#1 Source of Discrimination in Criminal Justice: Being Male
As a practicing criminal attorney, it has long been obvious to me that the biggest source of discrimination in the criminal justice system is gender. Criminal law enforcement discriminates primarily against males. I have known this for some time based on my experience representing both male and female defendants, being able to compare the treatment of individuals with roughly the same allegations and prior records. It’s important to look at this often-neglected bias for a number of reasons.
A search for “incarceration rates, demographics, Massachusetts” reveals all sorts of comparative data, but no direct comparisons between genders. The top sites are interested primarily in racial disparities and contain multiple links to articles advocating for women (e.g., Massachusetts women need more services, not more jail cells, Massachusetts women do not need a new jail, and Who's helping the 5,061 women released from Massachusetts correctional facilities each year?) There isn’t any discussion of a disparate impact on men, because they aren’t generally recognized as a group in need of support or legal protection in the criminal context.
So I went to the source (mass.gov) to look at the 2019 numbers, which are as follows:
Men: 8,090 total males in the jurisdiction population and 608 civil commitments.
Women: 329 total females in the jurisdiction population and 6 civil commitment.
https://www.mass.gov/service-details/quick-statistics (reported on 12/1/19)
That means men are incarcerated at more than 24 times the rate of women—i.e. for every one woman incarcerated in Massachusetts there are 24 male prisoners. Statistically this is by far the most disparate impact by category. To put things in perspective, the ratio of black to white inmates in this state is unacceptably high at approximately 6:1.
The ratio of men:women that have been civilly committed is astronomical at about 100:1 (608 men, 6 women). These numbers should concern any reader genuinely concerned with discrimination based on race and/or gender, because in practice they are not always distinct concepts. The reality is that combating discrimination against black men by law enforcement should be focused at least partially on their status as male. Racial discrimination is easier and even becomes unrecognizable when it is couched in a framework of more general assumptions about men. A gut check over racial discrimination rarely occurs in the courtroom because it is acceptable—and even considered probative—to discriminate based on a defendant’s gender. This is particularly true when litigating claims of domestic abuse under 209A (a preventative detention scheme) where the focus is inherently on intimate partner abuse between men and women. Racial injustice is rarely considered because it’s seen as a man vs. woman issue.
There may be some legitimate cultural and biological reasons underlying part of the disparity, including the presence of testosterone and men’s historic role in violence (e.g. almost exclusively men that have died in combat). But for anyone interested in social justice and understanding how broad stereotypes negatively affect individuals, discrimination against men in the criminal justice system should clearly be at the top of the list for discussion.
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