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For Black women, the protections of womanhood are no bar to execution

On the path to death row, Black women confront inequity and stereotypes at the intersection of race and gender.
Tamar Sarai Davis December 29th, 2020
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In many ways, the racial disparities that pervade capital sentencing are part of a lineage of anti-Black violence that extends back centuries. The memory of of mob violence and lynchings looms large in capital cases, especially in high-profile ones where the defendant’s guilt is in doubt, like that of 14-year-old George Stinney who was executed in 1944, or Brandon Bernard, the 40-year-old man executed this month despite five of his sentencing jurors coming forward to say they would not have condemned him had they been given all of the evidence prosecutors suppressed. However, while Black women have always been a part of this history and continue to be disproportionately impacted by legacies of racial violence, discussions about that violence—including capital punishment—often exclude them.

Comprising a little less than 14% of the total U.S. female population, Black women are overrepresented on death row. Of the 51 women currently on death row, over 24% are Black, and of the 16 women executed since 1976, four—Wanda Jean Allen, Frances Newton, Kimberly McCarthy, and Lisa Coleman—have been Black. As reported by Prism, generally juries are reluctant to condemn women to death, so prosecutors seeking capital punishment often intentionally depict women defendants as transgressing feminine norms to exclude them from the “protections of womanhood.” However, those very protections have never been extended to Black women either inside or outside of the courtroom. Both historically and in the present day, this intersection of race and gender has shaped Black women's experiences in capital cases in significant and sometimes unexpected ways, making them more likely to be sentenced to death, but in some cases, more likely to see those sentences commuted.

Who gets to be a ‘woman’? 

This September, the Death Penalty Information Center (DPIC) released Enduring Injustice, a report looking at racial discrimination in capital sentencing. The last time DPIC released a report focusing solely on race and the death penalty was in 1998. Ngozi Ndulue, director of research and special projects at DPIC and lead author of Enduring Injustice, says that while many trends have remained stagnant in these past 22 years, this new report seeks to examine how lynching, mob violence, and other forms of racial terror continue to inform the use of capital punishment today.

“The historical context is important because when we really look back, we see that racial bias and racial injustice has been intertwined with the use of the death penalty since the colonial era in the United States where during slavery, the death penalty was used differently depending on race,” said Ndulue in an interview with Prism. “There were statutes that allow for the death penalty for enslaved people and not for white people, and even in the North, in non-slave states, there was still disproportionate use of the death penalty against Black people.”

Enslaved women were not exempt from capital punishment. In fact, according to Ndulue, there have been more than 700 executions of women and girls since the earliest days of the colonial era, and more than 400 of those women and girls were Black. Enslaved women were often tried and convicted of murders that resulted from their close proximity to slave-owning families, such as food poisoning or arson. In other capital cases, enslaved women defendants killed in self-defense, often in response to the ongoing sexual violence they endured at the hands of enslavers.

A case from 1855 now known as Missouri v. Celia, a Slave, shows how capital punishment was employed against enslaved women who fought back. Celia, an enslaved woman in Callaway County, Missouri, had been raped multiple times by her slave master, Robert Newsom. One night when Newsom entered her cabin and advanced upon her, Celia struck him over the head with a wooden chair. Upon realizing he had died, Celia attempted to dispose of his body by burning his corpse in her fireplace. At the time, Missouri law held that it was a crime “to take any woman unlawfully against her will and by force,” which meant that killing in self-defense against attempted rape was justified and legally permissible. Celia’s defense team requested that the jury be instructed to include enslaved women under the protections of this clause, but the judge refused. On December 21, 1855, Celia was executed by hanging. As scholar Saidiya Hartman writes in her 1990 article Seduction and the Ruses of Power, Celia’s case illustrates how “the enslaved could neither give nor refuse consent, nor offer reasonable resistance, yet they were criminally responsible and liable.”

We can also look to far more recent cases to see how Black women defendants continue to be perceived as criminal due to their race and denied the “protections of womanhood.” In the case of Wanda Jean Allen, a Black woman executed in 2001 for the murder of her partner Gloria Leathers, prosecutors played on stereotypes related to both her sexual orientation as well as her race. As reported by Prism, women defendants in same-sex relationships are often cast as hypermasculine—a trend observed in Allen’s case when the prosecution described her as the “man” in her relationship. However, legal scholars assert that Allen’s identity as a Black woman further compounded the negative stereotypes used against her. At trial, prosecutors in her case presented to the jury a card that Allen had given to Leathers reading, “I’m going to kill something,” along with a threatening message. While the text alone was relevant to the case, advocates argue that the decision to show the card itself—which had a picture of a gorilla on its front—worked toward the prosecution's aim of playing off racial stereotypes. While showing the card to the jury, prosecutors said “that’s Wanda Jean Allen in a nutshell.”  

Dr. Mary Atwell, professor emeritus of criminal justice at Radford University, notes that in cases with Black women, racial overtones are added onto the tropes already used against women defendants in capital cases. Prosecutors can play off of the likelihood that jurors might already view Black women as bad mothers, hypersexual, or hypermasculine. Thus, while Atwell says that the use of racist tropes is “never as overt with these women as it would have been in some cases with Black male defendants and white female victims,” the strategy is still effective.

