer making an arrest or the prosecutor seeking an indictment (Kempinen, 1983; Kruttschnitt 1984; Spohn & Welch 1987; Willison 1984; Spohn 1999).
Research has also examined the effect of gender on charge reduction and probation. Farnworth et al. (1991) employed data collected from the California Attorney General’s Bureau of Criminal Statistics, 1988, for felony arrests. The researchers found females twice as likely as males to receive probation and slightly more likely than males to have their charges reduced (Farnworth et al., 1991). When the researchers focused on comparing females to males, overall “the evidence suggested a tendency toward less severe sanctioning of females, particularly in the decision to incarcerate; and white females appeared to be treated with particular deference” (Farnworth et al. 1991:68).
Studies have also examined for gender bias in conviction (Farrington and Morris 1983) and probation (Ghali & Chesney-Lind, 1986; Nagel et al., 1982). These studies suggest that women defendants are treated more leniently than men. Gruhl et al. (1984), examining the incarceration decision, found that female defendants were treated either similarly to or more leniently than male defendants.
Spohn (1990), using data on defendants charged with violent felonies in Detroit, found males are more likely to be sentenced to prison, and their expected minimum sentence (EMS) is 292 days longer than the EMS for females. Again, Spohn’s study corroborates other studies finding that female defendants receive more lenient treatment. On the other hand, Hagen, Nagel and Albonetti (1989) and Unnever, Frazier & Henretta (1980) found no statistically significant effect of gender on sentencing. After examining the decision to charge in 400 robbery and burglary cases in Jacksonville, Florida, Albonetti (1992) reported that race and gender had no effect on the prosecutors’ decision to reduce charges.
Another decision stage in the criminal justice process that has often been overlooked by researchers although it deserves attention is death penalty sentencing. The limited research in this area suggests that female defendants receive more lenient treatment than male defendants. For instance, Rapaport (1991), in her analysis of defendants charged with murder or non-negligent manslaughter between 1976 and 1987, found that 14 percent were women while only 2 percent of the prisoners on death row were female. However, Rapaport (1991) cautions that this finding may be misleading, since 1) felony murder is rarely committed by women, 2) male murder defendants are four times more likely to have a prior conviction than females, and 3) females are significantly less likely to be accused of murdering multiple victims. Thus, one would expect that the representation of women on death row would be significantly lower than that for males.
Literature Review: Gender and Bail
Most studies examining for gender differences in criminal justice proceedings have focused primarily on the sentence phase; research examining gender differences at earlier stages of the criminal justice process, including pretrial release and bail, is less common, though no less important. This study seeks to augment our knowledge of gender bias in criminal justice processing by examining another crucial stage in the criminal justice system, the judge’s decision regarding bail amount. The importance of this decision can be seen in the U.S. Supreme Court’s interpretation of the Eighth Amendment’s provision on bail that was set out in Stack v. Boyle (342 U.S. 1). In particular, Justice Fred Vinson, writing for the Court, pointed out that:
This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevents the infliction of punishment prior to conviction. Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.
Kruttschnitt and McCarthy (1985:158) refer to the decision whether or not to grant bail and the amount of bail set as “the terms under which a defendant may be allowed to remain free in the interim between arrest and case disposition.” The importance of this decision cannot be overemphasized. Reiman (1990:83) points out that defendants unable to make bail are punished even though they may be innocent. Furthermore, there are several implications on subsequent criminal court proceedings for those unable to make bail. Defendants who cannot post bail are placed in detention while awaiting trial, and (as the Stack v. Boyle decision implies) are thereby effectively prevented from assisting in the preparation of their defense. More specifically, pretrial detention prevents the accused from locating evidence and witnesses (who may only be known to the defendant by an alias or street moniker) and having more complete access to counsel (Inciardi, 1984:451; Rankin, 1964). More than 30 years ago, Rankin (1964) analyzed data from the Manhattan Bail Project and noted that it was unwise to disregard the impact of pretrial detention, since detained defendants were more likely to be convicted. Albonetti (1991) echoed this finding. In addition, once convicted, defendants who have been detained are more likely to be sentenced to prison than those who have obtained pretrial release (Goldkamp, 1985). Moreover, research evidence indicates that defendants who are convicted at trial and were unable to post monetary bail are likely to receive longer prison sentences ( Rhodes, 1985).
As mentioned, research on gender disparity in criminal justice processing had focused primarily on sentencing. One early study that departed from this trend was conducted by Nagel and Weitzman (1971). Although their study considered only a few control variables, the researchers concluded that females were more likely than males to be released before trial.
