Do men get harsher sentences than women for the same crimes?

The question is about like-for-like cases, which raw totals cannot answer. Men are 93% of US prisoners, but that reflects who is convicted and of what, not only how they are sentenced. A fair comparison has to hold the offence and the person’s record constant.

The US Sentencing Commission does this for federal cases. Its 2023 report covers federal sentences from fiscal years 2017 to 2021 and uses regression models that account for the offence, the sentencing guideline range, criminal history, prior violence, weapon use, mandatory minimums, whether the person pleaded guilty, cooperation with prosecutors, age, education, citizenship and other factors.

Statistics Canada publishes the share of guilty cases sentenced to custody, broken down by offence type and sex. It does not publish figures that also account for criminal history.

After controlling for those factors, women received sentences 29.2% shorter than men across all federal sentences. Women were 39.6% more likely to receive probation instead of prison. Among people sent to prison, women’s terms were 11.3% shorter.

The gap is larger across all sentences (29.2%) than among prison terms alone (11.3%), so much of it comes from the decision whether to imprison at all.

The Commission states that its report does not identify a cause. It notes that some potentially relevant information was not available to it, including decisions by police and prosecutors before sentencing.

In 2023/2024, 43.9% of men and 33.3% of women found guilty of a Criminal Code offence (excluding traffic) received custody as their most serious sentence. Men received custody more often within each offence type shown: for example, 61.6% of men and 43.8% of women found guilty of break and enter, and 40.9% of men and 25.2% of women found guilty of fraud.

These comparisons hold the broad offence type constant but not the details. A theft conviction covers a wide range of seriousness, and a person’s prior record is a factor in sentencing. If men found guilty have longer records on average, part of this gap would be expected without any difference in treatment.

Supported: in US federal courts, women receive shorter sentences than men with comparable offences and records, by a large margin, in large part because they are more often given probation.

Supported: in Canada, men found guilty are more often sentenced to custody than women found guilty of the same type of offence.

Not established: how much of the Canadian gap remains once criminal history and the details of the offence are considered, and what causes the gap in either country. Explanations that have been proposed include caregiving responsibilities, a person’s role in the offence, and how judges and prosecutors view women and men, but these figures cannot separate them.

Not established either: that the US federal finding applies to state courts. State prisons hold about 88% of US prisoners.

The US finding comes from a statistical model of federal cases, which are a small share of all US prosecutions and differ from state cases in their mix of offences. The Canadian figures are simple shares from provincial and territorial courts. They measure different things and should not be compared side by side.

Sentencing is the last step. Differences in who is arrested, charged, offered a plea deal or diverted out of court happen earlier and are not captured here.

In the Canadian data, superior courts in Ontario, Manitoba and Saskatchewan and municipal courts in Quebec do not report, and the sex of the accused is not available from Manitoba, so Manitoba cases are not counted as women or men.

A future version could add Canadian research that accounts for criminal history, and US state court data.