Women and the Death Penalty: A Feminist/Legal Perspective

Roslyn Muraskin, Long Island University - C.W. Post

ABSTRACT
The decision of Gregg v Georgia (1976) led to the continuation of the death penalty in the United States. To be included were women who had murdered and/or committed the most heinous of crimes. Capital punishment is a "hot" item whose merits are continually debated among scholars. Though we are the only Western civilization to utilize such a penalty, capital punishment is part of our national crime control policy. During the years 1930 - 1967 statistics on lawful executions tell us that a total of 3,859 executions had occurred including 32 women. Such statistics do not include extra-judicial executions, i.e., lynching that accounted for at least 4,730 additional deaths between the years 1882 and 1952. According to Carroll (1997), the disparity between the risk of male and female execution tends to support the belief that there exists "a chivalrous disinclination to sentence women to die" (Rapaport, 1990, p. 504). No gender-based theory boasts the long and exhaustive support that race or class based theories enjoy, even though theories based on race or class may not consider gender-centric causative factors unique female criminality. Under the theory of chivalry, women appear to be safeguarded by traditional and protective notions of femininity, which preclude jurors from seeing women as "death eligible" despite the vicious nature of the act with which they are charged (Carroll, 1997; Schulberg, 2003). According to Carroll "gender assumptions that stereotype women as being weak, passive, submissive, and dependent on men as viewed as creating a protective shield that makes females less attractive to imprison and less eligible to execution" (Schulberg, p. 420). As noted "it's like a girl playing on the football team. Knocking her on her butt doesn't give you the same thrill as it would if it was a big guy. The death penalty is partly man against man" (Schulberg). Such a notion has also been echoed by Leigh Beinen, law professor at Northwestern. It is Beinen's belief that "few women face execution because of the symbolism central to capital punishment. Capital punishment is about portraying people as devils, but women are usually seen as less threatening" (Schulberg). There exists as well the evil woman theory which states that a female "who acts particularly violently, or in gender-defying or forbidden ways, is denied the protections of gender afforded others of her gender" (Schulberg), thereby making her more eligible for the death penalty. If a woman is to fit this model she must violate the important social values by her commitment of criminal acts, thereby acting in an "unladylike" manner. This allows the judges and jurists to forget about women being the "gentler sex." Supporters of both the chivalry and evil women theories, appear to agree that the death penalty "really acts to enforce the outer bounds of acceptable feminine behavior by marking gender-acceptable boundaries" (Schulberg, p. 421). In order to be executed a murderer represents the power of evil. Women, who historically were thought not to descent to such levels, would theoretically rarely be put to death. It appears that it is only the rare women "and the rare act of evil by women that is sufficiently powerful to make executing her [that] reassures us about our own personal safety" (Schulberg).

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Updated 05/20/2006