In 2015, females accounted for 38% of juveniles placed in detention for status offenses (e.g., low-level, non-violent crimes such as running away, truancy, curfew violations, underage drinking, and incorrigibility; Sickmund, Sladky, Kang, & Puzzanchera, 2017), despite representing only 15% of residential placements (Office of Juvenile Justice & Delinquency Prevention, 2015). In fact, girls are arrested, petitioned to court, and placed in detention facilities for less severe offenses at a disproportionate rate compared to boys: whereas status offenses represent 12% of girls’ residential placement, similar offenses account for only 4% of boys’ offenses (Sickmund et al., 2017). This trend in asymmetrical sentencing speaks to the double standard that exists for boys and girls involved in the juvenile justice system (Chesney-Lind & Pasko, 2013).
Gender differences alone, however, do not account for all the variation in the sentencing severity of female defendants; defendants who are tried on the exact same charges receive sentences of varying severity depending on judges’ perceptions of any given defendant (Doerner & Demuth, 2010). In particular, research suggests that physical appearance in the courtroom may be an individual-level characteristic that systematically impacts sentencing severity (Fontaine & Kiger, 1978). As girls who dress in accordance with stereotypical feminine norms tend to be given shorter and less severe sentences than those who deviate from them (Chesney-Lind & Pasko 2013), it is plausible that the way a girl chooses to dress in court might affect how a judge perceives her and in turn the severity of her sentence (Davis, 1992, Fontaine & Kiger, 1978). Drawing upon defensive attribution theory, it is evident that judges’ perceptions are subject to influence by extralegal factors that impact their sentencing (Danziger, Levav, & Avnaim-Pesso, 2010; Shaver, 1970). However, despite the recent increase in the number of young women tried in juvenile delinquency cases and the notable increase in female incarceration rates (Carson, 2015; Hockenberry & Puzzanchera, 2015), there remains a paucity of research focusing on how judges’ and juries’ perceptions of female defendants are associated with differences in courtroom experience. As such, this paper aims to address the aforementioned gap in the literature by exploring the relation between the physical expression of gender (e.g., dress) and judges’ perceptions of the defendant, and how these perceptions relate to sentencing severity.
Clothing Choice and The Female Court Experience
While an ideal judge is objective and sentences strictly according to the facts of a case (Guthrie, Wistrich, & Rachlinski, 2007), external or extralegal factors such as physical appearance and dress influence how the judge perceives the defendant’s guilt, and subsequently the severity of a judge’s sentence (Danziger et al., 2010; Doerner & Demuth, 2010; Fontaine & Kiger, 1978). The physical expression of individual characteristics is particularly salient as it is one of the first things a judge perceives about a defendant when hearing a case. In fact, the interpretation of these physical characteristics, including dress, is often informed by stereotypes (Gurney, Howlett, Pine, Tracey, & Moggridge, 2017). At the commencement of the case, judges may use the defendant’s physical appearance as a mechanism by which to derive meaning regarding who the defendant is, what they value (Davis, 1992), their confidence, professionalism, and overall approachability (Gurney et al., 2017), and their social status (Ridgeway, 1991). Furthermore, clothing choice is perceived as an expression of the defendant’s respect for the judge, and how seriously the defendant is treating the legal process – both of which inform the judge’s sympathy for the defendant (Petrucci, 2002). Such attributions, however, are not uniformly imposed across defendants (Doerner & Demuth, 2010; Fontaine & Kiger, 1978; Rokeach & Vidmar, 1973).
In particular, gender differences contribute to variations in courtroom experience (Javdani, Sadeh, & Verona, 2011), that arise from gender-specific norms of behavior (Chesney-Lind & Pasko, 2013). Girls are expected to adhere to gender norms and are punished for the failure to conform to such norms (Javdani et al., 2011). As compared to males, females are disproportionately subject to marginalization when they deviate from feminine norms. In particular, female behaviors that deviate from socially dictated gender norms are perceived as lapses in morality (Chesney-Lind & Eliason, 2006), which leads to the perception of girls as delinquent (Javdani et al., 2011). Such expectations surrounding conformity manifest within clothing choice, which are used to convey larger messages about who a person is and what they value (Davis, 1992). In the United States, norms of appropriate female dress are culturally operationalized as conservative yet feminine (Grubb & Turner, 2012); deviation from this ideal, in turn, is often met with punishment in the form of hostile sexism (Glick & Fiske, 1996). As such, there exists a double standard: girls are expected to be obedient and embody traditional family values, whereas boys’ deviant behaviors are permissible in the courtroom because ‘boys will be boys’ (Chesney-Lind, 1977). If girls fail to comply with these courtroom standards, they are deemed aggressive or violent, and are more likely to be judged harshly and sentenced more severely as a result of their deviation from stereotypical norms of femininity (Chesney-Lind & Pasko, 2013; Petrucci, 2002). In the courtroom, this kind of punishment materializes through greater sentencing severity – explaining, at least in part, the imbalance in female incarceration rates (Carson, 2015; Chesney-Lind & Eliason, 2006; Javdani et al., 2011).