Studies examining for a gender effect on bail prior to 1984 have basically concluded that gender does not affect a judge’s bail decision after controlling for relevant legal and extra-legal variables (Goldkamp & Gottfredson, 1979; Nagel, 1983). However, Katz and Spohn (1995), using data derived from the Detroit Recorder’s Court on defendants charged with violent felonies, found that females were significantly more likely than males to be released prior to trial. In particular, the researchers found that white females, white males, and African American females were more likely than African American males to be released. With respect only to African American defendants, Katz and Spohn (1995) found that African American males received higher bail amounts than did their African American female counterparts. More specifically, they found that judges imposed higher bail on African American males in five types of offenses: “cases in which the most serious charge was assault; cases in which the defendant had no prior felony conviction; cases in which the defendant did not use a gun in committing the crime; cases in which the victim and the offender were acquaintances; and cases in which the defendant did not have a private attorney” (Katz & Spohn, 1995:175).
Steury and Frank (1990) analyzed data from a weighted sample of nearly 2000 felony cases from Milwaukee County, Wisconsin. Their bivariate analysis indicated that females were more likely than males to be granted lenient pretrial release terms, to receive lower bail amount when bail was set, to spend shorter periods of time in jail before trial, and to gain release pending trial.
An important issue in conducting social science research deals with interactions between independent variables. Some researchers examining for a gender effect in bail decisions have been cognizant of the interaction of gender with other variables. For instance, Daly (1987) reported that being married and having children was more salient for women than for men on bail outcomes in New York City’s lower court. Kruttschnitt (1984) also found similar effects, observing that female defendants were more likely to be released on their own recognizance than male defendants if the offense was less serious and young children were living in the home.
In a longitudinal study encompassing 16 years, Kruttschnitt and McCarthy (1985) found that the interaction of familial social control and gender significantly affected pretrial release for women differently than it did for men. In this context, familial social control refers to the different relationship and responsibilities that females and males have with families. In particular, in six of the years analyzed, there was a significant difference for women with the interaction of family control, whereas there was a statistically significant relationship for men in only one year.
Examining two cities in two different regions, New York City and Seattle, Washington, Daly (1989) found that married female defendants in New York City, regardless of the presence of children, were more likely to be released than single women without children. However, she found that the effect of family responsibilities may not be consistent for all races/ethnic groups. Daly observed that married African American females with dependents were more likely than similarly situated Hispanic females to enjoy pretrial release. Daly reported that among African American women in Seattle, the presence of children in the family had a greater effect on pretrial release than it did among white female defendants with children.
Using data derived from a sample of non-narcotics felony arrests made in a northern Florida border county from 1985–1986, Patterson and Lynch (1991) trichotomized their dependent-variable bail schedule compliance: 1) below schedule amount, 2) above schedule amount, or 3) within schedule amount. The researchers found that white females were significantly more likely than others (white males, Hispanic males, black males, Hispanic females, black females) to receive a bail amount below schedule guidelines, suggesting that “white females, in particular, are placed in a privileged position relative to other groups, controlling for the effects of legally relevant decision making criteria” (Patterson & Lynch, 1991, p. 51). So, while the researchers found that among white Americans, females received more lenient bail treatment than males, among African Americans, female defendants are treated no differently than their male counterparts (Patterson & Lynch 1991).
Generally, the literature reveals that judges treat male and female defendants differently in reaching bail decisions; that is, females are afforded more lenient treatment (Goldkamp & Gottfredson, 1979; Nagel, 1983; Steury & Frank, 1990). Once certain legal and extra-legal variables are controlled for, differences may remain but dissipate (Goldkamp & Gottfredson, 1979; Nagel, 1983). Marital status and family variables are perhaps given more weight in bail decisions concerning females than in those concerning males (Daly, 1987; Kruttschnitt, 1984; Kruttschnitt & McCarthy, 1985).
Prior research has also shown an interaction between race/ethnicity and gender; for example, there are differences in the judicial treatment of African-American female defendants and white female defendants (Patterson & Lynch, 1991). As well, white female defendants are more likely to receive lower bail amounts or release on recognizance (ROR) than non-white males and females, and white males (Katz & Spohn, 1995; Patterson & Lynch, 1991).
