Discussions with DPIC: Gender and the Death Penalty with Sandra Babcock

In this month’s episode of Discussions with DPIC, Managing Director Anne Holsinger speaks with Sandra Babcock (pic­tured), Clinical Professor at Cornell Law School, Faculty Director, and founder of the Cornell Center on the Death Penalty Worldwide. Ms. Babcock’s clin­ic cur­rent­ly rep­re­sents death sen­tenced women in the United States, Malawi, and Tanzania and is focused on pro­vid­ing defense teams in reten­tion­ist coun­tries with train­ing and con­sul­ta­tion in order to pro­vide the best pos­si­ble legal rep­re­sen­ta­tion for indi­vid­u­als fac­ing sen­tences of death. The Cornell Center on the Death Penalty Worldwide also pro­duces research high­light­ing the inter­sec­tion of gen­der and the death penal­ty, as well as inter­na­tion­al legal issues and cap­i­tal pun­ish­ment. Ms. Babcock explains how the Center’s research has uncov­ered wide­spread, yet over­looked issues that women and oth­er gen­der minori­ties face in the crim­i­nal legal system.

For 30 years, Ms. Babcock has been a ded­i­cat­ed defend­er of human rights for death-sen­tenced per­sons. Her work at the Cornell Center for the Death Penalty Worldwide includes the Makwanyane Institute, named after South Africa’s Constitutional Court land­mark deci­sion to abol­ish the death penal­ty. The Makwanyane Institute is an inten­sive tri­al train­ing pro­gram for inter­na­tion­al cap­i­tal defend­ers that has helped more than 400 lawyers become more effec­tive advo­cates. In 2018, Ms. Babcock start­ed The Alice Project, a research and advo­ca­cy ini­tia­tive intend­ed to help women fac­ing death sen­tences ​“around the world for crimes that are direct­ly con­nect­ed to their expe­ri­ences of gen­der-based vio­lence.” The Alice Project is named after Alice Nungu, a for­mer client of Ms. Babcock’s, whom she helped rep­re­sent and secure release from death row after she killed her abusive partner.

While women make up a small per­cent­age of indi­vid­u­als sen­tenced to death, Ms. Babcock explains that women face unique chal­lenges in the crim­i­nal legal sys­tem. Women’s ​“path­ways to incar­cer­a­tion and to death sen­tences are inex­tri­ca­bly linked to their expe­ri­ence of gen­der oppres­sion, of dis­crim­i­na­tion, and vio­lence.” Research shows that more than 90% of women cur­rent­ly fac­ing death sen­tences around the world have expe­ri­enced at least one form of gen­der-based vio­lence: child sex­u­al abuse, rape, sex­u­al assault, and/​or inti­mate part­ner vio­lence. The num­ber of trans­gen­der and non-bina­ry peo­ple on death row is also quite small, but Ms. Babcock believes the cur­rent legal sys­tem oper­ates in a ​“deeply dis­crim­i­na­to­ry and dehu­man­iz­ing” fash­ion. Incarcerated trans­gen­der and non-bina­ry indi­vid­u­als are at high­er risk than cis­gen­der women of both phys­i­cal and sex­u­al vio­lence at the hands of law enforce­ment, cor­rec­tion­al staff, and fel­low pris­on­ers. Ms. Babcock says that prison offi­cials often dis­re­gard these indi­vid­u­als’ gen­der iden­ti­ties and fail to pro­vide prop­er housing accommodations.

For Ms. Babcock, the sto­ries of women on death row illus­trate the soci­etal issue and nor­mal­iza­tion of gen­der dis­crim­i­na­tion. Highlighting the sto­ry of Brenda Andrew, the only woman on Oklahoma’s death row, she dis­cuss­es the prosecution’s delib­er­ate char­ac­ter­i­za­tion of Ms. Andrew as a flir­ta­tious, unfaith­ful wife and moth­er. Prior to her arrest, Ms. Andrew was a Sunday-school teacher and had no crim­i­nal record. The pros­e­cu­tion relied on wit­ness tes­ti­mo­ny that stereo­typed Ms. Andrew and delib­er­ate­ly inject­ed gen­der bias to secure her con­vic­tion. Ms. Andrew’s legal team will file a writ of cer­tio­rari at the U.S. Supreme Court in an effort to pre­vent her exe­cu­tion, cit­ing the exten­sive gen­der bias pre­sent­ed at tri­al. Ms. Babcock believes the court’s deci­sion will make or break the future of gen­der dis­crim­i­na­tion in the admin­is­tra­tion of the death penal­ty: “…If they move for­ward with [Ms. Andrew’s] exe­cu­tion, it’s going to be, I think, a real illus­tra­tion of how lit­tle regard the legal sys­tem has for gen­der bias, and how… women’s expe­ri­ences of bias are deemed to be incon­se­quen­tial in deter­min­ing whether or not their tri­als were fair and in accor­dance with due process.”