The Use of Gendered Narratives in the Courtroom

Abstract

In this article, we investigate interactional processes—the gendered construction and negotiation of creditable identities—that lend themselves to differential sentencing outcomes. Based on observations in two courts in North Carolina, we argue that defense attorneys attempt to construct identities of defendants as worthy of leniency. They do so by developing gendered narratives that cast men as good workers, good providers, and as victims of the actions of others and women as good mothers/caretakers and dependent. These identity talk strategies enable defense attorneys, often with the help of their clients, to negotiate the identity of criminal defendants and mitigate the consequences of being labeled. This creates tangible incentives (i.e., nonactive or lesser sentences) for defendants to cooperate in these gendered performances, but has the unintended consequence of reproducing the hegemonic gender order.

Keywords

sentencing qualitative accounts identity talk leniency

Introduction

Empirical evidence suggests that men and women fare differently in the criminal justice system. Women are overwhelmingly more likely to obtain pretrial freedom, less likely to be sentenced to an active period of incarceration, and when an active sentence is ordered, women tend to receive shorter sentences than men (Kruttschnitt and Green 1984; Rodriguez, Curry, and Lee 2006; Spohn and Beichner 2000; Steffensmeier, Kramer, and Streifel 1993). Sex has such a powerful effect in the courtroom that a victim’s sex is often a strong determinant of sentence severity, with men who victimize women receiving the harshest sentences (Curry, Lee, and Rodriguez 2004).

Several theoretical approaches are useful for understanding how courtroom actors make use of gender in sentencing decisions, though researchers disagree on whether gender has a direct or an indirect effect on judicial decision making. Proponents of the chivalry hypothesis claim that patterned discretion results from (primarily male) judges’ and prosecutors’ notions that women, even the “bad” ones, should be coddled and protected (Bishop and Frazier 1984; Franklin and Fearn 2008). Daly (1987, 1989) suggests that leniency towards women is not about chivalry but rather “familial paternalism,” the idea that judges are concerned about protecting children and therefore grant leniency to parents. While these perspectives emphasize the salience of cultural stereotypes in explaining sentencing disparities by gender, they do not fully explicate the processes by which courtroom actors make use of these stereotypes (Curry, Lee, and Rodriguez 2004).

Proponents of focal concerns theory maintain that judges are primarily concerned with efficiently disposing a large volume of cases. In doing so, they focus primarily on ascertaining the blameworthiness and dangerousness of the defendant, but also consider which punitive action would best serve the community (Steffensmeier, Ulmer, and Kramer 1998). Thus, attributions of blame and dangerousness may be one way in which gendered stereotypes influence sentencing decisions. Judges may conflate “woman” with “victim” or overestimate the threat a man poses to others in his community, both of which would contribute to the observed gender gap in sentencing.¹

Since research on sentencing disparities is often approached quantitatively,² researchers tend to lose sight of the interactional work that goes on in the courtroom. To date, qualitative researchers have not responded to Kramer and Ulmer’s call to “explicitly capture the construction of defendants and victims during trials, and to connect these constructions to sentencing consequences” (2009, 162). The sentencing literature, though rich and informative, fails to address how defendants’ identities are actively constructed and negotiated by courtroom actors. The present article investigates these interactional processes—the gendered construction of creditable identities—that produce differential outcomes in the criminal justice system. Based on observations in two courts in North Carolina, we show how defendants and their attorneys—working as a “performance team”—use gendered narratives to negotiate for leniency during sentencing hearings (Goffman 1959, 175). In doing so, we identify strategies of resistance that defendants and their attorneys use to present a narrative worthy of leniency. We contribute to existing literature by: (1) showing how criminal defendants actively attempt to mitigate the consequences of being labeled a “criminal” by presenting a personal identity consistent with gendered expectations; (2) examining the tangible rewards (i.e., less serious label and less severe sentence) that result from constructing an identity worthy of leniency; and (3) highlighting the consequences of “doing gender” in courtrooms for the reproduction of inequality. After reviewing relevant literature and presenting findings from our study, we address why these processes are so deeply embedded within the institutional fabric of the criminal justice system. We conclude by discussing limitations of our study and directions for future research.

An Interactionist Approach to Criminal Sentencing

Labeling theorists assume that individuals “are susceptible to identity transformations through their social interaction” (Einstadter and Henry 2006, 207; see also Becker 1963; Goffman 1963; Lemert 1951, 1967; Tannenbaum 1938). Once an individual is labeled deviant/criminal, she/he may internalize this label and begin to act in accordance with the behavioral expectations associated with it (Becker 1963; see also Tannenbaum 1938). Labeling theorists see individuals as active agents in the construction of their own narratives, and posit that undesirable labeling may be actively resisted (Sandstrom, Martin, and Fine 2006). However, the perspective offers little insight into how this occurs in a formal setting like a courtroom.

