Women and the Death Penalty

Women and the Death Penalty Analysis

An Analysis of the Historical Effect of Gender and Race on the Application of the Death Penalty in the United States

While the debate over capital punishment continues to rage in the United States, questions of why the death penalty is viewed as ethical by some, while others would view it as unethical become increasingly significant. In addition, there are new controversies concerning the ethical nature of the death penalty in view of new technology such as DNA evidence that has cleared many death row prisoners. The ethical debate over the death penalty has resulted in the practice being abolished in most industrialized nations, and the United States remains the only advanced country in the world with the death penalty (with the exception of Belgium, where the practice is legal but is virtually nonexistent). However, capital punishment remains a viable punishment for capital crimes in 40 states today, and it does not appear that there will be any fundamental changes in these states in the foreseeable future. While women and minorities have historically been at a disadvantage in practically every other social setting in the United States, it would seem that being a woman can be a good thing when it comes to the death penalty (except in certain states such as Texas and Georgia). However, as always, minorities have been treated far more harshly, with far more minority men having been executed over the years than their white counterparts, but with women being executed only rarely. It is the purpose of this paper to examine what impact, if any, gender and race have played in the application of the death penalty in those states where the death penalty remains a sentencing alternative. An analysis of the relevant and scholarly literature will be followed by a summary of the research in the conclusion.

Review and Discussion

Background and Overview. Capital punishment is still used extensively throughout the United States confuses and outrages many of our friends in the international community. Capital punishment is currently legal in 40 states, and observers note that the federal government may seek the death penalty for some federal crimes. Currently, about two dozen states even allow for the execution of retarded killers, although some of these are reconsidering their capital punishment laws. The remaining states in the U.S. do not allow the death penalty, nor do most of the industrialized nations of the world (Nash & Jeffrey 1994). According to Frank Schmalleger, Cesare Beccaria was the first modern writer to advocate the complete abolition of capital punishment and may therefore be regarded as a founder of the abolition movements that have persisted in most civilized nations to this day. Because Beccaria's writing stimulated many other thinkers throughout the 1700s and early 1800s, he is referred to today as the founder of the Classical School of criminology (Schmalleger 1995).

A central principle of any just and mature society is that every person has an equal right to "life, liberty, and the pursuit of happiness." Within that framework, an argument for capital punishment can be formulated along the following lines: some acts are so vile and so destructive to the community that they invalidate the right of the perpetrator to membership in that community, and even to continued life. A community founded on moral principles has certain requirements. Certainly the right to belong to a community is not unconditional and the privilege of living and pursuing the good life in any society is not absolute, and capital punishment is an excellent example of how it can be canceled out completely by some types of criminal behavior that severely threaten the community.

According to the advocates of capital punishment, the essential basis on which any human community is built requires that each citizen honor the rightful claims of others. For many people in America today, capital punishment continues to be viewed as a viable alternative for many types of crimes, particularly heinous crimes involved women and children. Treasonous crimes as well against the government are considered capital offenses in the United States (although the Rosenbergs are the notable exception rather than the rule) (Nash et al. 1994). Nevertheless, opponents of the death penalty in America point to the need for a society to grow and mature, and to embrace a more enlightened view of morality and humanity -- one that does not include the state's ability to take another person's life regardless of the circumstances.

Problems Associated with Capital Punishment. There are a number of serious problems associated with the death penalty today that serve to offset any perceived benefits derived from the practice. These problems range from innocent individuals being executed to discernible patterns of racism in the application of the death penalty in many parts of the country. Further, the death penalty is frequently meted out to the defendants who are too poor to afford adequate legal counsel. Although the U.S. Constitution guarantees access to legal counsel during a capital offense case, the quality of most indigent defense systems is inferior and fails to provide adequate protections for this segment of the population. Rarely do court-appointed defense attorneys have sufficient time, resources or the legal expertise required to provide the level of representation needed for these types of defendants, and in some cases, these court-appointed lawyers do not have any criminal law experience at all, let alone experience in capital punishment cases (Bright, 1994).

