NATIONAL JOURNAL OF SEXUAL ORIENTATION LAW
VOL. 1, ISSUE 1
Mary Sylla, editor (mmsylla@gibbs.oit.unc.edu)
DEATH PENALTY FOR LESBIANS
by
Victor L. Streib
Professor of Law
Cleveland State University
Cleveland, Ohio
If a girl or woman arrested for capital murder happens to be
lesbian, how does her lesbianism affect whether she is charged
for a capital offense, actually sentenced to death, and finally
executed? Is any such impact similar to or separate from the
impact of her sex? These and related questions continue to
plague me and were the impetus for this rudimentary article. My
purpose is to let others know what I think in the hope that
together we might begin to frame answers to these questions and
to develop better questions. I have only one caveat: We must
avoid resort to anecdote and hyperbole as the primary bases for
the inquiry if our findings are to be of value.
For the past decade I have researched the treatment of
female offenders within various capital punishment systems, both
domestic and foreign, historical and current. This topic
generally has been neglected by criminological and legal
scholars, only recently receiving some preliminary attention.1 My
first exploratory paper on this general topic was presented in
1986,2 and I published an overview piece in 1990,3 but my
research continues and has far to go.
In addition to trying to identify and understand the general
outlines and themes of this phenomenon, I have isolated narrower
subtopics within the area of the death penalty for female
offenders. This effort has resulted in periodic reports
monitoring current death sentencing of females4 and in articles
on the death penalty for female juveniles5 and for battered
women.6 This article follows in that tradition, reporting what I
know, think, and speculate so far concerning the issue of an
offender's lesbianism within the context of the death penalty for
female offenders.
The narrow goal of this article is to explore all of the
cases of recently death sentenced female offenders to determine
which if any involved evidence or inferences of the offender's
lesbianism. Having identified at least a few such cases, they
are then examined to determine what effect the offender's
lesbianism might have had in the capital punishment process.
This inquiry is not to a point at which carefully crafted
hypotheses can be formulated and tested. Neither am I willing
just to assume that an offender's lesbianism always is a major
factor in her receiving the death sentence, drawing on what is
generally known about the intolerance of lesbianism in many parts
of our society.7 However, since most death penalty cases occur
in the Southeast, an area of the country not well known for
tolerance of lesbianism and lesbian lifestyles, my research on
this topic has proceeded on the informal working assumption that,
all other things being equal, a female offender's lesbianism
would be a disadvantage rather than an advantage in the capital
punishment process.
BACKGROUND ON DEATH SENTENCES FOR FEMALE OFFENDERS8
Both the female death sentencing rate and the female death
row population remain very small in comparison to that for males.
Actual execution of female offenders throughout American history
is quite rare, with only 511 documented instances beginning with
the first in 1632.9 These 511 female executions constitute less
than 3% of the total of approximately 18,585 confirmed executions
since 1608.10 The last female offender executed was Velma
Barfield in North Carolina on November 2, 1984,11 the only female
among the 226 offenders executed in the post-Furman v. Georgia12
era (January 1, 1973, to December 31, 1993).13
Female Death Sentences Imposed in the Current Era:
The current American death penalty era began when new death
penalty statutes were passed following the Supreme Court's
decision in Furman in 1972, which in effect struck down all then-
existing death penalty statutes. Sentencing began under the new
statutes in 1973 and continues through today.14 Although the
constitutionality of these current era statutes was not
recognized formally by the United States Supreme Court until 1976
in Gregg v. Georgia15 and actual executions did not begin until
1977,16 the current era of sentencing began in 1973.
Table 1 lists the sentences imposed each year according to
the Bureau of Justice Statistics and to my research. A total of
ninety-nine female death sentences have been imposed on ninety-
two individual female offenders, representing only 2% of the
total of about 5,042 death sentences for all offenders. Of the
ninety-two females sentenced to death, four were juveniles at the
times of their crimes17 and the rest were ages eighteen to
sixty-seven at the times of their crimes. Despite some
fluctuations particularly in the early years of this period, the
death sentencing rate for female offenders was typically about
five per year beginning in the 1980s.
TABLE 1
DEATH SENTENCES IMPOSED UPON FEMALE OFFENDERS,
JANUAR 1, 1973, TO DECEMBER 31, 1993
Total Death Female Death Portion
ear Sentences* Sentences of Total
1973 42 1 2.4%
1974 167 1 0.6%
1975 322 7 2.2%
1976 249 3 1.2%
1977 159 1 0.6%
1978 209 4 1.9%
1979 172 4 2.3%
1980 198 2 1.0%
1981 245 3 1.2%
1982 264 5 1.9%
1983 259 4 1.5%
1984 280 8 2.9%
1985 273 5 1.8%
1986 297 3 1.0%
1987 299 5 1.7%
1988 296 5 1.7%
1989 251 11 4.4%
1990 244 7 2.8%
1991 266 6 2.3%
1992 275** 10 3.0%
1993 275** 4 1.5%
Totals: 5,042** 99 2.0%
* Sources of data: U.S. Dept. of Justice,
SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS
1992 at 673, Table 6.132 (1993); U.S. Dept.
of Justice, CAPITAL PUNISHMENT 1992 AT 1
(1993).
**Estimates
In 1989 the annual death sentencing rate of five doubled for
reasons unknown. In 1990 and 1991, the sentencing rate seemed to
have returned to just above the pre-1989 levels. Then the rate
surged to ten in 1992, portending an annual rate again nearly
double that of the 1980s. This is apparently about 4% of the
death sentences imposed in 1992, suggesting a significant
increase in the rate of the death sentencing of female offenders.
However, four of these ten female death sentences in 1992 were
imposed on the same person (Aileen Wuornos, Florida), leaving
only six other female death sentences during 1992. Total female
death sentences then returned to normal levels -- four in 1993.
In any event, the number of female offenders sentenced to prison
death rows each year remains only 0.2% to 0.3% of the
approximately 3,700 women sentenced to prison each year.