Language is the primary means by which individuals construct and negotiate their identities (Cooley 1902; Mead 1934; Strauss 1959; Scott and Lyman 1968; Snow and Anderson 1987). “Identity talk” can be used to present oneself as a certain type of person, explain nonnormative or otherwise unexpected behavior, and manage impressions (Goffman 1959; Scott and Lyman 1968; Snow and Anderson 1987). Identity work includes “anything people do, individually or collectively, to give meaning to themselves or others” (Schwalbe and Mason-Schrock 1996, 115). It is what people do to “sustain personal identities that are congruent with and supportive of the self-concept” (Snow and Anderson 1987, 1348). Given the contradictions between what it means to be a good citizen and what it means to be a criminal, attorneys (and/or defendants) can use identity talk—“the verbal construction and assertion of personal identities”—to manage how defendants are perceived by courtroom actors and (conceivably) lessen the severity of criminal sanctions (Snow and Anderson 1987, 1348).

Accounts, vocabularies of motives, techniques of neutralization, and narratives—while distinct theoretically—can all be used to construct and negotiate nondeviant identities. Like vocabularies of motive (Wright 1940), accounts are a means by which nonnormative social actions are explained. As linguistic strategies, accounts give social actors a way to realign their actions with cultural expectations, thereby reconciling identity incongruence and restoring the moral order (Scott and Lyman 1968). Aimed primarily at transforming cognitions, neutralizations allow people to diffuse responsibility for their actions, ease cognitive dissonance, deflect guilt and shame, and, thus, preserve positive self-images (Maruna and Copes 2005; Sandstrom, Martin, and Fine 2006; Sykes and Matza 1957).

By examining offender narratives, criminologists are able to see how actors present their offense and how it connects to their identities (Klenowski, Copes, and Mullins 2011; Presser 2004, 2009). Hence, narratives not only explain action, they are action. Accordingly, they can be used by defendants (and/or their attorneys) to actively contest threats to their identities. By focusing on narratives presented directly to rule-enforcers (i.e., judges and prosecutors) during the formal labeling process, we shed light on how identity talk strategies do more than reduce guilt and shame after offenders are convicted of criminal offenses.

Research Setting and Methodology

We approached our data collection semi-inductively, entering the field interested in how presentations of defendants and “identity talk” may shape sentencing outcomes (Goffman 1959, 1967; Snow and Anderson 1987). The first author completed approximately eighty hours of observations in both District and Superior Courts in Courthouse A, between January 2009 and July 2009. Courthouse A is located in a midsized county serving a population of approximately 150,000 residents.³ Five judges and seven prosecutors were observed. Most members of the courtroom workgroup—especially those in positions of power—were white men. All judges were also white men; all but one prosecutor was white, and five out of seven prosecutors were men. Most defense attorneys were also white men, though one white female and one black male attorney were observed. Even bailiffs, who are only in an illusory position of power, were white men. Most members of the courtroom workgroup were middle-aged or older, with the exception of prosecutors, who appeared to be younger (by at least a decade) than other courtroom actors. The first author typically sat in on full morning or afternoon sessions, observing up to twenty cases at a time.

The second author conducted approximately forty hours of observations at the district court level in Courthouse B between August 2005 and November 2005 in an urban setting, serving a population of approximately 900,000 people. She observed three different judges: a white woman, a black man, and a white man. Additionally, she observed eight prosecutors: five white men, two white women, and one black woman. Several white men and white women served as defense attorneys, along with one black man. Bailiffs were all white or black men. She conducted one to three hours of observation a week, sitting in on an average of four cases at a time.

Observations were completed separately. We observed various stages in the criminal justice process, including first appearances, bench trials, and sentencing hearings. We both did jottings while in the field and transcribed fieldnotes after leaving the field, at which time we also wrote notes-on-notes (Emerson, Fritz, and Shaw 1995). Additional information about the race and sex of defendants is included in Table 1.

Table 1.

Descriptives.

	Courthouse A	Courthouse B
No. of visits	19	15
No. of sentencing hearings	85	37
Male–female ratio	1.7: 1	1.4: 1
White–nonwhite ratio	1: 2.12	1: 1.8

The everyday language that people use in different situations provides insight into how individuals construct their selves, how others respond to their presentations, and how the definition of a situation is reached (Blumer 1969; Wright 1940). Therefore, what is most important about narratives is not the content or “truth” of a narrative, but rather how “it is shaped, the reality it implies, and the feelings it evokes” (Schwalbe 2008, 177). Accordingly, we treated courtroom narratives as “object[s] of inquiry” (Ewick and Silbey 1995, 201).

