Criminal Justice Section
Criminal Justice Magazine
Volume 16, Issue 1
Sentencing Women to Death
By Victor L. Streib
Within criminal justice, death penalty cases are the most complex, the most labor intensive, and the most expensive. They are the only criminal cases literally to raise life-and-death matters. Criminal defendants in death penalty cases typically are portrayed as monsters, striking fear into the hearts of the citizenry and sparking cries of "off with his head!" Our valiant champions of law and order are cheered as they rid the world of this frightening evil. Aspiring politicians trumpet their support for the death penalty as proof of their worthiness to hold office, and woe be unto those who are "soft" on crime.
But what if the condemned murderer is a murderess? Death penalty defendants almost always are men, but occasionally we see a woman or even a girl being pushed toward the death chamber. Does this sole factor-the sex of the offender-change how the system works? If it is heroic to kill the malicious, malevolent male, is it simply brutish to do the same to his twin sister?
Women awaiting death
It appears that female offenders are treated differently from male offenders in death penalty cases. No researcher has all the data necessary to identify the extent and precise sources of this disparity, but what we do know leads to some very strong suspicions. Women account for about one in eight (13 percent) murder arrests, one in 72 (1.4 percent) death sentences, and one in 140 (0.7 percent) actual executions. This aggressive diversion of women arrested for murder from actual execution is nothing new. Of the more than 8,000 persons executed since 1900, only 44 (0.5 percent) have been women.
Women on death row today are rare, but some striking examples do exist. Arizona's Doris Carlson was sentenced to death on March 31, 2000, for the contract killing of her invalid mother-in-law as she lay helpless in a nursing home. Carlson apparently hoped to solve her financial problems by getting the victim's trust fund. Only seven days earlier, Kentucky had sentenced Virginia Caudill to death for the robbery and murder of a 73-year-old black woman. Caudill and her codefendant are both white, making this a nearly unprecedented case of a white woman condemned for killing a black victim.
From an overall historical perspective, women who kill their own children are almost never sentenced to death. However, California recently seems determined to change this pattern. Dora Buenrostro of San Jacinto was convicted of stabbing to death her three children, ages four to nine, during a fit of rage. She was sentenced to death on October 2, 1998. One year later, Susan Eubanks received her death sentence for shooting to death her three sons, ages four to seven. Eubanks's attempt to kill herself as her final act failed, and she now resides on California's death row. The most recent of California's lethal mothers is Sandi Nieves, sentenced to death on October 6, 2000, for killing her four daughters. Nieves used arson to kill her children. All three instances of these multiple murders-those by Buenrostro, Eubanks, and Nieves-were committed out of anger toward an estranged husband or boyfriend. And, if murdering moms are not enough, consider the California case of Caroline Young. She was sentenced to death in 1995 for killing her grandchildren, ages four and six.
Some women have been sentenced to death for the most bizarre of crimes. Antoinette Frank was an off-duty police officer working as a security guard in a Vietnamese restaurant in New Orleans. Frank first shot another security guard (her partner) twice in the back, and then she shot to death two of the restaurant workers. She has been on Louisiana's death row since 1995. The case that cries out to be included in daytime television soap operas is that of Shonda Johnson, sentenced to death in Alabama on October 22, 1999. Johnson was married to three men at the same time, and she convinced husband number one to shoot and kill husband number two. Husband number one claimed that his wife made him do it so that she could be cleared of a bigamy charge. Apparently husband number three was not involved.
The all-time record-holder for killings by a female appears to be Aileen Wournos, currently under six death sentences in Florida. That rarest of the rare, a female serial killer, Wournos has been the subject of a made-for-TV movie, as well as a "true crime" paperback. Wournos was found guilty of killing middle-aged white men who picked her up for purposes of prostitution. She claims self-defense.
These case descriptions are only the more intriguing of those currently on death row. They are there for killing husbands, boyfriends, neighbors, policemen, entire families, and groups of tourists walking down the sidewalk in Reno. Fifty condemned women may seem like a lot, but they are grossly outweighed by the approximately 3,700 men on death row. The men's cases run the same gamut from garden variety homicides to the most bizarre, but their huge numbers tend to render them less newsworthy. The general public craves the rare and unusual, and that is the death penalty for women.
Women recently executed
Although many are called but few are chosen, the actual execution of women does occur. In fact, five women have died in execution chambers since the current death penalty system began in the early 1970s. Velma Barfield was executed on November 2, 1984, in North Carolina, the first woman to be executed in the United States since Elizabeth Duncan 22 years earlier in California. Barfield had been convicted of poisoning several patients for whom she had served as a nurse. United States jurisdictions executed a total of 436 persons for the first 22 years (January 1977 to January 1998) of this current era, with Barfield being the only woman.
Since that time it appears that the extreme rarity of this practice may be changing significantly. From January 1998 through June 2000, for example, executions of women offenders constituted four out of the 214 executions. In terms of percentages, women were only 0.2 percent of 1977-1998 executions, but jumped to 1.9 percent of 1998-2000 executions-still a tiny portion, but nonetheless an 813 percent increase for this more recent period.
