‘Popular as a Victim, Forgotten as a Defendant’: Injustice in Women’s Capital Defense Trials

Valentina Meo is a third year in History and International relations that loves to travel, read, and debate in Model United Nations.

[Featured Image: An animated white gavel above an animated white syringe against a red background.]

This piece is the first part in a multi-part series on injustice in women’s capital defense trials.

Recently, celebrities ranging from Kim Kardashian to Beyoncé have found a new cause to stand up for: calling for a stay of execution for death row inmate Rodney Reed. Reed was charged to death in 1996 for the murder of Stacey Stites by an all-white jury in Texas, despite having a solid alibi for the time of the murder, no DNA evidence analysis on the murder weapon, and weak evidence on behalf of the prosecution tying him directly to the murder. Following public outcry, the state of Texas has decided to grant his stay of execution to allow for further investigations into his innocence. Unfortunately, the injustice Reed faced in his capital trial is not an isolated incident, but rather part of a larger pattern of abuse of power that impacts defendants from getting the death penalty in any country. 

There are three major problems with capital cases: poverty, race of the defendants and of victims, and jury selection. Generally, people on death row are working class and marginalized in some way from society. The UN Office of the High Commissioner of Human Rights called the death penalty a “class-based form of discrimination in most countries, thus making it the equivalent of an arbitrary killing”. Defendants that are able to pay for adequate legal counsel in their capital cases do not end up on death row, and much more likely to get a sentence of life in prison without parole. The race of the defendant and the race of the victim are two factors that directly influence the prosecution in capital cases. In 82% of death row cases in the United States, the race of the victim was found to influence the likelihood of being charged with receiving the death penalty. In the state of Georgia, 70% of cases involving a black defendant charged with the murder of a white person end up as capital cases. In the United Arab Emirates, out of the approximately 200 people on death row, only 19 are UAE nationals, showing that foreigners are more likely to receive the death penalty. Lastly, there is also the problem of finding a jury for a capital punishment trial. In the United States, the problem rests with ensuring that juries are an accurate cross section of the community. Many capital defense cases are decided by all-white juries, like Reed, due to minority voters being struck off voter registration rolls, and prosecutors knowing that members of the African American community are less likely to support the death penalty and prosecutors seek to disqualify them from jury selection early.

For women who are facing the death penalty, the following problems are compounded, as they face further gender-based discrimination and increased roadblocks that put them at disadvantage when dealing with the court system and are especially vulnerable to civil rights violations. Women’s cases highlight the failures of the justice system in the application of capital punishment. 

Women are more likely to not have access to the financial resources to hire their own lawyers, and in countries where child marriage is common, they have to rely on their families for financial support. Women are often abandoned by their families when arrested especially for the murder of their husbands, and therefore many are given ineffective defense lawyers if granted one by the state at all. The higher levels of illiteracy amongst women also prevents many from being active participants in their own trials and therefore makes it harder for them to help their lawyers build a defense. 

Specifically, in Gulf nations like the UAE and Saudi Arabia, migrant workers are sentenced to death in disproportionate numbers. Many of the women on death row are domestic workers, and the absence of cultural, linguistic, and institutional knowledge of the criminal justice system hinders their cases. Language barriers, illiteracy and economic vulnerability also increase the chances of forced and false confessions and report high levels of torture on behalf of police officials. Migrant workers are often accused of capital crimes, such as zina (extramarital sexual relations under Islamic Law) if they try to report their boss for sexual harassment on the workplace. Often, migrant workers are not given a translator to speak to their lawyers or judges in their case and therefore are more likely to be given inadequate counsel.  

Gender is a compounding rather than a mitigating factor for women’s capital trials, and many women face abuse and longer sentences than men specifically when they are seen as having operated outside of their traditional gender roles as a loyal wife and caring mother. Women who been known to have affairs or on trial for the murder of children tend to receive harsher sentences than their male counterparts charged of the same crimes. Brenda Andrew was charged with the murder of her husband in 2001, and during her trial the prosecution relied on gender bias to prove her guilt. The prosecution painted her as promiscuous and aired her sexual history and alleged extra-marital affairs from years before the murder in order to paint motive to kill her husband. They called in male witnesses to discuss which outfit she wore and painted them as “tight, revealing, or sexually provocative”. Brenda was not put on trial for the murder of her husband but rather for her promiscuity and illicit past and for her failings as a wife and mother. 

The gender-based violence women face is often not considered as a mitigating factor in capital punishment trials. Despite women mostly being on death row for having killed their abusive husbands, women’s past experience facing physical, mental, and sexual abuse is often ignored by judges and juries in cases outside of immediate self-defense. Many women in this situation were forced into marriage at a young age and prevented from divorcing their husbands once they became abusive by societal pressures, children, or other factors. Public defenders often have a difficult time arguing that long-term abuse and the gender-based violence is a mitigating factor to mostly male juries and judges. Proving domestic abuse is an issue as well, and women are afraid to speak out due to stigma, shame, and lack of trust in police and judicial proceedings. 

The problem with the death penalty is not necessarily that women are all innocent and should be acquitted, some of them are guilty of the crimes that they are charged with and should face the consequences, and in some cases that is the death penalty. The issue is that women are often judged not only for their crime, but also for their daily behavior as women. The gender-specific roadblocks that prevent women from getting a fair trial, such as ignoring their gendered violence traumas, not acknowledging the extra difficulties that women face in hiring adequate lawyers and judges, and how high levels of illiteracy and child marriage impact women differently than men. These issues should be acknowledged by judges and juries in capital trials when dealing with female defendants and realize the impacts of gender imbalances in the court system. In addition, while there has been a lot of attention paid to minors on death row and marginalized communities on death row, there is little research into women’s experiences on during capital trials and on death row, which will draw more attention to the difficulties women in capital trials face and outline some of the injustices. 

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