SEARCHING FOR A SILVER LINING IN DEATH PENALTY'S GENDER BIAS

The execution of a woman in Texas, scheduled for Dec. 1, shows, in its relative rarity, longstanding notions of women as the inferior sex. But warped notions of male chivalry and female victimization as least offer some possibility that the state might learn to put compassion before bloodlust when it comes to capital punishment, the writer says. PNS contributor Earl Ofari Hutchinson is a political analyst and author of "The Crisis in Black and Black" (Middle Passage Press).

BY EARL OFARI HUTCHINSON, PACIFIC NEWS SERVICE

The only time that executions stir more than a public yawn these days is when a woman is scheduled to die. That was true again this week, when the scheduled execution of Frances Newton in Texas, Dec. 1, drew a flurry of headlines. Newton, an African American, was convicted in 1987 of murdering her two children and her estranged husband to collect $100,000 in insurance money. Newton's attorneys claimed that she was the victim of lousy representation, tainted evidence and a rush to judgment by cops and prosecutors.

In Texas, the claim of legal taint, racial bias and pitiable defense attorneys is so routine it almost always falls on deaf ears in the state court system. In most cases, the condemned are eventually executed. But Newton is a woman, and that guaranteed that her claim would get noticed. Even Texas departs from its death row "dispatch them quick and often" stance when it comes to women offenders. Newton has languished on death row for 17 years while her appeals meandered through state and federal courts.

Newton's case, though, is hardly unusual. Women commit more than one in 10 murders. But only one in 50 convicted women murderers get the death penalty, and few of those sentences are ever carried out. Female executions account for slightly more than 1 percent of executions. Women are far more likely than men to get their sentences commuted to life imprisonment.

If Newton is executed, she will be the first woman executed since 2002. When Oklahoma executed three women in 2001, the state had the grisly distinction of executing more women in one year than any other state in U.S. history.

The gender bias that riddles the death penalty as much as racial and class bias is a good thing in that it saves the lives of women. What's problematic is the rationale for saving their lives. Prosecutors regard women as less violent, less threatening and more emotionally unstable than men. If they kill and maim, they supposedly do it out of blind love or loyalty to a man. This reinforces the notion that women are the dainty sex in need of guidance, protection and, ultimately, male control. This strips them of any social and moral accountability for and control over their acts. It makes it even easier to marginalize women.

Husbands and boyfriends physically and emotionally savage many women. Yet, if women kill their mate, courts more often than not consider it self-defense. They are not branded or demonized as dangerous, violent sociopaths. When that argument doesn't fit, and women kill for the same reasons men do, many prosecutors, judges and juries still are reluctant to impose the death penalty. If they do impose it, there's a similar reluctance to carry out the sentence.

That happened in the case of pick-ax murderer Karla Faye Tucker in Texas. Before Tucker was executed in 1998, conservative evangelicals Jerry Falwell and Pat Robertson, both death penalty hard-liners, rallied to her defense and demanded that she not be put to death. Robertson publicly called her "a sweet woman of God." Robertson and the evangelicals claimed they backed her because of her jailhouse born-again Christian conversion. But scores of men have also grabbed at the Bible and found God on death row. There's no record that Robertson or the others called any of them "sweet men of God" and leaped to their defense.

The gender double-standard has raised howls from some condemned men, death penalty opponents and even some feminists, who argue that gender, just as race and wealth, should play no role in determining who lives and who dies in the nation's death chambers. But that argument won't get any further than the argument that racial bias is ample reason to dump the death penalty. The Supreme Court put that to rest years ago when it ruled in McClesky vs. Kemp, which mandated that generalized statistics of race were insufficient to invalidate a death sentence. For a defendant to have any chance of having his sentence overturned, he'd have to prove that the death penalty was imposed based on racial bias in his particular case, something that is usually very difficult to prove.

Even if more women wound up on death rows, and were executed as fast as or faster than men, it wouldn't make the death penalty any fairer or less barbaric than it already is. While gender bias perpetuates stereotypes of female victimization and warped notions of male chivalry, it still offers some hope that prosecutors, judges and juries are willing to put legal fairness and human compassion before the bloodlust to legally kill. That should be the case regardless of whether the accused is Frances Newton, or a man.

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