Of these ninety-nine death sentences for female offenders,
only thirty-eight sentences (imposed upon thirty-five females)
remain currently in effect (see Table 2 below). One such
sentence resulted in an execution (Velma Barfield) and the other
sixty death sentences were reversed or commuted to life
imprisonment. Thus, for the sixty-one death sentences finally
resolved (excluding the thirty-eight still in effect and still
being litigated), the reversal rate for female death sentences in
the current era is over 98% (60/61). Appendix A to this article
provides a more detailed listing of name, race, jurisdiction,
dates of crimes and sentences, and current status for each female
death sentence.18
TABLE 2
STATE-B-STATE BREAKDOWN OF DEATH
SENTENCES FOR FEMALES, 1973-1993
Race of Offender Total
Sentencing American Female
Rank State White Black Hispanic Indian Sentences
1 Florida 11 2 1 0 14
2 North Carolina 9 2 0 1 12
3 Ohio 3 6 0 0 9
4 Texas 6 1 0 0 7
5 Alabama 4 2 0 0 6
Mississippi 4 2 0 0 6
Oklahoma 5 1 0 0 6
8 California 2 2 1 0 5
Georgia 4 1 0 0 5
Missouri 4 0 1 0 5
11 Indiana 2 2 0 0 4
12 Illinois 1 2 0 0 3
Maryland 1 0 0 2 3
Pennsylvania 1 2 0 0 3
15 Kentucky 2 0 0 0 2
Nevada 1 1 0 0 2
17 Arizona 1 0 0 0 1
Arkansas 1 0 0 0 1
Idaho 1 0 0 0 1
Louisiana 1 0 0 0 1
New Jersey 1 0 0 0 1
South Carolina 1 0 0 0 1
Tennessee 1 0 0 0 1
Totals 67 26 3 3 99
These ninety-nine death sentences for female offenders have
been imposed in twenty-three individual states, comprising well
over half of the death penalty jurisdictions during this time
period. Table 2 lists all death penalty jurisdictions which have
imposed death sentences on female offenders since 1973.
As Table 2 indicates, two states (Florida and North
Carolina) account for over one quarter of all such sentences.
The first ten states have imposed three quarters of female death
sentences. These dominant sentencing states range from North
Carolina to California and from Texas and Florida to Ohio.
Current Female Death Row Inmates:
Of the ninety-nine death sentences imposed upon ninety-two
female offenders since 1973, only thirty-five females remain on
the death rows of fourteen states (see Table 3). These thirty-
five female offenders on death row constitute only 1.3% of the
total death row population of 2,78520 and only 0.07% of the
approximately 50,000 women in prison in the United States.21
TABLE 3
CHARACTERISTICS OF OFFENDERS AND VICTIMS IN FEMALE
DEATH PENALT CASES CURRENTL IN FORCE, DECEMBER 31, 1993
Offenders
Age at Crime Race
Under 21 =3D 2 (6%) B =3D 11 (31%)
21-30 =3D 12 (36%) H =3D 2 (6%)
31-40 =3D 11 (33%) W =3D 22 (63%)
41-50 =3D 3 (9%) 35 (100%)
51-60 =3D 4 (12%)
61-70 1 (3%)
33 (100%)
Unknown =3D 2
35
Victims
Age Race Sex
Under 18 =3D 7 (17%) A =3D 1 (2%) M =3D 32 (67%)
18 =A0over =3D 35 (83%) B =3D 10 (22%) F =3D 16 (33%)
42 (100%) H =3D 3 (7%) 48 (100%)
Unknown =3D 8 W =3D 31 (69%) Unknown =3D 2
50 45 (100%) 50
Unknown =3D 5
50
Most of the women on death row are white. One fourth were
in their forties or older at the time of their crimes, with the
total age range remarkably from eighteen to sixty-seven. Over
two-thirds of their victims were white and two-thirds were adult
males (where these data are known). About one-third of these
cases involved the murder of the offender's husband or lover.
Several of these female offenders were battered women who killed
their batterers or victims chosen by their batterers.
The present ages of these thirty-five female death row
inmates range from twenty-one to seventy-three. They have been
on death row from six months to nearly twelve years. Despite the
statistically high probability (over 98%) that death-sentenced
female offenders will never be executed, some of these women have
nearly exhausted their appeals. Another execution of a female
offender seems likely within the next few years.
Appendix B to this article sets forth the names of these
offenders and some brief details about their crimes and
sentences. Multiple sentencing dates mean that the earlier death
sentence was reversed but then a new death sentence was imposed.
LESBIANISM AS AN AGGRAVATING OR MITIGATING FACTOR
The current capital punishment process requires guided
discretion in choosing between life imprisonment and the death
sentence for eligible convicted murderers.22 The primary source
of guidance for judges and juries in making this choice is the
list of aggravating and mitigating factors in the jurisdiction's
death penalty statute.23
The aggravating factors are intended to narrow the pool of
all convicted murderers to those particularly deserving of the
death penalty.24 Each aggravating factor tends to establish an
even more serious characteristic of the murder or a particularly
negative characteristic concerning the character and background
of the capital defendant. Examples are that the murder occurred
during another serious crime such as rape or robbery,25 or that
the convicted murderer has committed previous murders.26
Mitigating factors, on the other hand, are intended to
provide reasons why the convicted murderer should not be
sentenced to death.27. While occasionally referring to
characteristics of the murder which make it seem not too
horrible, most mitigating factors tend to establish information
about the character and background of the defendant that make her
seem to be less deserving of the death penalty.28
Although working through this concept of aggravating and
mitigating factors, the United States Supreme Court has made it
clear that "the sentencing authority has always been free to
consider a wide range of relevant material."29 This "wide range"
clearly includes socially-condemned aspects of the defendant's
character if they are intrinsic to his crime, such as racial
hatred and a desire to start a race war.30 However, similar
racist views of a defendant are not admissible if not related to
the crime. For example, membership in a white racist prison gang
(the Aryan Brotherhood) was held inadmissible where both the
defendant and his victim were white, leaving the racist views "of
no relevance to the sentencing proceeding in this case."31 If
the contested character factor is not part of beliefs and
associations protected by the First Amendment, it may be more
available to prosecutors seeking to use it to counter the
defendant's assertions of good character.