The execution of Karla Faye Tucker in Texas on February 3, 1998, resulted in enormous national and international media coverage in an era when executions of men in that state rarely cause a ripple. Although famed as the brutal "pickax murderess," Tucker's photogenic face, on-camera poise, and born-again Christian fervor caused even Texas to think twice before going through with this one. Less than two months later, Florida executed Judi Buenoano for poisoning her husband. In striking contrast to the Tucker case in Texas, the Buenoano execution seemed to pass unnoticed by the media and the various political action groups. Could it be because Buenoano was not a beautiful woman who looked great on television? Both were landmark executions in their respective states. Texas had not executed a woman since hanging Chipita Rodriguez in 1863, and Florida's last execution of a woman had been of Celia Bryan in 1848.
Nearly two years passed before another woman was executed. Texas executed Betty Beets on February 24, 2000, for killing her abusive husband. This was the second execution of a woman in Texas in a two-year period, following a 135-year lull in that practice. Then on May 2, 2000, Christina Riggs volunteered to receive lethal injection in Arkansas. This was the first execution of a woman in that state since 1868.
It still can be said that women are unlikely to be arrested for murder, extremely unlikely to be sentenced to death, and almost never executed. About five to 10 women receive death sentences annually, compared to almost 300 men, and actual executions remain extremely rare. The majority of death sentences imposed upon women since the early 1970s have been reversed on appeal with no execution being imposed, but about 50 women remain on death row. Some will be executed, but they undoubtedly will constitute a smaller portion than those put to death out of the approximately 3,650 men currently on death row. Preliminary research on capital punishment in other countries suggests a global pattern. The Indian death penalty statute expressly lists the offender's sex as an extenuating circumstance. The former Soviet and current Russian capital punishment statutes expressly prohibit the death penalty for women. Moreover, reputable news reports of the execution of women worldwide indicate that this practice is rare everywhere. What does this meager, perhaps begrudging, death sentencing and execution rate for women tell us about the overall capital punishment system and about the broader field of women and criminal justice?
Sexism in the death penalty
These data provide the unmistakable appearance of sex bias in the death penalty system. While some plausible explanations come to mind for navigating from the 13 percent murder arrest rate to the 1.4 percent death sentencing rate and to the 0.7 percent actual execution rate, it does cause one to make assumptions. 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 abetted 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.
Imagine if data of similar proportions distinguished between murderers of different races instead of different sexes. What if a black man arrested for murder were 140 times as likely as a white man arrested for murder to actually be executed for his crime? One might suggest either that white men are benefiting from this arrest-to-execution pattern, or that black men are being executed far too frequently. The same analysis would seem applicable in this sex bias analysis.
The top scholar in this field argues that the underrepresentation of women on death row is actually a discounting of the seriousness of the sort of homicide women typically commit. ( See Elizabeth Rapaport, Equality of the Damned: The Execution of Women on the Cusp of the Twenty-First Century, 26 Ohio Northern Univ. L. Rev. (2000).) That is, women's murder victims are more likely than those of men to be intimates in domestic violence cases. The criminal justice system tends to treat domestic violence cases less harshly, resulting in fewer death penalties for the offender, whether male or female. Because women are more commonly the victims of domestic violence than the perpetrators, the discounting of such cases actually works against women more than it works to their advantage. Professor Rapaport's analysis undoubtedly has merit, but seems to explain only part of the differential. Other factors beyond the domestic violence dimension have already been explored. ( See Victor L. Streib, Death Penalty for Female Offenders, 58 U. Cin. L. Rev. 845 (1990).) For example, typical aggravating factors in death penalty statutes include such considerations as the offender's (1) prior record of violent crimes, (2) potential for future violent acts, and (3) premeditation of the capital murder. Women convicted of capital murder, compared to their male counterparts, are less likely to have these aggravating factors so strongly in their cases. The same effect results from several mitigating factors, such as whether the offender is perceived as having been under extreme emotional disturbance or the substantial domination of another when she killed. Although the female capital defendant fares better than the male on these mitigating factors, it is suspected that such differences stem mostly from common public perceptions of women versus men rather than the realities of the individual case. In any event, aggravating and mitigating factors still account for only some and not all of the differential for male and female capital offenders.
If a plausible sex bias argument can be made, why not pursue this argument in the courts? Over the years, the author has been approached by several men on death row to mount major litigation to prove widespread sex bias. In essence, they argue that they would not have been sentenced to death if they were women. Although I think an overall pattern of sex bias very likely could be proved, such litigation would run into the brick wall of McCleskey v. Kemp, 481 U.S. 279 (1987). McCleskey requires not only proof of a pattern of discrimination, but also that the death row inmate's specific case involved race discrimination. Evidence to prove this additional factor almost always must come from admissions of racial prejudice from sentencing judges and jurors, and such admissions would be extremely hard to elicit.