Ndulue also cites the cases of Marissa Alexander and Cyntoia Brown as being particularly illustrative of the enduring exclusion of Black women defendants from the leniency often inspired by womanhood. In 2010, Alexander was sentenced to 20 years in prison for firing a non-lethal warning shot against her abusive husband. In 2014, Alexander took a plea deal and was finally released after serving three years in prison and two years on home detention. In 2004, at the age of 16, Brown was convicted of murdering a man who had solicited her for sex. The murder, Brown and her advocates maintain, was an act of self-defense, and yet she was sentenced to life in prison and served 15 years before being granted clemency in 2019. While Alexander and Brown did not face execution, both cases were homicides and their initially harsh sentences underscore how the legal system has responded to Black women who try to protect themselves against violence since Celia’s time.

“Those two are stories where eventually there was success in having public support around the fuller story of who these women were and what they had survived, but in neither of them was that enough to convince juries and judges until after both had been sentenced,” said Ndulue. “Both [women] have spent time in prison, so I think that it's telling that even in these what you would call ‘success stories’ in [terms of] being able to have the general public understand their lives and circumstances and the effect that violence and exploitation had on the crimes that they were accused of committing—the success of telling that story was after many, many steps down the road.”

Violence across and within racial lines

If race undermines the protections and benefits of womanhood for Black women defendants, then how might their gender complicate well known trends and patterns as it relates to race and the death penalty?

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According to Enduring Injustice, the race of one's victim is highly determinant of whether a person will be sentenced to death—perhaps more determinant than the race of the defendant herself. In an analysis of executions for interracial murders since 1976, the report authors found that just 21 white defendants have been sentenced to death for the murder of a Black person, while a staggering 295 Black defendants have been sentenced to death for the murder of a white person.

Scholars and researchers have long asserted that this is rooted in the higher value placed on white lives, and a particular disdain for Black people who transgress racial hierarchies by exerting physical power over a white person. However, given that women defendants in homicide cases typically know their victim and that these cases are often rooted in intimate partner violence—which is largely intraracial—it raises questions of whether capital cases involving Black women would follow similar patterns.

Indeed, three of the four Black women executed since 1976 have had Black victims. Of the 12 Black women currently on death row, five had Black victims, six had white victims, and one had a non-Black victim of color.

While this aligns with trends observed with Black men on death row, where over half of their cases involve a white victim, Ndulue says that the numbers of Black women on death row alone are so small that it can be difficult to make statistically significant claims about what this might mean. Ndulue also reminds us that homicides are more frequently intraracial than the public is led to believe.

Womanhood, race, and reprieve

While Black women are overwhelmingly overrepresented on death row, oddly, greater awareness of racial disparities in capital sentences seems to make Black women defendants more likely to have their sentences commuted than white women—though those numbers are still small. In a 2008 study on women, race, and the death penalty, researchers Harry and Sheila Greenlee analyzed cases of women on death row since 1973 and found that while Black and Indigenous women were more likely to be sentenced to death row, they also had their sentences commuted or reversed at a higher rate than white women. Again, the number of women on death row is so small that it is difficult to make wide claims as to why this trend emerges. However, the convergence of clemency campaigns for women who are survivors of domestic violence or childhood abuse and advocacy efforts highlighting racial bias in death sentencing may more frequently bring cases of women of color to the attention of some governors.

Indeed, since the reinstatement of the death penalty in 1976, only 12 women have been granted clemencies, and seven of those women have been Black. Some, such as Beatrice Lampkin, who was convicted of hiring a hit man to murder her husband, had experienced domestic violence at the hands of their partner. Other sentences, like those of Latasha Pulliam and Debra Brown, were questioned after learning that the defendants were intellectually disabled. All of these seven cases were among mass clemencies granted by governors who were concerned about racial bias or unfairness during trials. In 1991, Ohio Gov. Richard Celeste granted clemency to eight people on death row, citing a “disturbing racial pattern” in death sentencing in the state—four of those clemency recipients were Black women. In 2003, Illinois Gov. George Ryan commuted the sentences of all people on death row in the state. In a speech delivered at Northwestern University following his decision, Ryan explained that despite initially being a supporter of capital punishment, he had come to find that “our capital system is haunted by the demon of error, error in determining guilt, and error in determining who among the guilty deserves to die.” Among the information that helped him come to this decision was an investigative report from The Chicago Tribune that showed that over two-thirds of people on the state’s death row were African American. Ryan’s blanket commutation freed 167 people, among these were three Black women and one Latina woman.

Clemency petitions that seek to grant freedom to people in individual cases while drawing public awareness to the broader issue of capital punishment often point to racial disparities in sentencing. While that public awareness has worked to free a handful of Black women on death row, there is still more work to do for those seeking to abolish the death penalty in its entirety.

Advocates have also been making important connections between the injustices that pervade capital sentencing and those of the criminal legal system at large. There has been progress on that front, Ndulue says, citing the California Racial Justice Act as an example. The bill, which was signed this October by California Gov. Gavin Newsom, will prohibit the state from seeking a conviction or imposing a sentence “on the basis of race, ethnicity, or national origin.” While the bill was initially conceived to just focus on the death penalty, it is now applicable to all criminal cases.

“We can’t separate out the death penalty into one small island, and I think that also means that we must learn more about the dynamics of women and their experience in the criminal legal system in non death penalty areas,” said Ndulue. “The number of women lifers has gone up and I think that it’s really important to think about what we can learn from their experience when we're talking about women of color who are facing death sentences.”

This story is part of Prism’s series on women and the death penalty in the United States. Click here to read part one on Lisa Montgomery and the common history of gendered abuse many women on death row share, and here to read part two on how women can be condemned in part for defying gender stereotypes. In next week’s installment, we’ll uncover the harsh conditions women face while incarcerated on death row.


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