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December 10, 2008

Gender bias and the application of the death penalty

Women As detailed in this local article, headlined "Tennessee moves closer to executing first woman: Sixth Circuit denies appeal to woman convicted in murder for hire of husband," a new federal habeas ruling in a state capital case provides an effective opportunity to reflect on gender bias in the application of the death penalty.  Let's start with the basics of the new ruling and the underlying crime:

The first woman ever to be sentenced to death in Tennessee is a step closer to the death chamber today after the Sixth Circuit Court of Appeals denied her habeas petition in a 2-1 decision. Nashville based Judge Gil Merritt filed the dissenting opinion.

Gaile K. Owens was convicted in Shelby County in 1986 of accessory before the fact in the 1985 murder of her husband, Ronald Owens.  The man who killed her husband, Sidney Porterfield, was also sentenced to death. Owens committed her crime on February 17, 1985 and was convicted on January 4, 1986. She entered prison on February 21, 1986.

The Sixth Circuit decision is available at this link, and this paragraph from the start of Judge Merritt's dissent highlights the gendered realities that flow through this capital case:

The facts about Ryan Owens’ cruel and sadistic behavior toward his wife now make an overwhelming case of domestic violence and psychological abuse in mitigation of the murder case against Gaile Owens. From the beginning, Mrs. Owens’ counsel knew that this was her best — indeed, her only — defense.  Before trial, her counsel told the trial court that in his opinion: “This case has a meritorious defense in the battered-wife syndrome.” (App. 120.)  The Memphis district attorneys obviously knew that this was the defense theory.  But this defense was never developed or even mentioned to the jury during the trial because of the cover-up of exculpatory evidence by the Memphis prosecutor and the complete failure of defense counsel to conduct a proper investigation of Ryan Owens’ sadistic behavior toward his wife.  I will discuss the Memphis prosecutor’s cover-up of exculpatory evidence first, then defense counsel’s failure to investigate and develop the defense, and finally the refusal of the Memphis trial court to allow in evidence one of the defendant’s best lines of mitigation testimony.

Though Judge Merritt's dissent here suggests gendered realities led to the murder and death sentence in this case, others might argue that the gender bias we see in the application of the death penalty usually helps women and disfavored men. 

The DPIC has this great page on women and the death penalty (from which I got the picture above). As Professor Vic Streib has effectively documented in this great accounting from the DPIC page, women make up 10% of those arrested for murder, but make up less than 2% of those persons on death row and less than 1% of those executed in the modern capital era.  And yet, as the Owens case perhaps suggests, maybe even those very few women sent to the row and executed could be themselves the victim of broader societal gender biases.

UPDATE:  In a notable coincidence, this news report on an Ohio Supreme Court decision handed down just today indicates that the number of women on Ohio's death row has been now cut in half:

Citing a judge's error, the Ohio Supreme Court on Wednesday threw out the death sentence of a woman who killed her 4-year-old son and set a fire to hide evidence of the crime.  The move leaves just one woman in Ohio facing execution.

Though the state has an active capital punishment system, it doesn't have a history of sending many women to death row.  Only six women have been sentenced to death under the state's 1981 capital punishment law.

December 10, 2008 at 10:08 AM | Permalink


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Once again, we have the statistical disparity equals bias argument. It's so tedious. Women commit 10% of murders overall--do they commit 10% of capital murders? And even if they did commit 10% of capital murders, some murders are more "capital" than others, and so the question is what percentage of murders most likely to result in death do they commit. Moreoever, criminal history matters. I'm guessing that the average male capital murderer has a more serious criminal history than the average female capital murderer.

When, oh when, Professor, are you going to point to the fact that black murderers comprise about 1/3 of those executed in the US, but make up a larger percentage of total murderers in the US. Is that emblematic of societal lenience towards black killers? The reasons for this are complicated, of course. So why then do we jump to conclusions about the female-killer disparity.

It's like talking about the racial breakdown of prisoners in the US without taking into account various obvious phenomena, e.g., the urban crime sentence discount.

Posted by: federalist | Dec 10, 2008 2:57:50 PM

Professor Streib's compilation is a first step, but unfortunately it is lacking the essential data of the factors that typically distinguish capital murder from other homicides. Sex-crime murders and multiple murders are the crimes most likely to result in death sentences, with robbery murders trailing somewhere behind. Do women commit these crimes in the same proportion as men? Very doubtful.