To develop our analysis, we did open and focused coding (Charmaz 2006; Emerson, Fritz, and Shaw 1995; Esterberg 2002; Glaser and Strauss 1967) on a case-by-case basis. We wrote analytic memos (Charmaz 2006) to elaborate our interpretations of patterns emerging in our fieldnotes (Kleinman 2007). Initially, we coded and wrote analytic memos separately, but after discussing our projects at length, decided to combine our data. After doing so, we randomly selected five sets of fieldnotes from each courtroom to cross-code, agreeing on codes or using slightly different phrasing about 80 percent of the time. In instances where coding differed, we had conversations about when to recode data segments and how to collapse and combine codes. We wrote memos on the connections developing between these focused codes and highlighted emergent patterns. This formed the basis of our analysis.

Analysis of Defendant Narratives

Appeals for leniency will be most successful when the defense tailors a defendant’s narrative to the specific “content rules,” or “what constitutes an appropriate or successful narrative,” within the criminal justice setting (Ewick and Silbey 1995, 207). In North Carolina, the content rules are clearly articulated in the section on mitigating factors in the Structured Sentencing Training and Reference Manual (North Carolina General Assembly 2012).⁴ This document lists various mitigating factors, including “positive employment history,” “the defendant supports the defendant’s family,” and “the defendant has been a person of good character or has had a good reputation in the community in which the defendant lives” (2009, 23). Although the Structured Sentencing Guidelines specify mitigating factors using gender-neutral language, how discretion was applied was gendered. Men and women were held to different behavioral expectations; thus, leniency was contingent upon the defense’s ability to “accomplish” gender for defendants (West and Zimmerman 1987). In our observations, men depicted themselves and were often depicted by their attorneys as good workers, good fathers and/or providers, and rational actors, whereas women’s identity constructions emphasized motherhood responsibilities, caretaking, and/or economic dependency.

Men as Workers

Reflecting broader cultural norms about expected gender behavior, attorneys drew heavily on men’s identities as workers and breadwinners in an effort to present them as worthy of leniency. For those convicted of a felony offense in North Carolina, the Structured Sentencing Guidelines and Reference Manual states that whether “the defendant has a positive employment history or is gainfully employed” can be treated as a mitigating factor in punishment (23). Although “defendant” does not suggest a gendered actor, how courtroom actors make use of this construction is gendered. During a trial in which an older black man was charged with selling cocaine to an undercover officer, the defendant’s lawyer told the judge that the man sold drugs out of “financial necessity” (Cromwell and Thurman 2003; Klockars 1975). The defense attorney presented the judge with a letter written by his employer, which stated, “the defendant would have been promoted the following month had he not been charged with the current crime.” The imputed social identity of “drug dealer” was challenged with the asserted personal identity of worker. Since climbing the ladder is a deeply embedded social expectation for men, the attorney stressed the construction of his client as a good worker by the defendant’s boss.

Many men cited their work obligations in an effort to mitigate stigma and present themselves in a positive light. Asserting an appropriately gendered identity often resulted in men avoiding jail time or receiving a split-sentence. For example, in District Court at Courthouse A, a young white male was charged with driving while impaired when he caused a single-car accident. The young man’s attorney emphasized his client’s employment status: “He has already had an assessment done, has a clean driving record, and currently has a job in this economy—and I hope he can keep it. He’s a steelworker, and he needs to be able to drive.” Here, the defense presented the defendant as a worker and situated his request for leniency in the larger context of an economy where blue-collar workers are experiencing increased unemployment rates. The judge responded by placing the young man on unsupervised probation and instructing him to obtain a limited permit so he could continue working.

In another case observed in District Court at Courthouse B, a black man faced charges for breaking and entering and possession with intent to sell cocaine. Because this client was brought up on multiple charges, the seriousness of his offenses was grave.

The defense attorney said, “With respect to sentences, I would like the court to know that [my client] has his GED and was going to go to [the community college] in the spring. He was working at [a restaurant]. He has strong family support and he has a fiancée. I would ask the court, in light of these factors if they court could consider 4 to 5 months. He was in jail for 90 days.” The judge said, “We will consolidate your charges. Suspended sentence, probation for 44 months, and $600 for the victim’s losses.”

