Selected readings for:



Selected readings for:

WOMEN AND THE DEATH PENALTY

Andrea Esselstein

Stephanie Fortener

Janean Weber

Why Women Are Rarely Executed . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Theories of Sentencing Women to Death . . . . . . . . . . . . . . . . . . . . . . . 3

Death Penalty for Women Nationally . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Equal Protection Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Women on Death Row . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Excerpt from:

Janice L. Kopec, Avoiding a Death Sentence in the American Legal System: Get a Woman to Do It, 15 Cap. Def. J. 353, 355-57 (2003).

B. Why Women Are Rarely Executed

1. Paternalism

The American legal system has an entrenched history of paternalism. Political participation and the right to sit on a jury were denied to women in part because these tasks were considered too difficult and burdensome for the weaker sex. [FN9] The lingering ideals of male protector and chivalric duty cling even to the female criminal. Early in the twentieth century, thirty male prisoners petitioned for a commutation of Ethel Spinelli's death sentence. [FN10] The men volunteered to draw straws and die in her stead so that the state's record of only executing men would not be tarnished. [FN11] In the modern era, only twenty-three out of the thirty-nine death penalty jurisdictions have imposed a sentence of death on a female, and only six of those jurisdictions have actually carried out the sentences. [FN12] Even in the state of Texas, where the death penalty enjoys a wide base of popular support, the execution of Karla Faye Tucker was divisive and drew a considerable amount of public outcry. [FN13]

2. Statutory Classifications of Capital Murder

Most capital murder statutes are designed in such a way that men are much more likely to be charged with a capital crime. [FN14] As many as eighty percent of the offenders on death row were convicted of felony murder. [FN15] Yet, only six percent of accused felony murderers are female. [FN16] The Virginia capital murder *356 statutes, for example, include three types of felony murder that are typically committed by male offenders: “The willful, deliberate, and premeditated killing of any person in the commission” of sex offenses, robbery, or abduction. [FN17] In the modern era of executions, Virginia has executed eighty-seven men, but not a single woman. [FN18]

Not only do women tend not to engage in felony murder, but the types of murder they do carry out are usually not considered capital crimes. [FN19] Women are more likely to act without premeditation when committing a homicide, rendering their offenses statutorily less serious and often precluding a capital charge. [FN20] Women typically commit “domestic homicides.” [FN21] They often kill in the midst of the rage and fear of a domestic altercation; therefore, they lack the premeditation necessary for prosecutors to prove even first-degree murder, let alone capital murder. [FN22]

3. Effects of Mitigators and Aggravators

The use of aggravating and mitigating factors in capital sentencing proceedings often have a benevolent impact on women and a negative impact on men. [FN23] Many capital systems include future dangerousness, a prior history of violence, or both, among their statutory aggravators. [FN24] Women are more likely than men to be first-time offenders with little or no criminal record. [FN25] Because of this fact, when a prior history of violence is a statutory aggravator, men are at a greater disadvantage before the sentencing jury than women. Judges and juries alike also tend to perceive women as less dangerous and more open to rehabilitation than *357 their male counterparts. [FN26] This perception insulates women from prosecutorial assertions of future dangerousness.

Mitigating factors often benefit female offenders more than they benefit male offenders. [FN27] Mitigating factors can include extreme mental or emotional disturbance, substantial domination by another, character, circumstances, and family background. [FN28] Juries are often more open to believing that a female, as opposed to a male, has been dominated or influenced by a stronger party or that she might have suffered from duress or an emotional disturbance. [FN29] Moreover, the burden of leaving behind motherless children presumably weighs more heavily on a jury than the burden of leaving behind fatherless children. [FN30] A woman who kills is not likely to kill in a manner punishable by death, but even if she does, juries are difficult to convince that the requisite aggravators are present, and they are more sympathetic to mitigating factors.

Excerpt from:

Melinda E. O’Neil, The Gender Gap Argument: Exploring the Disparity of Sentencing Women to Death, 25 New Eng. J. on Crim. & Civ. Confinement 213, 217-224 (1999).

III. THEORIES OF SENTENCING WOMEN TO DEATH

“[She] spent her last months crocheting dolls for two of her grandchildren, reading religious literature, and talking to reporters, … [s]he was only one of three convicts put to death last week, and the 29th since the Supreme Court effectively reinstated the death penalty in 1976.” [FN31] Velma Barfield, dubbed the ‘Death Row Granny,’ was convicted in 1978 for poisoning her fiancé. [FN32] Barfield confessed to pouring rat and roach killer in his beer and tea. [FN33] The crimes she committed were not limited to her fiancé, for she confessed to poisoning and murdering three others, including her own mother. [FN34]

Barfield's story is noteworthy because she is the only woman who has been executed in the United States in the past 35 years. [FN35] Some theorize that her execution was deemed acceptable because her crimes were heinous and offended femininity. [FN36] This theory of the “evil woman” is one of two theories which attempt to explain the sentencing trends among female offenders. [FN37] Termed “chivalry” and “evil woman” theories, their explanations focus on the degrees of prosecutorial discretion in capital cases and *218 jury reluctance in sentencing women to death. [FN38]

A. Chivalry Theory

The chivalry theory stands for the proposition that women receive preferential treatment in that they are less likely to be convicted for the same type of offense. [FN39] If a woman is convicted, she is less likely to be sentenced; if sentenced, she is more likely to receive a milder sentence than a man. [FN40] “Judges often say that they cannot help but compare a woman defendant [to] other women whom they know … namely, their mothers and wives.” [FN41] The theory identifies women as a weaker, submissive, dependent, and more passive sex. [FN42] This type of categorization tends to procure the attitude that women need to be protected, making them “less attractive” and “less eligible” for the death penalty. [FN43] Another driving argument behind this theory is that separating a woman from her children and husband, by imposing a harsh prison sentence, is highly disruptive to the family unit. [FN44] Women are seen as less culpable than men, and therefore deserving of extra care in the criminal justice system. [FN45]

This chivalrous pattern was first recognized in the late 1970s, [FN46] when judges started to regard women as more amenable to rehabilitation than men. [FN47] Research shows that the chivalrous treatment however, is usually reserved for those women who fit into the role society has made for them and who have conformed to gender stereotypes. [FN48] The numbers seem to substantiate this theory. Approximately 3900 executions have been documented in the United States since 1930, out of which only 32 have been women. [FN49] Because of the gender roles that women traditionally are supposed to fit into and society's perception of protecting women from harm, it is more difficult to view female offenders as “death eligible” despite*219 the heinous crimes they have committed. [FN50]

