Table Of Contents
- About the author(s)/editor(s)
- About the book
- This eBook can be cited
- Acknowledgments (2014)
- Introduction to the Second Edition
- Introduction to the First Edition
- Formal Equality
- Theory, Law, and Practice
- Chapter 1. Why So Few and Why These Few? Gender and Criminology
- It Takes a Lot to Make a Girl Go Wrong
- When Nothing Goes Right
- The Victim/Offender Continuum
- An Integrated Approach
- From Killing to Being Killed
- Chapter 2. A Capriciously Selected Random Handful
- Furman and Gregg: The Modern Foundation
- Lockett and Strickland: Mitigation and Representation
- McCleskey: Statistical Evidence of Discrimination
- Defendants with a Disadvantage: Ford, Penry, and Atkins
- Herrera and AEDPA: The Issue of Innocence
- Equal Protection and Gender
- Chapter 3. Setting Precedent
- The Crime(s)
- The Trial
- The Verdict and the Sentence
- The Appeals
- The Final Chapter
- Prison Life
- Chapter 4. She Didn’t Look Like a Killer
- The Crime
- The Back-story
- The Trial
- After the Trial
- Chapter 5. Domestic Offenses
- Judias Buenoano
- A Series of Charges
- Exhuming James Goodyear
- Points of similarity
- Mitigating and aggravating factors
- New Counsel and New Insights
- The Electric Chair
- The Last Appeal
- Betty Lou Beets
- Crime and Punishment
- The Final Days
- Black Widows?
- Chapter 6. The Oklahoma Three
- Wanda Jean Allen
- Marilyn Kay Plantz
- Lois Nadean Smith
- Three in 2001
- Chapter 7. Aggravating Circumstances: Killing Children and Cops
- Christina Riggs
- The Trial
- After the Trial
- Why Riggs?
- Lynda Lyon
- The Crime
- After the Arrest
- The Trial
- From Sentence to Execution
- The Significance of Lyon’s Case
- Chapter 8. The “Monster”
- The Murders
- Who Was Aileen Wuornos?
- The Mallory Trial
- Aggravating and Mitigating Factors
- Pleas and Appeals
- The Finale
- Mental Illness
- Female Serial Killer
- Chapter 9. Perilously Close to Simple Murder
- The Crime and the Trial
- After the Sentence
- Habeas Appeals
- Final Pleas
- The More Things Change, the More They Remain the Same
- Chapter 10. Not The “Triggerman”
- The Commonwealth’s Case
- The Aggravating Factors
- The Appeal Process
- New Evidence and Clemency
- Not Unique
- Chapter 11. #500 and #510
- Kimberly McCarthy: Number 500
- The Crime and the First Trial
- Further Proceedings
- The Final Efforts
- Race as an Issue
- Number 510: Suzanne Basso
- The Legal Proceedings
- The Issue of Competence
- Gender as an Issue
- Chapter 12. Lessons from Wretched Sisters
- The Decision to Prosecute
- Unbiased Juries?
- Inadequate and Unethical Defense
- The Political Context
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This book has been both a labor of love and labor of pain. At times the sadness of the lives and deaths of the wretched sisters and the failures of the system were almost overwhelming. But I hope I repressed the anger and sadness to tell their stories in an honest and respectful way.
I have been extremely fortunate to work with some wonderful graduate students who helped with research, read drafts of the manuscript, and discussed the death penalty at great length. I am especially grateful to Mindy Griffith, Donna Hale, Bakir Poljac, Brandi Sanders Mullins, and Katherine Miller.
My daughter, Polly Atwell, is, as always my confidant and most valuable intellectual colleague.
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I have additional thanks to offer as the second edition of Wretched Sisters is completed. Abby Smith and Hollie Fitzgerald assisted enthusiastically with research. Graduate students in several seminars on Capital Punishment asked interesting questions and helped to clarify the discussion of how gender impacts the administration of the death penalty. I will miss conversations about these issues with many wonderful students.
David has offered immeasurable support as well as the opportunity to spend some time in Texas, an excellent place to learn about capital punishment.
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When Wretched Sisters was first published in 2007, I hoped there would never be a need for a second edition, that no more women would be executed in the United States. After the execution of Frances Newton in 2005, five years passed before another woman, Teresa Lewis, was put to death in Virginia. Then in 2013 and 2014, Texas executed Kimberly McCarthy and Suzanne Basso. With three recent executions, it seems there is a reason to update this work. The second edition offers a chance to see what has changed and what has remained the same.