Here, the defense attorney projected several positive identities on behalf of her client to counteract the threats his charges made to his identity. She constructed her client as a working man, with a fiancée, who planned to pursue higher education. He was portrayed as a man with ties to his community, ambition, and a promising future. Even though this man potentially faced years behind bars, he received a suspended sentence from the judge. He was treated leniently.

Judges often asked defendants how they provided for themselves and whether they had jobs. In this way, judges participated in the identity construction process by communicating gendered expectations to defendants. During one trial in Superior Court at Courthouse A that involved a middle-aged black man charged with possession of drug paraphernalia and financial card fraud, the defendant’s attorney cited drug addiction as an explanation for his client’s crimes. When the defense attorney stated that his client could go to Narcotics Anonymous meetings every day, the judge quickly replied, “No. I want him to work, too.” After some brief discussion about treatment options, the judge recommended the man to a residential treatment program, requiring him to “remain gainfully employed” as part of his probation. Then, while pointing to the defendant’s partner in the courtroom, the judge said, “Be the good man she needs.” Here the judge explicitly expressed the gendered expectation that a “good man” should have a job and be able to provide for his female partner. Holding a job was not only perceived by the judge as a mitigating factor but also as an expectation for future behavior. However, this expectation was not communicated in such an explicit way to female defendants (as discussed below), thus demonstrating how seemingly gender-neutral laws are applied in ways that are in fact gendered (see Belknap 1996).

In one rare occurrence, the defense projected a negative identity onto his client and intentionally requested an active sentence. When a 19-year-old black man pled guilty to possession of stolen property in District Court at Courthouse A, his attorney actively portrayed him as a bad worker. Instead of asking for leniency, the attorney requested an active sentence on behalf of his client. While it may seem counterintuitive that a defendant would prefer an active sentence, research conducted in North Carolina found that some defendants view shorter prison sentences as more attractive than longer sentences of probation (Wright 1998). When the judge asked whether the defendant was employed, his attorney muttered, “Your Honor, my client is not a good worker. He is currently unemployed.” In this particular case, the defense attorney made use of the gendered narrative in a novel way. By highlighting the defendant’s shortcomings as a worker, he constructed his client as someone undeserving of leniency (in hopes of receiving an active sentence for his client). Although the judge rejected this narrative, possibly due to organizational constraints set forth by the Structured Sentencing Guidelines (an active sentence was not allowed under the guidelines), the attorney’s actions provide further evidence that constructions of gender were strategically used in the courtroom.

Men as Good Fathers and Providers

Another theme represented in the narratives was the portrayal of defendants as good fathers and providers for their families. Drawing on interviews with judges, Daly (1989) argued that being a “familied man” carried weight in judicial decision making. Men who were employed and provided economic support for their dependents were viewed more favorably than men who were unemployed and/or childless. Further, Daly (1987, 1989) argued that the interpretation of “familied man” intersects with race, class, and sexuality. By asserting the personal identity of father and provider, the defense was able to “appeal to a higher loyalty” (Klenowski, Copes, and Mullins 2011; Sykes and Matza 1957). The Structured Sentencing Training and Reference Manual codifies this content rule also, stating as a mitigating factor: “the defendant supports the defendant’s family” (23). By aligning their narratives with common expectations for men to provide for their families, defendants actively resisted the damaging social identity put forth by the state.

In the following example from District Court at Courthouse B, a middle-aged white man was charged with extortion against his ex-wife. The defense attorney tried to convey that his client was a good man who just made a mistake because he was under financial pressure. The defense attorney said:

The only thing that I know is that my client is 51. He has been a law abiding citizen his entire life. He responded to financial pressures. The good light to shed is that he is moving past it. I say subjectively [pause] he thought he was entitled to the money. But he went about it foolishly. I think the court should take circumstances into account. He has been law abiding.

The attorney replaced the identity “extortionist” with a more positive one: law-abiding citizen. This narrative tactic minimized the significance of his crime, painting it as an exception, not a recurring pattern. This strategy of defining a defendant’s offending as atypical was common in both men and women’s narratives (see also Presser 2004). Further, the defendant asserted the personal identity of “father” and “caretaker” to counter and contextualize his wrongdoing. As he told the judge, “I have two kids and I’ve always been their main care taker.” When the judge asked, “How long have you been married?” the man replied, “15 years.” He continued his plea by saying, “My concern is my kids. I’ve never been in trouble. I don’t understand these processes. I do not want my mobility restricted.” The judge responded by applying discretion, granting the man a split sentence. The judge said, “You will spend 24 hours in jail. Other than that I will not restrict your movement.” Being recognized as a “familied man” translated into a mostly nonactive sentence for this defendant (Daly 1987, 1989).