A recent example of the application of this phenomena can be shown in the story of Guinevere Garcia. In January 1996, when she was only hours away from becoming the second woman to be executed since Furman v. Georgia, [FN51] the Governor of Illinois granted her clemency and reduced her sentence to life imprisonment with no possibility of parole. [FN52] When questioned as to why he granted clemency to Garcia, Governor Jim Edgar said, “[e]xecutions are for the ‘worst of the worst’ a category Garcia's crime did not fit.” [FN53] Although there was speculation that gender played a major role in the granting of her clemency, the governor adamantly states that gender did not influence his decision. [FN54] Upon examining the case of Guinevere Garcia, speculation turns into something more substantial, for if Garcia's crimes cannot be categorized as the ‘worst of the worst’, what crimes can?

In March 1991, Garcia was released after serving half of her 20-year sentence for the 1977 homicide of her 11-month old daughter. [FN55] After her release, Garcia remarried George Garcia; however, the marriage declined a few weeks later when Garcia moved out to her grandparents' home, where she met and began dating Gonzales. [FN56] On the night of July 22, 1991, after a few failed attempts to obtain money for alcohol, Garcia and Gonzales drove to her husband's apartment where they knew they could get some cash. [FN57] When the couple arrived at the apartment complex parking lot, Garcia saw her husband and said “[h]ello.” [FN58] She then grabbed the .357 magnum pistol, which had been on the front seat, “got out of the car, and forced her husband to turn around and get into his pickup truck.” [FN59] After a struggle for the gun, Garcia finally shot him “at point-blank range one time in the chest.” [FN60] George Garcia staggered, fell, and then bled to death. [FN61]

For several days following the shooting, Garcia told police that Gonzales*220 had shot and killed her husband. [FN62] Only after police arrested Garcia for the murder of her husband, did she confess. [FN63] At the close of her trial, after all the evidence had been presented, the jury was given instructions on first and second-degree murder, and involuntary manslaughter. [FN64] The jury convicted Garcia of first-degree murder, and the trial court concluded she was eligible for the death penalty. [FN65] Garcia presented mitigating circumstances showing that “she suffered from depression, alcoholism and had a border line personality disorder, in order to invoke the mercy of the judge.” [FN66] It was also shown that Garcia had been sexually abused by an uncle when she was 6 years old. [FN67] Despite these sympathy-invoking pleas, the judge found that the evidence was too insufficient to mitigate against imposing the death penalty and subsequently sentenced Garcia to death. [FN68]

In light of the facts of Garcia's crime and her prior conviction, one must ask if Governor Edgar's mercy was justified. “With one conviction for murder under her belt already [and a] previous record of violent crime … Garcia was a prime candidate for death row.” [FN69] These aggravating circumstances alone in some states would invoke the death penalty. [FN70] In Garcia's case there is more. The fact that she murdered her husband while she was trying to rob him makes her actions a felony murder and produces a second aggravating circumstance. [FN71] Governor Edgar's “show of mercy” to Garcia seems to have less to do with her crimes and everything to do “with her gender.” [FN72]

B. Evil Woman Theory

Currently there are 51 women on death row in the United States. [FN73] The fact that “these women [are] on death row indicates that” there are some circumstances in which a judge or jury “will sentence a woman to death.” [FN74] The evil woman theory attempts to explain “what combinations of facts [and evidence] will subject women to capital punishment.” [FN75]

*221 A fair analysis requires looking into the traits or characteristics of the evil-woman. Executable women “tended to be very poor, uneducated, and of the lowest social class in the community.” [FN76] This description applies to a number of women in the prison system who have committed murder but are not on death row. [FN77] What makes the women on death row different is that “they committed shockingly ‘unladylike’ behavior, [which] allow[s] the sentencing judges and juries to put aside any image of them as ‘the gentler sex’ and to treat them as ‘crazed monsters' deserving of nothing more than extermination.” [FN78] This process of picturing the defendant as less than human must occur for a death sentence to be returned. [FN79] The evil woman theory also recognizes that the death penalty serves as a social cleansing tool, which allows society to punish or vindicate those who have violated the rights and values which it tries to protect. [FN80] Thus, executing these socially deviant women provides a way for society to set the outer limits which define gender roles. [FN81]

Professor Joan Howarth, writing on the death penalty from a feminist perspective, theorizes that capital punishment “transforms the person being executed from a flesh and blood human being into a symbol of evil.” [FN82] Howarth further explains that the women who are sentenced to death do not fit societal perceptions of a “woman.” [FN83] Consequently, when a woman engages in activity deemed to be “male” or “manly”, she looses the advantage of being “““female” or “feminine” and is punished more severely than other women because she has violated her gender role. [FN84]

The evil woman, like her male counterpart, offends humanity with her crimes. [FN85] She is a woman who acts so violently in defying femininity that she is denied the protection of her gender. [FN86] The women sentenced to death tend to act alone and not in cooperation with a male partner. [FN87] *222 There are different roles women play when committing violent crimes. [FN88] They can act as the conspirator, instigating the crime but not participating in its commission; or they can act as the partner who participates equally in carrying out every aspect of the crime; or a woman can act alone. [FN89] The sole perpetrator has to accept that she has not only committed a violent crime, but that she has committed a social taboo in “relinquish[ing] the benefits and protections afforded [by her] sex and [has] become ‘evil’ ....” [FN90]

Elizabeth Rapaport researched and described these death-eligible women and their crimes. [FN91] Rapaport's findings presented the following information concerning the types of crimes for which women are sentenced to death: 9 women for the crime of murder in the course of committing armed robbery; 15 for murdering family members; 2 were convicted of killing police or corrections officers; 5 women committed murders with a male accomplice on other women or children which involved rape, sexual abuse, or torturing the victims; and 2 women were found to be mass murderers. [FN92]

Violent tendencies, past criminal behavior, and a propensity to commit future crimes are other factors from which judges and juries tend to find substantial reason for executing both women and men. [FN93] Since most of the women on death row have manifested violent behavior, the difference in sentencing comes forth in prior criminal history. [FN94] “[F]emale defendants tend to have less significant prior criminal records, than do male defendants.” [FN95] Females not only “commit fewer crimes in general than men, but their crimes also tend to be less violent.” [FN96] According to the Uniform Crime Reports, over 14,000 men were arrested for murder and non-negligent manslaughter; compared with just over 1,400 women. [FN97] The bulk of women are arrested for crimes such as larceny, drug abuse violations, driving under the influence, and fraud. [FN98] This evidence strengthens the idea that there is not really an intentional gender gap on death row. The statistical information would lead to the argument that the gender gap is created, not because of chivalrous treatment, but because *223 women are not committing the crimes that would make them eligible for a capital sentence. This, however, would satisfy only one prong of the debate. It still leaves unanswered the question of why women are receiving either more lenient or more severe sentences for the crimes they have committed.

