Fall 1996 Human Rights Magazine

By Thad Rueter

The facts are simple. In 1977, Guinevere Garcia murdered her daughter, and later received a 10-year sentence for the killing. Four months after her release, she killed her estranged husband during a robbery attempt. This time, the court imposed the death penalty.

Garcia had refused to appeal her sentence, and opposed efforts to save her. Death penalty opponents turned to Illinois Gov. Jim Edgar, who, as a state legislator, voted to restore the death penalty.

The facts of the case swayed his opinion. Just hours before the scheduled execution, Edgar commuted Garcia's sentence to life without parole, his first such act in more than five years in office.

The fact that Garcia escaped her execution isn't so unusual.

Since the beginning of the colonial era, 20,000 people have been lawfully executed in America, but only 400 of them have been women, including 27 who were found guilty of witchcraft. In the 23 years since the Supreme Court reinstated capital punishment, 5,569 total death sentences have been given out by courts, 112 to women. Of these 112, only one has been executed (Velma Barfield in 1984), compared with 301 men.

Leigh Beinen, a Northwestern University law professor who studies the gender bias in capital cases nationwide, thinks the reason so few women face execution has to do with the symbolism that's central to the death penalty.

"Capital punishment is about portraying people as devils," she says. "But women are usually seen as less threatening."

Juries and judges tend to find more mitigating factors in capital cases involving women than in ones involving men, Beinen explains. Women who kill abusive spouses, for example, are often seen as victims. Women are more likely to kill someone they know without any premeditation, which is considered less serious than killing a stranger, while some women are presented by defense attorneys as operating under the domination of men. And Garcia's case, according to Edgar, was not "the worst of the worst."

"Putting women in docks provokes community ambivalence," says Beinen, pointing out that by the end of the Susan Smith trial last year, which left the young mother convicted of drowning her two toddler sons, initial demands for the death penalty had largely petered out.

Victor Streib, a leading expert on gender bias, has shown that while women comprise 13 percent of U.S. murder arrests, they account for only 2 percent of the death sentences, and make up only 1.5 percent of all persons presently on death row. These last two figures have remained steady for 20 years.

Streib says prosecutors try to "defeminize" defendants by portraying them as lesbians- even if they're not- or prone to violence, gang leaders or having other traits contrary to "natural female patterns." But prosecutors still have a tough time overcoming defense tactics that include profuse crying, bodily shaking and a head hung in shame, histrionics that disturb Streib.

"It lumps women in with the retarded and children by implying that they can't control their own actions," he says.

Streib, who teaches at Cleveland-Marshall College of Law, and has compiled three studies of gender bias in capital punishment, has spoken before groups opposed to the death penalty, but says they haven't used his research because they are afraid of "stirring the pot" by giving aid to death penalty advocates. Anyway, he says, he's a scholar, not a politician, and his goal is to "explain the unexplained" and provide ammunition for the debate.

Beinen makes no secret of her opposition to capital punishment, and says she was "happy" to see Garcia's sentence commuted. Beinen has received a few letters from men who are fighting their death sentences on the grounds of gender bias, but though she says the death penalty is unfair, she is pessimistic about these challenges.

Gender bias challenges would run into the same obstacles as racial challenges, Streib says. In McClesky v. Kemp, the Supreme Court ruled that death-row defendants cannot argue a general pattern of racial bias in capital cases. Instead, a defendant must prove that race affected his or her specific case, a precedent that Streib thinks will block any gender suit. He predicts someone will push legislative action dealing with gender bias, and that it will be something along the lines of the failed Racial Justice Act, which would have allowed capital defendants to use statistics to challenge race bias

. "But it's not likely there will be a cure," he says.

So will anything change? Probably not, according to Streib. Because of the powerful symbolism of execution, he doesn't think the rising anti-crime mood of the country will lead to any great increase in the number of women on death row. And while Beinen hopes that gender-bias research will make people aware that capital punishment is all about "symbolism and politics," Streib is more guarded.

"We'll probably have another execution in the next 23 years," he says. "I expect one soon, but I've been saying that for a while now."

Thad Rueter is a writer living in Urbana, Illinois.

As published in Human Rights, Fall 1996, Vol. 23, No. 4, p.10-11.