EQUALITY WITH A VENGEANCE
Bobbi
Brandt pleaded guilty to a one count indictment charging her with distribution
of 2 grams of cocaine (there are 28 grams in one ounce). Federal Sentencing
Guidelines stated an applicable range of 10 to 16 months incarceration. The
sentencing court, however, took into account that she had two children, ages
seven and one and a half, whom she would lose in a custody battle because she
was separating from her husband. The children would not be raised by their
father. Instead, the court noted, “strangers will be taking care of your
children” (U.S. v Brandt 907 F2d 31 1990). The court considered that Brandt
had been a teen mother and dropped out of high school but was trying to stay
employed and be a good mother: “the carrying forward of the guideline range of
imprisonment… would have a devastating impact upon the emotions, mind and the
physical well being, just every aspect, of the two innocent youngsters to be
separated from you.”
The
court imposed a sentence of five years’ probation and a $5,000 fine. The state
of West Virginia appealed the downward departure because the Sentencing
Guidelines Commission had included wording that “family ties and
responsibilities and community ties are not ordinarily relevant in determining
whether a sentence should be outside the guidelines”. The appeals court framed the question as to whether
Brandt’s family responsibilities were ‘extraordinary’ and concluded “the
district court’s implicit finding that the situation was extraordinary was
clearly erroneous... Mrs. Brandt’s situation, though unfortunate, is simply
not out of the ordinary.”
The court did comment that having her children placed with
strangers “would have been perfectly relevant before the advent of the
sentencing guidelines and, obviously, quite sufficient even if there had been
sentence review.” But under the wording of the Sentencing Guidelines, they had
to decide if the family responsibilities were extraordinary and “a sole,
custodial parent is not a rarity in today’s society, and imprisoning such a
parent will by definition separate the parent from the children.” Indeed,
other Federal courts have concluded that “it is not uncommon for innocent
young children ... to suffer as a result of a parent’s incarceration” (in
U.S. v Mogel 956 F2d 1555 at 1565). Under this same reasoning other courts have
denied a downward departure for lack of extraordinary circumstances to a single
mother of five (U.S. v Headley 923 F2d 313 1989); a single mother of a two-year
old and a 16 year old daughter, who also had a two-year old (U.S. v Pena 930 F2d
1486 1991); the sole caretaker of three children, one of whom was mentally
disabled (United States v. Brown 29 F. 3d 953 1994); and a single mother of four
young children, one of whom was born after sentencing (United States v. Chestna
962 F.2d 103 1992).
Another Federal court likewise did not grant a downward departure for a man even
though he had three children and his wife was totally disabled, thus requiring
care and unable to help raise the children. The dissent likened this situation
to a single parent family, “which, unbelievably to me, we have held to be
absolutely ordinary, apparently without exception.” Judge Heaney’s dissent
continued by remarking that “Congress did not intend to make calculating
machines out of our district judges, yet time and time again this court has seen
fit to … transfer that discretion to prosecutors whose actions remain utterly
unreviewable.” The dissent said the majority was “mandating that [judges]
swim in the sea of the guidelines, instructing them that any attempt to reach
higher ground and exercise their informed judgment about the facts of the
defendant’s life will be frustrated by this court” (U.S. v Goff 20 F3d 918
1994).
The
primary goal of the Federal Sentencing Guidelines was to eliminate unwarranted
sentencing disparity. In the mid-1980s,
Congress directed the United States Sentencing Commission to create sentencing
guidelines and policies that were entirely neutral with respect to the
offender's race, sex, national origin, creed, and socioeconomic status.
Also, as part of the shift from making the punishment fit the criminal
(rehabilitation model) to making the punishment fit the crime (the "just
deserts" model), Congress directed the Commission to downplay
"individualizing" factors such as ties to family and community,
occupation, and education.
The
courts interpreted this charge as meaning that the lack of consideration given
to whether a man has children should be extended into women’s sentencing so
there would be no consideration of sex, and thus no unwarranted sentencing
disparities. However, women are more frequently the caretakers of children, so
the incarceration of single mothers causes more of a disruption in children's
lives. Yet defenders of the Guidelines express concern that permitting
women's primary child care responsibilities to be used to justify a reduced
sentence may reinforce gender stereotypes. But taking primary parenting
responsibilities into account is a problem only if the consideration is extended
just to women primary parents. Instead of defining the source of the
problem as our unwillingness to incarcerate mothers, as the authors of the
Guidelines have done, perhaps consideration should be given to the relative ease
with which fathers (particularly black fathers) are incarcerated and the impact
this has on families, especially minority households and communities.
In
her objection to the Guidelines, Raeder observes that adopting a model of
women's decarceration for sentencing men may be more humane for both men and
women. Instead, the reverse has occurred, with a result that has been
described as "equality with a vengeance". Raeder proposes
that sentencing policy distinguish between single parenting and primary
parenting responsibilities. While both should be considered as mitigating
circumstances which justify giving a lower sentence than the guidelines
recommend (a downward departure), single parenting downward departures should
become the norm rather than the exception. In this way, gender-linked roles such
as care provider to children can be considered fairly in sentencing both women
and men.
Raeder cautions against equating equality (represented by longer or more
severe sentences for women) with justice. She argues that
"gender-neutral"/"equal treatment" approach to sentencing
has harmed women, since the current sentencing model is not neutral at all, but
actually is based on the punishment of violent male offenders and major drug
dealers. Moreover, gender bias in sentencing cannot be eliminated simply by
legislating gender neutrality because society is not gender-neutral.
Offense type and severity, prior record, and indicators of stability such as
family and employment all reflect gendered patterns. The effect of
downplaying or ignoring the influence of family ties has been to sentence women
more severely than previously. If women have disproportionately and
justifiably benefitted from being sentenced less severely because of their
family responsibilities, then they are disproportionately harmed when the
considerations are withdrawn. The result is anything but neutral.
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