One such woman, whose crimes made her eligible for death row, is Karla Faye Tucker. [FN99] With her shocking crimes, she brought women murderers into the realm of sadism and random violence. [FN100] In the early morning hours of June 1983, after spending the day smoking pot, Tucker and her boyfriend, Daniel Garrett, went to Jerry Dean's apartment to steal his motorcycle. [FN101] Dean and his girlfriend, Deborah Thornton, were asleep when Tucker “‘put a pickax up to Jerry Dean's head and told him not to move, motherfucker, or you're dead.”DD’ [FN102] Instead of having mercy on Dean as he begged for his life, Tucker began to hit him with the pickax. [FN103] Once Dean had been killed, Tucker and Garrett discovered Thornton, who was “shaking in terror.” [FN104] “[T]hey pushed the girl down, threw her under the sheets, and told her if she wants to live to see daylight, then to be quiet ....” [FN105] The two then took turns “picking” at Thorton until she began to beg them to “‘go ahead and kill her because she couldn't take anymore.”DD’ [FN106] Garrett then “‘buried the ax into her throat,”DD’ [FN107] which is how her body was found the next morning by a friend. [FN108] Later, Tucker boasted to friends and to her sister of how she sexually “came” with every strike of the pickax. [FN109]

Tucker's crimes were ghastly and astonishing. The prosecutor successfully sought the death penalty, as the jury deliberated a mere three hours before returning with a verdict of death. [FN110] It was not the fact that a robbery was involved with the killings, nor was it the fact that the pickax was the instrument of death: Tucker received the death penalty because she was “““cold, outrageous,” boastful, and her “claim that killing the victims gave her orgasm” was too heinous a crime for a woman to commit. [FN111] *224 Murdering with a “pickax for [motorcycle] parts and then to gloat about deriving sexual satisfaction from the murder sounds evil. More than that, it sounds like male evil.” [FN112]

Tucker is a prime example of a female murderer who is male-like in her behavior, who is apt to be violent, and who acts of her own accord. [FN113] Simply stated, Tucker is the type of woman that society wants to punish and put to death. [FN114] Her crimes stripped her of her gender, took away her identity as a person, and placed her in a category of those deserving to die. [FN115]

Excerpt from:

Victor L. Streib, Rare and Inconsistent: The Death Penalty for Women, 33 Fordham Urb. L. J. 609, 620-27 (2006).

II. Death Penalty for Women Nationally [FN57]

Before turning to the Ohio cases of women executed and sentenced to death, this Article will first examine the national context of this practice. We know that women are much less likely than men to commit murder, essentially the only crime currently that might result in a death sentence. [FN58] In fact, women account for about ten percent of murder arrests nationally. At least some of these murder arrests occur, however, in jurisdictions that don't have the death penalty. In addition, certainly not all of the murders upon which these arrests are based are capital murders. [FN59] While we have fairly reliable data on the number of women arrested for murder in each jurisdiction during any one time period, these are only police data for their characterizations of the crimes committed. The data we do not have, however, would describe the number of these murders that were indeed capital murders, a determination made by prosecuting attorneys and not by the police. [FN60] We also lack comprehensive, reliable data on the number of murder cases in which capital charges are filed by prosecutors, plea bargained to lesser charges, or actually brought to capital trials.

Coming out the other end of this long, dark tunnel of the early stages of the death penalty process, we do know that women account for only two percent of death sentences imposed at the trial level. [FN61] This appears to be significant, in that ten percent of murder arrests were of women but only two percent of death sentences for murder are of women. The gender differential gets even worse: Women account for only 1.5 percent persons presently on death row and for only 1.1 percent of persons actually executed in this modern era (1973-present).

*621 A. Executions of Female Offenders

The actual execution of female offenders is quite rare, with only 568 instances in the 374 years from 1632 through 2005. [FN62] These are documented cases of lawful executions of females and exclude lynchings and similar deaths imposed upon females. Beginning with the earliest American colonial period, these 568 female executions constitute about 2.8 percent of all American executions. Documenting the older executions of female offenders is quite challenging, but we do have fairly complete documentation of these executions since 1900. From 1900 through 2005, only 0.6 percent (50/8339) of all executions were of women. Appendix A lists each of these executions by year and by executing jurisdiction.

During the past 106 years, nineteen states and the federal government have executed female offenders. This was approximately half of the United States jurisdictions that had the death penalty during that time period. They ranged in age from seventeen-year-old Virginia Christian in Virginia to fifty-eight year-old Louise Peete in California. In contrast, the entire northwest quarter of the United States has not seen any executions of female offenders since 1900. This northwest quarter consists of all states west of the Mississippi and north of the southern-most western states. These fifteen contiguous northwestern states are Colorado, Idaho, Iowa, Kansas, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming. Twelve of these fifteen northwestern states (excluding only Minnesota, Missouri, and Nevada) have never executed any female offenders in their entire histories. [FN63]

Comparing these post-1900 data with data from previous American eras reveals that this practice is even rarer now than it was in previous centuries. The current death penalty era began in 1973, even though it did not result in actual executions of any offenders until 1977. [FN64] The previous death penalty era was terminated by the Supreme Court's 1972 decision in Furman v. Georgia, [FN65] which in effect struck down all then-existing death penalty statutes. However, both Florida and Utah enacted new death penalty statutes before the end of 1972, and fifteen more states followed suit in 1973. For simplicity of comparison, this analysis marks the beginning *622 as 1973, allowing for a period of six months following the Furman decision for the various jurisdictions to reconsider the death penalty. In 1976, the United States Supreme Court ruled that most of these early-1970s death penalty statutes were constitutional. [FN66]

Actual executions began soon thereafter, with the first being that of Gary Mark Gilmore on January 17, 1977, in Utah. We finally saw executions of women offenders in 1984, and the last such execution as of this writing was of Frances Newton in Texas in 2005. All executions of female offenders in the current era are listed in Table 1.