Theoretical Considerations
When sex differences are found in criminal justice decision making, the system is almost always harsher on men than women (Daly, 1994). Moreover, the sentencing literature shows that “gender differences favoring women are more often found than race differences, favoring whites” (Daly, 1989, p.137). Disparity in treatment between males and females in criminal justice has led to the “chivalry” and “paternalism” hypotheses. The “chivalry” hypothesis that emerged a half century ago (Pollack, 1950) advances the thesis that predominantly male-dominated actors in key positions of the criminal justice system have a traditional, chivalrous attitude toward women defendants, and therefore treat them with more leniency than male defendants. The chivalry perspective posits that women are placed in a position of high esteem because they are considered incapable of serious criminal behavior and that part of the male role is to serve as the protector of women (Moulds, 1978).
However, the chivalry explanation does not account for research findings that under some circumstances women fare worse than their male counterparts. Therefore, some analysts have adopted the “paternalism” variant of the chivalry hypothesis. Paternalism refers to the attitude held by men that women are childlike and are not fully responsible for their behavior, criminal or otherwise, and therefore need protection (Crew, 1991). Paternalism, like chivalry, advances that judges and other court officials try to protect women as the “weaker sex” from the stigma of a criminal record or the harshness of incarceration (Daly, 1987). Indeed, some researchers consider chivalrous and paternalistic treatment to be synonymous (Daly, 1987). However, paternalism is different from chivalry in that it does not necessarily result in a more lenient treatment of female defendants. While paternalism can result in less severe sanctions for females, it can just as readily impose harsher penalties to serve the purpose of keeping females in traditional, submissive roles (Horowitz & Pottieger, 1991). When women behave in ways that are in harmony with traditional female roles of purity and submission, they receive lenient or preferential treatment. However, when women violate these standard role expectations, they may be dealt with more severely than their male counterparts (Horowitz & Pottieger, 1991).
A strand of paternalism called the “evil woman” hypothesis has been suggested to supplement the paternalism hypothesis. The evil woman hypothesis contends that women who violate gender-role expectations and behave in an “unlady like” fashion are punished harshly for the double violation of gender and legal norms and, therefore, are denied the chivalrous (and lighter) dispositions reserved for “normal” women (Erez, 1992, p. 107). The “evil woman” theory advances that the benefits of a chivalric attitude are not bestowed on all women. To earn these benefits, Steury and Frank (1990) point out, a woman must conform to cultural expectations of female character and behavior (passive, submissive, respectable, and engaging only in “female” crime). Women who deviate from these expectations by displaying aggressiveness, toughness and low status, and committing violent crimes, may not receive the benefit of chivalrous treatment, and in fact may be treated more harshly than males (Visher, 1983).
Methods
Hypothesis: This research investigates whether gender differences exist in the dollar amount of bail set by judges after the possible effect of legal and extra-legal variables is taken into account. Specifically, this study tests the following hypothesis:
H1: Even after legal and extralegal variables are controlled, female defendants will receive lower bail amounts than male defendants.
The above hypothesis allows one to assess the notion that when legal factors are considered, the judicial decision of bail amount set does not treat females differently than males. Confirmation of the above hypothesis will support the Focal Concern theory; that is, that judges consider extra-legal factors in their bail decisions. Moreover, if males are treated more harshly than females, even after controls are applied, the tenets of legal theory will be cast into doubt in regard to this decision.
Data and Variables
The data for this study came from District Court files of Lancaster County, Nebraska, which includes Lincoln, the state capital and second largest city in Nebraska. The data set contains information on all white, African American, and Hispanic persons accused of felony offenses who were eligible for bail in 1996. Analyses were done only on those cases for which information on all relevant variables was available. The N is 869 (161 females and 708 males).
When setting bail, among the factors judges usually weigh are the seriousness of the crime, prior criminal record, and strength of the state’s case (Inciardi, 1984). Legal factors such as these may play a legitimate role in the setting of bail amounts (Senna & Siegel, 1996). Extra-legal demographic or social characteristics, such as sex, ethnicity, race, social class, or the demeanor of the defendant, should not be legitimate factors in making bail decisions. Adhering to prior research, this paper too, will employ several independent and dependent variables alluded to above.
Dependent Variable. The dependent variable is the dollar amount of bail set by the judge to insure the appearance of the defendant at trial. This continuous variable ranges from $00.00 to $500,000.
Legal Independent Variables. The legal variables controlled for are offense seriousness and prior criminal record. Offense seriousness is a dummy variable based on Nebraska’s statutorily defined four-point index of seriousness of the felony (Type 4=least serious, Type 1=most serious).1 Type 4 felony is the omitted category in regressions. Prior criminal record is a continuous variable measured by the total number of felony and misdemeanor arrests preceding the instant offense. Previous research has demonstrated that seriousness of the offense and prior record are important predictors of outcomes at various stages of the criminal justice system; specifically, judges’ bail decisions (Albonetti, 1989; Frazier, Bock & Henretta, 1980; Goldkamp & Gottfredson, 1979; Nagel, 1983).