During the trial of a black man charged with delivery and possession of cocaine (District Court, Courthouse B), the prosecutor explicitly said the sentencing arrangement was due to the defendant’s obligations as a provider: “The length of the sentence is a compromise so the defendant does not lose his job.” The man’s attorney added, “He does have current employment and is supporting four kids.” The judge responded by saying, “This will be a combined case with a single judgment. He has a prior record level 3, with 6 points. He is to serve 70 days active on consecutive weekends, starting this weekend, and is to serve Christmas Day and Thanksgiving Day.” Although the man would have to be away from his family on major holidays, the role of provider was honored, and the sentence enabled him to continue working. These instances illuminate the process of familial paternalism theorized by Daly (1987, 1989) and also suggest how those with dependents may receive leniency by judges.

Victim Blaming

Victim blaming is a well-documented strategy used for justifying behavior, managing impressions, and neutralizing guilt (Scott and Lyman 1968; Scully and Marolla 1984; Sykes and Matza 1957). In our study, men also adopted these strategies in order to construct themselves as deserving of leniency. We observed numerous instances where defendants and their attorneys called a victim’s character into question, by outright launching a character assault and crafting an account that led the audience to conclude that a defendant behaved rationally given the victim’s behavior.

Use of the victim blaming strategy in the courtroom relied on that idea that the victim was instrumental in her own victimization. In our observations, this discursive tactic required presenting the woman [victim] in a negative light in order to assert a positive identity for male defendants. In a trial where an older white man was charged with assault on a female (District Court, Courthouse B), the defendant’s attorney remarked that “the defendant’s wife [of whom he is accused of assaulting] had a tendency to become violent and belligerent when drinking.” He proceeded to downplay his client’s actions, stating that the incident was “not as violent as it looked. There is no evidence he hit her with the dowel rod as alleged.” The construction of women as being somehow responsible for the violence inflicted upon them is consistent with the gendered accounts that Anderson and Umberson (2001) identified in their study of men’s accounts of domestic violence. Strategies such as these served to diminish the man’s culpability by implicating and discrediting the woman (Goffman 1963).

In another case (District Court, Courthouse A), the defense attorney of a middle-aged white man charged with injury to personal property (for allegedly damaging a laptop), communicating threats, and assault on a female strategically drew on key pieces of information that would present her client in a positive light. The attorney said, “Mr. Dudley, go ahead and tell us how you met Ms. Head.” Dudley responded, “She was homeless, living in a motel with her boyfriend who beat her. My wife met her on the Internet and felt sorry for her. We were just trying to help her out.” During the trial, the defendant’s attorney skillfully constructed her client as a victim. He was a good guy who reached out to someone he met on the Internet. The defendant was portrayed by his attorney as helping someone in need and as a man who fell victim to a woman’s conniving intentions:

The defendant walked down to Ms. Head’s bedroom and asked that she close the door because her room smelled bad. We’ve heard testimony about her drug usage, and that’s how she deals with her anger. She was living off these folks, not paying any rent, she planned to move out—and tried to go out with a bang. She thought she might be able to get some cash for smashing her laptop – the cash was her motive. Why people do what they do—it’s a guess.

In this case, the defense strategy relied on constructing the defendant as a victim. He was taken advantage of by an “evil woman.” Reminiscent of the denial of victim technique identified by Sykes and Matza (1957), constructing a defendant as a victim often meant conveying that he was a good guy who had been exploited. Further, it entailed undermining the perceived legitimacy of a victim’s claim and perpetuating stereotypes of women as manipulative. The defendant was not convicted of the assault or communicating threat charges, but was found guilty of injury to personal property.

The following case (District Court, Courthouse B) shows how a defense attorney tried to explain that a white man charged with second-degree kidnapping and breaking and entering should be given a break because he was married to the victim for seven years. The defense attorney said:

He [defendant] was married to her for seven years and she [victim] kept in contact with him [defendant] after the order was in place. He went over and they got into an argument about her dating a man named Mike. Assault on a female did occur, but there was no force used to get her into the truck. So, I would like the kidnapping charges to be dropped. He [defendant] has been in jail since April. His mom took custody of his four kids. He was employed before he went to jail at a restaurant. Now he is living with his mother. Social Services is involved because of an assault back in 1995. Will he get credit towards intensive probation? They were together for 15 years, seven of which they were married.