Most observers would agree that the climate surrounding capital punishment is different from the atmosphere of the late twentieth century, even from the atmosphere of seven years ago. Although the death penalty still has many strong supporters, there is also more vigorous and widespread opposition. Statistics bear this out. Since 2007, five states—New Jersey, New Mexico, Illinois, Connecticut, and Maryland—have abolished capital punishment. New York’s highest court found its capital statute unconstitutional and that state’s death row has been demolished. Governors of Oregon and Washington have each declared a moratorium on executions. Perhaps even more revealing of changes in attitude toward capital punishment, the number of death sentences per year has decreased from over 300 in the late 1990s to ← 1 | 2 → 80 in 2013. Likewise the number of executions carried out has declined from 98 in 1999 to 39 in 2013.
Public support for capital punishment as measured by opinion polls has decreased in the twenty-first century. While in 1994, 80% stated that they favored the death penalty for murder, in 2013 the number had declined to 61%. When offered options including life without parole, only 33% expressed support for capital punishment.1 Scholars and commentators have offered a number of reasons to explain the decline in support for the death penalty. Some have suggested that the stories of innocent people on death row—some exonerated, some apparently not—have led many people to question the use of the death penalty. The availability of life without parole as an alternative sentence in all death penalty states may also contribute to its declining popularity. Greater awareness that a death sentence costs the state many times more than a sentence of life in prison may also have changed some minds, especially among fiscal conservatives. Some have noted that the rise of libertarian sentiments may lead those who believe government’s power should be limited to question whether any government should have the power to take the lives of its citizens.
In addition, the United States stands virtually alone among modern industrial democracies in its use of capital punishment. The European Union nations oppose the death penalty and follow policies intended to curb its use. For this reason, a number of European drug companies have refused to sell preparations used in lethal injections to the U.S. Thus, the states who wish to continue to execute their citizens have found themselves either seeking new drugs from unregulated pharmaceutical companies or experimenting with novel combinations of drugs. The gruesome executions that have resulted from these procedures have raised further questions about the future of the death penalty.
But even as some things have shifted, other things have changed very little—at least in the states that have retained the death penalty. Respected non-partisan organizations, such as the American Bar Association and The Constitution Project, have issued major reports outlining problems with the way capital punishment is administered.2 To no one’s surprise these studies document some persistent issues: incompetent and underfunded defense lawyers; wide prosecutorial discretion; problems with jury selection; geographical inconsistencies; elected judges for whom capital cases may determine their political future; inadequate policies for dealing with mental disabilities and mental illness among defendants; racial disparities. Death sentences ← 2 | 3 → continue to be largely a feature of states in the South. Texas is still performing approximately one-third of all executions in the nation.
This new edition of Wretched Sisters demonstrates a number of those themes. Of the three new cases, all took place in southern states two of them in Texas, one from Dallas and one from Houston. These conform to the geographical pattern of where capital sentences are most likely to occur. Likewise, all the women executed since 2007 had inadequate assistance from their court-appointed attorneys. One of them had indications of mental retardation, one was mentally ill, and the third was addicted to drugs. There are clear issues of racial bias in Kimberly McCarthy’s case. And, as this book seeks to illustrate, gender played a role in each case. In ways subtle and overt, all three of the most recently executed women were convicted—at least in part—based on their failures to measure up to the social expectations for women.
1. Death Penalty Information Center, Facts about the Death Penalty (May 12, 2014) at www.deathpenaltyinfo.org
2. American Bar Association, Texas Capital Punishment Assessment Report: An Analysis of Texas Death Penalty Laws (American Bar Association, 2013).
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INTRODUCTION TO THE FIRST EDITION
Since 2004 when I began researching and writing this book, I have found a common response among friends, students, and colleagues when I explain its subject. Of the fourteen women executed in the last thirty years, most people recognize only the names of Karla Faye Tucker and Aileen Wuornos. The others are anonymous. They were poor, often uneducated, not particularly attractive women, who, in most cases led difficult lives. When we talk about the small number of women who have been put to death for murder, people usually assume there are so few because the criminal justice system is reluctant to execute women, that they receive some sort of special treatment based on their sex. Many see this as part of a historic attitude of chivalry.
