Throughout American history, our legal system has struggled to provide equal criminal justice for all, regardless of race, religion, or gender. No component within that system has had greater difficulty accomplishing that goal than capital punishment. The administration of the death penalty (1) has remained constantly under fire for its perceived discriminations, incompetent defense attorneys, fatal flaws, and perceived barbarity.
In an attempt at fairness, the courts have identified a number of deficiencies in the system and have tried to correct them. Most notably, in 1972, the Supreme Court acknowledged the widespread racial disparity between the execution of blacks and the execution of whites for the same crimes. In an effort to end the "totally capricious selection of criminals for the punishment of death," (2) the Court in Furman v. Georgia declared that "the imposition and the carrying out of the death penalty ... constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." (3) Ruling that the selective and arbitrary application of the death penalty was "cruel and unusual," (4) the Court suspended the death penalty. (5)
Furman, however, left the door open for a narrow application of the death penalty. (6) In Gregg v. Georgia, the Supreme Court held that capital punishment did not always violate the Constitution and permitted the reintroduction of capital punishment, provided that states impose procedural safeguards. (7) These safeguards include: (1) statutes "specifying the factors to be weighed and the procedures to be followed in deciding whether to impose a capital sentence," (8) and (2) a "bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of the sentence and provided with standards to guide its use of information." (9)
Despite these safeguards and the progress made in eliminating discrimination in the selection of those upon whom the death penalty is imposed, a glaring deficiency remains--that of "a system-wide apparent bias based on the gender of the offender." (10) Simply put, throughout the history of the American capital punishment system, there have been significantly fewer women both sentenced and executed for capital crimes than their male counterparts. Justice Marshall recognized the obvious discrepancy during the Furman debate, noting:
There is also overwhelming evidence that the death penalty is
employed against men and not women. Only 32 women have been
executed since 1930, while 3,827 men have met a similar fate.
It is difficult to understand why women have received such
favored treatment since the purposes allegedly served by capital
punishment seemingly are equally applicable to both sexes. (11)
Thirty-four years later, Justice Marshall's blunt observation still rings true. Nationwide, between the years 1973 and 2002 (12), of the 859 individuals executed, (13) only ten, or 1.2%, were women. (14) And as of 2002, of the 3,557 total prisoners on death row around the nation, only fifty-one, or 1.4%, are women. (15)
So where does this leave us? Why do women account for such a small percentage of those on death row and/or executed? Does our capital punishment system discriminate in favor of women? Or can these numbers be explained in some other fashion?
In an effort to answer these questions, this note will first explore the different theories advanced to explain why some women are sentenced to capital punishment while others are spared. The analysis will continue with a comparison of the women and the men in similar circumstances on North Carolina's death row. This comparison will be used to ascertain whether any of the proffered theories may explain the women's death sentences.
Between the years 1976 and 2002, women committed only 12.1% (16) of the 512,599 homicides committed in the United States. …