The defense attorney tried to reduce the seriousness of his client’s offenses by providing an “intimate” account (Scott and Lyman 1968). This account implied that the victim bore some responsibility for the crime (Belknap 1996; Dunn 2002). The defense attorney noted the woman maintained contact to make it seem as though she was responsible for his behavior, thus providing a narrative that not only suggested the victim was complicit in her own victimization but that the man’s anger was rational considering the circumstances of the situation. Had the situation been different, the defendant would have acted differently. This defined his wrongdoings as situational, thus distancing him from his actions while reaffirming the moral order. Jennifer Dunn (2002) highlights how defense attorneys engaged in victim blaming to discredit women who were stalked. By demonstrating that the victims maintained contact with their clients, defense attorneys skillfully crafted accounts of the situation wherein male stalkers behaved consistent with heteronormative expectations in response to subtle cues given off by their female victims. By portraying women as partially responsible for their own victimization, the men were able to relieve some of their guilt and shame and portray themselves as worthy of leniency.

Women as Good Mothers and Caretakers

The chivalry hypothesis predicts that judges and prosecutors will treat female criminality more leniently because women are typically perceived as wives, mothers, and caretakers as opposed to criminals (Simon and Landis 1991). One of these statuses will often function as a master status, thereby outweighing other statuses (such as criminal) that a woman may hold. Diverging somewhat from this perspective, Daly (1987, 1989) suggests that leniency toward females is not about chivalry but about protecting children. Moreover, she finds that judges weighed the daily caregiving done by mothers more heavily than economic support provided by fathers (Daly 1989). The Structured Sentencing Training and Reference Manual (2012) states that providing “support for the defendant’s family” may be treated as a mitigating factor. However, for female defendants, “support” took the form of care work. Women who cared for children were not held to the same behavioral expectations regarding employment. While some critics might argue that parenting small children is a job in itself, mothering (as a type of work) is unpaid and devalued in the United States.

For example, a twenty-eight-year-old white woman with an eighth-grade education was initially charged with felony larceny (Superior Court, Courthouse A). Prosecution agreed to reduce her charge to a misdemeanor. Her lawyer said she had a substance abuse problem and he referred to his client as a “young lady.” She had a history of shoplifting at Wal-Mart and was previously ordered not to go on the premises of any Wal-Mart store:

The judge asked, “How do you support your children?” The defendant responded, “Two live with their father, my youngest lives with me, and I care for two others. I get help from the fathers.” The judge asked, “What happens to those kids if you go to jail for 6 months?” Shaking her head, she replied: “I don’t know. I don’t know.”

The judge ordered a suspended sentence (120 days) and supervised probation for 24 months. She was ordered to complete a drug rehab program and not go on the premises of any Wal-Mart. The judge also ordered that she not be held accountable for the fees for her court-appointed attorney, saying, “That should help [her] out a little.” The defendant, unemployed and accused of an offense seemingly stemming from “financial necessity,” was not held to the same employment standard typically applied to men. Instead, the gendered roles of mother and caretaker were accepted by courtroom actors as legitimate replacements for that of worker.

Similar to men citing work obligations to avoid serving jail time, women cited childrearing responsibilities in hopes of receiving leniency (District Court, Courthouse A). During one woman’s first appearance hearing, she appealed to her familial responsibilities in hopes of being released from jail:

I just wanted to ask if there’s any way I can sign myself out of here. I have an 18-month-old daughter at home that is sick. I have to work tomorrow and if I lose my job, then I lose everything. I take care of my baby by myself. I’ve got to get out of here, I’ve just gotta get outta here.

The use of a gendered narrative functioned to manage impressions of the defendant and her actions. This strategy could be especially successful if used early in the justice system process since those who are granted leniency in earlier stages are more likely to receive lenient treatment in latter stages of processing (Frazier and Cochran 1986; Kruttschnitt and Green 1984). To counter the negative attributes of the identity “thief,” the defendant presented a personal identity of a mother. In this particular example, the defendant appeals to her familial responsibilities as primary caretaker and provider for her daughter. Just as Klenowski, Copes, and Mullins’s (2011) study of convicted white collar offenders shows, women often construct accounts around their desire to support those they most cared about, often implying that the men in their lives failed at providing.

Women as Dependent

Judges and prosecutors did not have the same employment expectations of women and men, which supports Daly’s (1987, 1989) findings. We observed men being held to account for their lack of employment, while women were not. Women were also not held to the same standards for economic responsibility as male defendants. This was evidenced by judges’ willingness to reduce or eliminate certain types of costs associated with women defendants’ cases (i.e., court costs, costs of court-appointed attorney, etc.).