Because of the inadequacy of public defense counsel and the other issues described above, minorities in particular are subject to the abuses of a legal system that continues to offer the death penalty as an alternative. According to Pollitt, "Lots of people are charged with horrible crimes in the United States, and some of them are even guilty, but the ones who get the death penalty are mostly society's castaways -- the ones who can't afford a Dream Team. Of the thirteen condemned men exonerated in Illinois, ten were poor blacks or Latinos" (Pollitt 2000:10). According to Conrad and O'Shea (1999). six of the 12 blacks executed in Georgia since 1983 had been convicted and sentenced by all-white juries. While the U.S. Supreme Court ruled in Batson v. Kentucky [47 U.S.79, 106 S.Ct. 1712 (1986)] that it is unconstitutional for prosecutors to remove potential jurors from a jury on the basis of race, it is still a common practice in Georgia (Conrad & O'Shea 1999). The case of Rebecca Machetti, a white woman who was given the death sentence in Bibb County, Georgia, was subsequently challenged by her lawyers on the grounds that the jury composition was unconstitutional under the U.S. Supreme Court ruling prohibiting gender bias in juries; as a result, Machetti was granted a new trial by the federal court of appeals and received a sentence of life (Conrad & O'Shea 1999).

Like the American legal system that supports this approach, these fundamental inequities do not appear to concern some death penalty advocates, many of whom are victims' families in search of the ever-elusive "closure" to a terrible tragedy in their lives (D'Agostino, 1998:6). In his essay, "Where Race Puts You on Death Row," Stephen Andrew makes the point that slavery has been such an intrinsic part of American life that, "[T]oday, it simply does not occur to most whites -- including nice, middle-class, 'liberal,' touchy-feely ones -- that the ghost of Jim Crow still stalks their country and that blacks often receive hopelessly short shrift from police and courts" (1999:24). It is a sad commentary on a time when the United States is fighting a war against terrorism that seeks to extend improved human rights to an oppressed people, and Amnesty International says the only country known to have executed juvenile offenders in 1998 was the United States, where use of the death penalty is "arbitrary, unfair, and racist" (Sanctioned Death and Racism is 1998's Legacy 1999:3).

Clearly, capital punishment as it is administered in most states in the U.S. is so fundamentally flawed that even the process itself must be viewed as unconstitutional (Linders 2002). These flaws include inadequate representation; the finality of the sentence (people who are executed and later determined to be innocent cannot be restored to life); racial considerations and inequities that cause an inordinate application of the death penalty; whether execution is in fact a violation of the Fifth Amendment guarantees to "due process" and Eighth Amendment proscription against "cruel and unusual punishment"; and, indeed, even the length of time that it takes to complete the legal process required to actually put someone to death by whatever means is employed by the state in question. These issues will be examined further below.

