Socially recognized, acutely felt imprisonment confines highly disproportionately men. Political authorities intentionally and regularly imprison their subjects on the basis of authoritatively defined offenses. Such prisoners, who totaled about ten million persons around the world about the year 2010, undoubtedly suffer from being in prison. They are among the poorest, most oppressed, and most marginalized persons at every level of understanding – from understanding within a prisoner’s own prior community of daily life to abstract evaluation of universal capabilities associated with human flourishing. Prisoners have acutely impoverished lives. Around the world, for every woman prisoner, there are about fifteen men prisoners.

The gender ratio of persons in state-imposed punishment is not inscribed in human nature. The most serous forms of punishment are life-disposing punishments: imprisonment, banishment, and death. Sex ratios of persons in life-disposing punishment have varied from about two men per woman to more than thirty men per woman over merely the past four centuries among merely countries in Europe. Over the past two centuries, penal imprisonment has generally shifted toward greater and more uniformly disproportionate imprisonment of men. Variation in the ratio of men to women in prison around the world today appears small relative to this historical experience and to the social, economic, and legal differences among countries.

The extent to which prisoners are men is scarcely an issue in public deliberation. The development of more democratic and more extensive public deliberation over the past two centuries has been a powerful force for human freedom. However, developments in public communication have contributed to highly disproportionate imprisonment of men. Most persons, at least outside academia, probably believe that men differ biologically from women in highly significant ways. Many persons intimately appreciate these differences in ordinary life. In contrast, most persons don’t believe and shouldn’t believe that men are essentially more evil or more deserving of punishment than are women. That understanding of human equality has little effect on punishment policy.

Imprisoning thirty times as many men as women differs significantly from imprisoning four times as many men as women. A sophisticated person with academic interests might attribute the long-run trend toward more disproportionate imprisonment of men to the social construction of gender. With more intimidating effect, he might attribute more disproportionate imprisonment of men to patriarchy. She would then quickly change the subject. Public discussion of gender has grown greatly over the past few decades. That discussion largely excludes discussion of the highly disproportionate imprisonment of men.

Legal scholarship illustrates the systemic problem of prisoners’ sex in public deliberation. Legal scholars are highly educated in a field that includes the criminal justice system. Legal scholars, particularly in the U.S., participate in a free, diverse, highly antagonistic public communication. That communication emphasizes deliberative ideals and the production and review of written texts. Yet analysis of procedural and substantive criminal law proceeds largely without reference to the highly disproportionate imprisonment of men. Male legal scholars tend to avoid the subject of prisoners as men, while expressing rather superficial concern for women. Female legal scholars disproportionally write about women. Male scholars express their masculinity and female scholars their material interests by together brutally attacking anyone who shows concern about the suffering of men. Legal scholarship spectacularly fails to recognize the highly disproportionate imprisonment of men.

Communicative freedom within a field is not sufficient to change structural properties of the field. Consider the problem of signaling a change in direction:

a male moves along the vector to the periphery and sits facing away from the group. This is closely watched by the other males who may then ‘notify’ an initiator by approaching, performing a hindquarter presentation and then moving off quickly along their own favoured route. Other males, with their associated females and offspring, then begin to aggregate behind one or other of the initiators so that, over time, the majority come to be oriented in a particular direction, at which point the band departs. …the decision to take a particular travel route cannot be attributed to any one individual, but is distributed across the band as a whole.^

A male is free to propose a different direction of travel. Yet his biological nature and the developmental history of the individuals and the group make it impossible for him to propose a different way for deciding the direction of travel. Similarly, legal scholars, men and women, seem unable to change their orientation toward the highly disproportionate imprisonment of men.