Extra-legal Independent Variables. The major extra-legal independent variable is sex (male = 0, female = 1). The other extra-legal variables are age (a continuous variable), type of attorney (public = 0; private = 1)2, place of residence, and race, which is created as a dummy variable consisting of variables for whites, African Americans, and Hispanics, Asians and Native Americans, with whites being the comparison category in the additive multiple regression model. Place of residence is a dummy variable consisting of four elements: those living in Lancaster County; those living in Nebraska, but not Lancaster County; those with an address in a state other than Nebraska; and transients, those with no address. The Lancaster County element is the omitted category in the regression equations.
The extra-legal control variables are consistent with prior research: age (Bynum and Paternoster, 1994), area of residence (Ozzane, Wilson & Gedney, 1980; Patterson & Lynch, 1991), type of attorney (Farnworth & Horan, 1980; Turner & Johnson, 2003), and race (Turner, Secret & Johnson, 2003).
Of these, residency is less commonly employed. It was used as a control variable because the residency of defendants might plausibly affect bail decisions; one might expect judges to see non-residents as having a greater risk of non-appearance than those with ties to the community. Table 1 presents summary statistics on the variables used in the analyses.
Statistical Methods
The analysis proceeds in two steps. The first is a t test to determine if there is a statistically significant difference in mean bail amount set for males and females. The second stage of analysis uses multiple regressions to assess the independent effect of gender on bail amounts after controlling for the combined effects of the six independent variables available for this study. Multiple regressions are computed for three models: 1) a simple additive effects model, 2) a model for females only, and 3) a model for males only. To estimate the amount of variance explained, we employ the R 2 derived from the regression equation analysis.
The independent variables of the regression models were checked for multi-collinearity with the calculation of “tolerance,” the percentage of variance of a variable that is not shared with other independent variables in the model (Hamilton 1992, p.133). Thus, higher levels of tolerance indicate less multi-collinearity. According to Hamilton (1992, p.134), “Low tolerance (below .2 or .1) does not prevent regression but makes the results less stable” and implies that tolerance values as low as .60 are acceptable. In all models, no independent variable has a tolerance lower than .872.
Results
Bivariate Analysis. To determine if the average female defendant was given a bail amount significantly different than the amount given to the average male defendant, a t test was computed (see Table 2). The result supports our hypothesis. The average bail amount for the female defendants of $7,468.94 was $3,672.71 less than the average for males. The difference is significant (t=2.233, p=.026).
Multivariate Analysis. The second level of analysis is an additive OLS regression that controls for variables that might systematically differ between males and females, thus leading to the results of the t test. The results of the additive model are presented in Table 3. The percent of variation explained by this model is 8.9.
After controls for legal and extralegal variables have been put in place, the regression shows a different result. While females, all else being equal, still show bail amounts that are lower than those of males (by $2,579.62 on average) the difference is no longer significant. In this model, offense seriousness, residence, and being Hispanic were the significant predictors of bail amounts. Those charged with the two most serious categories of crimes had significantly higher bails. Those charged with Type 1 felonies received bail amounts $15,564.60 greater than those charged with Type 4 felonies (p<=.008); type 2 felonies received bail amounts that were $16,989.60 higher (p<.0005). Age was also significant (p<=.007), such that for each additional year of age, bail amounts increased, on average, by $232.77. Those with residence outside of Nebraska were given bails $3,290.23 higher than those received by residents of Lancaster County. The bails given to transients were even higher, but within sampling error. Finally, Hispanics received bails that were $11,039.22 higher than those given to whites. Native Americans and Asians actually received lower bail amounts, but within sampling error.
Group Specific Models. Another way to analyze the data is to calculate the regression coefficients for the two groups separately (Meithe & Moore, 1986). Comparisons of the resulting regression coefficients for the groups show the different ways in which the independent variables affect males and females
Females
The model for females (see Table 4) explains 30.2 percent of the variation in bails for these defendants.3 Only those charged with the most serious crimes (Felony 1) receive significantly higher bail amounts, on average $88,664.73 more than those charged with the least serious offenses (p<.0005). African American females are given bails that are higher than those given white females, by an average of $4,504.04, but this is within sampling error (p=.086).
Males
Compared to the females, the model for males (see Table 5) explains little of the variations in bails (R 2 = .088). For males, four variables were significant: age, Felony 2, being the resident of a state other than Nebraska, and being Hispanic. The coefficients tend to reflect those in Table 3, showing the impact that the higher number of males in the sample had on the overall analysis. Those charged with the second most serious crimes received bails that were $18,498 higher than those accused of the least serious crimes. Each year of age added $245 to a male defendant’s bail. Those from addresses outside of Nebraska paid $9,206.64 more, and Hispanic males were given bails that were $8,964.39 higher than white males.