Only eleven (1.1 percent) of the 1004 total executions from 1973 through 2005 have been of female offenders. This execution pace has changed recently, with only one (0.2 percent) of the 434 executions from 1973 to 1997 being a female offender. Since 1998, ten (1.8 percent) of the 570 total executions have been of female offenders. This recent (1998- 2005) execution pace matches almost exactly that beginning in 1900, so it appears that the 1973-1997 lull in executions of female offenders was atypical and that we have *623 now returned to our normal rate. Three women were executed in 2001, all in Oklahoma, the most executions nationally of women in any one year since 1953. The last woman executed, as of this writing, was Francis Newton in Texas on September 14, 2005.

B. Death Sentences Imposed Upon Female Offenders in the Current Era

A total of 155 death sentences were imposed upon female offenders from 1973 through 2005. Table 2 provides these data by individual year. These 155 death sentences for female offenders constitute only 2.1 percent of all death sentences during this period of thirty-three years. The typical annual death sentencing rate for female offenders during the last decade has been between two and seven sentences. The wide fluctuations in the number of women sentenced to death annually are unexplained by changes in statutes, court rulings, or public opinion.

*624 These 155 death sentences for female offenders since 1973 have been imposed by twenty-five individual states and by the federal government, comprising well over half of the thirty-nine death penalty jurisdictions during this time period. The top five states (California, North Carolina, Florida, Texas, and Ohio) account for almost half of all such sentences since 1973. Virginia, a leading death penalty state for male offenders, has imposed only one death sentence on a female offender since 1973. Virginia last executed a female offender in 1912 (Virginia Christian, also the last juvenile female executed in the entire United States). [FN67] Table 3 lists all of the jurisdictions that have imposed death sentences on women since 1973.

C. Women Under Death Sentences as of December 31, 2005

Of the 155 death sentences imposed since 1973, only forty-nine women remained under sentences of death in seventeen states and under federal jurisdiction as of the end of 2005. Table 4 below provides data describing the offenders and victims in these cases. *626 Over one-quarter (thirteen out of forty-nine or twenty-seven percent) of these forty-nine female offenders killed their husbands or boyfriends; and almost one-quarter (ten out of forty-nine or twenty percent) killed their children, grandchildren, etc. Two additional women killed both their husbands and their children. The present ages of these forty-nine female offenders range from twenty-one to seventy-two years old, and they have been on death row from two weeks to nearly twenty years.

More information about each of these forty-nine cases can be found in the Appendix to this Article. This Appendix proves brief case summaries about each of the women, their crimes, and their death sentences. Also indicated is each jurisdiction's last execution of a female offender. Some of these women are on death row in states that have executed women in the current era, including Alabama (2002) and Texas (2005). Others are in states that have not engaged in this practice in some time, including California (1962) *627 and Pennsylvania (1946). For still others of these states, the execution of female offenders is at most a distant memory, including Kentucky (1868) and Tennessee (1837). Two states, Idaho and Indiana, currently have women on death row but have never actually executed a female offender in their entire histories.

Excerpt from:

Andrea Shapiro, Unequal Before the Law: Men, Women and the Death Penalty, 8 Am. U.J. Gender Soc. Pol'y & L. 427, 459 -67 (2000).

*460 D. Equal Protection Analysis

1. Arizona v. White [FN250]

In Arizona v. White, [FN251] defendant Michael Ray White appealed his conviction of first-degree murder and subsequent death sentence. [FN252] Among the fourteen issues on which White appealed, [FN253] he claimed that his equal protection rights were violated because his female co-defendant, who was convicted for the same crime, received life imprisonment instead of the death sentence. [FN254] White argued that this was the result of sex discrimination because, despite the fact that women commit ten percent of all murders in Arizona, [FN255] no woman had received a death sentence under the then current Arizona sentencing guidelines. [FN256]

*461 The Arizona Supreme Court disagreed with White's contention, [FN257] holding that the sentencing jury's finding of an aggravating circumstance, with no finding of mitigating circumstances, was enough to qualify the defendant for the death sentence. [FN258] In contrast, the female co-defendant's jury did find mitigating circumstances and thus recommended leniency for her. [FN259] Therefore, the court found no merit to the defendant's equal protection claim. [FN260] The court supported its finding by referring to an earlier case in which it had defined equal protection "as it applies to capital sentencing." [FN261] "Equal protection of the laws here means only that the death penalty may be applied to all persons in the state in a like position . . . . Equality of treatment does not destroy individualization of sentencing to fit the crime and the individual persons convicted of the same crime can constitutionally be given different sentences." [FN262] However, there is evidence throughout history indicating the unwillingness of those sitting in judgment to convict women of violent crimes or felonies, or to impose a prison or death sentence on any such convicted woman. [FN263]

Unfortunately, based on such holdings as in McCleskey v. Kemp [FN264] and Arizona v. White, [FN265] it is unlikely that the Supreme Court will hear *462 an equal protection challenge to the death penalty based on sex discrimination anytime in the near future. [FN266] The Court has implemented fairly insurmountable barriers to succeeding with such a claim. [FN267] This, however, is not reason enough to stop exploring the ways in which such a challenge might be framed. [FN268] As one author notes, there is a "disconnect between constitutional theory and legal practice" [FN269] that infects the current United States justice system. [FN270] Legal practitioners should seek to eliminate this disconnect. [FN271]

For purposes of the Equal Protection Clause, the state death penalty statutes do not, on their face, discriminate on the basis of sex. [FN272] They are seemingly gender-neutral with no suspect classifications [FN273] that would prompt the Court to review them with a heightened level of scrutiny. [FN274] The Court has curtailed potential claims of sex discrimination with its two established requirements for such a finding: that a complainant be a member of a suspect class, and that the state intended to discriminate when it developed the challenged statute. [FN275] It has been argued that courts should abandon *463 "the requirement of a showing of discriminatory purpose, in favor of a principle recognizing a law's discriminatory impact as a constitutional harm requiring justification by the state." [FN276] If state courts and the Supreme Court shifted focus from the underlying intent of the law to the actual impact and effect of the law, an equal protection challenge to the death penalty based on sex discrimination could be successful. [FN277]

