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December 30, 2007

Is gender bias in capital punishment a serious problem?

Though many justifiably express concerns about racial bias in the application of the death penalty, the potential gender bias in capital punishment systems get far less attention.  But new horrific killings in Washington state bring up these interesting gendered issues, as this new article from the Seattle Times spotlights.  Here are excerpts:

If precedent is an indication, prosecutors may face an additional challenge should they opt to seek the death penalty against Michele Kristen Anderson, 29, charged in the killing of six of her relatives near Carnation Christmas Eve: No woman has been sentenced to die in Washington state.

Of the 3,300 inmates on death row in the U.S. in the last complete count, only 49 were women — less than 1.5 percent.  "I think jurors, in general, would have a tougher time imposing the death penalty on a woman," said Snohomish County Deputy Prosecutor Chris Dickinson, who in 2003 unsuccessfully sought the death penalty against a woman convicted of hiring a group of teens to kill her boss.... Since 1977, nearly 1,100 inmates have been executed in the U.S.; only 11 were women....

Washington state has executed 77 inmates — all men — since 1904.  Officials Friday could find only two instances in more than a quarter-century in which Washington prosecutors even asked jurors to sentence a woman to death....

Death-penalty experts disagree over whether the small number of women sentenced to die in the U.S. indicates a bias favoring women. In a 2001 interview, Victor Streib, a law professor at Ohio Northern University who tracks death-penalty cases against women, said, "It's like there's something more valuable about women's lives ... Women are also treated differently when they're victims."  But Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C., said, "It could be a bias operating or it could just be there are so few cases of women committing crimes like this. It's a hard thing to prove one way or another."

December 30, 2007 at 08:51 AM | Permalink

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In addition to being the vast majority of death row inmates, aren't men also the vast majority of perpetrators of violent crime, of convicts, of prison inmates, etc.?

Posted by: | Dec 30, 2007 1:33:37 PM

A disturbing national trend is that on a percentage basis the female jail and prison population is growing faster than the male population. About 20 years ago is was very unusual for a female to be in our jail and today about 20% of our jail inmates are female. In the past it was very unusual for a female to be charged with a violent crime and unheard of for them to be charged with a sex crime and that is no longer the case.

The people who designed jails and prisons in the past assumed that females would make up at most 10% of the population and as a consequence lots of female jails and prisons have overflowed at the same time. We have that problem an it is hard to find an open female bed to lease from another county jail.

Posted by: John Neff | Dec 30, 2007 4:13:35 PM

There was a time when presidents commuted the sentences of females to life in prison simply to avoid the "spectacle" of having a woman executed. And that explanation would appear in the Annual Report of the Attorney General. That is to say, there isn't really any doubt about this one. I want to say that Mary Surratt was the first executed by the federal government and Ethel Rosenberg was the second. How is that for a leap?!

Victor Streib, a professor of law, notes females are “screened out of the process all the way through the criminal justice system.” Streib observes “prosecutors are more reluctant to charge women with capital murder” and “juries more easily believe that women are under emotional distress while committing a crime.”

Studies of sentencing disparities in the 1960’s and 1970’s found women were indeed given preferential treatment by courts, more likely to receive suspended sentences and less likely to go to prison for their crimes. In the 1980’s a team of political scientists concluded from their research that judges treated women “more leniently than men because they do not want to subject the supposedly physically weaker sex to the harsh conditions of prison.”

Streib also notes that, from 1973 to 2000, women accounted for one in every eight murder arrests. But women only accounted for one in every fifty-two death sentences and constituted only one in every seventy-two persons waiting (at that point in time) on “death row.” Very few of the thousands of persons on “death row” are ever actually executed in a given year, but Streib notes only five of over six hundred persons executed since the Supreme Court’s landmark 1972 decision (Furman v. Georgia) have been female. In part, this is explained by the fact that half of the death sentences given to women in that time period were reversed.

Another ten percent of the females who escaped “death row” benefited from clemency.

Posted by: P.S. Ruckman, Jr. | Dec 30, 2007 6:39:44 PM

"Streib also notes that, from 1973 to 2000, women accounted for one in every eight murder arrests. But women only accounted for one in every fifty-two death sentences...."

Such statistics do not mean anything without controlling for the degree and circumstances of the homicides. Only a fraction of murders are even legally eligible to be considered for the death penalty, and only a fraction of those are of the kind where a jury would actually impose it given the choice.

There may be some bias, but I suspect that the primary reason far fewer women are on death row is simply that far fewer women commit the kinds of homicide that land one on death row. Rape-murder is a type that is particularly likely to draw that sentence, and commission of that offense by women is rare.

"In part, this is explained by the fact that half of the death sentences given to women in that time period were reversed."

That's not too far different from the overall reversal rate, I believe. When the Supreme Court can't agree with itself from one year to the next what the Constitution requires and what it forbids, you get a lot of reversals.

Posted by: Kent Scheidegger | Dec 30, 2007 8:58:45 PM

"Such statistics do not mean anything without controlling for the degree and circumstances of the homicides ..."

Well, of course, the showing of a gross statisical disparity does not prove anything in and of itself. But, to say such statistics mean nothing is a bit overboard too, especially when there are a host of plausible theoretical justifications for the relationship.

"There may be some bias, but I suspect that the primary reason far fewer women are on death row is simply that far fewer women commit the kinds of homicide that land one on death row."

Of course, that is an angle (or "suspicion") to be tested, not merely asserted.

Again, we know, for a fact, that president spared women execution simply because they were women - no other "circumstance" to control for whatsoever. The culture (both legal and political) were such that no one protested, there were no investigations or calls for impeachment. That says A LOT.

Posted by: P.S. Ruckman, Jr. | Dec 30, 2007 9:24:41 PM

The real outrage in this case is that, assuming that Washington prosecutors seek and procure a death sentence against these scum, the people of Washington will have to wait years and years for justice to be carried out. Cases like this, the brutal murder of a husband in front of his wife and children and then a mother in front of her children and then a sister in front of her brother and then a three-year old trying desperately to escape a sealed fate the only way his little mind (adorable as they are) knew how, show how utterly bankrupt from a legal and a moral sense the Supreme Court's decision that there can be no mandatory death sentences is.

The idea that the Eighth Amendment prohibits the states from affixing a mandatory death sentence in a case like this (assuming the murderers are sane) is about a silly a proposition as one can find in American law.

Posted by: federalist | Dec 31, 2007 2:35:58 PM

The idea that the Eighth Amendment prohibits the states from affixing a mandatory death sentence in a case like this (assuming the murderers are sane) is about a silly a proposition as one can find in American law.

One should probably look a little harder, then.

Posted by: | Dec 31, 2007 4:01:22 PM

YEah, I know what Woodson says . . . . and it is silly.

Posted by: federalist | Jan 1, 2008 5:27:21 PM

Just wondering, is a murder with an audience inherently more or less brutal than a private murder?

I tend to call all judicial decisions that I disagree with "silly" or "activist." If it was my case, this is how I avoid personal responsibility for not being able to convince someone to see things my way. If it wasn't my case, it allows me to act all haughty and pretend that it is somehow a lesser form of law.

Posted by: S.cotus | Jan 3, 2008 1:42:21 PM

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