The uncritical resort to sex-role stereotypes pervades the trials, sentencings, and media reactions to women who receive the death penalty. Although ideas of sex-appropriate behavior influence innumerable aspects of social relations, their influence in the criminal justice setting can be particularly invidious. In a given trial, a woman defendant’s failure to conform to traditional notions of womanhood may lead judges and juries to believe that she is more likely to have committed the offense with which she is charged, to impute a higher degree of mens rea to her criminal action, or to condemn her more harshly for criminal behavior. On a general level, the condemnation of women who, in addition to committing criminal acts, also transgress other sex-role stereotypes, reinforces ideas of deviance and normalcy that can confine women to traditional roles of passivity and helplessness.
While sex discrimination is increasingly recognized as a pervasive feature of many societal institutions and practices, its full range and implications have yet to be charted. The critique of sexism in the criminal justice system tends to be localized to certain arenas, such as the law of rape and domestic violence. Other features of the system, such as the gender segregation of prisons and the widely disparate incarceration rates for men and women, draw relatively little critical attention by comparison. The widespread association of criminality-and especially violence-with men facilitates this oversight, as the naturalization of “male” and “female” insulates certain gender-related disparities from scrutiny. With this in mind, it is important to investigate the ways in which sex stereotyping and gender bias affect the indictment, conviction, and sentencing of women.
This article focuses on one aspect of this too-often hidden story: the elements of gender bias in capital punishment, and how these play themselves out in broader societal understandings and practices surrounding the use of violence by women. The symbolic embodiment of justice in a female figure belies the fact that the majority of law-makers, law-enforcers, law-interpreters, and law-breakers are male. The masculinist assumptions embedded in our criminal justice system mirror and reinforce paradigms of social normalcy and deviance. While more men are convicted and incarcerated than women, this phenomenon itself reinforces the image of the “criminal woman” as “doubly deviant,” and even “doubly damned.” The answer is not to incarcerate more women just for statistical equality, but rather to discourage the destructive perpetuation of sex-role stereotypes by the organs through which criminal justice norms are articulated and promulgated, including the, the bar, bench, and media.