Executions in the Modern Era: Women on death row and gender bias concerns
Since the Supreme Court of the United States allowed capital punishment to resume in 1976, only fourteen women have been executed, including Suzanne Basso last month.
Death Row Photo by Jimmy Emerson
On February 5, 2014, fifty-nine-year-old Suzanne Basso was executed in Texas for killing her boyfriend, Louis “Buddy” Musso, in 1998. According to the Texas Department of Criminal Justice, Basso lured the mentally disabled man from New Jersey to Texas under the pretense that she would marry him. Prosecutors introduced evidence that Basso had made herself the beneficiary of Musso’s insurance policies and had taken over his Social Security benefits. Basso turned out to be the ringleader of a group that tortured and killed Musso. Between Basso and her five co-defendants, she was the only person to receive the death penalty.
Basso’s lawyer, Winston Cochran, appealed her execution at the final hour by arguing that she was mentally incompetent. Basso had a long history of mental illness and delusions, and she was physically and sexually abused as a child. Although these circumstances may have led to a lesser sentence, they were not mentioned at trial for reasons that are unknown. After several state and federal appeals, a judge ruled Basso was mentally competent enough to proceed with execution.
Between 1973 and 2012, only 178 women were sentenced to the death penalty, compared to 8,375 men.
The execution of Basso and other female death row inmates calls into question the likelihood that women on death row will actually be executed. Texas and California currently have the most women on death row, but while Texas has executed two women in the past year alone, California has not executed a female inmate since 1962. Prior to Basso, Kimberly McCarthy was executed in June 2013 for the 1997 robbery and murder of her neighbor Dorothy Booth. In North Carolina, where the death penalty was only recently reinstated, there are currently two female death row inmates; however, a woman has not been executed in the state since 1984.
Although each state’s death penalty laws are different, and the number of executions of female inmates varies between states, one thing remains constant from state to state: significantly more men are sentenced to death than women. Between 1973 and 2012, only 178 women were sentenced (pdf) to the death penalty, compared to 8,375 men. Women, therefore, constitute roughly two percent of all death row inmates, which seems vastly disproportionate. However, there are many other factors to consider besides gender alone.
A major hypothesis offered in explanation of the low percentage of female death row inmates is the chivalry or paternalism hypothesis. Proponents of the chivalry hypothesis suggest that Americans have a “chivalrous disinclination to sentence women to die.” A study (pdf) by Steven and Naomi Shatz indicated that women are stereotyped as weak and passive, and in need of male protection. Because of these perceived gender biases, juries are reluctant to send women to death row. Yet, in cases where the victim was a woman, the death sentence rate was 10.9%, seven times the rate when the victim was a man.
“[W]omen are represented on death row in numbers commensurate with the infrequency of female commission of those crimes our society labels sufficiently reprehensible to merit capital punishment.”
Elizabeth Rapaport, Professor at the University of New Mexico School of Law, argues that there are three legitimate factors (pdf) which influence imposition of the death penalty: prior criminal record, offense seriousness, and degree of culpability. These factors are critical in explaining the percentages at which men and women are sentenced to death. Although she recognizes that there are cultural inhibitions against the deliberate killing of women, she argues that women rarely commit the kind of murders that are subject to capital punishment. Women on death row are overwhelmingly guilty of domestic violence and tend to kill spouses, lovers, children, and family members—as opposed to strangers—and women generally receive less severe punishment for these crimes. 1
Rapaport contends that “women are represented on death row in numbers commensurate with the infrequency of female commission of those crimes our society labels sufficiently reprehensible to merit capital punishment.” In supporting her hypothesis, she explains that few women are eligible for capital sentences because “[W]omen who kill are more likely than men to kill family and other intimates in anger rather than to kill for a predatory purpose. Predatory murder is committed to gain some material or other advantage, in contrast with killing that appears to be stimulated by powerful emotion.”
Although death penalty statutes do not specifically include gender as a factor to be considered, such factors may inherently encourage the capital punishment of male offenders.
Current death penalty statutes provide aggravating and mitigating factors that may significantly affect the imposition of punishment, including prior criminal history. Women on average possess very different criminal histories than men. Male murderers are four times more likely than women to have a damaging criminal history that would persuade a prosecutor to seek capital punishment and would influence a jury to impose a death sentence. Although death penalty statutes do not specifically include gender as a factor to be considered, the factors that are included may inherently encourage the capital punishment of male offenders.
For those men who have received a death penalty sentence, appealing the sentence based on gender discrimination and succeeding is highly unlikely. The Supreme Court of the United States established the standard of proof required to appeal a death penalty sentence based on racial discrimination in McCleskey v. Kemp. If the same standard of proof for racial discrimination were also applied to gender discrimination, male offenders would have the burden of proving the existence of purposeful discrimination that actually resulted in a discriminatory effect.
In the modern era of executions, continuing to track death penalty statistics across gender lines and recognizing other factors that affect capital punishment will be important in considering whether gender bias does in fact play a role in the imposition of the death penalty.