Inadequate Legal Counsel. The American legal system sees "nothing amiss with persons accused of capital crimes being represented by lawyers whose only qualification is that they are alive, if not always awake" (Pollitt 2000:10). In a recent editorial from The Economist, the key points were made that in a 2000 Texas capital case (Delma Banks), the Supreme Court halted his execution to consider the defendant's most recent appeal. The article notes that Mr. Banks was convicted of murder and robbery over 23 years ago; however, his trial appears to have been such a mockery of justice that a team of former federal judges and prosecutors, headed by William Sessions, ex-director of the FBI, filed a brief with the Supreme Court that maintained the prosecution suppressed evidence that would have exonerated Mr. Banks, paid one hostile witness, and allegedly pressed another into committing perjury. "They also claim that the defense lawyer was incompetent" (The needle paused 2003:29). The Banks's case, unfortunately, is not isolated. The issue before the Supreme Court in these types of cases was not the guilt or innocence of these men (although there is clearly doubt that either is guilty); it was, rather, whether the lawyers defending them were competent by the standards which the court set down in a 1984 ruling. In that ruling and subsequent ones, the Supreme Court has struggled to improve the nation's legal system to ensure that innocent people are not executed, as well as to stem the endless flow of death-row appeals that have weighed so heavily on the courts. The cases of Banks and Wiggins appear to indicate that those efforts have failed. However, that may be an erroneous conclusion according to the analysts at The Economist: "Alarmed by the prospect of innocent people being executed, politicians have joined America's judges to try to improve the 'machinery of death,' as one Supreme Court justice once called it. Their efforts may yet produce results" (The needle paused 2003:29). The most well-known example of this was the decision in January 2000 of the departing Republican governor of Illinois, George Ryan, to commute the death sentences of 167 death-row inmates to life imprisonment. This followed a three-year moratorium on executions in the state after 13 people awaiting execution had subsequently been exonerated. The successor to Governor Ryan is keeping the moratorium in place until the state's death-penalty system can be overhauled. Maryland has imposed a moratorium on executions for the past two years. Similarly, In March 2003, Houston's mayor requested that Texas's governor declare a moratorium on 16 death-penalty cases after the local police department's crime lab was determined to be so substandard that it had to suspend DNA testing (The needle paused 2003).

Capital case defendants are frequently underprivileged and sometimes underrepresented, despite constitutional guarantees of the right to counsel. In virtually every case, the defense tends to be poor and weak; the prosecution is always rich and powerful. "State or local prosecutors and judges are frequently elected and subject to popular pressure for convictions in cases involving gruesome crimes. Police also feel such pressure. There have been some notorious cases of police brutality against suspects" (Holt, 2003, p. 11). The argument naturally follows, then, if unnecessarily officious police and prosecutors manage to obtain convictions in such cases and, later, zealous appellate lawyers get the convictions overturned, how many other such convictions remain enforced? In other words, "How many innocent defendants are put to death while pious governors cite our supposedly foolproof judicial system in turning down last-minute appeals for executive clemency?" (Holt 2003:11).

Finality of Sentence. "Wrongfully executing someone, so the argument goes, is a terminal mistake; how can we allow a punishment with such baleful consequences?" (The Chair and Its Enemies 2000:15). Capital punishment critics point to the finality of this sentencing alternative when states can adopt a "no parole" approach to a life sentence. Further, technology has recently made available types of evidence such as DNA that have led to the reversal of convictions after death sentences have already been irretrievably carried out. "How many other such cases were carried out without having been appealed? How many rape cases have drawn long sentences, and have been in the process of being carried out when DNA evidence established the defendant's innocence? How many wrongful convictions for lesser crimes have gone unappealed for lack of resources by defendants?" (The Chair and Its Enemies 2000:15).

As a result of these events, the American public is clearly justified in being suspicious about the American judicial system's disparate application of the death penalty. Holt asks whether the American justice system is adequate to the demands of the 21st century, "both in protecting the innocent and punishing the guilty?" (Holt 2003:11). In order to improve the current approach, Holt recommends two modest steps: 1) governors should exercise more leadership in shielding state judges and prosecutors from political pressure; and 2) the number of public defenders should be increased and be better-funded. Holt suggests that others recommendations would undoubtedly be identified from the further study the problem deserves.

