New Cardozo Law Review Article Examines the Events in the Lives of Women on U.S. Death Row

A new arti­cle, ​“Gender Matters: Women on Death Row in the United States,” explores the cas­es of 48 women who were sen­tenced to death in the United States between 1990 and 2023. ​“We believe that women’s cap­i­tal sen­tences are best explained by exam­in­ing the events of their lives with­in a larg­er social con­text, and by ana­lyz­ing how those expe­ri­ences — and the women them­selves — were treat­ed with­in the legal sys­tem,” said the authors, who include Sandra Babcock (pic­tured left), a Clinical Professor of Law at Cornell Law School, Nathalie Greenfield (mid­dle), an Adjunct Professor of Law at Cornell Law School, and Kathryn Adamson (right), a con­sul­tant with the Center on Gender and Extreme Sentencing.

Their arti­cle pro­vides a holis­tic and inter­sec­tion­al study of the 48 women, find­ing that most were moth­ers at the time of their arrest (85%), sur­vivors of gen­der-based vio­lence (96%), expe­ri­enc­ing men­tal health chal­lenges relat­ed to intel­lec­tu­al or psy­choso­cial dis­abil­i­ties (80%), and with­out pri­or vio­lent con­vic­tions (90%). 71% had no pri­or con­vic­tions what­so­ev­er before they were cap­i­tal­ly charged. The study found that many of the women were also con­vict­ed of killing some­one they knew, with near­ly half con­vict­ed of killing a child in their care and a fifth con­vict­ed of killing an inti­mate part­ner. Co-defen­dants, almost always male, were present in near­ly two-thirds of cas­es and 61% of women had an inti­mate part­ner, most­ly abu­sive, per tri­al tes­ti­mo­ny, as their co-defen­dant. In one quar­ter of cas­es, the state iden­ti­fied the crime as being com­mit­ted for finan­cial gain as a death-qual­i­fy­ing aggra­vat­ing fac­tor. In addi­tion, the women were large­ly defend­ed by all-male defense teams (69%) and pros­e­cut­ed under male dis­trict attor­neys (96%) before male judges (88%). 

“Our research under­scores the fail­ure of cur­rent the­o­ret­i­cal approach­es on gen­der and the death penal­ty to cap­ture the nuances of women’s cap­i­tal cas­es,” the authors state. They iden­ti­fy and ana­lyze two the­o­ries in par­tic­u­lar: the ​“chival­ry the­o­ry” and the ​“evil woman the­o­ry.” The first the­o­ry attempts to explain the rar­i­ty of women on death row, con­sti­tut­ing only 2% of the entire death row pop­u­la­tion as of January 1, 2024, by argu­ing that women who are cap­i­tal­ly tried are treat­ed with lenien­cy due to soci­etal atti­tudes. ​“In our view, schol­ars’ fail­ure to sub­ject the chival­ry the­o­ry to mean­ing­ful cri­tique indi­cates a trou­bling readi­ness to accept schol­ar­ship that reaf­firms soci­etal bias­es regard­ing gen­der,” the authors con­clude. The sec­ond the­o­ry asserts that women whose crim­i­nal behav­ior does not align with sex-stereo­typ­i­cal assump­tions (e.g., unla­dy­like behav­ior) do not receive the lenien­cy of chival­ry pro­posed in the first the­o­ry. The authors argue that this the­o­ry is over­sim­plis­tic and dis­counts a num­ber of con­tribut­ing fac­tors. “[We] pro­pose that researchers embrace the nuances of women’s sto­ries and sit­u­ate them in the larg­er con­text of the women’s death row population.”