Although the defense was primarily responsible for presenting a gendered narrative, other courtroom actors participated in its negotiation, often challenging the identity claims made by the defense. In one case, a black woman was charged with possession of marijuana (District Court, Courthouse A). She indicated to the court that she could pay the court costs but she did not have the money to pay for her court-appointed lawyer. The judge responded, “The taxpayers shouldn’t be the ones to pay for it.” Her lawyer said, “She’s never worked. I’ll waive my fee just to be done with it.” The Judge said, “No. Submit your fee. We’ll do this as a judgment.” Although the judge initially seemed to hold the young woman (financially) responsible for her representation, he backed off when he learned that she had never had a job. As a result, the young woman was not held financially responsible for the costs of her court-appointed attorney despite being found guilty of her crimes.

Young women more often than men relied on family members to assist in constructing their identities as worthy of leniency. For example, in another case heard in District Court at Courthouse A, a white woman accused of communicating threats enlisted her cousin (with whom she lived) to plead her case. When asked about the defendant’s behavior, the cousin replied: “She’s doing a lot better. She’s had some problems but she’s getting back on the right track.” Other family members constructed the defendant as sick and said they just wanted to see her get some help with “both anger management and drug abuse.” After hearing testimony from various people involved in the incident, the judge ordered the young woman to “hang around for a few minutes—we’re gonna get you some help.” After a moment, the judge said:

We’ll postpone sentencing for 90 days and have Ms. Brown return to court with her cousin to report on the progress they’ve made in being enrolled in an educational program. She is to have an anger management assessment and follow any and all recommendations. Note that she is found guilty.

In this case, family members were not only called on to assist in constructing the young woman’s identity as someone worthy of leniency, but a family member was also ordered to attend an upcoming sentencing hearing. The family member would be asked again to assist the defendant in constructing her identity. This communicates a very subtle message that courtroom actors expect young women defendants to depend on others for various forms of assistance.

In another case, a young black woman faced drug charges and relied on family members to portray her as a good student (District Court, Courthouse B). The girl was in custody and appeared in court in an orange and white jump suit. The defendant had no legal representation.

Her father said, “She is only 17. She has great grades. She is planning on going to college.” The judge asked, “What school were you attending?” She responded, “Valley High. I was in the first offenders program and I am supposed to start taking classes for it.” Her father interrupted, “I want to vouch for my daughter! She is a great student, she is on the A and B honor roll.” The judge said, “I cannot give her a second chance. She was already given a break.” A young black female gets the judge’s attention by raising her hand. The judge acknowledged her. She began crying and said, “She is a good girl. A good student, please understand.” The judge said, “The bond remains set.” A white male came to the defense table, almost seeming to appear out of nowhere, and said, “There is a plea she could accept. Plea, and not stay in custody.” The black female prosecutor agreed. The girl said, “Okay” and the judge said, “There, you avoided bond.”

In this situation it was the defendant’s father and another young female supporter who actively participated in constructing the defendant as a good student worthy of leniency. This supports Kruttschnitt’s (1981, 259) finding that women defendants are more likely to receive leniency when they hold one of several “socially integrated” statuses, such as student and daughter.

Discussion and Conclusion

Since a defendant’s guilt is rarely contested, defendants and their attorneys must instead work to construct an impression of self that will elicit a lighter sentence (see also Garfinkel 1956). To do this, defendants and their attorneys offer accounts that conform to the institutionalized “symbol bank” recognized by the courtroom workgroup (Hazani 1991; see also Scott and Lyman 1968). In North Carolina, the types of people who are worthy of the court’s leniency are institutionalized by the Structured Sentencing Training and Reference Manual (2012). Although the guidelines are written in gender-neutral language, they are utilized according to gendered expectations for behavior. Hence, courts not only provide formal social control in response to deviant behavior, but they also subtly engage in the practice of gender policing where “doing gender” in conventional ways potentially results in the tangible reward of leniency (West and Zimmerman 1987).

While factors such as blameworthiness, seriousness of crime, and strength of evidence primarily determine conviction (Albonetti 1987; Steffensmeier, Kramer, and Streifel 1993), we found that defendants and their attorneys draw on gendered narratives in their appeals for leniency. By crafting an appropriately gendered identity, defendants attempted to mend their disruption to the interaction order and negotiate leniency. However, the defense’s ability to offer accounts honored by courtroom actors depended on the meanings attached to particular words and actions, which are heavily influenced by cultural stereotypes and ideologies of difference (Blumer 1969; Collins 2000).

