Inconsistent sentencing in the courts can reflect biases

Dear Editor,

Let me at the outset express my thanks to Mr Rajendra Bisessar for turning the spotlight on the recent case in which a 23-year-old woman was sentenced to 2 years and 8 months imprisonment plus a fine of $159,000 after being found guilty of possession of four grams of marijuana. I must admit that I was disturbed and angry when I read this. Today marijuana has been decriminalized in a number of states here in the USA. In Oregon, any person 21 years or over can have up to eight ounces of marijuana in their home. Jamaica has decriminalized possession of a specified amount. In the Cayman Islands, there are calls for the government to grow the herb while in many parts of Europe, national and county governments are busy identifying parks at which recreational use of the herb can be undertaken. In Guyana, we imprison a 23-year-old lady for nearly three years for having 4 grams of the herb in her home.

In the Kaieteur News of February 5, 2013, we read of a 20-year-old man being sentenced to three years’ probation for having committed larceny at Rami’s Fashion. The magistrate on sentencing told him that he needs “to be a part of the skills and knowledge for youth empowerment (SKYE) project.” Couldn’t this young lady be given a similar sentence? Did she have a criminal record? Possession of a mere four grams of marijuana does not suggest intent to traffic. In Jamaica, senior barrister Lord Anthony Gifford in his recent contribution to the marijuana debate is reported as having said, “legislation is a human rights issue. One should have the right to do whatever does not harm other people.”

Generally, it is held that the criminal justice system has most often been harder on men and more lenient with women. This perceived tendency of being tougher on men has existed for a long time and gave rise to the ‘chivalry hypothesis.’ This hypothesis holds that the justice system, made-up predominantly of male police, judges and correctional officers, has a tradition of chivalry and extends this attitude even to female offenders. Thus, according to the theory, the system treats females with more leniency than men. But this chivalrous hypothesis predates the feminist theory on crime.

Feminists tend to dismiss this chivalry theory. They ask that we not confuse chivalry with paternalism. The justice system, they claim, is paternalistic in its dealing with female offenders. Thus, just as parents can deal harshly with children who behave in a manner not considered age appropriate, similarly the justice system tends to be harsher on female offenders when they violate long held and cherished definitions of their purity. Female criminal justice officers and officials in particular, who see themselves as gatekeepers of the morality of their sex, are extremely offended and angered when one of their kind behaves in a manner that embarrasses the sex. These officers/officials are therefore even more inclined than their male counterparts, to deal harshly with female offenders. Have we been missing the full meaning of what they are up against when female citizens who have had encounters with the justice system, share with us their preference to be questioned or arrested by male officers, because they are perceived as being more sympathetic and respectful?

Editor, generally, more males than females commit crimes; however, in recent times the level of female criminality has been rising. For example, in the United States statistics show between 1970 and 2000 the number of crimes committed by men grew by 46%, while crimes committed by females increased by 144%. To some extent this rise in criminal activities among females should not surprise. Women’s participation in activities outside of the home is on the increase, and this is most visible in the workplace. Being out and about means that more opportunities are presented to women for committing crime, thus explaining the rise in their participation in same.  In Guyana, the growing frequency with which females seem to be appearing before the court tends to suggest that we too are experiencing a rise in female involvement in criminal activities. This reality gives rise to two questions: (a) Is our criminal justice system prepared for coping with the challenges and demands which this growing group of offenders gives rise to?  (b) To what extent does the criminal justice system’s response to female non-violent offenders satisfy the expectations of citizens?

Recently, President Granger was quoted as saying “mothers should be home taking care of their children,” as he sought to justify pardoning several female criminals. His opinion seems to suggest he supports leniency towards female offenders. Compare the President’s position to the behaviour of the juvenile justice system. Some time ago I read that at the New Opportunity Corps facility in Essequibo over 75% of the students (they are really inmates) are there for having committed the offence of wandering.  Even though in Guyana boys wander much more than girls, I am willing to bet that a simple check at this facility will reveal there are more girls sent there for wandering than boys. This is so because girls, being away from the home of their own volition, offends our concept of ‘proper behaviour’ as it relates to young females. If I am right, the President and the criminal justice system are pulling in different directions. More importantly, which side reflects the people’s will?

Editor, there are those who demand that the criminal justice system be unbiased. But, aside from the fact that those who created our formal criminal justice system demanded it be biased, the system is manned by humans. Therefore, it will very often reflect our imperfections, our biases and our assumptions. Indeed, research has shown that defence attorneys tend to identify judges they would prefer not to appear before when representing clients charged with certain offences. So, for example, an attorney might think, if found guilty of committing rape, his client will stand a better chance of being given a light sentence if he appears before Judge X rather than Judge Y, who is known for being stern on persons guilty of rape.  Make no mistake, lawyers in Guyana also identify specific magistrates and judges they associate with biases directed against specific offences.

It seems to me, that the often seeming confusing and inconsistent sentencing that is noticed in decisions handed down by our courts, reflect the biases discussed above.

Yours faithfully,

Claudius Prince

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