Discussion/Conclusions
It was pointed out earlier in this article that when sex differences are found in criminal justice decision making, the system is almost always harsher on men than on women, leading to the “chivalry” and “paternalism” hypotheses. Given that the additive model reveals that neither males nor females are more likely to receive statistically significant higher bail, neither “chivalry” nor “paternalism” seems to be an applicable explanation of male and female outcomes of bail decisions in Lancaster County, Nebraska. Moreover, when controlling for the four interactions of gender with the legal variables of 1) felony seriousness, and 2) prior arrests, and with the extralegal factors of 3) race and 4) age, it was found that women and men did not receive a statistically significant different bail amount set. This finding of equal bail set for women and men does not lend support to the “paternalism” explanation for the data, time, and place examined in this study, that women fare worse than their male counterparts in criminal justice outcomes.
In the gender/race interaction model, both white females and non-white females were found to receive lower bail amount set than white males. The Table shows that white females had a bail amount set that was substantially less than that of their white male counterparts. On the other hand, the amount of bail set for non-white females was only slightly less than that of white males. Non-white males, on the other hand, had a higher bail amount set than white males. These findings might appear to be consistent with the hypothesis that white female defendants will receive a lower bail amount than non-white female defendants. However, again, the analysis indicates that the findings are within sample error. Therefore, on balance, there were no race/gender differences to support the hypothesis that white females will receive lower bail amounts than nonwhite females. When examining for race differences in bail amount set for females and males separately, with structural controls, it was found that neither white men and women nor non-white men and women displayed a statistically significant difference in the amount of bail set.
When tested for gender differences in bail amount set for whites and non-whites separately, with structural controls, for neither racial group was there a statistically significant gender difference in bail set. Males of both groups tended to receive higher bail amounts set than their female counterparts. Interestingly, however the gender difference is nearly 10 times greater among non-whites than among whites, suggesting that judges are not as likely to apply, equally for both racial groups, a “chivalry” or “paternalism” view that translates into more lenient treatment for females. In short, the examination from the racial/ethnic intra-group perspective indicates that males may be more likely to receive harsh bail outcomes than females. However, the lack of statistical significance suggests that this finding must be treated as tentative.
The intragroup analyses concluded that, among women, the legal variables of offense seriousness and prior record, and the extralegal variables of type of attorney and jurisdiction (residence within the State, but outside Lincoln) hold more explanatory power for the judicial decision of bail amount set than do any other variables employed in the study. Among men, seriousness of the offense and type of attorney also help explain the bail amount decision. However, the only other variable that exerts statistically significant explanatory power is jurisdiction (residence outside the state).
It appears that judges might feel that men who reside in a state other than Nebraska do not have social and/or economic ties strong enough to bring them back to Lincoln for their day in court. On the other hand, women who live outside of the state may have sufficiently strong family, social, and economic ties to make them as predisposed to return to Lincoln for their day in court as those who live in Lincoln. Perhaps women who reside outside of Lincoln are seen as a flight risk for the same reasons as men who live outside of state. That is, their family ties might make them unlikely to return to the jurisdiction for trial.
The analysis shows, among both men and women, that type of attorney makes a consistently statistically significant difference in bail amount set. Defendants who employ the services of private attorneys fare worse, with respect to bail set, than those who utilize the legal services of state appointed counsel. Prior research has shown that private attorneys may be more effective than court appointed attorneys in obtaining favorable pretrial release decisions for their clients (Holmes et al., 1996). Thus, this study’s results appear inconsistent with previous research in indicating that defendants who utilize public defenders are not disadvantaged vis-à-vis defendants who utilize private counsel.
At the outset it was hypothesized that even after controlling for legal and extralegal variables, female defendants would receive lower bail amounts than male defendants. Although females did indeed receive less bail than did males, the result was within sample error, leading to rejection of the hypothesis. It was also hypothesized that white female defendants would receive lower bail amounts than non-white female defendants. The analysis revealed that white female defendants did indeed receive lower bail amounts than nonwhite females. But, again, the findings were within sample error, so the hypothesis is not supported. In fact, the analysis showed, as expected, but within sample error, that white females had the lowest bail amount set. Moreover, as hypothesized, the analysis also showed that non-white females had the second lowest amount of bail set, while white males had the third lowest and non-white males had the highest bail set.