2. Title VII of the Civil Rights Act of 1964 [FN278]

Barring the success of an equal protection challenge, a defendant might currently look to Title VII of the Civil Rights Act of 1964 [FN279] for guidance in mounting a sex discrimination argument. [FN280] The Court stated in McCleskey that the use of statistics as proof of discrimination in Title VII cases did not translate into their use in capital sentencing decisions. [FN281] The Court's argument, however, is not persuasive and the dissent in the case argued that the use of statistics is valid in both types of cases. [FN282]

*464 Current equal protection law exists in the sphere of employment law and is pursued largely under Title VII. [FN283] Sex discrimination challenges may be asserted under Title VII through either a showing of disparate treatment [FN284] or disparate impact. [FN285] It appears from the holding in Arizona v. White [FN286] that a disparate treatment argument is not a winning one. If it is accepted that equal treatment at trial does not guarantee equal treatment at sentencing, [FN287] then arguing that one defendant is being treated differently from another will be ineffectual.

A disparate impact argument seems more ideal for challenging the death penalty on grounds of an equal protection violation based on sex discrimination. Seemingly gender-neutral death penalty statutes are resulting in vastly greater numbers of convictions and executions for men than for women. [FN288] Statistics similar to those documented throughout this Comment have been used to prove race *465 discrimination in hiring practices. [FN289] Courts have held use of statistics insufficient in cases asserting sex discrimination in the workplace. [FN290] The argument faces the even greater challenge of overcoming the Supreme Court's rejection of statistical evidence to prove racial discrimination in McCleskey v. Kemp. [FN291] However, in light of the fact that McCleskey is a plurality opinion, and Justice Powell, who authored the opinion, changed his mind about using the death penalty, [FN292] a disparate impact argument based on illustrative statistics has the chance of succeeding.

In order to establish a prima facie case of disparate impact under Title VII, the complaining party must be a member of a suspect class. [FN293] For purposes of Title VII, the best way to satisfy this requirement would be to have a Black man file the challenge because he would be considered a member of a protected class, and his case would therefore be subject to heightened scrutiny [FN294] by a court. A Black man might one day assert a successful challenge based on both race and sex discrimination.

A member of a suspect class who is discriminated against on the basis of immutable characteristics presents a persuasive case. The Supreme Court recognizes only a small set of job-specific factors as legitimate when opportunities are limited; immutable characteristics such as skin color or sex are rarely considered legitimate limiting factors. [FN295] It is arguable that being male and being Black are both immutable characteristics. [FN296] The opportunity limited for this *466 hypothetical defendant is that of living a long life. [FN297]

Given the fairly short shrift afforded Michael White's argument by the Arizona court, it is unlikely that an argument premised on sex discrimination, that the death penalty violates equal protection guarantees, will succeed in the near future. [FN298] Gender-neutral, but vague, death penalty statutes leave room for judges and juries to act on feelings and emotions. [FN299] Such feelings and emotions produce different outcomes in death penalty cases for men and women. [FN300] There is much debate about whether special treatment should be accorded some defendants (and, by default, not others). [FN301] Such debate illustrates the Supreme Court's threshold of "willful and knowing." [FN302] If there is open debate about treating defendants *467 differently, can the Court really continue to support a claim that people do not "willfully and knowingly" do so?

Excerpt from:

Claudia Dreifus, Women on Death Row, Ms. Magazine (2003) available at .

Sonia Jacobs, 56, a tiny, pepper-haired woman who makes her living as a yoga instructor, is sitting with me in a Los Angeles luncheonette, ordering breakfast.

"The cranberry, we don t have any low-fat cranberry muffins," a waiter informs us.

"Okay, fatty cranberries," smiles Jacobs, who likes to be called by her nickname, "Sunny." “How fatty can a cranberry be?"

Sunny Jacobs doesn't sweat the small stuff. In 1976, when her son Eric was 9 and her daughter Tina, 15 months old, she was convicted of killing two police officers in Florida and sentenced to be the first woman to die in the electric chair under what was then a newly reinstated capital punishment law.

She subsequently spent five years in isolation on Florida's death row and a total of nearly 17 years in a maximum security prison. Her children were taken from her and her common law husband, Jesse Tafero, convicted of the same murders, was put to death in 1990 in an electrocution so grizzly that his head caught on fire.

Now, it is true that Sunny was present at the crime, though in the most passive way. In February of 1976, when she was 28 years old, she'd traveled to Ft. Lauderdale, Florida, from North Carolina where she lived, to meet up with Tafero, Tina s father, an ex-con who she'd fallen for. I didn't know about his background when I met him, she maintains, while picking on her cranberry muffin. "And then, once we were together, it was, you know, love."

In Florida that day, an acquaintance of Jesse's, a career-criminal named Walter Rhodes, offered to drive Sunny, Jesse, and the children to West Palm Beach, where Sunny hoped to pick up some money wired there by her parents.

En route, they were stopped by two police officers, who spotted a gun on the floorboard by Rhodes's feet. Rhodes panicked and shot the officers. Sunny, in the back, covering her children like a human shield, didn't even see the killings. The murders, she says, happened in a blink of an eye.

Almost immediately after their arrests, Rhodes cut a deal with the prosecutor. In exchange for a lesser, second-degree murder charge, he agreed to testify that it was Jesse and Sunny who'd done the killing.

Though Rhodes would fail a lie detector test, and while he was the only one of the trio who tested definitively positive for firing a gun, the authorities committed themselves to his scenario. They illegally kept from the defense Walter Rhodes's polygraph report that contradicted his trial testimony; in fact, the prosecutor told the press that he gave Rhodes a deal because the man had passed his polygraph.

Meanwhile, Sunny and Jesse were painted in the media as a kind of "Bonnie and Clyde" team, thrill-seekers who killed for the fun of it.

