The Need for Fairness and Accuracy for Women in Sentencing: Surmounting Challenges to Gender-Specific Statistical Risk Assessment Tools

Wainstein, Elizabeth E. | April 18, 2023

States across the country have increasingly adopted statistical risk assessment tools in multiple stages of their criminal legal systems with the hope of reducing incarceration without increasing crime. These tools use various characteristics to estimate an individual’s future risk of recidivism, and judges consider the results of these assessments when determining levels of custody or community supervision for convicted individuals. Despite much debate amongst academics and activists on the utility and fairness of these tools, one critique seems beyond debate: the tools are built for men, not women. These tools are based on criteria, statistics, and theory drawn from the experiences of men and thereby result in inaccurate and inequitable sentencing when applied to women. When women are sentenced according to the higher rates of violence and recidivism that are associated with men, they are often incarcerated or under supervision longer than justified by their gender-specific risk to society. The unfairness of these assessments is specifically concerning when one considers that, as of 2019, 1.2 million women in the United States were under the supervision of the criminal legal system, with approximately fifty-eight percent of them leaving at least one minor child at home without a mother’s care and guidance. Separate risk assessment tools for men and women can combat the inaccurate sentencing of women. While many commentators have argued for separate tools for men and women, they have not sufficiently addressed how such an approach would survive legal, theoretical, and policy hurdles. This Comment argues (1) that gender-specific assessments could survive an equal protection challenge; (2) that such assessments for women should be implemented despite the need for further research and work on the conflation of sex and gender and the utilization of a gender binary in the United States criminal legal system; and (3) that they could be adapted for women defendants without opening the floodgates to a demand for assessments designed for every conceivable category of criminal defendant.