Gender bias and the application of the death penalty

As detailed in this local article, headlined “Tennessee moves closer to executing first woman: Sixth Circuit denies appeal to woman convicted in murder for hire of husband,” a new federal habeas ruling in a state capital case provides an effective opportunity to reflect on gender bias in the application of the death penalty.  Let’s start with the basics of the new ruling and the underlying crime:

The first woman ever to be sentenced to death in Tennessee is a step closer to the death chamber today after the Sixth Circuit Court of Appeals denied her habeas petition in a 2-1 decision. Nashville based Judge Gil Merritt filed the dissenting opinion.

Gaile K. Owens was convicted in Shelby County in 1986 of accessory before the fact in the 1985 murder of her husband, Ronald Owens.  The man who killed her husband, Sidney Porterfield, was also sentenced to death. Owens committed her crime on February 17, 1985 and was convicted on January 4, 1986. She entered prison on February 21, 1986.

The Sixth Circuit decision is available at this link, and this paragraph from the start of Judge Merritt’s dissent highlights the gendered realities that flow through this capital case:

The facts about Ryan Owens’ cruel and sadistic behavior toward his wife now make an overwhelming case of domestic violence and psychological abuse in mitigation of the murder case against Gaile Owens. From the beginning, Mrs. Owens’ counsel knew that this was her best — indeed, her only — defense.  Before trial, her counsel told the trial court that in his opinion: “This case has a meritorious defense in the battered-wife syndrome.” (App. 120.)  The Memphis district attorneys obviously knew that this was the defense theory.  But this defense was never developed or even mentioned to the jury during the trial because of the cover-up of exculpatory evidence by the Memphis prosecutor and the complete failure of defense counsel to conduct a proper investigation of Ryan Owens’ sadistic behavior toward his wife.  I will discuss the Memphis prosecutor’s cover-up of exculpatory evidence first, then defense counsel’s failure to investigate and develop the defense, and finally the refusal of the Memphis trial court to allow in evidence one of the defendant’s best lines of mitigation testimony.

Though Judge Merritt’s dissent here suggests gendered realities led to the murder and death sentence in this case, others might argue that the gender bias we see in the application of the death penalty usually helps women and disfavored men. 

The DPIC has this great page on women and the death penalty (from which I got the picture above). As Professor Vic Streib has effectively documented in this great accounting from the DPIC page, women make up 10% of those arrested for murder, but make up less than 2% of those persons on death row and less than 1% of those executed in the modern capital era.  And yet, as the Owens case perhaps suggests, maybe even those very few women sent to the row and executed could be themselves the victim of broader societal gender biases.

UPDATE:  In a notable coincidence, this news report on an Ohio Supreme Court decision handed down just today indicates that the number of women on Ohio’s death row has been now cut in half:

Citing a judge’s error, the Ohio Supreme Court on Wednesday threw out the death sentence of a woman who killed her 4-year-old son and set a fire to hide evidence of the crime.  The move leaves just one woman in Ohio facing execution.

Though the state has an active capital punishment system, it doesn’t have a history of sending many women to death row.  Only six women have been sentenced to death under the state’s 1981 capital punishment law.