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LAPA Seminar

Malcolm Feeley, LAPA Fellow and UC Berkeley (Boalt Hall)

Where Have All the Women Gone? The Decline of Women in the Criminal Justice Process

October 6, 2008, 4:30 - 6 PM, Kerstetter Room, Marx Hall

In this week's LAPA seminar, Malcolm Feeley will discuss a paper he is working on with Hadar Aviram called "Where Have All the Women Gone? The Decline of Women in the Criminal Justice Process." The paper shows that that, before the late 19th century, women constituted around half of all criminal offenders in Britain, the Netherlands, France, Italy and Scandanavia. While it is a commonplace now that women are much likely to commit crimes than men, this is a historically specific phenomenon. Come and hear why women may have been little different from men in their criminal conduct two centuries ago and why they became so much less likely to be offenders from the late 19th century on.

Author's Notes

This version of “Where Have all the Women Gone? The Decline of Women in the Criminal Justice Process,” is drawn from a book that Hadar Aviram and Malcolm Feeley have nearly completed. The Abstract and Table of Contents at the beginning describe the book as a whole and not the paper.

The Paper consists of five parts: Part I states the problem and summarizes our concerns: Part II outlines our methodology such as it is for the Netherlands; ; Part III presents our findings for the Netherlands; Part IV summarizes our findings (for the Netherlands and for several other locations, most notably London and some other jurisdictions in England; France (from a great deal of secondary sources), selected locations in Scandinavia, and some scattered other locations; Part V outlines a highly speculative explanation for what we have found.

Participants in the colloquium may want to do the following: Read Part I; skim Part II; skim the long Part III ( paying attention mostly to the trends in the graphs--assuming you have a magnifying glass to read them); read Part IV, and skim Part V (stopping to read carefully whatever you think is particularly outrageous).

Précis from Professor Feeley

Conventional wisdom in criminology and sociology holds that, save for some limited exceptions, crime is overwhelmingly male behavior. Yet my historical research reveals that at some times and places, up to 50% or more of those charged with serious crimes were women, two to four times the level in most places since the late 19th century. This project was initiated some time ago when, for quite different purposes, I collected data on a large sample of cases heard at the Old Bailey in London between 1687 and 1912. I published a paper on this initial work (“The Vanishing Female Offender”), which has been subject to some considerable scrutiny and criticism, although I believe the findings reported there hold up. Since this initial study, I have been collecting additional data from archives and secondary sources in the Netherlands, France, Scandinavia, Italy and elsewhere. The pattern I initially found for the Old Bailey is repeated in a number of other places and times. Although the finding are complicated and mixed, it appears that once women were markedly more likely to be charged with serious crimes than they have been since the late 19th century, and that this decline cannot be accounted for by types of offenses (e.g. shifts in prosecutorial practices in distinctively female offenses such as prostitution or infanticide), changes in femme couvert practices, war and peace, or other such factors. Although the findings are mixed and our theorizing tentative, my co-author (Hadar Aviram) and I argue that the decline is “real,” and that it is at least in part a consequence of shifts in the way patriarchy has been institutionalized in the public sphere and in changing conceptions of female responsibility. The attached paper, extracted from a book manuscript-in-progress, presents some figures showing the decline in the proportion of women defendants over time in several different jurisdictions and an outline of our theoretical argument that account for this pattern.

Malcolm Feeley is the Claire Sanders Clements Dean's Chair Professor of Law (Boalt Hall) at the University of California- Berkeley. Since 1984, he has been associated with the Jurisprudence and Social Policy Program there. From 2005-2007, he was president of the Law & Society Association, and he currently serves as co-editor, with Jonathan Simon, of the journal Punishment & Society. The author or editor of numerous books and articles on the judicial process and the criminal justice system, Professor Feeley's 1979 book, The Process is the Punishment, received the ABA's Silver Gavel Award for best book in law. His most recent books are (with Edward Rubin) Judicial Policy Making and the Modern State (Cambridge); (with Terry Halliday and Lucien Karpik) Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism (Hart); and (with Ed Rubin) Federalism: Political Identity and Tragic Choice (Michigan). Feeley received his Ph.D. in Political Science in 1969 from the University of Minnesota. He is currently involved in a trio of historically-oriented studies on the criminal process. The first of them, a comparative historical study of women accused of crime in the 18th century, is near completion. The others explore the importance of privatization in the development of the prison, and the origins and antecedents of plea bargaining. He plans to work on these projects during his tenure at LAPA. For more information on Malcolm Feeley, please see his LAPA page.