Simply put, to the degree to which they address the
character and background of the defendant, aggravating factors
show her to be more deserving of death and mitigating factors
show her to be less deserving of death. No statute's aggravating
and mitigating factors expressly mention lesbianism or sexual
orientation as an issue to be considered. Since lists of
aggravating factors are closed ended,32 presumably no unlisted
characteristic (such as lesbianism) can be included. However,
lists of aggravating factors are open-ended and defendants have a
right to introduce all relevant mitigating evidence.33
Therefore, capital defendants would seem to have an opening here
to get their lesbianism before the sentencing judge and jury
should they wish to do so. However, it is hard to imagine a case
in which a capital defense attorney would conclude that informing
the judge and jury of the defendant's lesbianism would help
convince those sentencers that she is less deserving of death.
The inescapable conclusions are that in a typical capital case
(1) the prosecutor can't introduce the lesbian factor
gratuitously and (2) the defense can but will choose not to do
so.
LESBIANS AS MONSTERS
Prosecutors in capital cases ultimately have to get a jury
to vote to take a human life -- the defendant's. Prosecutors
commonly attempt to finesse this awesome stumbling block by
arguing that the defendant is not really human. They will refer
to the defendant as an animal and the crimes as monstrous34 The
prosecutor's assumption is that a jury will not be as hesitant in
concluding that a mad dog must be exterminated as they would be
in concluding that a human being must be put to death.
When the capital defendant is a woman, it would appear that
sentencing juries are even more reluctant to order death than
when the defendant is a man.35 In such cases prosecutors first
must defeminize the defendant, trying to show that her crime is
more "manly," more like an episode from Bonnie and Clyde than
from Arsenic and Old Lace. It would seem that to a typical
Southern Baptist jury in a small southern town, an effective
means of defeminizing a female capital defendant is to show the
jury that she is a lesbian. The more "manly" her sexuality, her
dress, and her demeanor, the more easily the jury may forget that
she is a woman. In essence, she is defeminized by her sexual
orientation and then dehumanized by her crime. The jury is left
with a gender-neutral monster deserving of little or no human
compassion.
FOUR CASE STUDIES
Ninety-nine death sentences have been imposed upon ninety-
two female offenders since 1973.36 While more almost undoubtedly
exist, four of these females have been identified either as being
lesbians or as having been involved in homosexual acts with other
females. The purpose of examining these four cases somewhat
closely is to determine (1) how and why the defendant's sexual
orientation was introduced into the case, and (2) what role and
weight this sexual orientation may have had in resulting in the
death penalty for these crimes.
No representation is made that these four cases are the
entire population of death-sentenced lesbians or even a
representative sample. These four cases simply presented
themselves because of the prominent news coverage they received
or because the facts of the case involved a lesbian relationship
or homosexual act. Since similar lesbian/homosexual dimensions
may also exist in other, less obvious cases, no generalizations
should be made from these four cases. Examination of these four
cases is a beginning, not the end of this inquiry.
Janice Buttrum, sentenced September 31, 1981, in Georgia:37
Janice Buttrum (caucasian; age seventeen) and her twenty-
eight-year-old husband were the parents of a nineteen-month-old
baby and were expecting a second child in a few months. They
were living temporarily in a small, inexpensive motel in Dalton,
Georgia, as was their victim, a nineteen-year-old woman who had
just moved there from her family home in Kenton, Tennessee.
Using the ruse of a sick baby, Buttrum and her husband
gained entrance to the victim's motel room. Leaving the baby to
crawl around the room, Buttrum assisted her husband as he raped
and beat the victim. Following this assault, Buttrum continued
to sexually abuse the victim (including cunnilingus) and stabbed
her ninety-seven times with a small pocketknife. Assessing the
results, the Georgia Supreme Court concluded they "can only be
described as butchery and barbarism."38
At separate trials, both Buttrum and her husband were
sentenced to death. Her husband subsequently committed suicide
by hanging himself in his death row cell, but Buttrum's death
sentence was reversed in 1989.39
Buttrum had been sexually abused by her foster parents and
had married at age fifteen, but little or no evidence as to her
bisexual or homosexual orientation came to light. The sexual
acts she imposed upon her female victim as she stabbed her to
death obviously were presented as evidence to the jury since they
were integral parts of the crimes for which Buttrum was on trial.
=09While speculative, it seems reasonable to presume that a capital
jury in a small town in Georgia would have been shocked by
Buttrum's homosexual acts. However, given the otherwise
"butchery and barbarous" nature of the homicide, it also seems
unreasonable to assume that Buttrum would have been spared the
death penalty absent the homosexual acts.
Lafonda Fay Foster, sentenced April 24, 1987, in Kentucky:40
Lafonda Fay Foster (caucasian, age twenty-two) was a
drug-addicted prostitute who also had a lesbian relationship
with Tina Powell. Over a course of several hours in one
evening, Foster and Powell killed five adult victims by shooting
them in the head, stabbing them repeatedly, cutting their
throats, running over them with a car, and (in one case) burning
them up. Foster was sentenced to death but Powell received a
life sentence.
Foster had a long history of being battered by men, being
extremely emotionally disturbed, being drug addicted, and being
violent toward others. Her attorney's strategy for avoiding the
death sentence before her small town Kentucky jury was to portray
Foster as a victim of battering, violence, and drugs. Although
Foster clearly had been the perpetrator of horrible violence, she
might be spared if she could also be seen as the victim of
horrible violence.
However, Foster's sentencing hearing was joined with that of
her co-defendant and lover, Tina Powell. Powell's strategy,
apparently successful, was to portray Foster as a violent lesbian
who battered Powell into submission. Powell even used the Battered Wife Sy=
ndrome in her case to demonstrate the degree to
which she was dominated and controlled by Foster. These
conflicting defense strategies obviously played into the hands of
the prosecutor's presumed efforts to defeminize Foster and to
portray her as a brutal, "manly" murderer.
Since Foster and Powell were co-defendants in their joint
trial for these several murders, it seems almost unavoidable that
the judge and jury would learn of their lesbian relationship.
The sexual nature of their relationship seems irrelevant until
the sentencing phase, at which Powell raised the battering issue.
Moreover, even absent any presumed discriminatory attitude
toward lesbian murderers, it seems that the horrifying facts in
this case are likely to have overwhelmed any other issue
present.
Ana Cardona, sentenced May 1, 1992, in Florida:41
Ana Cardona, a thirty-year-old Cuban immigrant living in
Miami, was convicted of killing her three-year-old son in 1990.
