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July 12, 2009

Noticing some gendered realities of death penalty administration

This local article from Alabama, headlined " Death row-worthy crimes largely committed by men," spotlights a couple of issues about death penalty administration that I always find notable.  Here are snippets:

If a Franklin County judge overrides a jury's recommendation and sentences Christie Michelle Scott to die by lethal injection, she would be the first woman in the county to receive the death penalty.

Franklin Circuit Court Judge Terry Dempsey will impose her sentence Aug. 5. The jury who convicted her of killing her 6-year-old son, Mason, recommended Friday that she be sentenced to life in prison without parole.  Dempsey is not obligated to accept the jury's recommendation and could instead sentence her to death.

A death sentence for Scott, who was convicted of three counts of capital murder Wednesday, would also make her one of a few women in Alabama ever to be sentenced to die for a crime.

Since 1973, only 10 women have received death sentences in Alabama, said Richard Dieter, director of the Washington, D.C.-based Death Penalty Information Center, a nonprofit that tracks capital punishment in the United States. Only one of those women, Lynda L. Block, who was convicted in 1994 for killing an Opelika policeman, has been executed. She was executed May, 10, 2002, and since then no other woman has been executed in Alabama, according the Alabama Department of Corrections.

Only four women have been executed in Alabama since 1927, according to state corrections statistics. During that same period, 192 men have been executed. There are 199 men and four women on Alabama's death row.

Bryan K. Fair, a professor of law at the University of Alabama, said the wide margin between the number of men and women being sentenced to death is not a result of courts being more lenient on women. Instead, it's a result of fewer women committing crimes that meet the criteria for capital punishment, such as a homicide committed during a robbery or rape. "The kinds of offenses that can be punished by death are typically committed by men," Fair said. "In our society in general, violent crimes are committed most often by men."

Dieter said Alabama is not alone in having far fewer women than men on death row.  "Most of the women who are on death row were convicted of killing their husband or someone they knew," Dieter said. "Women rarely kill a stranger, such as during a robbery, because women do not typically commit violent crimes."

Franklin County District Attorney Joey Rushing calls the crime Scott committed the most heinous ever in the county. "There's nothing worse than a mother murdering a child for insurance and because they didn't want him," Rushing said at trial....

Because of the heinous nature of the child's death, Rushing said he will ask Dempsey to consider the death penalty at Scott's Aug. 5 sentencing hearing.  He said five of the 12 jurors supported sending Scott to death row.

This article not only raises issues of gender, but also the role of judicial overrides to correct biases in the administration of the death penalty.  Should Franklin Circuit Court Judge Terry Dempsey feel a special obligation to impose a sentence of death if he believes that the jury recommended a life sentence only or primarily because the defendant here was a woman?

July 12, 2009 at 10:19 AM | Permalink


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"Dempsey is not obligated to accept the jury's recommendation and could instead sentence her to death."
How is this different from Ring v Arizona?

Posted by: . | Jul 12, 2009 10:32:05 AM

Doug: Dempsey probably already feels a special obligation to impose a sentence of death because he is a locally elected trial judge in Alabama. Don't know if he needs more reason than that. But maybe that's why you said "special" obligation...

".": Allegedly this is different from Ring because the jury verdict in the guilt phase in Alabama (as in many other states) usually includes a special circumstance that also provides an aggravating factor "authorizing a death sentence" (because the cap murder special circumstances overlap so much with the capital sentencing aggravating circumstances). For example, many convictions involve murder made capital because committed during a robbery or attempt thereof. If you are unanimously found guilty of that, the Alabama courts use that finding to conclude that the jury has also unanimously found the capital aggravating circumstance of murder during a robbery. (Never mind that the jury was not informed of this effect of its guilt-phase verdict.) According to the Alabama courts, once this finding is made, the "statutory maximum" under Ring/Apprendi becomes death (because only 1 aggravating factor need be found BRD to impose death), and it therefore doesn't matter if further discretionary consideration of sentence is undertaken by a jury or a judge.

