Executing Female Offenders: Capital Punishment and the Law

Introduction

Women are far less likely than men to be sent to death row for their crimes, even when sentenced for the same offenses. Females account for about one in eight (13%) murder arrests, one in 72 (1.4%) death sentences, and one in 140 (0.7%) actual executions. Of the more than 8,000 individuals executed since 1900 through the start of the millennium, only 44 (0.5%) were women (Streib, 2001).

This paper presents a socio-legal literature review on capital punishment in the United States, covering its legal history, the crimes that warrant it, the discrimination that exists between males and females in receiving the death sentence, and concluding with speculations regarding the factors that account for the relatively small representation of women on death row.

Background History of Capital Punishment

Capital punishment has a long history in America. The first recorded American execution took place in 1608 (Bakken, 2010), and the Espy file lists 15,269 people executed in the United States between 1608 and 1991. Some 4,661 executions occurred between 1930 and 2002 alone, most of them in the first two decades of that period — years marked by the upheavals of World War II and the Cold War.

The modern death penalty was formalized in the early 1970s and then suspended from 1972 to 1976 as a result of the Supreme Court's decision in Furman v. Georgia, 408 U.S. 238 (1972). In various capital punishment cases, the practice had been found to constitute cruel and unusual punishment, leading the Court to declare execution unconstitutional and contrary to the principles of the Eighth Amendment. Justices Thurgood Marshall and William J. Brennan Jr. held that the death penalty utterly contradicted the Eighth Amendment and constituted "cruel and unusual" punishment.

In 1976, however, 37 states moved to reinstate the death penalty (Banner, 2002). The Furman decision had been a five-to-four ruling — not unanimous — and Justices Byron White and Potter Stewart had upheld the death sentence with the proviso that it be applied only in certain very limited and rare instances. Most states that enacted new death penalty statutes did so using White and Stewart's conditions as their legal foundation.

Two subsequent restrictions were placed on the use of the death penalty. The first was Atkins v. Virginia (June 2002), in which the Supreme Court determined that executing mentally disabled criminals constitutes "cruel and unusual punishment" and that any individual with an IQ below 70 was considered to have an intellectual disability. Prior to that ruling, between 1984 and 2002, forty-four intellectually disabled individuals had been executed (Bakken, 2010; Banner, 2002). The second restriction came in 2005 with Roper v. Simmons, 543 U.S. 551 (2005), which prohibited the execution of individuals who were under 18 years of age at the time of their offense.

New Jersey and New Mexico subsequently repealed their death penalty statutes. New Mexico, in 2009, replaced the death penalty with life imprisonment; however, because the law was not retroactive, offenders who committed crimes before that date could still be sentenced to death. Between 1976 and 2009, 1,210 people were executed, with most executions occurring after 1990. Texas recorded the highest number of executions — more than a third of the national total, and four times as many as Virginia, which ranked second. California, by contrast, had the largest number of prisoners on death row but imposed the fewest actual executions (Death Penalty Information Center).

Crimes That Warrant Capital Punishment

All states recognize murder as the crime that unilaterally warrants the death penalty. Some jurisdictions also consider treason punishable by execution. Terrorism, espionage, certain violations of the Geneva Convention, and aggravated rape — as well as extortionate kidnapping in some states — may likewise be punishable by death. Aircraft hijacking, drug trafficking, and train wrecking that results in death have also been grounds for capital sentences. In all cases, juries are instructed to weigh mitigating circumstances carefully. The death penalty, in other words, is reserved for only the most severe offenses (Dow & Dow, 2002).

The Death Penalty and Women

Across all categories, far more men have been sentenced to death and executed than women. According to Streib (2001), females account for about one in eight (13%) murder arrests, one in 72 (1.4%) death sentences, and one in 140 (0.7%) actual executions. Streib's 2001 survey recorded that of the more than 8,000 individuals executed since 1900 through the start of the millennium, only 44 (0.5%) were women.

This pattern is not confined to the United States. Although the ratio appears somewhat higher in certain Middle Eastern countries, the disparity between male and female executions is pronounced worldwide. India's death penalty statute expressly identifies the offender's gender as a mitigating factor, substantially reducing the sentence for women. Russia expressly forbids the death penalty for women, and in most countries generally considered developed and democratic, the execution of women is a rare event (Crocker, 2001).

Returning to the United States, statistics show that approximately five to ten women receive death sentences annually compared to nearly 300 men, and that the actual execution of women is a rarity (Streib, 2001).

Conclusion

In her 30 years as a defense lawyer, Streib (2001) represented several death row inmates. Her research led her to conclude:

"Men are eight times as likely as women to be arrested for murder, 72 times as likely to be sentenced to death, and 140 times as likely to be executed. Assumptions from such raw data are supported by the informal comments of judges, jurors, and prosecutors over many decades, revealing their reluctance to execute women, at least as compared to executing men of the same culpability" (p. 3).

The Death Penalty Information Center's data show that between 1632 and 2007, only 568 female offenders were executed, representing just 2.8% of all executions. The question of what drives this disparity remains open. Karla Faye Tucker's 1998 execution generated national controversy, while Judi Buenoano's execution that same year barely drew public attention. Tucker was known as the "pickax murderess," yet she was also widely described as physically attractive. Buenoano had poisoned her husband and was considered far less sympathetic in terms of appearance. It raises the uncomfortable question of whether physical appearance influenced public and judicial response.

It may ultimately come down to the process of socialization. As the scholarship on law and social control suggests, most people are unconsciously governed by internalized norms of conduct that regulate their behavior. While law is used as a formal mechanism to control citizen behavior, messages absorbed through enculturation can subtly influence and distort those objectives. Whether deterrence functions as intended depends not only on the implementation of law but also on a host of less visible factors — many of them far less amenable to direct observation or rational scrutiny.

Sources

Baker, David V. (1999). A descriptive profile and socio-historical analysis of female executions in the United States: 1632–1997. Women and Criminal Justice, 57.

Bakken, G. M. (2010). Invitation to an execution: A history of the death penalty in the United States. University of New Mexico Press.

Banner, Stuart (2002). The death penalty: An American history. Harvard University Press.

Crocker, P. (2001). Is the death penalty good for women? Buffalo Criminal Law Review, 917.

Death Penalty Information Center. Women and the death penalty. Retrieved from http://www.deathpenaltyinfo.org/women-and-death-penalty

Dow, D. R., & Dow, M. (2002). Machinery of death: The reality of America's death penalty regime. Routledge.

Rappaport, E. (2000). Equality of the damned: The execution of women on the cusp of the 21st century. Ohio Northern University Law Review, 26, 581.

Streib, V. L. (2001). Sentencing women to death. Criminal Justice Magazine, 16, 1–10.

Streib, V. L. (1990). Death penalty for female offenders. University of Cincinnati Law Review, 58, 845.