I posed the question to my students, “Suppose Lizzie Borden had been Larry Borden. How would the story be different?” We were discussing the 1892 ax murders of Andrew Borden and his wife Abigail. Thirty-two year-old Lizzie, a spinster who lived at home, was arrested and charged a week after the murders. Although she never gave a coherent account of her activities on the morning of the deaths and although no other suspect was ever identified, Lizzie was found “not guilty” of the two bloody killings. ← 5 | 6 →
The students answered immediately that “Larry” would have been denied the special favoritism, the “chivalry” that acquitted Lizzie of the murder of her father and stepmother. They agreed with the general popular sentiment that the legal system treated Miss Borden more leniently in part because the male lawyers, male judge, and all-male jury could not face the prospect of convicting a female of a violent ax murder. As a respectable, middle-class “lady,” Lizzie Borden reminded those in court of their wives and daughters, a comparison drawn overtly by the defense attorneys and the presiding judge and acknowledged even by the prosecutor. The defendant herself seemed to exploit these gendered assumptions by carrying flowers into the courtroom and weeping when the proceedings offended her feminine delicacy. Yet the simple conclusion that Lizzie Borden walked free just because she was a woman and that her experience in some way typified that of other women accused of murder ignores the larger context of gender and its relation to the legal system.
As Carol Smart has noted, law not only acts on gendered subjects, law is part of the continual reproduction of gender differentiation.1 In other words, Lizzie Borden’s fate was influenced by the man-made legal system under which she lived, and, at the same time, her experience became a factor in the way others would see and interpret the law. As a woman in the 1890s, Lizzie Borden’s life was circumscribed by her sex. She was expected to be a dutiful daughter and to live “a life consisting mainly of things that didn’t happen.”2 Had the fictional Larry Borden existed, his life would have been different long before he ever set foot in the courtroom. Larry and other men like him would have had a voice in the laws under which they lived and a chance to participate in interpreting them. Even on trial for murder, Lizzie was held to a system of laws which no woman had helped to formulate. She lived within a patriarchal structure in which power and privilege were unequally distributed, where maleness was the standard for full citizenship. Yet her acquittal has been interpreted as evidence of privilege and deference accorded to women—or more properly to “ladies,” for class was surely a significant factor in Lizzie Borden’s case. Those who sat in judgment of her were mindful of her respectability and of her family’s position in the community. Equally important was the competent legal representation her money was able to secure. Had she been a poor woman or a woman of “questionable virtue” on trial for murder, her failure to meet the class-based definition of femininity would have undermined her claim of innocence.
The point of this exercise is not to plead that Lizzie Borden should not have been accountable for murder, if she was actually guilty. Rather in looking at the story of Lizzie Borden or of any other person accused of a crime, ← 6 | 7 → gender and class are inextricably linked with the circumstances of the case. Our real concern is why, if Lizzie had been Larry and if Larry/Lizzie had been a marginal member of the community, the outcome would have been different. To demonstrate that such considerations are not just idle speculation, one might compare the story of Lizzie Borden with that of a notorious female ax murderer of the late twentieth century, Karla Faye Tucker. Totally lacking the privileges of class, social status, and conventional femininity, Tucker found that a modern jury could easily believe that a woman like her was capable of murdering two people with a pickax.
An examination of the women, including Tucker, who ended up on death row in the contemporary era reveals both similarities to and differences from the Borden example. Today governments and private individuals are prohibited from discriminating on the basis of sex. Women are thus promised formal equality with men. But merely setting up a male standard of justice, demanding that women be treated as if they were men, does not address the complex issues of gender and law.
The title of this book comes from an article by legal scholar Elizabeth Rapaport in which she notes that some efforts to substitute formal equality for gender bias in the application of the death penalty could result in a “campaign to exterminate a few more wretched sisters.”3 Rapaport’s comment is a useful starting place for this inquiry. From one perspective, women have been underrepresented in the history of capital punishment in the United States. We know that since capital punishment was reinstated in 1976, women have made up less than 2% of those sentenced to death and only 1.1% of those were actually executed. We know that at the end of 2006, 58 women and more than 3000 men reside on the death rows of the 38 states that have capital punishment. It is a fact that when three women, all in Oklahoma, were given lethal injections in 2001 (a year when 63 men were put to death), it was the largest number of female executions in a single year since 1863 when Virginia hanged six slave women. Two women were executed in 2002 and none were put to death in 2003 or 2004. Many were surprised when Texas executed one woman, Frances Newton, in 2005. By comparison, the numbers for men were 70, 65, 59, and 59, respectively. Thus Rapaport’s rueful comment makes sense. A certain interpretation of gender equity would demand the execution of more ← 7 | 8 → women. The reality of capital punishment tells us that they would be among our more wretched sisters.
