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Women Aren’t Always Sentenced By The Book. And Maybe They Shouldn’t Be.

Article here. Excerpt:

'Andrea James pleaded guilty in 2009 to four criminal counts related to a mortgage fraud.

When the time came to argue about sentencing, her attorney asked the judge to consider the fact that James’s son was just 4 months old. But the prosecutors held the high cards, and they objected. “She made the decision to have this baby at the age of 44 when facing criminal charges and a likely prison sentence,” they wrote in a memo to the judge.

Under the default federal sentencing rules, family considerations are generally considered irrelevant. Ultimately, the judge ignored the prosecutors’ argument and did cite family as a reason for giving James a reduced sentence, in addition to her long record of community service. She still ended up with two years in prison, but that was less than half of the default term recommended under the federal guidelines.
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That disparity grows even larger when the full scope of discretionary decision-making is considered. Prosecutors exercise at least as much power as judges in sentencing because they decide what charges to bring after an arrest. A 2015 study from the University of Michigan Law School found that when such decisions are taken into account, sentences for men are on average 63 percent longer than sentences for women.
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And the federal guidelines specifically discourage taking family considerations into account, declaring them “not ordinarily relevant” to sentencing. But they are certainly relevant to defendants like James who face separation from their children — and women appear to be particularly affected. Among federal prisoners in 2004, a higher share of men than women reported being the parents of minor children, but almost 80 percent of the mothers reported that they lived with their children just before incarceration, compared with half of the fathers.'

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