The child's body had been found in Miami Beach but remained
unidentified for several weeks. The local press pushed the story
strongly, dubbing the child "baby lollipops" prompted by the
shirt he was wearing when found. The child was greatly
undernourished and had been beaten savagely over most of his
life, finally dying from blows to the head from a baseball bat.
Cardona always denied abusing her child. Cardona's primary
defense was that her lover, Olivia Gonzalez, had repeatedly
beaten the child, finally killing him. Cardona claims that she
lacked the courage to defend her child and took cocaine to escape
from the horror of the beatings. She also produced evidence of
her troubled upbringing in Cuba and of the severe emotional
impact on her of the death of the victim's father.
Cardona's lesbian lover, Gonzalez, had testified against
Cardona in return for a forty-year sentence for second degree
murder. Although Gonzalez admitted helping to beat the boy and
helping to dump the body in Miami Beach, she apparently was able
to place the primary blame for the homicide on Cardona. Apropos
of the earlier generic description of the monsterization of
capital defendants, Cardona's defense attorney noted: "As this
case unfolded, it became clear that Ana Cardona was going to be
held up to our community as a monster...."42
It appears likely that any negative effect of Cardona's
lesbian relationship with Gonzalez was lost in the overwhelming
horror of the mistreatment of the victim. The trial judge
concluded that "the long period of time over which this baby was
subject to torture, abuse, pain suffering separates this crime
from all other crimes seen in the Dade County Courthouse within
the memory of anyone working in this building."43 Press reports
suggested that Cardona was held particularly responsible because
she was the boy's mother, so presumably a jury would have been
even more concerned to learn of this horrible child abuse in the
context of a lesbian relationship. However, nothing indicates
that if Cardona's lover had been a man rather than a woman that
she would have avoided the death penalty.
Aileen Wuornos, sentenced January 31, 1992,
and May 15, 1992, in Florida:44
The last example is Aileen Wuornos, a thirty-three-year-old
caucasian and perhaps the most notorious death row inmate, male
or female. Her exploits have not only made all of the national
and international print media but also have resulted in a book
and a television movie-of-the week. Aileen Wuornos has been
accused of seven murders, resulting in the label of serial
killer. She has received four murder convictions and four death
sentences so far, having pleaded guilty and asked for death
sentences in the last three instances.
The state of Florida has characterized Wuornos as an
alcoholic and drug-addicted prostitute who began to murder and
rob her customers, finally arrested in a biker bar as she was
sleeping off a drinking binge. Wuornos characterized these seven
instances as acts of prostitution during which her customers
became violent and/or raped her, in defense of which she had to
shoot them to protect herself. Although Wuornos apparently was
alone with her victim's when each of the crimes occurred, she was
living with Tyria Moore at the time. Wuornos repeatedly stated
that she and Moore originally had a sexual relationship but that
it developed into a non-sexual, long-term relationship of living
together, sharing finances, etc.
At least from her earliest teens on, Wuornos had endured
life as a victim of violence and abuse. Raped and pregnant at
age 13, she gave up her baby and then turned to prostitution at
age 14. She apparently carried into adulthood the explosive
temper she had manifested as a child. While greatly over-
simplifying, it was this combination of a history of horrible
abuse by men and an explosive temper which may explain in large
part her violent reactions toward prostitution customers who
abusive toward her.
Wuornos intentionally shot and killed at least four and
perhaps seven middle-aged white males under circumstances that
made it difficult for judges and juries to believe she acted in
self defense. She was irascible and profane during her trials,
not only showing no remorse for her acts but also threatening the
judge and prosecutor and their families. She was portrayed as a
prostitute, a thief, and a drug-addicted drifter. While her
lesbian relationship with Moore did come up at her trials since
Moore was involved in at least some of the pre-crime or post-
crime activities, it seems unlikely that Wuornos's lesbianism was
a key factor in her repeatedly being sentenced to death. As for
the state's desire to portray Wuornos as a monster, her
lesbianism was greatly overshadowed by her other personal
characteristics.
CONCLUSIONS
It continues to appear that, all other things being equal,
the capital punishment system is more reluctant to sentence a
female offender to death than it is to sentence a male offender
to death. The research so far, although very preliminary,
suggests that female offenders tend to lose what ever chivalrous
protection that might exist as their crimes are more shockingly
violent and as their character and background are less
traditionally feminine.
This article probes this second factor to explore the effect
of lesbianism on the offender's perceived character and
background. The assumption is that evidence or inferences of a
capital defendant's lesbianism would be negative as to her
character and background and thus more likely to lead to a death
penalty rather than life imprisonment. While not being sentenced
to death solely or even largely because she is a lesbian, the
sense is that lesbianism would be likely to be at least one more
nail in her coffin.
Four cases out of the recently-sentenced ninety-two female
offenders were identified in which the offender's lesbian
relationship or homosexual acts received fairly prominent play at
the guilt and/or penalty phases of the capital trials. While an
attempt was made to discern the impact of the lesbianism factor,
all four cases involved several other factors which may well have
overshadowed the lesbianism.
In the Foster and Wuornos cases, the violent deaths of five
and seven victims respectively almost undoubtedly dominated all
other aspects of the cases. However, in the Buttrum and Cardona
cases, only one victim died. Buttrum's victim was raped and
stabbed ninety-seven times, so presumable the violence and gore
of the crime were dominant. Similarly in Cardona's case, the
horribly beaten three-year-old was a most sympathetic victim
whose case was championed by the local press. It may be, then,
that the violence of the crimes overshadowed any significant
effect of the lesbian factor. In any event, it is not obvious
that these cases are unusual for death sentences. The exception
may be Cardona's case, since the death penalty is fairly rare for
mothers who kill their children.45
Despite this absence of clear proof of the disparaging
impact of a capital defendant's lesbianism, it continues to seem
likely that this theme exists. Perhaps it is best illustrated by
considering a trial strategy for a capital defense attorney
representing a lesbian offender somewhere in the southeast.
Assuming that persuasive proof of her lesbianism can be mounted,
is it likely that the defense attorney would want to demonstrate
the offender's lesbianism as a positive quality within her
character and background that renders her more suitable for life
than death? While one hopes the jury would not decide upon death
because she is lesbian, it seems unlikely the jury would vote to
save her life because she is lesbian.
