Punishing Gender

Abstract

As jurisdictions across the country grapple with the urgent need to redress the impact of mass incarceration, there has been renewed interest in reforms that reduce the harms punishment inflicts on women.  These "gender-responsive" reforms aim to adapt traditional punishment practices that, proponents claim, were designed "for men."  The push to change how we punish based on gender, while perhaps well intentioned, is misguided.  As abolition feminist principles reveal, these gender-responsive practices not only reify traditional gender norms, but also strengthen the operation of the carceral state.  This Article catalogs the ways in that the gender-responsive approach currently influences various decisions about criminal punishment, including about the length, location, and type of punishment one receives.  Then, it provides an abolition feminist critique of how we "punish gender" and concludes that these efforts to treat some people better than others ultimately lead to a system that is worse for all.

About the Author

Professor of Law, University of Richmond. Special thanks to Bennett Capers, Mary Dudziak, Martha Grace Duncan, Leigh Goodmark, Aya Gruber, Corinna Lain, Carla Laroche, Matthew Lawrence, Kay Levine, Luke Norris, Ngozi Okidegbe, Jenny Roberts, Doron Samuel-Siegel, Lisa Washington, Kate Weisburd, and Deborah Weissman for helpful comments and conversations. This paper also benefitted from presentations at the Emory Law Faculty Colloquium, the Decarceration Law Professor’s Workshop, the Criminal Justice Section’s Panel Leaving Carcerality Behind: Thoughts on Intervention in Gender Violence at the 2023 Association of American Law Schools Annual Meeting, and the University of Richmond Faculty Workshop. Thank you also to Danny Hales and Jessica Rooke for providing outstanding research assistance, and to the thoughtful and careful editors of the UCLA Law Review.

By LRIRE