A Feminist Look at the Death Penalty

Abstract

Amy E. Pope (*) I INTRODUCTION The death penalty has its fervent defenders and critics. In all the debate about the procedure, however, one has suggested how a feminist perspective might improve the discussion. Feminist theory can be helpful in several ways. First, we can learn from the lives of the women embroiled in the process. Indeed, fifty-four women currently live on death row. (1) Not only are women themselves imprisoned by the state, but women are also the mothers, sisters, and wives of those condemned to die. Countless numbers of women are the victims of the crimes for which men are sentenced to death. And women are, in still small but growing numbers, the judges, prosecutors, and defense attorneys embroiled in the process. Second, and more importantly, the decision to impose the death penalty and the procedures for doing so present traditionally male ways of looking at the problem, presenting judges and juries with a limited means of considering the issues: Universal standards are divorced from context, dichotomous choices ar e imposed in place of a range of alternatives, and emotions are excised from the procedure. Imposing a feminist lens on the procedure will round out the largely one-sided argument. For these reasons and others, it is appropriate to look at the death penalty from a feminist perspective. How has the system affected the lives of women? How does the process and the punishment reflect the voices of women? Why are so few women sentenced with this penalty, and what does this imply about our culture? What is the feminist response to a procedure that ostensibly rids this country of the people who threaten women in the most violent ways? In Autumn 1998, Law and Contemporary Problems published an issue exploring the American Bar Association's Proposed Moratorium on the Death Penalty. (2) This note advances another argument in favor of the proposed moratorium-that, by employing feminist methodology to examine the death penalty, it becomes clear that the current procedural system fails to represent large numbers of those penalized under the system. Accordingly, the major purpose of this note is to start a conversation about the ways in which thinking from a feminist perspective may help us, as a society, to approach the death penalty in a more productive and holistic fashion. This note points out that, even when there is a horrible crime, and instinct calls for death, there are contextual factors that must be considered. Universal standards that require yes or no answers fail to address the needs of both the Victims of crime and its perpetrators. Until criminal procedure is reconfigured to better represent those voices, it is inappropriate for the democratic state to impose such a final and severe sentence. After a brief exploration of the need for a feminist perspective on capital punishment in Part II, Part III begins by determining which feminist methodology is most appropriate to an analysis of the death penalty. The strengths and weaknesses of two of the many models of feminist thought are specifically outlined. I do not attempt to defend the wisdom of one school of thought over the other; rather, my goal is to fuse the two theories to create a different way of looking at the capital punishment system. Part IV applies this hybrid methodology to the leading Supreme Court cases on the death penalty and asks whether we should have the death penalty at all. The note then considers, if we are to have the death penalty, how we might make the procedure more fair. Part V questions the procedures used to employ capital punishment and finds discrepancies in how the law handles cases involving crimes committed in the public and private sphere. Part VI considers victim impact statements as an example of an attempt to universalize the criminal justice system, and considers how the initiative has fallen short. The note concludes by suggesting that, while there is immediate resolution to the problem, rethinking capital punishment from a feminist perspective will start a more productive discussion of the issue. …