While various pockets on criminal law are increasingly subject to empirical analyses, one particular pocket--how prosecutors distribute discretion--is comparatively under-studied. This is so, partly, due to a comparative paucity of relevant data on the prosecutors themselves (and matching them to individual cases and dispositions). A recent paper, Gender Favoritism Among Criminal Prosecutors, by Stephanie Holmes Didwania (Wisc.), tries move the scholarly needle a bit by exploiting data on over 130,000 federal criminal defendants sentenced in 2002 through 2016 to assess possible "gender-based differences in how prosecutors exercise critical discretion."
The paper matches Sentencing Commission data and data from the Executive Office for United States Attorneys (EOUSA) which regularly publishes case data from the 93 USAOs located throughout the United States. Critically, the breadth of the LIONS data "is substantial—the data covers all cases in which a USAO was involved, including those cases that are the primary responsibility of another agency and those the USAO declines to prosecute." Despite its breath, the LIONS data set is not without important limitations including a comparatively non-trivial amount of missing data. After matching, the resultant data set data includes "131,207 federal criminal defendants sentenced between 2001 and 2016 in 63 of the 94 federal district courts."
Data set limitations aside, the paper's core finding intrigues: "That defendants receive more lenient charges when they match with their prosecutor on gender relative to when they are assigned a prosecutor of the opposite gender. Through this charging channel, prosecutor-defendant pairs that match on gender produce lower sentences relative to prosecutor-defendant pairs that mismatch." More specifically, "the leniency associated with gender-matching ultimately translates into significantly lower sentences: a defendant can expect to earn a roughly five-month shorter sentence when their prosecutor is their own gender compared to when their prosecutor is the opposite gender, which represents a roughly eight percent reduction in sentence length at the mean." The paper's abstract follows.
"Prosecutors enjoy wide discretion in the decisions they make but are largely unstudied by quantitative empirical scholars. This paper explores gender bias in prosecutorial decision-making. I find that male and female prosecutors exhibit small and statistically insignificant differences in their treatment of defendants overall but demonstrate relative leniency towards defendants of their own gender. Such favoritism at charging translates into a sentencing gap of roughly five months of incarceration for defendants who are paired with an own-gender prosecutor versus an opposite-gender prosecutor, which represents a roughly eight percent reduction in sentence length at the mean. The estimates do not appear to be driven by differences in case assignments for male and female prosecutors."
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