ENDNOTES
1. Elizabeth Rapaport, "The Death penalty and Gender
Discrimination," 25 LAW =A0SOC' REV. 367 (1991); and Elizabeth
Rapaport, "Some Questions About Gender and the Death Penalty," 20
GOLDEN GATE U. L. REV. 501 (1990).
2. Victor L. Streib, Discrimination Against Male Offenders in
the Imposition of the Death Penalty (invited paper presented at
the Annual Meeting of the Association of American Law Schools,
New Orleans, La., Jan. 1986). Similarly, my first attempt to
deal with the subject of this article was a conference paper:
Victor L. Streib, Death Penalty for Lesbians: A Preliminary
Inquiry into the Significance of a Capital Defendant's Lesbianism
in the Context of the Sentencing of Female Offenders to Death in
the United States, 1973-1993 (paper presented at the Annual
Meeting of the Law and Society Association, Chicago, Ill., May
1993). This article was based largely upon that earlier paper.
3. Victor L. Streib, "Death Penalty for Female Offenders," 58 U.
CIN. L. REV. 845 (1990).
4. These reports have been generated since Aug. 1, 1988. The
latest issue is Victor L. Streib, Capital Punishment for Female
Offenders: Present Female Death Row Inmates and Death Sentences
and Executions of Female Offenders (Jan. 1, 1973, to December 31,
1993) (unpublished report available from author).
5. Victor L. Streib =A0Lynn Sametz, "Executing Female Juveniles,"
22 CONN. L. REV. 3 (1989).
6. Victor L. Streib, "Death Penalty for Battered Women," 20 FLA.
ST. U. L. REV. 163 (1992).
7. One article which may be representative of this penchant for
exaggeration, in my view, is Victoria A. Brownworth, "Dykes on
Death Row," THE ADVOCATE, June 16, 1992. Of signal importance to
me in understanding the general phenomenon of the specific impact
of law on lesbians has been RUTHANN ROBSON, LESBIAN (OUT)LAW:
SURVIVAL UNDER THE RULE OF LAW (1992).
8. Much of the material in this section is taken from Streib,
supra, note 4.
9. The leading effort nationally to document each and every
lawful execution in the United States and its predecessor
colonies and territories has been conducted for a quarter of a
century by Watt Espy, Director of the Capital Punishment Research
Project, Headland, Alabama 36345. His recent report from which
these data are taken is Watt Espy, List of Confirmations, State-
by-State, of Legal Executions as of January 1, 1994 (unpublished
report available from Capital Punishment Research Project).
10. Id.
11. See, e.g., Joseph Ingle, "Final Hours: The Execution of
Velma Barfield," 23 LO. L.A.L. REV. 221 (1989); and "Woman
Executed in North Carolina," N.. TIMES, Nov. 3, 1984, at 1.
12. 408 U.S. 238 (1972) (declaring unconstitutional several
state death penalty statutes which did not provide for adequate
procedural safeguards against random and capricious death
sentencing).
13. NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., DEATH ROW,
U.S.A. at 10 (Winter 1993; published in February 1994).
14. Victor L. Streib, supra, note 4. The cutoff date for the
analysis in this article is December 31, 1993.
15. 428 U.S. 153 (1976).
16. The first execution in the current era was that of Gary
Gilmore in Utah on January 17, 1977. See, e.g., NORMAN MAILER,
THE EXECUTIONER'S SONG (1979); and Paul J. Larkin, "The Eighth
Amendment and the Execution of the Presently Incompetent," 32
STAN. L. REV. 765 (1980).
17. Victor L. Streib =A0Lynn Sametz, supra, note 5.
18. While the sources of this information are many, the major
sources are the outstanding data gathering effort of the NAACP
Legal Defense and Education Fund, Inc. (see supra, note 13) and
the equally fine monitoring effort of the National Coalition to
Abolish the Death Penalty.
19. Sources of data: U.S. DEP'T OF JUSTICE, SOURCEBOOK OF
CRIMINAL JUSTICE STATISTICS 1991 at 707 (1992); U.S. DEP'T OF
JUSTICE, CAPITAL PUNISHMENT 1991 at 1 (1992).
20. DEATH ROW, U.S.A., supra note 13.
21. U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE
STATISTICS 1991 at (1992).
22. See the line of cases established by Gregg v. Georgia, 428
U.S. 153 (1976); Lockett v. Ohio, 438 U.S. 586 (1978); and
Eddings v. Oklahoma, 455 U.S. 104 (1982).
23. Lockett v. Ohio, supra, note 22.
24. Gregg v. Georgia, supra, note 22.
25. E.g., N.J. STAT. ANN. sec. 2C-11-3(4)(g) (West Supp. 1992)
("The offense was committed while the defendant was engaged in
the commission of, or an attempt to commit, or flight after
committing or attempting to commit murder, robbery, sexual
assault, arson, burglary or kidnapping....").
26. E.g., N.J. STAT. ANN. sec. 2C-11-3(4)(a) (West Supp. 1992)
(The defendant has been convicted, at any time, of another
murder.").
27. Lockett v. Ohio, supra, note 22.
28. Id.
29. Payne v. Tennessee, 111 S.Ct. 2597, 2606 (1991).
30. Barclay v. Florida, 463 U.S. 939 (1983).
31. Dawson v. Delaware, 112 S.Ct. 1093, 1098 (1992).
32. Gregg v. georgia, supra, note 22.
33. Eddings v. Oklahoma, supra, note 22.
34. See, e.g., Darden v. Wainwright, 477 U.S. 168 (1986).
35. See, e.g., Streib, supra, note 3; but see Rapaport (1991),
supra, note 1.
36. Streib, supra, note 4.
37. Material for the Buttrum case was taken largely from Streib
=A0Sametz, supra, note 5, at 32-24.
38. Buttrum v. State, 249 Ga. 652, 657, 293 S.E.2d 334, 340
(1982); cert. denied, 459 U.S. 1156 (1983).
39. Buttrum v. Black, 721 F.Supp. 1268 (N.D.Ga. 1989).
40. Information for the Foster case comes primarily from Foster
v. Kentucky, Supreme Court of Kentucky, case #87-SC-356-MR (Dec.
19, 1992); Rapaport (1990), supra, note 1; and telephone
conversation with Foster's attorney, Kevin McNally, on May 1,
1992.
