Update: According to the Associated Press, a judge has postponed the execution of Kimberly McCarthy until April.
On Tuesday after 6 p.m., the state of Texas will execute Kimberly McCarthy via lethal injection. She is one of 10 women currently on death row in Texas. (Less than 5% of the total number of offenders on death row in Texas are women.) McCarthy, who was found guilty of murder and sentenced to death in 1998, after she robbed, beat, and fatally stabbed her 71-year-old neighbor Dorothy Booth in 1997, is the first woman to be executed in the U.S. since 2010. She is the 13th woman to be executed in the U.S. (and the fourth in Texas) since the Supreme Court's decision in Gregg v. Georgia reinstated the death penalty as a legal sentence in 1976. 52 women have been executed in the U.S. since 1900, according to a 1994 study. In the same time frame, 8,288 men have been put to death.
McCarthy's execution points to a larger question for the American judicial system: Why are so few women put to death in the U.S., and what does this trend mean for our conceptions of justice?
"Although women commit about 10% of murders, capital cases also require some aggravating factor like rape, robbery, or physical abuse," Richard Dieter of the Death Penalty Information Center told Reuters. McCarthy fits this description. She is believed to have murdered two other old women; in the 1997 murder, she also cut off one of her victim's fingers in order to steal her diamond ring.
The gender gap in death sentencing is a well-documented phenomenon. In a 2002 study for the Ohio State Law Journal, Professor Victor L. Streib notes, "Female offenders are unlikely to be arrested for murder, only very rarely sentenced to death, and almost never executed. Males who commit homicide are nearly seven times as likely to be sentenced to death as are females who commit homicide ... Of the over 8,000 persons lawfully executed in the United States since 1900, only 46 (0.6%) were female offenders." More recent statistics show that between 1980 and 2002, only 2% of the 3,146 people on death row were women.
Streib found that women are less likely to be arrested for murder, unlikely to be sentenced to death, and almost never executed. He cites the work of Professor Elizabeth Rapaport, who found that the under-representation of women on death row is in part due to the nature of their crimes. Women are more likely to commit murder in domestic violence situations, which generally result in fewer death penalty sentences, as DV sentences tend to be less harsh.
Streib explains, "Throughout the death penalty system, typical macho posturing over the death penalty is disrupted and confused when the murderer is a murderess. Not unlike the class cigar-smoke-filled men's club, the death penalty system is a refuse for classic masculine behavior, whether exhibited by men or women agents within the system or imposed on male or female offenders." In other words, assumptions about the masculine nature of violence, whether or not they are accurate, color and structure the ways in which capital punishment is doled out, at every step in the process.
"For those of us who work to abolish the death penalty entirely, an effort to make it simply fairer is a less than satisfying pursuit ... However, basic assumptions about men and women, perhaps even more than race and class, seem widespread and are unlikely to be countered or even moderated unless put on the table and directly addressed," Streib concludes.
But gender is not the only salient factor in death penalty convictions. Race — of the defendant, the victim, and the jury members — also plays a significant role in determining whether or not offenders are executed. While what role race plays is the subject of much debate, it does still have a role to play.
The Bureau of Justice Statistics reports that roughly 42% of prisoners under sentence of death circa December 2009 are black, a hugely disproportionate ratio given the general racial makeup of America. A new study which examined 15,281 homicides in North Carolina between 1980 and 2007 (368 of which resulted in death sentences), found that "someone convicted of killing a white person in the state was three times more likely to be sentenced to death than someone who kills a black person." (Interestingly in 2009, North Carolina passed the Racial Justice Act, "making it the first state in the country to give death row inmates a chance to have their sentences changed to life without parole based on proof that race played a significant role in determining punishment," as reported by the New York Times.)
In fact, race arose as an issue in McCarthy's own trial. CBS News reports that McCarthy's lawyers "appealed to Dallas County District Attorney Craig Watkins to withdraw or modify the execution date, citing his support that Texas adopt a law allowing death-row inmates to appeal on racial grounds. McCarthy is black, while all but one of her 12 Dallas County jurors were white."
It's worth mentioning that geographic location also plays a role in determining who is sentenced to death. In this case, McCarthy is unlucky enough to live in Texas. Amnesty International USA notes that since 1976, 82% of all executions have taken place in the South, 37% of these in Texas alone. Texas has lead the nation in executions since 1976. (Virginia, New York, and Pennsylvania have executed more people over the course of American history.) In 2010, the South accounted for 1,630 of all 3,158 offenders on death row, with Florida (392) and Texas (315) leading the way.
The death penalty is a controversial punishment, to say the least, and at least part of America's discomfort stems from suspicions of systematic bias in the justice system.
The Pew Research Center reports that far more people who oppose the death penalty today cite "concerns about flaws in the justice system" as an issue than they did 20 years ago. In 1991, only 18% of Americans opposed the death penalty, 41% for "moral considerations" and 11% for concern over flaws. In 2011, those 31% who opposed the death penalty were more evenly divided, 27% and 27%.
Support for the death penalty is also gendered. According to a 1997 mail survey of households in Tennessee, "more than 80% of the men but only 65% of the women favored capital punishment." Other surveys have corroborated this trend.
So what to make of McCarthy's execution?
Ultimately, the question of whether or not McCarthy's death is just can only be answered through an examination of the fairness of the death penalty itself. Currently, support for the death penalty has hit a 39-year-low, although a majority of Americans (61%) still support the use of the death penalty in murder convictions. Only 52% of Americans believe that it is applied fairly, down from 58% in 2010. And people under 30 have the highest rate of disapproval at 45%.
As a black woman facing execution in Texas, Kimberly McCarthy is the exception to the rule in some ways, and the proof of it in others. But untangling whether or not her fate is fair rests upon a more thorough investigation of the fairness of capital punishment as a whole.