Rare and inconsistent: the death penalty for women.

• Author: Streib, Victor L.

There is also overwhelming evidence that the death penalty is employed against men and not women ...

It is difficult to understand why women have received such favored treatment since the purposes allegedly served by capital punishment seemingly are equally applicable to both sexes. (1)

INTRODUCTION

Picture in your mind a condemned murderer being sentenced to death, eating a last meal, or trudging ever-so-reluctantly into the execution chamber. In your mind's eye, do you see this wretched creature as a woman? Most of us do not, given that over ninety-nine percent of the people executed in the United States are men. (2) Female offenders, both girls and women, (3) are so seldom found on our death rows that, once condemned, they may be ignored and forgotten. (4)

We are occasionally made aware of women put to death through media coverage of high profile executions. A recent case with front-page national coverage was that of Karla Faye Tucker, executed in Texas on February 3, 1998. (5) Tucker caught the attention of the popular media in part because of the grisly nature of her crime (murder by pickax) and partly because she was a pretty, photogenic white woman. (6) Indeed, a new play, Karla, based on Tucker's crime, trial, and execution, opened in New York in October 2005. (7) An example of an earlier but similarly famous case was that of Ruth Brown Snyder, who was executed in New York on January 12, 1928. (8) An attending journalist surreptitiously photographed Snyder's execution in New York's electric chair, and that dramatic photograph appeared the next morning on the front page of the newspaper, destined to be reprinted many times subsequently. (9) Journalistic descriptions of collections of numerous cases also abound, often tending to exploit them with lurid details. (10)

We also have riveting films based on this theme. Some are built around real women's cases. The Florida case of Aileen Wuornos, executed on October 9, 2002, spawned several films. The best known was a semi-fictionalized account entitled Monster, (11) released in 2003 and starring Charlize Theron, a role for which Theron received both a Golden Globe and Oscar. (12) The Wuornos case had been the basis for earlier documentary films based upon her actual life. (13) Nearly half a century ago, the 1958 film I Want to Live provided a reasonably accurate portrayal of the actual case of Barbara Graham, executed in California on June 6, 1955. (14) In a precursor to Theron's recognition for her portrayal of Wuornos, actress Susan Hayward also won both a Golden Globe and an Oscar for her portrayal of Graham. (15) Other films portray fictionalized women under sentences of death. One such example, Last Dance, (16) released in 1996, starred Sharon Stone as a woman sentenced to death and actually executed. (17) Based on a composite of several cases both real and fictional, Stone portrayed a condemned woman who evolves from a tough, foul-mouthed killer into a nurturing big sister and would-be lover before being executed. (18)

But what of the rest of the women sentenced to death in the real world and, in some cases, actually executed? Who were they, and why were these extremely rare cases singled out to receive this ultimate punishment? Why are such women so commonly condemned but ignored by our death penalty system, by scholarly research on crime and the death penalty, and to some degree by the popular media? These questions have been asked by previous authors: "Few though their numbers may be, they are on death row, and for the most part terribly isolated, invisible, and alone." (19) A recent investigative report labels them "The Forgotten Population." (20) Apparently a similar tendency to ignore such cases is true in Britain as well, where "their cases remain almost totally unknown." (21)

Previous studies of the national landscape around the death penalty for women have identified and analyzed past themes and issues. (22) This Article brings the analysis current through 2005, beginning with a reprise of the conversations about gender bias and disparity in the death penalty system. It appears that female offenders have always been treated differently from male offenders in the death penalty system, sometimes for reasons that are easily justifiable but too often simply because of sex bias. The next section of this Article explores the current death penalty era, identifying those women who have been sentenced to death, those whose death sentences were reversed, those who were actually executed, and those still remaining on death row. National data reveal trends and patterns, as well as the death penalty states leading in this practice and the death penalty states that have never executed a woman. Finally, this Article explores the conclusions suggested by these data. In closing, specific means are identified by which death penalty jurisdictions can reconsider policies that result in sex-based disparities and can reduce those instances of sex bias in their death penalty systems.