41. Information for the Cardona case comes primarily from
Patrick May, "Judge Calls Fatal Abuse `Heinous, Cruel Crime',"
Miami Herald, Apr. 2, 1992, at 1A; Luisa anez, "Baby Lollipos
Killer Sentenced to Electric Chair," Sun-Sentinel (Fort
Lauderdale; Broward County; Florida), Apr. 2, 1992, at 1B; and
Patrick May, "Mom Begs Judge for Mercy in Baby Lollipops Case,"
Miami Herald, Apr. 1, 1992, at 3B.
42. May (Apr. 2), supra, note 41, at 17A, col. 4.
43. Id. at 1A, cols. 1-2.
44. Information for the Wuornos case comes primarily from
Amended Initial Brief of Appellant, Wuornos v. State, Supreme
Court of Florida, Case #79,484 (filed Jan. 26, 1993); MICHAEL
RENOLDS, DEAD ENDS (1992); Phyllis Chesler, "Sex, Death =A0the
Double Standard," On The Issues, Summer 1992, at 29; "Roadside
Killer Handed 3 More Death Sentences," Miami Herald, May 16,
1992, at 5B; "A Case of Sex and Death in Florida," NEWSWEEK, Jan.
20, 1992, AT 4; "Prostitute Sentenced to Death," N.. Times, Feb.
1, 1992, at 1; "Jurors Recommend Death Penalty for Florida Woman
Who Killed 7," N.. Times, Jan. 31, 1992, at A8; "Florida Cops
Say Seven Men Met Death on the Highway When They Picked Up
Accused Serial Killer Aileen Wuornos," People, Feb. 25, 1991, at
44; "Killing Her Way to Fame," TIME, Feb. 18, 1991, at 45; and
Ronald Smothers, "Woman Suspected in 7 Killings in Florida is
Arrested," N.. Times, Jan. 18, 1991, at A15.
45. See, e.g., Rapaport (1991), supra, note 1.
APPENDIX A
FEMALE DEATH SENTENCES IMPOSED,
JANUAR 1, 1973, TO DECEMBER 31, 1993
DATE OF DATE OF CURRENT
EAR OFFENDER'S NAME RACE STATE CRIME SENTENCE STATUS
1973 Ward, Mamie Lee W N.C. ? 9-?-73 reversed
in 1976
1974 Hunt, Rozell O. AI N.C. ? 6-?-74 reversed
in 1976
1975 Boykin, Margie W N.C. ? 12-?-75 reversed
in 1976
Dodds, Catherine W La. 1-?-75 ?-?-75 reversed
in 1976
Lockett, Sandra B Ohio 1-15-75 4-?-75 reversed
in 1978
Osborne, Alberta W Ohio 12-15-74 6-2-75 reversed
in 1978
Sanders, Janet W Okla. 2-24-75 8-26-75 reversed
(AKA Miller) in 1977
Smith, Rebecca W Ga. 8-31-74 1-30-75 reversed
in 1983
Glenn, Mabel B Cal. ? 10-21-75 reversed
in 1979
1976 Brown, Faye B. B N.C. ? 1-?-76 reversed
in 1977
Jacobs, Sonia W Fla. 2-20-76 8-20-76 reversed
in 1981
Wernert, Patricia W Ohio 11-18 -75 11-22-76 reversed
in 1978
1977 Smith, Benita B Ohio ? 12-?-77 reversed
in 1978
1978 Anderson, Mary W Texas 1-3-78 8-29-78 reversed
in 1982?
Barfield, Velma W N.C. 2-1-78 12-2-78 executed
11-2-84
Bracewell, Debra W Ala. 8-15-77 5-17-78 reversed
in 1981
Detter, Rebecca W N.C. 6-2-77 9-26-78 reversed
in 1979
DATE OF DATE OF CURRENT
EAR OFFENDER'S NAME RACE STATE CRIME SENTENCE STATUS
1979 Binsz, Michelle W Okla. ? 10-23-79 reversed
in 1984
Burnett, Linda W Texas 6-01-78 3-20-79 reversed
in 1983
Cunningham, Emma W Ga. 1-1-79 10-26-79 reversed
in 1983
Tyler, Shirley B Ga. 10-22-79 12-04-79 reversed
in 1985
1980 O'Bryan, LaVerne W Ky. 7-5-79 9-12-80 reversed
in 1982
Perillo, Pamela W Texas 2-24-80 9-2-80 now on
=A011-13-84 death row
1981 Buttrum, Janice W Ga. 9-3-80 8-31-81 reversed
in 1989
Stebbing, Annette W Md. 4-9-80 4-30-81 reversed
in 1985
Thomas, Patricia B Ala. 2-28-81 12-28-81 reversed
in 1990
1982 Cannaday, Attina W Miss. 6-3-82 9-23-82 reversed
in 1984
Ford, Priscilla B Nev. 11-27-80 4-29-82 now on
death row
Foster, Doris AI Md. 1-29-81 2-8-82 commuted
=A04-4-84 in 1987
Smith, Nadean W Okla. 7-4-82 12-29-82 now on
death row
Whittington,Teresa W Ga. 1-2-82 5-7-82 reversed
in 1984
1983 Grant, Rosalie B Ohio 4-1-83 10-21-83 commuted
in 1991
Neelley, Judith W Ala. 9-23-82 4-18-83 now on
death row
Summers, Sheila W Nev. 9-14-82 12-20-83 reversed
in 1986
oung, Sharon W Ohio 6-12-83 9-30-83 reversed
in 1986
DATE OF DATE OF CURRENT
EAR OFFENDER'S NAME RACE STATE CRIME SENTENCE STATUS
1984 Foster, Doris AI Md. 1-29-81 4-4-84 commuted
=A02-8-82 in 1987
Hendrickson, Pat. W Ark. 3-10-83 4-13-84 reversed
in 1985
Jackson, Andrea B Fla. 5-16-83 2-10-84 now on
=A02-21-92 death row
Moore, Marie W N.J. 1- -83 11-19-84 reversed
in 1988
Perillo, Pamela W Texas 2-24-80 11-13-84 now on
=A09-2-80 death row
Tucker, Karla W Texas 6-13-83 4-25-84 now on
death row
Williamson, Celia W Miss. 3-23-82 3-14-84 reversed
in 1987
Windsor, Karla W Idaho 9-6-83 2-28-84 reversed