I think there have been cases where there was no qualifying guilt-phase finding to fall back on, but I'm not sure the courts have appreciated the difference. (There is also an issue of unanimity where there is no qualifying guilt-phase finding, because the sentencing jury can recommend death 10-2 or 11-1, and are not required to report a special verdict showing the vote on specific aggravating circumstances.)

Anyway, that is what I remember from a law-school project on this question... at least some of what they are doing seems to violate the "spirit" and possibly the letter of Ring, but it has flown so far.

Posted by: anon | Jul 12, 2009 3:39:07 PM

Judge sentencing does not violate Ring so long as the jury finds the death eligible facts.

Posted by: federalist | Jul 12, 2009 4:56:24 PM

@anon. Thanks. So there can actually be *two* decisions during the penalty phase. 1) the finding of aggr. circumstances 2) if 1) is true, whether the death penalty should be in imposed. 1) can be included with the specific charge, and 2) can be left to the judge.

Posted by: . | Jul 12, 2009 6:35:35 PM

The reason I asked is because of the Brian Nichols case, where the jury deadlocked on death and the judge could only sentence to life.

Posted by: . | Jul 12, 2009 6:36:42 PM

From the article: "During the trial, which lasted five weeks, Rushing contended Scott started the fire in her home and left her son alone inside to die so she could collect on three life insurance policies that totaled $175,000. He also contended she disabled the home's smoke alarm to ensure he would not wake up during the fire."

Why does a parent have three life insurance policies totaling $175,000 on a six year-old?

The mind-boggling cruelty of burning to death a child of this age challenges the imagination. To do it for insurance proceeds is not of this world.

Posted by: Bill Otis | Jul 12, 2009 8:14:07 PM

6:36, in Alabama the jury's penalty phase verdict is merely advisory. The judge makes the final decision on life or death. Alabama may be only state in the country that still allows judicial override of the jury's sentence; in Georgia (where Nichols was tried) the jury's life or death decision is final. Also, most states have a rule that if the jury cannot reach a decision at the penalty phase, the judge must sentence the defendant to LWOP or whatever the non-death sentence is.

In practice, Alabama judges almost never override a jury sentence of death. They override a sentence of life fairly frequently, particularly near elections. There are at least several dozen people on death row in Alabama even though their jury sentenced them to life.

Posted by: Another Anon | Jul 13, 2009 9:44:29 AM

Another interesting point unique to Alabama is that, other than some language that must be quoted in the sentencing order ("I considered the jury's recommendation as an important mitigator."), the judge does not have to justify his decision to override the jury's verdict. In Florida, the other override state, the appellate courts are fairly aggressive in reviewing jury overrides. In Alabama, it is an abuse of discretion standard - with no standards given by the courts of appeal to guide the discretion.

Posted by: Talitha | Jul 13, 2009 11:38:17 AM

Enough about Christy Scott,what about Dempsey, not hearing cases of child abuse in Franklin County Circuit Court and also violating civil procedures against a Father that can not afford an attorney?

He has also turned his back on Food Stamp Fraud(DHR) and Credit Card Fraud (Capital One Bank) and Mommy Walked Free, both are Felonies and Rushing knew about it too along with The Father's divorce attorney and no one would lift a finger to recover the money the Mother swindled out of the Government, they gave her a get out of jail free card and let her keep her kids too.

Please inquire, with the Alabama Judiciary Committee, about the complaint filed in Nov. 2009. Fisher Vs. Fisher,( CASE NO: 008-007) he is a Tyrant and is unfair and partial to women and will be until someone votes him out of office or the Judiciary Committee puts him on the road, Fat chance of that happening the rich get richer in Franklin County, Alabama.

Judge Dempsey need another job. Amen.

Posted by: A DAD | Nov 13, 2009 12:31:01 PM

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