Assuming that the McCleskey test would be applied in sex bias cases as in race bias cases, proving a pattern of discrimination would satisfy only the first step. The petitioner would also have to prove that in his particular case sex bias was involved. Perhaps it would be more socially acceptable for a judge or juror to admit to special treatment of women over men, but it does seem nearly as difficult as obtaining admissions of race bias.
A final example of struggles with the sex bias issue comes from the author's own experience in presenting results from this research at several death penalty conferences over many years. Typically, the audiences comprised generally antideath penalty researchers and practitioners. In learning of suspicions that women offenders are underrepresented on death row and in execution chambers, often my colleagues gently chided me just to keep quiet about all of this. The obvious solution, it appeared to them, was either to increase the death penalty for women or to decrease it for men. My favorite characterization of this dilemma comes again from the top scholar in this field: "At worst, it suggests a campaign to exterminate a few more wretched sisters." (Elizabeth Rapaport, The Death Penalty and Gender Discrimination, 25 L. & Soc'y Rev. 367, 368 (1991).) If sex bias does exist, one hopes that this is not the only solution to the problem.
Making gender an issue
This research on the death penalty for women has not only uncovered apparent sex bias in the death penalty system. Probably much more significant are the insights into the apparent behavior, attitudes, and approaches of those working within the death penalty system and those who argue for and against the death penalty generally. Note, for example, that more conservative, Republican, white-male-dominated groups tend almost always to favor the death penalty strongly. However, these groups have been conspicuously silent when a woman's life is on the line. Sometimes these groups even have come out in opposition to executions in women's cases. The most notable example recently was the vocal opposition by Pat Robertson and the Christian Coalition to Karla Faye Tucker's 1998 execution.
Going to the other end of the political spectrum, the several prominent women's rights organizations obviously are strong advocates for equal opportunity and equal protection for women in a wide spectrum of social, political, and legal issues. More incidentally, they also tend to oppose the death penalty if and when they have occasion to address that issue. However, none of these organizations or their spokespersons have been heard voicing opposition to the execution of any of the women recently executed. Similarly, to the degree that they might share the presumption that sex bias exists in the death penalty system, none has called for equal opportunity and equal protection in this arena. In fact, it is the so-called men's rights groups that can be heard challenging sex bias in the death penalty system.
The point of these overly simplistic references is that various social policy and political action groups tend to switch sides when the executed offender is a woman. Regardless of whether sex bias exists in the operation of the death penalty system, the "strange bedfellows" that result in these rare cases strongly suggest that the sex of the condemned prisoner does make a difference. Perhaps not only the outcome may be different in a woman's case, but more generally the attitudes and actions of the players are different as well.
The comparison to high school football is too obvious to ignore. For many, the football field is one of the last places where real men can take on other real men, intentionally knocking them down, the harder the better. Players celebrate and crowds cheer a particularly violent block or tackle. If the opposing player is down and out for awhile, then this is even stronger evidence of the masculine superiority of the hero who put him there. What happens when a girl plays football on the boys' team? Do the teams' really tough guys reap the same rewards for knocking her down? For causing her to be carried off the field? Or, does the sole fact that she is a girl alter both the motivation and the rewards?
When the stakes move from injury to death, the fact that the recipient is a woman may be even more important. Even though women can serve in many capacities in the military, they are not permitted in combat. When the passenger ship is sinking, women and children are put on the lifeboats first. The examples could go on, but it does seem to the author that intentionally subjecting a woman to the risk of death is something we usually avoid if we can. I fully appreciate that our downplaying the seriousness of domestic violence is a striking exception to this rule, but I believe that the general rule nonetheless stands.
My three decades of research on this and similar issues have led me to conclude that the death penalty system is the most extreme refuge of macho men, both the good guys and the bad guys. Our most highly touted system of justice appears to be more about insecure middle-age male egos needing to reassure themselves and others of their continuing manhood than it is about the more commonly heard principles of deterrence: justice, retribution, and incapacitation. To bolster their manliness, they need to dispatch the toughest of male opponents; zapping the skinny little guy just doesn't deliver. Needless to say, executing a woman does not give them that masculine rush. To the contrary, it stains them as "guys who hit girls," the ultimate wimps on the playground. If the murderer is a murderess, particularly a petite, pretty murderess, the thought of executing her (shudder) is countered by so many male animal urges.
If we take away the crime-fighter rhetoric from the swashbuckling, chest-pounding prosecutors, judges, and governors, they are left only with the thrill of the kill. This apparently is more than enough for them, if the one being killed is a really bad guy. However, if the object of their thrill-kill is a bad girl, even a really bad girl, then the thrill tends to go out of the game for them. It becomes clear to all of us watching that it is just a game, more akin to a professional wrestling league than a system of justice.
Victor L. Streib has taught law and conducted research for 30 years and now serves on the law faculty of Ohio Northern University. He also has represented several death row inmates. Most of the data upon which this article is based can be found in the author's web-based report on the death penalty for females at www.law.onu.edu/faculty/ streib/femdeath.htm.