Jesse, the first to go to court, was quickly found guilty and sentenced to death. At Sunny's trial, the most persuasive evidence the D.A. had was Walter Rhodes's testimony. To make a defendant with no previous felony convictions eligible, as the phrase goes, for the death penalty, then-Assistant District Attorney Michael Satz brought in a surprise witness: a young woman detained on drug charges around the time of Sunny's arrest. At the D.A.'s behest, Brenda Isham would claim in court that, Sunny, her cellmate for a brief while, had confessed to the killing, said she enjoyed it, and would do it again.

Sunny can recall sitting in the Broward County courtroom numb: "They are talking about you and you don't know what the heck they're talking about. You say to the lawyer, 'Say something, he's lying.' He says, 'Shhh, shhh... don't disturb the proceedings.' And then, when they brought this girl in, I thought, 'This is a joke. Everybody's going to know that you're not going to sit down and tell your life story to some girl who came into jail on drugs one night.'"

About that shushing lawyer: He was an underpaid, court-appointed attorney. "I didn’t exactly have O.J. Simpson's 'dream team,'" she sighs. "My parents were told a private lawyer would cost six figures. Who has that? They could have mortgaged their house, but the feeling was, 'You didn't do anything, there's no evidence, the court will give you an attorney. It's just a technicality. You go to court. They'll see you didn't do anything and you'll go home. We were naive. We believed in the system."

As luck would have it, the system assigned her a judge, Daniel Futch, famous throughout Florida for decorating his desk with a sparking model of the electric chair. Up against such powerful forces, Jacobs, guilty at worst of loving unwisely, found herself convicted of two murders she hadn't committed. The jury recommended a life sentence. Judge Futch overruled them and ordered death by electrocution.

Thus Sunny entered history as the first woman sentenced to die after the Supreme Court reinstated the death penalty. Since that 1976 day, some 131 women have been similarly condemned; 10 have been executed nine in the last five years. One knows some of their names: Karla Faye Tucker, Wanda Jean Allen.

For the first five years of her incarceration, Jacobs existed in total isolation in a tiny cinderblock cell. Her guards were prohibited from even speaking to her.

While she waited for her appeals to wend their way through the courts, Jacobs held herself together by practicing yoga and writing to Jesse and her children. At night, she dreamt of Ethel Rosenberg.

A break, a big one, came in 1982, when the Florida Supreme Court overturned her death sentence, converting it to life-imprisonment. Now, Sunny was released into the general population of the Broward Correctional Institution, where she noticed something chilling: The women who were in for murder, normally, were there because they'd been involved with a man.

Ultimately, it would take a woman to help Sonia Jacobs win back her future. In 1990, a childhood pal of Sunny's-- West Coast filmmaker Micki Dickoff --heard about her old friend's situation.

Dickoff became obsessed with the case and spent the next two and a half years investigating it. She used her filmmaking skills to create computer graphic storyboards proving that Walter Rhodes could have fired all the shots. Then, she convinced an ABC news crew to go to Wisconsin, where Brenda Isham the damaging jailhouse witness now lived. Before network cameras, a tearful Ms. Isham told of how the prosecutor had encouraged her to lie about what Jacobs said to her in 1976.

With all this new information and with the reality that Walter Rhodes, in his jail cell, was telling new versions of the old story the Federal 11th Circuit Court of Appeals overturned the original conviction.

Thus, on October 9, 1992, Sonia Jacobs strode out into the Florida sunlight, a liberated woman in every sense of the word.

She is, to this day, one of only two condemned women-- the other is Sabrina Butler of Mississippi who've managed to return to what inmates call, "the free world."

As this is being written, there are 44 women sitting on death rows in some 14 states, less than 2% of the total among the condemned. In the 27 years since the Supreme Court revived capital punishment, ten women have been put to death. As the nation continues to debate the use of executions as a crime prevention strategy, the fate of these women is mostly absent from public discussion. They are a policy afterthought, as invisible in their potential deaths as they were in their lives.

The broad arguments against capital punishment, male and female, are widely known: It is applied unequally to the poor and unequally by race; innocent people have likely been executed; it does nothing to deter crime; it brutalizes all of society by heightening the general ambiance of violence. But when one examines the stories of the women on death rows around the country, all the rest seems doubly true. The females who draw death sentences seem to be the poorest of the poor, the most socially marginal, the least able to protect themselves in court with a well-funded and coherent defense.

And some of the women are doubtlessly innocent. Over 100 people have walked free from death row, victims of wrongful convictions. We can see the fallibility of the entire system by looking at the men. Since 1992 lawyers Barry Scheck and Peter Neufeld of the Benjamin N. Cardozo School of Law have used DNA testing to exonerate 12 men who'd received death sentences and 21 others who were convicted of homicide but received lesser sentences. In many of their cases, they were able to show they were absolutely not the perpetrators of crimes they'd been convicted of. There's no reason to doubt that the wrongful conviction rate for women is just as high, said Mr. Scheck.

For a great many of the women, however, the big issue is not so much wrongful conviction, but over-prosecution such things as the upgrading of charges and the ignoring of mitigating circumstances such as self-defense or a history of abuse or even mental illness.

The ACLU is conducting a study, due out later this year, on women on death row and the systemic elements of unfairness in how they got there. Over-prosecution-- that fact of death in so many female capital cases-- is being looked at, and Diann Rust-Tierney, director of their Capital Punishment Project, has indications it's widespread.

This reporter spoke with four different capital defense lawyers, who each noted that when it comes to women on death row, over-prosecution is one factor they often share. A lot of the women are overcharged, reports Aundre Herron, a staff attorney for the California Appellate Project, which files appeals for the condemned. A case that probably was manslaughter or second degree murder is charged as a capital crime. It should have been charged as a lesser crime because, maybe, the person's mental state wasn't right. That makes her an easy target for an ambitious prosecutor.

What makes these women such easy targets is often their unconventionality. Regardless of the validity of claims of mitigating circumstances, juries will be less sympathetic to a woman who's lived an untraditional lifestyle or committed a crime thought to be unwomanly. Perhaps this is because women, regardless of race, are often punished for being rebellious, sexual, or violent, or for otherwise breaking the expectations of gender.

"If there is a common thread that ties the women on death row together, it is the fact that they have not lived up to some societal norm," suggests Kathleen O'Shea, a former nun who edits the newsletter "Women on the Row" and who has developed an informal ministry among them. O'Shea is also the author of the most authoritative academic textbook on the subject, Women and the Death Penalty in the United States: 1900-1998. "As a society, we continue to demand that women behave in a certain way and we punish women who do not. This is clearly illustrated by the legal term 'unfit mother'. No man has ever stood before a judge, or served time, or been executed for being an 'unfit father.'

