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

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…