Judicial Perceptions and Sentencing Severity
There still, however, remains significant variability in the sentencing severity among female juveniles. Regardless of a defendant’s conformity to or deviation from gender norms, they are still subject to judges’ biases involving their individual-level characteristics (e.g., gender and age; Doerner & Demuth, 2010). Value judgments are placed upon girls on the basis of physical appearance, and the resulting perceptions arising from value judgments have salient implications for the sentencing of a defendant (Cramer et al., 2013; Grubb & Turner 2012). The ways in which individuals – and specifically judges – assess physical appearance and make subsequent sentencing decisions is characterized by defensive attribution theory (Mitchell & Byrne, 1973; Shaver, 1970).
Defensive attribution theory explains a cognitive bias in which one is more likely to attribute fault to another individual if he or she perceives the other as being different from the self (Shaver, 1970). People use “common sense knowledge of social structures” to infer the motivations and relative social position of others (Garfinkel, 1967, p. 76), and one indicator of these social structures is physical appearance, including clothing choice (Davis, 1992; Forsythe, 1990). When the judge believes they share common ground or similar values with a defendant, they are more likely to rule in the defendant’s favor by affording them lenient sentences (Fontaine & Kiger, 1978; Shaver, 1970). Conversely, it follows that where there is a perceived difference between the judge and the defendant, harsher sentences are more likely. As such, female defendants who deviate from stereotypical norms of dress may establish greater perceived differences between the defendant and the judge, given that the defendant conveys a different set of values than what the judge may hold (Grubb & Turner, 2012). This values-mismatch contributes to the variability in assigned culpability among individuals of similar personal characteristics and infractions (Cramer et al., 2013; Shaver, 1970), in which differences in perceived guilt or responsibility of a defendant result in variations in sentence severity for the same charges. In fact, women as a group are sentenced less severely than men for the same crimes; women who deviate from stereotypical feminine norms, however, are sentenced more severely than men who are charged with the same crimes (Chesney-Lind & Eliason, 2006; Chesney-Lind & Pasko, 2013). These findings suggest that greater expectations are placed on women in terms of adherence to gender norms, in that perceived deviation from these norms leads to more severe punishment in the form of severe sentencing (Glick & Fiske, 1996; Grubb & Turner, 2012). It is thus evident that clothing represents one facet by which judges infer a defendant’s characteristics and guilt (Forsythe, 1990), that contributes to systematic differences in sentencing severity even among girls.
Despite the empirical evidence that highlights the disadvantaged position of girls in the courtroom (Javdani et al., 2011), research involving the role of judicial bias in sentencing, and especially as it involves marginalized populations such as women and youth, is limited. In fact, only some research has investigated the role of variability in clothing type (e.g., defendants who wear institutional dress, such as prison jumpsuits) in being found guilty by a jury or receiving more severe sentences from a judge (Fontaine & Kiger, 1978). Furthermore, the extant research surrounding the role of clothing choice in sentencing outcomes is largely based upon studies completed in the 1970’s and 80’s, with little continuing research. Addressing this gap is critical in light of changing societal norms surrounding dress, as well as the notable increase in female juvenile incarceration in recent years (Carson, 2015; Hockenberry & Puzzanchera, 2015). Future research should therefore closely investigate the ways social constructions of gender norms impact girls involved in the juvenile justice system, and how those norms might impact sentencing severity when judges are exposed to female defendants who differ in physical appearance but have nonetheless been charged with the same crime. Analyzing the consistency of judicial decision-making represents one significant step in moving towards an unbiased justice system, and a fuller understanding of the needs of this population. With this greater understanding, it becomes possible to effectively advocate for and work with girls in the justice system in a gender-responsive manner.
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