Without data on the circumstances, simply comparing death row with the total number of female-perpetrator murders is meaningless. An assumption that women commit death-eligible (or death-appropriate) murder in the same proportion as they commit murder generally is not justified. The disparity between the proportion of murders committed by women and their proportion of the population is sufficient to prove (if anyone ever doubted it) that men and women differ in patterns of offending here.

Why do people keep pumping out demographic statistics uncontrolled for legitimate factors and pretending it means something? Perhaps this is a spillover from employment discrimination law, where disparity alone is sufficient to shift the burden to the employer to disprove discrimination. But that shift was based on access to the information, not a logically valid presumption.

"...others might argue that the gender bias we see in the application of the death penalty usually helps women and disfavored men."

If they want to argue that, they need some evidence, and the data presented here is not proof, not a prima facie case, not anything.

Posted by: Kent Scheidegger | Dec 10, 2008 5:11:38 PM

The bias is not in the percentages because as federalist and Kent correctly point out, women do not kill as often. But their posts also reveal where the true bias is. If this were a man they would both be ranting loudly about how America is in decline because it takes too long for an execution to survive the appeals, or maybe the executed survive the sentence too long. She was sentenced to death on January 4, 1986. Where's the outrage?

A quick Google found another side of the coin: Death Row Women: Murder, Justice, and the New York Press (Crime, Media, and Popular Culture) (Hardcover).

When compared to the media treatment of men who went to the electric chair for similar offenses, the press coverage of female killers was ferocious and unrelenting. "Granite woman," "black-eyed Borgia," "roadhouse tramp," "sex-mad," and "lousy prostitute" are just some of the terms used by newspapers to describe these women. Unlike their male counterparts, females endured a campaign of expulsion and disgrace before they were put to death.

When news is instantly national today, the problem is even worse. The SCOTUS might want to reconsider Pretrial Publicity and the Gag Rule and forbid the parties, defense and government, from engaging in trial by media. The press could still cover the trials, but the parties could not use the press to manipulate the issues. They would be gagged. Nancy Grace could still rant, but she could not have as guests law enforcement, prosecutors or defense attorneys involved in the case and could not rely on them as "sources close to the investigation."

Mark Geragos seems to be on light campaign against trial by media.

Posted by: George | Dec 10, 2008 10:33:21 PM

there may be a gender bias to that, BUT Men do commit more crims then women do. its a statistical fact.

Posted by: Games Car | Jan 13, 2009 8:07:38 PM

I agree with George, where is the outrage?!? My father was the foreman on the Owens-Porterfield murder trial. Ironically, HE died recently while Gail Owens still enjoys life. He spoke of those two often and considered Owens the worst of the two because she was the one who instigated the murder. He would roll over in his grave if he knew that sentencing had yet to be carried out 23 yrs AFTER the fact!

Furthermore, without reading the majority or minority opinion, this woman doesn't have a leg to stand on just on the face of it. So what if her husband had 10,000 lovers or love letters. So what if her previous background wasn't admitted into evidence. So what if one of her friend's hearsay wasn't heard in the PENALTY phase. So what if she wanted to plead guilty separately from Porterfield. None of this changes the FACTS of the case - that she contracted MULTIPLE times to have her husband murdered!

I don't know about her atty at the time, but my father had no love for Porterfield's atty (who is now a judge himself and could hardly be called incompetent).

It sounds to me like this Judge Merritt is a bleeding heart liberal who doesn't want to carry out either the will of the people or the state. Gail Owens herself said that he had NEVER been physically violent with her and yet he calls her husband a cruel sadist. Where is the outrage FOR the victim?!? Where is the outrage over the fact that she let their young son "discover" Daddy's bludgeoned body?!?! Where is the outrage that the local paper hasn't covered this story and Memphians have to resort to Nashville news? Or that those intimately involved with the case have to hear about it via Defense attys on your doorstep fishing for ancient memories in order to exonerate a murderer?

Yes, George, where is the outrage?

Posted by: VERITAS101 | May 15, 2009 8:38:45 PM

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