1. A CONTEXT OF GENDER BIAS AND DISPARITY

   Among the many deficiencies of the American death penalty system is a system-wide bias based upon the sex of the offender. (23) Even though scholars (24) continue to debate both the causes and the impacts of this sex bias, indeed its very existence, (25) the discrepancy between men and women in our execution statistics has been recognized, at least in passing, even by the United States Supreme Court. (26) A leading scholar on gender issues has concluded, "Capital jurisprudence--the law for deciding whether to kill--is also a hidden battleground of gender." (27) The working definitions for the gender concepts of masculine and feminine relied upon in this Article also come from Professor Joan Howarth:

   Masculinity or maleness is a social construction, to which some women have access and from which some men are excluded. Similarly, both men and women can and do exhibit "female" qualities of emotionality, intense interrelatedness, and contextual reasoning. But just as countless businessmen can wear pink button-down shirts without eradicating the gender from pink and blue, women who are unemotional, hard-driving, and distant are described as masculine. (28) The author of this Article has pushed these conclusions even further in a previous work: "This gendering of capital jurisprudence appears to have infected all who come into contact with the entire death penalty system and to have pushed aside concerns about justice and reduction of violent crime." (29) The following sections separate these sources of gender bias into the selection of death penalty crimes and the shaping of these crimes through aggravating and mitigating circumstances.

   1. Capital Crimes

      Legislatures designate certain crimes as eligible for the death penalty, constrained almost solely by United States Supreme Court rulings limiting this choice of crime essentially to murder. (30) Even within the crime of capital murder, however, we find quite different treatment. Domestic homicide--the killing of relatives and sexual intimates--appears to be discounted in perceived seriousness and punishability, at least as compared to homicides by and against strangers. (31) In contrast, the most common crimes committed by those on death row today are felony murders, homicides committed during a dangerous felony such as robbery or rape. (32) This shortcut to death row raises serious jurisprudential questions as well as having a quite different impact upon male offenders and female offenders. Similarly, the tendency to exclude domestic homicides from capital murder, certainly as compared to stranger homicides and felony murders, tends also to exclude women's homicides as compared to men's homicides. (33) One questionable result of this is the societal judgment that convenience store robbers who kill store clerks should face the death penalty more often than mothers who kill their children. (34)

      This brief sketch of the definition-of-crime issue illustrates that men and women typically commit different kinds of homicides. Therefore, the attachment of the death penalty to some kinds of murder and not to other kinds of murder can be expected to produce a disparate impact upon males who kill versus females who kill. Similarly, the tendency of prosecutors to push for the death penalty for some kinds of capital murder more than for other kinds of capital murder makes a difference as to men and women being sentenced to death. A similar disparate impact from the gender of the offender can be found in the statutory factors pushing the sentencing jury toward or away from the death penalty.

   2. Aggravating and Mitigating Circumstances in Death Penalty Statutes

      Although modern death penalty statutes typically list a variety of express factors to be considered in aggravation or mitigation, (35) no such express consideration of the offender's sex appears in any death penalty statute in the United States. An apparently increasing number of other countries (primarily former Soviet Bloc nations) do include express provisions in their death penalty statutes either excluding female offenders or giving them special mitigation (such as pregnancy and the responsibilities of motherhood) in imposing death sentences. (36) American death penalty statutes provide no such sweeping provisions (except for pregnancy), but our schemes of aggravating and mitigating circumstances can and apparently do have a disparate gender impact.

      Consider some typical aggravating circumstances found in death penalty statutes. A common aggravator is having committed a murder for hire, either as the hired killer or as the person who hired the killer to commit the homicide. (37) The Ohio statute, for example, is broad and straightforward: "The offense was committed for hire." (38) Women convicted of murder are generally more likely than men to have hired a killer to commit their homicide. However, the killers that women hire are almost...