We contributed to existing research on labeling theory in a number of ways. First, we demonstrated processes through which the identities are not simply imputed, but negotiated. In doing so, we drew attention to how defendants who pled guilty actively resisted the labeling process (Becker 1963; Lemert 1951, 1967; Tannenbaum 1938). Although most defendants cannot wholly resist the imputation of a criminal label, they were able to negotiate the consequences of that label. While criminal conviction was dependent upon legally relevant information, the decision to incarcerate was often linked to the defense’s ability to present a particular narrative that cast the defendant as someone worthy of leniency. And, while most labeling theorists emphasize the importance of acknowledging the subjective effects of labeling, and thus the label’s subsequent potential for spurring an identity transformation, we focused on the objective effects of labeling by connecting identity construction to the tangible incentive of leniency. We included accounts given for a wide variety of street-crimes that constitute the bulk of “normal crimes” processed by the criminal justice system (see Sudnow 1965). Additionally, we further specified how gender is constructed in courtrooms. While most researchers study offender narratives retrospectively, our data captured the narratives as they unfolded. Finally, not only did we illustrate how defendants used gendered narratives to make sense of their lives, but we also showed how this practice is connected to criminal justice system outcomes.

We also extended research on identity construction within formal settings by highlighting how narrative accounts can be viewed as both an expression of agency and an institutional mechanism that reproduces the hegemonic gender order (Ewick and Silbey 1995). As social practice, identity narratives are rooted in and reflective of culturally embedded systems of meaning and power (Ewick and Silbey 1995). Although defendants acted agentically in their attempts to construct themselves as worthy of leniency, reliance on conventionally gendered narratives unintentionally functions to reproduce unequal (and oppressive) social relations (Connell 1987, 2002). Although the use of gendered narratives was often rewarded with leniency, the practice simultaneously reproduces inequality by reinforcing sexist stereotypes and “interlocking structures of oppression” (Collins 2000; Conley and O’Barr 2005; Ewick and Silbey 1995). This practice persists, in part, because there is a tangible incentive for individuals to cooperate in perpetuating the broader structure of gender inequality. But, when they do so, the potential for agentic action is almost entirely subverted.

Like all studies, ours is not without its limitations. Our observations took place in the frontstage area of the courts, and thus, we were not privy to backstage conversations between defense counsel and their clients. We do not know whether some clients were coached on how to present themselves in court, nor do we know if particular defendants shared information about themselves that their attorneys chose not to share with the court. Additionally, we do not have reliable data on the amount of time attorneys spent with their clients and do not know how attorneys interviewed their clients. Differences in how questions were asked and the depth to which a defendant’s responses were probed could all potentially affect the quality of helpful information ascertained from defendants, thus leaving defense counsel either better or less well prepared for doing courtroom identity work on behalf of their client.

Future research should investigate the degree to which defense attorneys and prosecutors may or may not be aware of various identity construction strategies, and, if known, how they decide to use such strategies. Moreover, future research should explore more deeply how courtroom actors—including both judges and prosecutors—use conceptions of gender to understand defendants’ behavior and to make sense of the work they do. Vignette methods might be useful for further examining the subtle ways in which gender constructions influence sentencing determinations. Similarly, researchers should examine how constructions of other types of identities might also affect criminal justice system outcomes. Hence we urge researchers to conduct more systematic observations in courtrooms and to give greater attention to how various intersections of gender, sexuality, class, and race/ethnicity may contribute to differential sentencing outcomes for defendants. Lastly, researchers should assess how authenticity is discerned by members of the courtroom workgroup, as well as the implications of staking an identity claim that is deemed “inauthentic” by those in positions of power. Both Goffman’s (1959) and Everett and Niedstedt’s (1999) more recent work suggests that whether an account is honored or not depends on what a person says, as well as what a person does. We speculate that even the most skillfully crafted narrative can be undermined if a defendant’s demeanor suggests inauthenticity.

Footnotes

Acknowledgements

An earlier version of this paper was presented at the 2009 American Society of Criminology conference in Philadelphia, PA, and won the American Society of Criminology’s Division of Correction and Sentencing student paper contest in 2010. We appreciate feedback from R.V. Rikard, Katrina Bloch, Alison Buck, Michael Schwalbe, and Emily Cabaniss on earlier drafts of this article. We are also indebted to Kent Sandstrom and the insightful reviewers for their guidance.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

Author Biographies

M. J. Gathings is a doctoral candidate in Sociology and Anthropology at North Carolina State University. Her research interests include sentencing inequities, the intersections of race, gender, and age in justice system outcomes, courtroom processes, and the utilization of mixed methodologies.

Kylie Parrotta is an Assistant Professor in Sociology & Criminal Justice at Delaware State University. Her research interests include racial and gender disparities in criminal sentencing, the social construction of identity, the social psychology of organizational change, and the scholarship of teaching and learning.

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