Impact of Gender and Race on Death Penalty Applications. While just three women (Margie Velma Barfield in North Carolina, Karla Faye Tucker in Texas, and Judi Buenoano in Florida) had been executed since the Supreme Court authorized executions in 1976, there is a historic precedent for executing women in the United States (Conrad & O'Shea 1999). Since the first European settlers arrived in America, capital punishment has been viewed as just punishment for women (Baird & Rosenbaum, 1995). In fact, after the execution of Karla Faye Tucker in Texas in 1998, Governor James was quoted as saying that gender would not make any difference to him in determined whether or not to spare a condemned killer from the electric chair. "Every case has to be measured on its own merits regardless of gender," he said (Conrad & O'Shea 1999:37). With three women still on death row in his state as of 1999, Governor James may have to consider the issue in the near future; in Alabama the governor can decide independently of the Board of Pardons and Parole whether to commute a sentence (Conrad & O'Shea 1999). According to an essay by Katha Pollitt, it is beyond dispute that the death penalty is applied unequally in this country "except, unfortunately, in the view of the legal system itself, which dismisses statistics showing that nonwhites convicted of killing whites are vastly overrepresented on death row" (Pollitt 2000:10). Because gender appears to have been a factor in the historic sentencing patterns for women, it has been cited as a reason for appeal in at least one case involving a male defendant. For instance, in April 1998, in Clayton County Georgia lawyers for David Aaron Perkins used gender bias as the basis for appealing his death sentence. Perkins was convicted and sentenced to death in 1997 for stabbing a man eleven times to steal his wallet. According to Perkins' attorneys he would have been less likely to receive the death penalty had he been a woman. The attorneys based this claim on the fact that eleven of the 84 people indicted for murder in Clayton County between 1985 and 1996 were women; however, in the 12 cases where the death penalty was sought, all were men. "At least two of the women indicted for murder, during that period met the criteria for seeking the death penalty, they said, and they believe the reason the District Attorney did not seek the death penalty was because the defendants were female" (Conrad & O'Shea 1999:143). In response, the district attorney said a number of factors were involved in deciding whether or not to seek the death penalty in a particular case; nevertheless, for the defense to say that a woman did not receive the death penalty because of her gender does not mean the opposite is also true: that the death penalty is sought against a man because of his gender. It does, mean, however, that the application of the death penalty in any case has become the source of much criticism at home and abroad.

In his book, The Contradictions of American Capital Punishment, Franklin E. Zimring maintains that capital punishment is barbaric, a "throwback to an earlier age." Much of the world has now rejected it but American states have increasingly resorted to executions: "By the year 2000," Zimring says, "the volume of executions by American states had bounced back to levels quite close to those experienced during the early 1950s," the decade in which the number of state-sanctioned killings began to fall sharply from earlier historic highs. But not every state uses capital punishment as the ultimate payback for crime, and while some states (e.g., New Hampshire, New Jersey, and South Dakota) keep the possibility of it on the books, it is only rarely applied outside the American South. Texas, Virginia, and Oklahoma conducted more than two-thirds of all executions in the past two decades (Zimring 2003).

In 1998, the office of the United Nations High Commissioner for Human Rights accused the United States of "racism" and violating "international law" in use of the death penalty. In a report issued in March 1998, UN Special Rapporteur Bacre Way Ndiaye of Senegal declared that "imposition of death sentences in the United States seems to continue to be marked by arbitrariness. Race, ethnic origin and economic status appear to be key determinants of who will, and who will not, receive a sentence of death" (D'Agostino 1998:6). The report cited international law that prohibits the imposition of a death sentence on juvenile offenders, and the UN report pointed to specific examples: "On 27 March 1987, the Inter-American Commission on Human Rights declared that the United States had violated provisions of the American Convention on Human Rights by permitting the execution of two juvenile offenders, even though, having signed the Convention, it had not ratified it" (D'Agostino 1998:6). The UN report also endorsed categorically legislation that had been rejected by the Republican Congress that would have applied a racial quota system to the application of the death penalty. The Racial Justice Act was passed by the House of Representatives as an amendment to the 1994 Crime Bill according to Special Rapporteur Ndiaya; however, it was rejected in the Senate. The UN report notes that the act would have allowed the defendant to introduce evidence of racism by the use of statistics and would have removed the need to prove discriminatory intent on the part of any specific individual or institutions (D'Agostino 1998).

