Gender and Capital Punishment: Scholarly Article Examines How Gender Affects Outcomes for Women in Death Penalty Cases

In ​“Gendered Capital Punishment,” Cornell Law School Clinical Professor Sandra Babcock exam­ines how the gen­der of actors in cap­i­tal cas­es affects out­comes for women defen­dants. Professor Babcock’s research doc­u­ments that 96% of women cur­rent­ly sen­tenced to death in the US were pros­e­cut­ed by male pros­e­cu­tors, 89% appeared before male judges, and more than one-third had exclu­sive­ly male deci­sion-mak­ers through­out their cas­es. These sta­tis­tics are rel­e­vant, says Professor Babcock, because ​“women expe­ri­ence male-dom­i­nat­ed spaces dif­fer­ent­ly than men.” 

Professor Babcock’s cites research show­ing that men and women make crit­i­cal deci­sions in cap­i­tal cas­es dif­fer­ent­ly. Women pros­e­cu­tors show more lenien­cy toward female defen­dants, women judges tend to vote more lib­er­al­ly in cap­i­tal appeals, women defense attor­neys build bet­ter trust with trau­ma sur­vivors, and women jurors are more under­stand­ing of inti­mate part­ner vio­lence con­texts. Yet women remain severe­ly under­rep­re­sent­ed in pros­e­cu­to­r­i­al roles (22%) and vir­tu­al­ly absent in many cap­i­tal cas­es. Her arti­cle explores whether the over­whelm­ing ​“male­ness” of cap­i­tal mur­der pros­e­cu­tions affects the qual­i­ty of jus­tice that women receive.

Professor Babcock’s research notes that 96% of death-sen­tenced women have expe­ri­enced one or more forms of gen­der-based vio­lence (GBV) pri­or to their alleged cap­i­tal offense. But the way that these expe­ri­ences are inter­pret­ed by actors in the crim­i­nal jus­tice sys­tem varies. She argues that pros­e­cu­tors who dis­miss the mit­i­gat­ing val­ue of child­hood abuse, sex­u­al vio­lence, and exploita­tion are fun­da­men­tal­ly dis­con­nect­ed from the real­i­ty of women’s lived expe­ri­ences. The case of Brittany Holberg illus­trates this dynam­ic. Her par­ents intro­duced her to drugs as a child that led to lat­er sub­stance abuse and then work as a sex work­er to sup­port her habit. But pros­e­cu­tors argued to the jury that her life was a series of ​“choic­es”: ​“She chose the drugs, she chose the prostitution…Where is the mitigating evidence?” 

The law review arti­cle iden­ti­fies three dom­i­nant pros­e­cu­tion approach­es to cas­es involv­ing women cap­i­tal defen­dants, all of which uti­lize harm­ful gen­der stereo­types to dis­cred­it and demo­nize women: (1) hyper­sex­u­al­iz­ing women by focus­ing on their cloth­ing, rela­tion­ships, and sex­u­al behav­ior; (2) attack­ing their worth as moth­ers and care­givers, even when irrel­e­vant to the crime; and (3) por­tray­ing them as manip­u­la­tive schemers who can­not be trust­ed. Professor Babcock main­tains that women’s ​“sub­jec­tive expe­ri­ence of jus­tice” and their abil­i­ty to be full par­tic­i­pants in the crim­i­nal legal sys­tem is under­mined by the gen­dered nature of cap­i­tal pros­e­cu­tions. Professor Babcock con­cludes, “[t]he extent to which women feel their expe­ri­ences are heard and their sto­ries prop­er­ly told may well depend on their abil­i­ty to see them­selves reflect­ed in the courtroom.”