Almost 20 years after her trial, Sunny Jacobs would meet a man who'd sat on her jury. "He said that one reason they wanted the death penalty, she recalled, was that they wanted to make an example of a woman, and that would send a clear message to those criminals out there."

Though the facts in her case were different from Ms. Jacobs's, Brittany Marlowe Holberg's status as a prostitute and crack addict were central to how an Amarillo, Texas jury reacted to her claims of self-defense in her 1998 murder trial.

She'd killed an elderly man, A. B. Towery, 80, and had left behind a horrible and bloody crime scene 58 stab wounds on the dead man. Holberg, then 25, claimed Towery was a client who'd attacked her; she'd been defending herself, there had been a struggle, and in a cocaine-induced madness she had freaked out.

Though she presented supportive evidence for her story; though there was testimony to the victim's violent history with his ex-wife and children; though a psychiatrist testified that Brittany was suffering from battered wife syndrome, post-traumatic stress disorder, and a cocaine addiction, the jurors found it hard to believe that an elderly citizen could have employed a prostitute.

In doing this, they dismissed the underpinnings of Brittany's defense. "My father didn’t even like the word ‘sex’; he was old fashioned," one of Mr. Towery's son swore in the courtroom.

Never mind that a former prostitute, Diana Eileen Wheeler, testified that she'd had something like ten dates with Towery in 1994; she'd even taught him how to clean the stains off of his Mel Mac dinnerware. Never mind that elderly men, even puritanical ones, have been known to employ the services of sex workers. The prosecutor just rolled his eyes to the jury in disbelief, an action that seemed to be enough to discredit whatever Wheeler told them.

Once the D.A. had his conviction nailed down, he won a death sentence against Brittany, who had no prior record of violence against anyone, by bringing in jailhouse informants who swore that she had made all manner of bloodthirsty confessions to them.

Today, Brittany Holberg is 30, and one of eight women awaiting execution on the female death row at the Mountain View unit of the Texas prison system in Gatesville, an aptly named town with six different jails within it. The Mountain View unit is where the condemned women stay while their appeals wind their way through federal and state courts. Should their appeals fail, they are sent down to the men's prison in Huntsville, some 180 miles away, where they are put to death by lethal injection.

Ms. Holberg is currently contesting her conviction through writ of habeas corpus proceedings, charging ineffective representation and prosecutorial misconduct at trial. Soon after her appeals lawyer filed her writ, the Randall County D.A. asked to be recused from arguing the case. According to the Amarillo Globe-News, Holberg's two- inch-thick habeas corpus filing includes several affidavits from women who admit to being convicted of crimes, alleging [the D.A.] and his employees attempted to make deals to elicit false testimony against Holberg.

To visit with Brittany Holberg, a reporter has to apply to the Texas Department of Criminal Justice, obtain the inmate's permission, and agree to a dress code that includes no halter tops, no mid drift [sic] exposure, no low-cut blouses, etc.

Ms. Holberg on the day we meet is wearing standard prison whites and is sitting in an absolutely centered position within a glass and steel box at a special visitor's center within the women's prison. Though she is presented like a specimen in a museum-case, there s something moving about how Brittany has composed herself. Her hair and make-up are carefully done; her upright posture bespeaks a quiet defiance. Amazingly, after hundreds of interviews with world leaders and film stars, I am struck dumb by the setting. I've never interviewed a person in a box before. I find it hard to be talking to an individual about the conditions of her planned death. She's healthy. She doesn't have cancer or AIDS. But there's a huge machine working to scientifically, legally, kill her.

Brittany is uncomfortable too. She doesn't know me from Eve, but I'm asking her about her deepest thoughts and nightmares, while the prison officials are, no doubt, listening in.

At first we chat-- I swear-- about the weather, and then, guardedly, about her existence before death row. Brittany says her parents were hippie-drugsters, but she doesn’t blame them for her fate. She made a teen-aged marriage and has a beautiful daughter from that, Mackenzie, now age 10, lives with her father in Tulsa.

At 20, Brittany left him, moved back to her hometown of Amarillo, fell in with a bad crowd, and got hooked on hard drugs. To support herself and her habit, she began working in the sex trade. Because of the appeal, I can't talk about that night, Brittany whispers, referring to the crime. I wish I could talk to you about it. I would, I would tell you everything."

The day after her jury came in with their lethal sentence, Brittany was transported to the death row at Gatesville: "I can't even explain to you, she sighs, what it's like to have someone say, 'you are sentenced to die.' It's words. You feel helpless, numb. It's almost as if your emotions shut you down."

For weeks, Brittany lay catatonic in her cell, staring at the wall, not quite believing where she'd landed. Eventually, I made myself get up. I learned how to stop focusing on where I was, whether it was right or wrong, because all that doesn't matter. The desire to live was what mattered, not the reality of her surroundings. "I don't dwell everyday on the fact that I'm on death row," she tells me. "I would go mad if I sat here everyday and thought to myself, 'The State of Texas wants to kill me. They want to put a needle in my arm and they want to kill me.' So I have learned to take every day one little step at a time."

Having a daughter gave her impetus to pull herself together. Mackenzie is the reason I am where I am right now, mentally, Brittany says, smiling. "I cannot live, and I cannot die, knowing that my child has to live with the horror that these people tried to say about me, the story of the crime, their depiction that I was a cold-blooded person."

Leaving a decent record for Mackenzie, seeking to be fully present in whatever time she had left, plus detoxifying from the cocaine, transformed this woman.

When one meets Brittany Holberg, she seems difficult to decode. She is muted and, at the same time, open. Though she is poorly educated, there is a thoughtfulness to her. It was carelessness about her very being that landed her in Gatesville, but today, there's nothing careless about Brittany Holberg. Brittany spends her days reading, writing to her family, and working on her appeals. And she keeps up with the death penalty debate out there in the free world.

Indeed, she closely followed the situation of the late Gary Graham (aka Shaka Sankofa), another Texas inmate, executed in June 2000, who many thought innocent. "When they'll execute someone under those conditions, "Brittany notes, "I realized, at that point, it doesn’t matter whether I'm guilty or innocent, this has now become a very political thing... At this point, they're just killing to kill."