The fundamental issue involved, the UN report concluded, may be that American democracy is actually to blame for the death penalty: "It is difficult to determine the influence that the electorate and a financial contribution to an election campaign may have on a judge," according to the UN report. "It is certain that this situation exposes the judge to a higher level of pressure than those who, like federal judges, hold life tenures, do not have to run for reelection and are not accountable to volatile public opinion" (D'Agostino 1998:6). According to Ramesh Ponnuru, part of the explanation can be attributed to the fact that many people no longer feel as threatened by crime now that crime rates have fallen; in addition, critics of the death penalty have been able to focus the public's attention on cases in which innocents have been on death row -- and thus on the possibilities that some have actually been executed and others are still scheduled to die (Ponnuru 2000:24).

Because of the inadequacy of public defense counsel and the other issues described above, women and minorities in particular have been subjected to the abuses of a legal system that continues to offer the death penalty as an alternative; however, notwithstanding the other inordinate disadvantages women experience when they become involved in the criminal justice system compared to their male counterparts, minorities continue to suffer disproportionate percentages of capital punishment than their white counterparts, and women in general seem to fare better than anyone - at least as far as the death penalty itself is concerned (Stack 2000). It would seem that many states (except Oklahoma) appear to be reluctant to impose the death penalty on women simply by virtue of their gender. According to Pollitt, "Lots of people are charged with horrible crimes in the United States, and some of them are even guilty, but the ones who get the death penalty are mostly society's castaways -- the ones who can't afford a Dream Team. Of the thirteen condemned men exonerated in Illinois, ten were poor blacks or Latinos" (Pollitt 2000:10).

In 1984, the United States witnessed the highest number of executions (21) of any year since 1976, the year when three Supreme Court cases upheld the death penalty. The statistical breakdown of death sentences for 1984 shows that 1,405 people were sentenced to death (all of whom had been convicted of murder). Of these, 1,388 were male, 17 were female; 804 were white, 585 were black, and 16 were classified as members of other races. Of these 21 who were actually were executed, "Justice and Quotas" reported that 13 were white males, seven were black males, and just one was a white female (1995).

A similar profile tends to emerge from statistics compiled by the NAACP Legal Defense and Education Fund. In its March 1986 newsletter, the group identifies the race of each death-row inmate executed between January 1977 and January 1986; of the 51 people executed, 34 were white and 17 were black; no women were reported as having been executed during this period (Justice and Quotas 1995).

Not only do minorities experience a higher rate of death penalty sentences, they are also less likely to receive an adequate investigation into the circumstances of the crime and evidence may even be suppressed by the prosecution if it tends to cloud the issue of guilt: "If you're black and the victim of a crime, the ensuing 'investigation' is likely to be even more sloppy and racist than the Lawrence one; if you are a black suspect, then the chances of a scrupulous investigation are even lower" (Pollitt 2000:10). An assistant public defender in New Jersey stated that there are review procedures in place in his state to ensure that they are not executing the innocent, the mentally incompetent, or because they were selected to be prosecuted due to racial or gender bias (Conrad & O'Shea 1999).

Current and Future Trends. With 40 states in America still using the death penalty as a viable sentencing alternative, it is clear that nothing is going to change overnight. According to the editors of the National Review, the fundamental question is: "Does the state have the right to take life as a punishment for atrocious crime?" Most societies, most philosophers, and most religious figures have tended to agree over the years that the state, in fact, does have such a right. Pollitt points out that capital crimes have sometimes been defined loosely; William Blackstone argued, in the 18th century, of the ferocity of English criminal law; however, an obvious place to draw the line of atrocity is willful and cold-blooded murder: "If a man expels another from society and this world, then society is entitled to expel him" (The Chair and Its Enemies 2000:15). Advocates of capital punishment routinely argue that statistics prove that it deters crime. Opponents of capital punishment just as vigorously argue that statistics prove that it does not. Figure 1 below shows the homicide rate and the rate of executions for the years 1950 through 1996: