Gender Bias in Capital Cases: Punishing Traumatized Women with Death

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Introduction

Women make up the minority of the death row population in the United States and globally.  In the United States, women account for only fifty of the over 2,600 individuals living on death rows around the nation.^[1] The unique problems female capital defendants experience both before and after their capital sentences are overlooked and forgotten, in part because of the infrequency with which the death penalty is sought against women. This piece explores a few of the specific common themes in the cases of women facing the death penalty in the United States. We specifically focus on the effects of trauma, mental illness, and gender bias in legal proceedings, on female capital defendants. We also discuss Lisa Montgomery’s case as an example of how these themes all play out in real-life cases. Lisa is the only woman on federal death row and faces execution on January 12, 2021.

Much of the information in this blog post is based on the authors’ analysis of the cases of women on death row though publicly available records, information gathered from DPIC’s databases, communications with women and their attorneys, and analysis of women’s trial transcripts. All analysis is on file with the authors. A note to the reader: this blog post contains reference to sexual and physical violence. Please take the space and necessary care for your wellbeing before reading further.

Unaddressed Trauma Histories

The vast majority of women sentenced to death in the United States have significant trauma histories that predate their incarceration on death row. Over forty of the women on death row in the United States experienced gender-based violence prior to their incarceration, often at the hands of a partner or family member. In fact, more than half of the women on death row in the United States are incarcerated for offenses in which they killed family members, including abusive intimate partners or children of abusive partners.

Trauma is a response to distress or disturbance that overwhelms an individual’s ability to cope. It can cause feelings of helplessness, and can diminish a person’s sense of self and ability to feel the full range of emotions and experiences. Trauma can arise from specific events or long-term exposure to distressing or disturbing environments. Trauma experiences can include sexual violence, physical violence, emotional abuse, living in conditions of extreme poverty or neglect, living in violent communities, and structural racism. The kinds of trauma individuals experience can vary depending on their gender identity. Women commonly endure sexual violence that can produce long-lasting trauma.

Trauma can have profound effects on an individual, particularly when the victim-survivor is not adequately supported and cared for following the traumatic experience. Healing from trauma can require all kinds of services, including medical help, mental health support, and financial support to leave an abusive environment safely. Although individual responses to trauma vary, trauma survivors should have access to a range of services to facilitate their recovery. Healing from trauma is often a lifelong process even with access to treatment and support.

Unaddressed and under-supported trauma histories can lead to criminalization of victim-survivors. Survivors of all ages and gender identities face increased likelihood of arrest when they experience abuse and neglect. Incarcerated women are twice as likely as incarcerated men to have experienced abuse prior to their incarceration. In part, the higher arrest rate of women is because many of the survival strategies that help women survive abusive environments are criminalized or can lead to behavior that has been criminalized. Common trauma responses include substance abuse, dissociation, and agitation or sudden outbursts of anger, which can lead to criminalized behavior such as violence associated with criminal charges like battery. Other mental illnesses commonly exacerbate these responses, especially without adequate support or care.

Further, legal system actors are often ill-equipped to understand and contextualize trauma in criminal trials. As discussed below, actors in the legal system can use trauma histories against defendants in legal proceedings instead of as a helping framework for understanding the woman’s conduct at the time of the offense. A warped presentation of trauma can lead to drastically false depictions of the individual. Moreover, when female defendants allege prior abuse that was not reported to law enforcement, court actors, including judges and prosecutors, often discredit their accounts, instead of understanding the reasons why reporting might be harmful or life-threatening for women. Further, prosecutors often discount trauma evidence as an excuse, like in Lisa Montgomery’s case, which can undercut its value as contextualization, particularly if the defense counsel does not explain how the trauma suffered directly relates to the offense at hand. For example, in Lisa Montgomery’s case, discussed further below, prosecutors dismissed Lisa’s extensive history of physical and sexual abuse as the “abuse excuse.” When the defense failed to explain that Lisa’s history of trauma was not merely an “excuse” but in fact provided a direct explanation of why she had committed her crime, the jury sentenced Lisa to death.

