Gender Bias and the Death Penalty

Posted by James Brockway, Guest Blogger on March 2nd, 2011

In an interesting new study, University of San Francisco Law School Professor Steven Shatz and New York Civil Liberties Union Attorney Naomi Shatz explore the relationship between gender and California's death penalty. While much scholarly attention has been devoted to the way that racial and class dynamics influence which crimes and criminals garner capital trials, similar analysis regarding the gender of victims and defendants is relatively scarce. In attempt to explain the gender disparities in capital cases, the Shatzes examine the "chivalric norms" embedded in the criminal justice system. Using new data collected from Californian first degree murder trials, their article, Chivalry Is Not Dead, looks at the way ideas about women's roles in society influence when juries and prosecutors decide the death penalty is a necessary remedy and then asks important questions about the constitutional ramifications of this "chivalry effect."

The Shatzes describe chivalry as the cultural norms and procedures which governed the behavior of knights in medieval Europe. These codes were meant to provide knights with the standards by which they could regulate their use of violence, limiting its expression to only those instances in which it was necessary to preserve honor and other knightly virtues. Central to these chivalric norms was a particular, gendered, relationship between the autonomous knight and the frequently agency-less maiden who was the object of his protection and for whose sake he could legitimately kill. There were no female knights; in fact, the prevailing social norms afforded women a role equivalent to that of a very valuable piece of property which, while it had to be defended at all cost, could also be used by the knight in whatever manner he saw fit. Chivalric codes saw women as lacking the physical, moral and intellectual fortitude to act as their own guardians, which, in turn, necessitated their control and management at the hands of their fathers, brothers, and husbands. There was also an important class element to these codes, as they only governed interactions between members of the knightly class-their social inferiors were not thought capable of harboring chivalric virtues, and thus did not deserve to benefit from them. The result was that chivalry was meant to protect only a certain type of woman, the "lady," who "embodied ideals and stereotypes of womanhood and femininity."

Chivalry did not die with the rise of the modern state, but instead was incorporated into the legal and social apparatuses of these new democracies, including our own. A particularly harrowing example can be found in the all too common lynching of black men who threatened the honor of white women in the post-reconstruction South. These values were also reflected in legal doctrine as seen in the Supreme Court's repeated finding that the exclusion of women from social life, be it legal practice (Bradwell v. State) or jury duty (Hoyt v. Florida), was constitutionally permissible given the state's justifiable interest in protecting women's functions as mothers and homemakers.

The tide began to turn in the 1970s, when feminist critics successfully challenged such restrictions on equal protection and Title VII grounds. While progress is being, and continues to be, made, chivalric norms are still very much alive in American jurisprudence, especially as regards our criminal justice system. The Shatzes highlight their presence in laws which govern justifiable homicide, noting that self-defense and crime of passion statutes have their historical roots in laws which permitted honor killings, and that the subject who defends himself or acts out of passion is implicitly assumed to be a male one who has both the physical and social ability to exercise violence in this way. They also locate these norms in rape laws which only punish certain types of rapes, targeting dangerous strangers who threaten women's virtue, while making it much harder to prosecute similar crimes committed by acquaintances or husbands.

The relationship between gender and the death penalty has generally been discussed in terms of the relative infrequency with which female defendants receive death sentences. The chivalry hypothesis advanced by the Shatzes helps explain this discrepancy, as the tendency to view women as less responsible for their actions causes legal decision-makers to want to protect female defendants from the full force of the law. The hypothesis would also suggest that crimes against women would be more likely to result in death sentences as these murders represent attempts to defile the pristine womanhood which is one of society's most valuable resources.

To test their predictions, the Shatzes analyze data from 1299 cases of defendants convicted of first-degree murder in California from 2003 to 2005. California provides a particularly interesting test case, as the wide latitude prosecutors and juries are afforded to decide when to impose a death sentence allows us to look at the effects of cultural norms on decision-making in a way which is not possible in states with stricter guidelines. In roughly 85% of the studied cases, the defendant was factually death-eligible given the relatively wide range of special circumstances that California law recognizes as justifying the death penalty. Of that 85%, 5.5% of defendants received death sentences.

As predicted, women were rarely seen in that 5.5 %. Of the 51 women defendants in the sample, only one received a death sentence, and her crime, poisoning her husband, violated the chivalric codes which emphasize equal combat between equal adversaries. While this result might be too small to generalize, when synthesized with other studies, the Shatzes found that only 1.2% of California death sentences went to women defendants even though they comprised 5.5% of the death-eligible population. Moreover, those women who were sentenced to death were generally from society's margins and otherwise broke with the conventional definitions of womanhood.

Even more striking was the way the victim's gender affected the likelihood of the death penalty's imposition. In single-victim cases where the victim was female, the defendant was seven times more likely to receive a death sentence then if the victim was male. This finding was consistent with results from other, earlier, studies. The disparity persisted even when rape-murders, which are unusually likely to result in death sentences (and have primarily female victims), and gang murders, which have unusually low death-sentence rates (and have primarily male victims), were excluded from the analysis. The analysis also showed that this tendency to sentence the killers of women to death did not extend to instances of domestic violence where the percentage of death sentences was below the average for single-victim murders. Taken together, the study shows that the killers of women are more likely to be executed, and that this difference is too large to be explained simply by other distinctions in the types of murders which take female victims versus those that do not.

The Shatzes conclude by noting that the way we impose the death penalty is a product of social mores which reinforce a view of women as both less responsible for their actions and less capable of defending themselves. The finding flies in the face of the post-Fuhrman promise that the death penalty would be applied in a rational and non-arbitrary way, and in fact suggests new equal protection concerns which face those accused with capital crimes. While the essay only hints at what new legal strategies their findings make available to death penalty opponents, the Shatzes' work provides valuable insight into the dynamics which characterize the way the death penalty is actually implemented. Their research not only helps to build bridges between feminist legal scholars and anti-death penalty advocates, but also holds up a mirror to the way the death penalty reflects and magnifies societal biases. It is only by becoming conscience of these effects that we can begin to combat them, and in this way Chivalry Is Not Dead makes an invaluable contribution.




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