When, after an attempted breakout by some men on the Huntsville death row, Texas imposed new harsher conditions on all death row inmates, Holberg wrote to Kathleen O'Shea's newsletter:

"Since this occurred, you would not believe the treatment we are given. Just two weeks ago, we were informed that not only would we be strip-searched for our one hour of recreation a day, but also when taken for a shower. So for the last two weeks, we have been stripped no less than six times a day. This is every day, sometimes at times like 2:30-3 a.m., and we never leave the building or our cells for that matter."

It took guts to complain. And the authorities didn't like it. But Brittany Holberg spends a lot of time seeking small justices. Spend a few hours with Brittany, and one begins to think that inside prison, this hard luck girl/woman finally grew up. Unless she is totally shucking me, this is not a vicious person.

As she speaks about the possibility of a mediation process with her victim's relatives once her appeals are settled, the idea of killing her seems utterly pointless. Who could it possibly serve? No one, except perhaps the prosecutor who numbed the good citizens of Amarillo into feeling a bit safer about crime when he brought them a death sentence.

Brittany is the symbolic witch they'll all burn in the hope of expiating a larger, far more complicated problem from their midst. By sacrificing her, they won't solve that problem. In fact, they will extend the cycle of violence, and produce a whole new generation of crime victims among Brittany's relatives. If Brittany is executed, then little Mackenzie will be left to join the ranks of the families of murder victims. Witch-burning or no, the killing will be just as traumatic for her, an innocent, as it was for A.B. Towery's children.

As I write this, there are some 3,514 men and women on death rows in 37 states from California to Texas to Florida. Almost all of them have mothers and wives, partners, lovers, daughters, children, friends, grandmothers. Count the numbers. This violent circle reaches far and wide. And it is here where women bear the heaviest burden of this deadly epidemic. They bear it stoically, often silently. But the cost to them is huge.

I am sitting in a Delaware restaurant with Barbara Lewis, a Wilmington pharmaceutical worker whose son, Robert Gattis, 41, has been languishing in jail for almost 13 years, 11 of them on death row.

Little Delaware, the second smallest state in the union, has the highest per capita execution rate in the country topping that of Texas and Florida. This is a state that had public flogging laws on the books until the 1960s.

"My son has had six dates set to die," she tells me over coffee. Ms. Lewis's sensitive face reflects her 60 years. "That's been a reality since he was sentenced. They told me they were going to do it how and when. There aren't words to describe this. No one understands what it is like for somebody to bind your child and put him to death. There's no clean way to do it. It's killing me, slowly."

For more than a decade, Ms. Lewis's existence has centered on her weekly visits to Robert. She is his lifeline to the outside world, his last connection to humanity. She has three other children, several grandchildren and a job she must keep, lest the entire family go down in flames. Her bedtime prayer is, "Oh Lord, help us all to keep going."

Lewis says she feels society blames her for her son's deed. She had to endure the unthinking glee with which her co-workers greeted the execution of Timothy McVeigh; some, as if it was a football game. Most nights she doesn't sleep. For a while she took to working the night-shift as a way of doing something useful with her anxiety. But what do you do with an endless parade of colleagues, neighbors, church parishioners, who loudly proclaim their support of capital punishment? "When you say that, you're saying you want my son dead," Barbara Lewis always tells them.

And the answer comes back: "Barbara, we weren't talking about you!"

But it is about her. If all fails, it will be Barbara Lewis who will have to comfort her son in the days before the execution. She'll have to be present at that terrible death moment so that he doesn’t die without someone nearby who loves him. Most certainly, it will be Barbara who will have to bring her Robert's body home from the execution chamber, and it is she, when it is all over, who will have to bury the child she once gave life to.

Meanwhile, what Ms. Lewis sees when she visits her son is devastating. "He is housed in a 24-hour lock up-- 45 minutes of recreation three days a week," she explains in a whisper. "He needs interaction with other human beings. It's taking its toll on him. He's become morose. You treat people like animals and you get what you pay for."

Now, Robert Gattis's crime was horrible in a fit of rage, he shot his estranged girlfriend, Shirley Slay. Ms. Lewis partly blames herself. She'd lived in an abusive marriage for many years. She wonders now if her son didn't see too much as a child.

The facts in Gattis's case read like those in a hundred other capital cases that end in a death sentence: a crime, court appointed defense lawyers working at $60 an hour, some turns of bad legal luck.

Gattis's special legal misfortunes began, Ms. Lewis believes, when a local prosecutor was criticized for being lax about black-on-black crime. It's her view the Gattis case was used to disprove the accusation. Thus what might have been manslaughter in another locality or time was instead murder. The second piece of misfortune was that Gattis was tried around the time a new state law was enacted transferring death penalty decisions from the hands of 12 unanimous jurors to a single judge. Gattis's judge exercised his newly-won powers by ordering an execution.

During the trial, Ms. Lewis tried to reach out to the victim's family, but her efforts at reconciliation were thwarted by the prosecutors who had a stake in the enmity between the two families. There's not a day that I don't think about that family, she says.

The current status of Gattis's case, and life, is that all of his appeals have been exhausted. His last legal hope lies in Delaware's courts reviewing whether recent decisions on the constitutionality of judge sentencing apply retroactively (since his crime was committed under the old law and tried under the new, now unconstitutional, one). If it does not go his way, he will be given a new, final, date to die.

Somehow-- I can't imagine how-- Barbara Lewis just keeps going. She goes through periods of nervousness, depression. Several of her daughters ' children live with her, and she worries, perhaps more than the average grandmother, about the violence they see on television.

Remarkably, whenever she can, Barbara Lewis tries to stop the death penalty for everyone. With her best friend (my chosen sister), Anne Coleman, whose daughter was murdered, they are a two-woman lobby against Delaware's state-sponsored killing. Together they've founded Because Love Allows Compassion, which offers support to both crime victims’ families and to the families of death row inmates. "I also hope that our communities can learn to accept that killing is a tragedy on all sides, "she once told a reporter, "There is never just one set of victims."

Nonconformists, caretakers, victims alike: The circle of violence never ends. What Barbara Lewis, Sunny Jacobs, and Brittany Holberg know, and what the majority who still support the death penalty have yet to learn, is that capital punishment kills the humanity in us all.

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