Women as a group, however, unlike men as a group, are not eligible for combat. Until very recently, the restrictions on the participation of women in combat in the Navy and Air Force were statutory. Under 10 U.S.C. § 6015 (1976 ed., Supp. III), “women may not be assigned to duty on vessels or in aircraft that are engaged in combat missions,” and under 10 U.S.C. § 8549 female members of the Air Force “may not be assigned to duty in aircraft engaged in combat missions.” The Army and Marine Corps precluded the use of women in combat as a matter of established policy. Congress specifically recognized and endorsed the exclusion of women from combat in exempting women from registration.
Another defense of the exclusion of women under the MSSA is that the establishment of a male-only draft is closely tailored to sound emergency defense policy. Such sentiment maintains that the substitution of female for male conscripts could affirmatively impair defense efforts. Military flexibility requires the ability to rotate combat troops to noncombat assignments following periods of conflict and to transfer noncombat personnel into the war zone. The substitution of women for men in those noncombat positions would deny the armed forces that flexibility. Similarly, supporters of the exclusion of women from the Selective Service Program aver that the timeliness of military mobilization and deployment rates would be critical to the successful outcome of present day military strategies.
They argue that the Nation’s ability to respond with maximum speed and efficiency would be compromised by having to select from among male and female inductees depending upon their eligibility for the assignments at hand because of combat restrictions. They also argue that a military liability would be incurred by having to devote limited training facilities to conscripts ultimately ineligible for combat, close combat support, or combat rotation positions. Ultimately, supporters of the current system feel that in fact, it would detract from it by reducing the flexibility that the military requires to meet national emergencies if women were included in the MSSA.
Gender As a Factor in Sentencing
Women are more likely than similarly situated men to receive suspended sentences or probation. One reason for this is that although chivalry and paternalism are not consistently and precisely defined, these concepts refer generally to a protective attitude toward women, linked to gender stereotypes of women as (1) weaker and more passive than men, and therefore not proper subjects for imprisonment; and (2) more submissive and dependent than men, and therefore less responsible for their crimes. The chivalry theory purports that few women are sentenced to death because the legal field is largely a male arena, compounded by the fact that the United States still operates as a paternalistic society. Women in American society are stereotyped as weak and passive, creating and continuing men's protective attitude toward women. Proponents of the chivalry theory postulate that the death penalty is perceived as the ultimate sanction for violating the social values and rights that society chooses to protect. These proponents contend that the small number of women on death row is a result of the "tradeoff women make between full moral, social, and legal stature and certain social protections." Essentially, the chivalry theory offers a traditional explanation of a protective, paternalistic society to explain why so few women are convicted and sentenced to death. Because of these stereotypes, it is difficult for the actors in the capital justice system to condemn female offenders to death, even those who may have committed crimes just as heinous as any male offender.
Another theory offered to explain why some women receive the death sentence is the "evil woman" theory. The "evil woman" is that rare woman who does receive the death penalty. Rather than instilling in those who would judge her a feeling of paternalistic protectionism, she is a woman whom judges and jurors are not reluctant to sentence to death. However, even with the so-called "evil woman," there is a tendency to try to explain her crime in such a way as to make it more palatable to society.
Consequently, these ancient concepts play a large role as to why women are granted favorable treatment in some states with regards to sentencing. Such sentiment is blatantly wrong and discriminatory. It is important to be wary of a society that permits “chivalry and paternalism” to color the perceptions of those who make and enforce the law. Those perceptions profoundly affect behavior of those in power and the behavior of those paternalized in a manner that is inconsistent with the operation of a democratic state. A basic denial of self-determination is what is taking place.
Supporters of special treatment for women justify their position on the cultural and biological differences between men and women and advocate the need for special protection of women’s interests based on those differences. However, this argument fails to consider that although men and women differ in many important respects (especially with respect to reproduction), special treatment of women entails significant risks, because the laws meant to protect women have oppressed them. Experience with protective-labor legislation, preferential-welfare statutes, child-custody presumptions, and maternity policies makes clear that “benign discrimination’ is a mixed blessing.
Criminal punishment is distinctive in the law because of its condemnatory character. Unlike other legal sanctions (e.g., for breach of contract), criminal sentencing imparts blame on the offender. The extent of reprobation is represented, in part, by the severity of the punishment imposed. Punishing offenders to a degree inconsistent with the nature of their crimes and the level of their culpability is unjust, because it imparts more or less blame than the offender deserves. Sentencing offenders found guilty of identical crimes to vastly different terms of imprisonment seems inconsistent with common-sense notions of justice. Moreover, the stakes involved highlights the injustice of unequal treatment in sentencing. Criminal sentencing, which involves drastic deprivations of freedom and associated moral stigma, affects fundamental liberty interests.