in 1985
1985 Beets, Betty W Texas 8-6-83 10-14-85 now on
death row
Brown, Debra B Ohio 7-13-84 6-18-85 commuted
=A06-23-86 in 1991
Buenoano, Judi W Fla. 9-16-71 11-26-85 now on
death row
Houston, Judy W Miss. 6-03-84 11-30-85 reversed
in 1988
Thacker, Lois W Ind. 11-03-84 06-27-85 reversed
in 1990
1986 Brown, Debra B Ind. 6-18-84 6-23-86 now on
=A06-18-85 death row
Cooper, Paula B Ind. 5-14-85 7-11-86 reversed
in 1989
Owens, Gaile W Tenn. 2-17-85 1-15-86 now on
death row
1987 Caillier, Carla W Fla. 11-20-86 3-19-87 reversed
in 1988
Casteel, Dee Dyne W Fla. 8-20-83 9-16-87 reversed
in 1990
Cox, Sue W N.C. 7-12-86 10-30-87 reversed
in 1992
Dudley, Kaysie W Fla. 9-30-85 1-27-87 reversed
in 1989
Foster, Lafonda W Ky. 3-9-86 4-24-87 reversed
in 1991
DATE OF DATE OF CURRENT
EAR OFFENDER'S NAME RACE STATE CRIME SENTENCE STATUS
1988 Green, Elizabeth B Ohio 1-4-88 7-11-88 commuted
in 1991
Haney, Judie W Ala. 1-1-84 11-18-88 now on
death row
Newton, Francis B Texas 4-7-87 11-17-88 now on
death row
Wacaser, Nila W Mo. 8-28-87 5-31-88 reversed
in 1990
Walker, Altione W Ala. 3-31-88 12-15-88 reversed
in 1992
1989 Allen, Wanda B Okla. 12- -88 4-26-89 now on
death row
Balfour, Susie B Miss. 10-7-88 10-14-89 reversed
in 1992
Coffman, Cynthia W Cal. 11-7-86 8-30-89 now on
death row
Harris, Louise B Ala. 3-11-88 8-11-89 now on
death row
Jones, Patricia W Okla. 4- -88 12-7-89 now on
death row
Lampkin, Beatrice B Ohio 11-4-88 4-26-89 commuted
in 1991
Landress, Cindy W Ind. 4-23-88 6-26-89 reversed
in 1992
Plantz, Marilyn W Okla. 8- -88 3-31-89 now on
death row
Rivers, Delores B Pa. 1-30-88 3-16-89 now on
death row
Stager, Barbara W N.C. 2-1-88 5-19-89 reversed
in 1991
Twenter, Virginia W Mo. 5-4-88 1-6-89 reversed
in 1991
1990 Butler, Sabrina B Miss. 4-11-89 3-14-90 reversed
in 1992
Hunt, Deidre W Fla. 10-20-89 9-13-90 reversed
in 1992
Jennings, Patricia W N.C. 9-19-89 11-5-90 now on
death row
MaHaley, Marilyn W N.C. 3-20-90 12-17-90 reversed
in 1992
McDermott, Maureen W Cal. 4-28-85 6-15-90 now on
death row
Moore, Blanche W N.C. -89 11-16-90 now on
death row
Smith, Rebecca W S.C. 7-17-89 12-10-90 reversed
in 1992
(continued)
DATE OF DATE OF CURRENT
EAR OFFENDER'S NAME RACE STATE CRIME SENTENCE STATUS
1991 Copeland, Faye W Mo. 1986-88 4-27-91 now on
death row
Gay, vette B N.C. 5-30-90 8-10-91 reversed
in 1993
Isa, Maria H Mo. 11-6-89 12-19-91 reversed
in 1993
Milke, Debra Jean W Ariz. 12-2-89 1-18-91 now on
death row
Smith, Geraldine B Ill. 6-?-87 2-20-91 now on
death row
Williams, Dorothy B Ill. 7-31-89 4-18-91 now on
death row
1992 Alfaro, Maria H Cal. 6-15-90 7-14-92 now on
death row
Cardona, Ana H Fla. 11-2-90 4-1-92 now on
death row
Garcia, Guinevere W Ill 7-24-91 10-9-92 now on
death row
Hill, Doneta B Pa. 6-20-90 4-9-92 now on
=A03-24-91 death row
Jackson, Andrea B Fla. 5-16-83 2-21-92 now on
=A02-10-84 death row
Phillips, Shirley W Mo. 10-?-89 4-6-92 now on
death row
Wuornos, Aileen W Fla 12-1-89 1-31-92 now on
5-24-90 5-15-92 death row
7-30-90 5-15-92
9-11-90 5-15-92
1993 Ballenger, Vernice W Miss. 7-10-83 1-13-93 now on
death row
Larzelier, Virginia W Fla. 3-8-91 5-11-93 now on
death row
O'Donnell, Kelly W Pa. ? 7-1-93 now on
death row
Thompson, Catherine B Calif. 6-14-90 6-10-93 now on
death row
APPENDIX B
CASE SUMMARIES FOR CURRENT FEMALE
DEATH ROW INMATES, DECEMBER 31, 1993
ALABAMA
Haney, Judy: White; age 32 at crime and now age 42 (DOB 6-29-
51); murder (hired killer) of her white husband in Talladega
County on 1-1-84; sentenced on 11- 18-88.
Harris, Louise: Black; age 34 at time of crime and now age 40
(DOB 6-16-53); murder (hired killer) of her black husband in
Montgomery County on 3-11-88; sentenced on 8- 11-89.
Neelley, Judith Ann: White; age 18 at time of crime and now age
29 (DOB 6-7-64); kidnapping and murder of white female age 13 in
DeKalb County on 9-28-82; sentenced on 4-18-83.
ARIZONA
Milke, Debra Jean: White; age 25 at crime and now age 29 (DOB:
3-10-64); murder of white male age 5 (her son) in Maricopa County
on 12-2-89; sentenced on 1-18-91.
CALIFORNIA
Alfaro, Maria del Rosio (Rosie): Hispanic; age 18 at crime and
now age 21; burglary, robbery and murder of Hispanic girl age 9
in Anaheim on 6-15-90; sentenced 7-14-92.