But simply reiterating the “maleness” of death row is old news.4 Counting the number of women sentenced to death and comparing it to the number of men is just the smallest segment of the story of gender and capital punishment. It comes as no surprise to anyone conversant with the criminal justice system that death house residents are mostly men, just as men far outnumber women throughout prisons and jails. Nor is it any surprise that the 9:1 ratio of males to females in the corrections system reflects a distribution that crosses jurisdictions and that has persisted for as long as anyone has calculated patterns of crime and punishment. During the last several decades, influenced by a maturing feminist scholarship, criminologists have finally devoted some serious attention to questions raised by the disparities correlated with sex and gender. We now have some valuable work that addresses the twofold puzzle: why do so few women commit crime and why do those few do so? The work of feminist criminology is one element within the scope of this book.
Theory, Law, and Practice
One might begin by noting that because the gap in criminal behavior between men and women is consistent across time and space, gender itself must be part of the explanation.5 Nothing else seems to account for why such disparities persist, especially when it comes to the most violent crimes. In general, serious offenses by women are more likely to be “situationally induced,” embedded within an abusive relationship rather than part of a criminal lifestyle. When one examines the stories of women sentenced to death, prior relationships with the victims, often enmeshed within a history of abuse, are common factual similarities. The first chapter will explore what feminist criminological theory offers to explain the links between victimization and deviance, especially as these factors exist within a patriarchal society. In addition to examining the patriarchal structures that value victims so unequally, the chapter will also look at the ways in which the system continues to hold men and women to different standards. It will support the argument that with respect to gender, the capital punishment regime is especially arbitrary and capricious in a way that disadvantages women as offenders and as victims.
Chapter two places the issue of gender and capital punishment in the context of relevant decisions by the United States Supreme Court. Although the Court has never directly addressed the question of sex discrimination ← 8 | 9 → in the application of the death penalty, its decisions with respect to equal protection for women and their general death penalty jurisprudence offer a foundation for placing the issue within a legal framework. Many argue that the edifice of law created around capital punishment in the recent past has made its application more “arbitrary and capricious” than it was when it was temporarily outlawed in 1972.6
Chapters three through nine focus on the eleven women who have been put to death in the recent past. Each has a story, and the stories place the women within the framework developed by feminist criminology. Their stories include terrible crimes, and honesty is not served by pretending otherwise. Yet every one of the executed women experienced a flawed criminal justice system. This work examines their cases—not simply from the perspective of the crime but also from the perspective of how fallible human beings operated the “machinery of death.”7
The final chapter is an effort to synthesize what can be learned about crime and punishment in a patriarchal society by looking at the issues of gender and the death penalty. Some would argue that such a small number of cases do not afford enough examples from which to draw conclusions. But if the few women who face death at the hands of the state have life experiences common to significant numbers of other women, their stories can contribute to our understanding of systemic gender inequities. They may also afford further evidence of the impossibility of creating flawless and unerring policies for determining who lives and who dies.
Psychiatrist Dorothy Otnow Lewis poses a question that captures the perspective of this book. When you read about the trials and executions of witches, she asks, do you identify with the woman accused of witchcraft or do you identify with the crowd calling for her death?8 Like Lewis, I realized, I empathize with the “witch.” I can see myself in her shoes—condemned to death by a system where the rules were written and applied by people who knew little about my life and who were unwilling or unable to hear my story.
A similar approach, seeing the fourteen executed women who are its subjects through the prism of their own experience, is my goal for this book. Each of these women was found guilty of murder. In most cases, there is little doubt that she actually “did the crime.” Yet I would argue that an empathetic probing into each of these stories may offer a useful way to address the basic question posed by these fourteen death cases. How do we explain the role this woman played in the crime and why, out of all the murders committed in the United States, was she selected for the death penalty? As I read about ← 9 | 10 → each one of these cases, I tried to imagine what her life was like before the killing. Where did she live? How did she survive and earn a living? Who were the people around her? Did she have friends? What was going on in the days immediately before the murder? How did things get to the point of desperation where killing someone seemed to make sense?
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