Special treatment of women in sentencing potentially undermines the strong principles of justice and equity that animate contemporary notions of blameworthiness and proportionality. Moreover, a special treatment approach to criminal sentencing should trouble feminists, because it perpetuates damaging stereotypes of female weakness, implying a moral inferiority that undermines claims to full citizenship and even personhood. The blameworthiness that supports notions of proportional punishment implies a recognition of the full moral agency of the offender. Society believes that it is inappropriate to punish the very young or the insane, because, unlike responsible adults, they cannot be expected to conform their behavior to the norms of the law. Only those fully capable of understanding criminal norms and conforming their behavior to those norms are fit subjects for punishment. Thus, when women are granted special treatment, they are reduced to the moral status of infants.
To the contrary, in determining sentences, the Federal Guidelines do not consider pregnancy, family responsibilities, or the different recidivism rates between men and women. Some have argued that judges should sentence pregnant female offenders more leniently to avoid harming children and to promote economic efficiency. Proponents of leniency for pregnant women advance two compelling arguments. First, children are unable to develop the necessary attachment to the mother while the mother is in prison. The failure to develop this attachment hinders the child's mental development. Second, the cost of health care for mother and child are passed on to taxpayers during the mother's incarceration. However, not every jurisdiction has accepted the leniency argument. Opponents of leniency instead opt for equal treatment of pregnant women as compared to men and non-pregnant women.
The Federal Sentencing Guidelines have all but eliminated consideration of family responsibilities. This elimination harms women more than men, as women prisoners are more likely to have dependents living with them before incarceration. The impact on those dependents should not be marginalized. When mothers are incarcerated, children are harmed by losing their primary caretaker and are more likely to be subjected to placement outside the home. Incarcerated women are almost five times more likely to lose their children to foster care than are male inmates. These additional facts illuminate the disproportionate harm that gender neutral reforms cause to incarcerated women and their children. Furthermore, the Guidelines fail to consider the difference between men and women recidivists. Many statistical studies show that women are less likely to commit violent crime than men are and are less likely to be repeat offenders. However, statistical difference is not a basis for justifying categorical differences in the treatment of the sexes. Due to sentencing reforms, judges must compare women with men when determining possible recidivism, though there may be a real difference in recidivism rates.
In short, formal equal treatment under the criminal justice system, and questions of the allocation of criminal sentences, touch on fundamental notions of moral autonomy in a way that questions of formal equal treatment in employment rules or insurance benefits do not. In the context of criminal sentencing, those who advocate special treatment of any particular group, or ostensibly neutral rules designed to benefit a particular group, bear the burden of justifying departure from the traditionally accepted norms governing allocation of criminal sentences. With this general approach in mind, the next section considers some of the particularly difficult issues posed by the sentencing of female offenders under the federal guidelines scheme.
The Arguments for Upholding Such Laws are Indefensible in Light of Human Rights Norms of Gender Equality
Universal Declaration of Human Rights proclaims that all human beings are born free and equal in dignity and rights. This very declaration also proclaims that all are entitled to equal protection against any discrimination, and that everyone is entitled to all the rights and freedoms set forth in the Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
However, the military deference doctrine allows Congress to discriminate in a manner that has an ongoing negative impact on civilians of both genders. These negative effects can be viewed as two sides of the same coin: while draft-age men are disproportionately saddled with the burdens of being called into service and face penalties for failure to register, young women are excluded from an important obligation in a way that devalues female citizenship. For example, the Military Selective Service Act fails to give women the freedom from gender discrimination. This is due primarily to a desire to avoid imposing an obligation on women that could interfere with superseding familial responsibilities. The exclusion of women from public service and civic responsibility bolsters the notion that females owe a primary duty of loyalty not to the state, but to home and family. Thus, the United States Congress has a reluctance to pull women from the domestic fear. However, it is precisely this type of "invidious discrimination" which has traditionally been at the root of the Court's gender-based equal protection analysis.
Today, young men in the U.S. are expected to comply with Selective Service solely based on gender. This traces back to the archaic expectation that males must be virile and aggressive, thus stomping on individuality. Selective Service should not be in existence based on the international human rights norms that aspire to gender equality. These norms call for a system where equality works both ways and males and females should be subject to equal standards. The exclusion of women from the MSSA and the female preference sentencing states both violate the principles of equality of rights and respect for human dignity. Those statutes are an obstacle to the participation of women, on equal terms with men, in the political, social, economic, and cultural life of their countries. Furthermore, although both were done to help women, in actuality in the long run both hampers the growth of the prosperity of this society and the family and makes more difficult the full development of the potentialities of women in the service of their countries and of humanity.
Notwithstanding, the same ideas are found within the criminal justice system. Although the Convention on the Elimination of All Forms of Discrimination against Women, mandates that men and women are to be treated equally in all stages of procedures in courts and tribunals, they are clearly not treated in such a fashion. Probably most evident is that female offenders tend to benefit at sentencing from what many presume to be a benign form of reverse discrimination. Overall, although the principle of non-discrimination is a widely accepted norm, some aspects of it have proved easier to implement than others. The elimination of discrimination on the ground of sex still remains far from being attained despite gains made generally in the field of human rights.
There is no sufficient legal distinction between the draft-related statutes and the sentencing statutes to justify the latter set even if the former were abolished.