Coffman, Cynthia: White; age 24 at crime and now age 31 (DOB 1-
19-62); murder of white female age 20 in San Bernadino County on
11-7-86; sentenced on 8-30-89.
McDermott, Maureen: White; age 37 at crime and now age 46 (DOB
5-15-47); murder of white male age 27 in Van Nuys (Los Angeles
County) on 4-28-85; sentenced on 6-8-90.
Thompson, Catherine: Black; age unknown; murder (hired killer)
of her husband on 6-14-1990; sentenced on 6-10-1993.
FLORIDA
Buenoana, Judias V. (AKA Judy Ann Goodyear): White; age 28 at
crime and now age 50 (DOB 4-4-43); arsenic murder of white
husband in Orlando on 9-16-71; sentenced on 11-26-85.
Cardona, Ana: Hispanic (Cuban); age 30 at crime and now age 33;
murder of son age 3 in Miami Beach on 11-2-90; sentenced on 4-1-
92.
Jackson, Andrea Hicks (aka Felice): Black; age 25 at crime and
now age 35 (DOB 2-26-58); murder of black male police officer age
28 in Jacksonville on 5-16-83; sentenced on 2-10-84; reversed in
July 1989; resentenced on 2-21-92.
Larzelere, Virginia: White; age 38 at crime and now age 41 (DOB
12-27-52); murder of white male (her husband) about age 40 in
Edgewater near Daytona Beach on 3-8-91; sentenced on 5-11-93.
Wuornos, Aileen: White; age 33 at crime and now age 37 (DOB: 2-
29-56); murder of white male age 51 in Volusa County near Datona
Beach on 12-1-89; sentenced 1-31-92; murder of white male age 43
in Citrus County on 5-24-90, white male age 50 in Volusa County
on 7-30-90, and white male age 56 in Marion County near Ocala on
9-11-90; 3 additional death sentences imposed on 5-15-92.
ILLINOIS
Smith, Geraldine: Black, age 39 at crime and now age 45; hired
man to kill her lover's wife (black female, age 37) in Chicago in
June 1987; sentenced on 2-20-91.
Williams, Dorothy: Black, age 35 at crime and now age 39;
robbery and murder of black female age 97 in Chicago on 7-31-89;
sentenced on 4-18-91.
Garcia, Guinevere: White, age 32 at crime and now age 34; murder
of Hispanic male (her husband) age 60 on 7-24-91 in Du Page
County; sentenced on 10-9-92.
INDIANA
Brown, Debra Denise: Black; age 21 at crime and now age 31 (DOB
11-11-62); murder of black female age 7 in Gary on 6-18-84;
sentenced on 6-23-86.
MISSISSIPPI
Ballenger, Vernice: White; age 55 at crime and now age 56; arson
and murder of white female age 75 in Leake County on 7-10-83;
sentenced on 1-13-93.
MISSOURI
Copeland, Faye: White; age 67 at crime and now age 73; murder of
four white male adults in Livingston County from 1986 through
1988; sentenced on 4-27-91.
Phillips, Shirley Jo: White; age 53 at crime and now age 57;
murder of white female age 66 in Springfield (Greene County) in
Oct. 1989; sentenced on 4-6-92.
NEVADA
Ford, Priscilla: Black; age 51 at crime and now age 64 (DOB 2-
10-29); murder of 3 white females and 3 white males in Reno on
11-27-80; sentenced on 4-29-82.
NORTH CAROLINA
Jennings, Patricia JoAnn [Wells]: White; age 47 at crime and now
age 51 (DOB: 8-24-42); murder of white male age 77 (her husband)
in Wilson County on 9-19-89; sentenced on 11-5-90.
Moore, Blanche [Taylor]: White; age 56 at crime and now age 60
(DOB: 6-?-33); murder of white male adult (her boyfriend) in
Alamance County in late 1989; sentenced on 11-16-90.
OKLAHOMA
Allen, Wanda Jean: Black; age 29 at crime and now age 34 (DOB 8-
17-59); murder of female adult in Oklahoma County in December
1988; sentenced on 4-26-89.
Jones, Patricia: White; age 36 at crime and now age 42; murder
in Oklahoma County in April, 1988; sentenced on 12-7-89.
Plantz, Marilyn Kay: White; age 27 at crime and now age 33 (DOB
10-19-60); murder of white male adult (her husband) in Oklahoma
County in August, 1988; sentenced on 3-31-89.
Smith, Lois Nadean: White; age 41 at crime and now age 53 (DOB
9-12-40); murder of white female adult in Gans (Sequoia County)
on 7-4-82; sentenced 12-29-82.
PENNSLVANIA
Hill, Doneta: Black; ages 23 and 24 at crimes and now age 26;
murders of Asian male age 72 in Philadelphia on 6-20-90 and of
Black male age 21 in Philadelphia on 3-24-91; sentenced on 4-9-
92.
O'Donnell, Kelly: White; sentenced on 7-1-93.
Rivers, Delores: Black; age 34 at crime and now age 40 (DOB 12-
25-53); murder of female age 74 in Philadelphia on January 30,
1988; sentenced on 3-16-89.
TENNESSEE
Owens, Gaile Kirksey: White; age 32 at crime and now age 41 (DOB
9-22-52); hired someone to murder husband in Shelby County on
2-17-85; sentenced on 1-15-86.
TEXAS
Beets, Betty Lou: White; age 46 at crime and now age 56 (DOB 3-
12-37); murder of adult white male (husband) in Athens (Henderson
County) on 8-6-83; sentenced on 10-14-85.
Newton, Francis Elaine: Black; age 21 at crime and now age 28
(DOB 4-12-65); murder of husband (black male age 23), son (black
male age 7), and daughter (black female age 2) in Houston on 4-7-
87; sentenced on 11-17-88.
Perillo, Pamela Lynn: White; age 24 at crime and now age 38 (DOB
12-3-55); robbery and murder of white (?) male age 26 in Houston
on 2-24-80; sentenced on 9-2-80 and 11-13-84.
Tucker, Karla Faye: White; age 23 at crime and now age 34 (DOB
11-18-59); murder of white female age 32 and white male age 27 in
Houston on 6-13-83; sentenced on 4-25-84.