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11 Am. Crim. L. Rev. 355 (1972-1973)
Discriminatory Sentencing of Women Offenders: The Argument for ERA in a Nutshell

handle is hein.journals/amcrimlr11 and id is 363 raw text is: DISCRIMINATORY SENTENCING OF WOMEN OFFENDERS: THE ARGUMENT FOR ERA IN A NUTSHELL by CAROLYN ILNGEL. TEMIN* INTRODUCTION In 1963, the President's Commission on The Status of Women pub- lished the following statement in its report, American Women: Since the Commission is convinced that the U. S. Constitution now embodies equality of rights for men and women, we conclude that a constitutional amendment need not now be sought in order to establish this principle. But judicial clarification is imperative in order that remaining ambiguities with respect to constitutional protection of women's rights be eliminated.1 This statement is now familiar to all those who are active in the fight against legally sanctioned sex-based discrimination. It provided a theme with which to unite all the painstaking case-by-case legal battles of the sixties. It encouraged lawyers, regardless of their area of exper- tise, to seek out discriminatory legislation and bring it into the courts so that the hoped-for constitutional standards could be applied to for- ever nullify statutory inequalities. It was against this background that the attack on statutes prescrib- ing longer sentences for women offenders than for male offenders con- victed of the same criminal conduct was launched. Although earlier decisions militated against success,2 the issue seemed. to be the perfect one for achieving the desired constitutional construction. The issue embodies the deprivation of personal liberty-a right that c.me to the LL:B., University of Pennsylvania Law School; private attorney specializing in criminal and federal civil rights iitigation, Philadelphia, Pa.; former Chief Counsel, Pennsylvania Board of Probation and Parole; former staff attorney, Defender Associ- ation of Philadelphia and the District Attorney's Office. Ms. Temin was counsel for appellants in Conrnmonwealtb v. Daniel and Conmmonwealtb v. Douglas which are dis- cussed herein. I Established by Exec. Order No. 10,980, 3 C.F.R. 138 (Supp. 1961). aSee, e.g., State v. Heitman, 105 Kan. 139, 181 P. 630 (1919); Ex pane Dunkerton, 104 Kan. 481, 179 P. 347 (1919); Platt v. Commonwealth, 256 Mass. 539, 152 N.E. 914 (1926); Ex parte Gosselin, 141 Me. 412, 44 A.2d 882 (1945), cert. denied sub nor. Gos- selin v. Kelley, 328 U.S. 817 (1946); Ex parte Brady, 116 Ohio St. 512, 157 N.E. 69 (1927). These cases upheld discriminatory sentencing acts against constitutional challenges. r 355!

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