Mental Illness

The majority of women on death row also suffer from unaddressed mental illness. People with mental illness are often criminalized when experiencing symptoms of their mental illness instead of being provided with appropriate psychological and medical care. Research indicates that incarcerated women in the United States report significantly higher rates of mental illness than incarcerated men. Mental illness in these women is often linked to prior victimization and trauma. These experiences make it more likely that a woman will develop post-traumatic stress disorder, depression, and persistent depressive disorder, amongst other mental illnesses. Incarcerated women suffer post-traumatic stress disorder at higher rates than incarcerated men. One in five women in prison experience serious psychological distress.

A gender-specific understanding of mental illness and how it presents is essential to properly defend mentally ill women, yet it is the exception, not the standard. Because courts and juries typically lack the requisite psychological background to fully understand how a defendant’s mental illness contextualizes her crime, they simply fail to assign mental illness the mitigating value that it merits, especially if a defendant’s lawyers fail to fully develop evidence of the defendant’s mental illness at trial. Further, certain gendered stereotypes cut against mentally ill female defendants. For example, women sentenced to death might be painted as pathological, hysterical, or uncontrollable in a way that is intrinsically interlinked with societal expectations of gender. Women on death row, especially internationally, are also punished for receiving psychological treatment in prison awaiting their trial. Many mentally ill female defendants finally receive psychiatric treatment for the first time while awaiting trial and are placed on heavy psychotropic drugs that can stunt their emotional responses. They might present a flat affect at trial, despite the horrible facts of the crime, and the lack of presented emotion will be used against them. Prosecutors may point out a defendant’s flat affect to the jury, or jurors may notice it themselves, interpreting a defendant’s medication-induced lack of emotional indication as cold-heartedness.

Gender Bias in Proceedings

Legal proceedings in the cases of women on death row commonly display indicia of bias and discrimination. This discrimination is apparent from pre-trial proceedings onwards.

Criminal justice system actors, including women’s own attorneys, routinely fail to investigate women’s trauma histories before their capital trials commence. As explained above, women who interact with the criminal justice system tend to have endured trauma, abuse, and neglect. These backgrounds inform their actions, including their potential involvement in the crimes with which they are charged. Women’s backgrounds thus provide critical information that can mitigate a capital sentence, but when defense attorneys and investigators fail to take a careful look at women’s potential backgrounds of trauma, juries fail to hear this information.

Very few, if any, of the women currently on death row received gender-sensitive representation at trial.^[2] Relatedly, only 14% of women currently on death rows had a female trial attorney.^[3] Though male attorneys are able to investigate a woman’s social history and fully present women’s complete stories at both the guilt and punishment phases, very few have done so. The story of Lisa Montgomery, below, exemplifies this tendency. Notably, this problem persists beyond trial: appellate attorneys also routinely fail to investigate women’s social histories and uncover the backgrounds of gender-based abuse that are essential to understanding women’s offenses.

Not only do defense attorneys’ omissions fail to provide juries with a full picture of the defendant whose life is in their hands, but prosecutors commonly present women’s stories through a gendered lens. Prosecutors rely on gendered tropes to persuade juries that women should die, painting women as promiscuous, bad mothers, and un-feminine. The case of Brenda Andrew is particularly pertinent in this regard. The prosecution in Brenda’s case relied heavily on irrelevant and prurient details of Brenda’s sexual affairs, her clothing, her hair, and her makeup to persuade the jury that Brenda was a bad woman and bad mother unworthy of life. These gendered stereotypes should have no place in the courtroom, much less be a factor in sentencing a woman to death.

Case Example: Lisa Montgomery (content warning: sexual and physical violence, domestic abuse)

Lisa Marie Montgomery, a fifty-two-year-old mother of four who suffers from severe mental illness as a result of lifelong torture and trauma, is scheduled to be executed by the federal government on January 12, 2021. Lisa is the only woman on federal death row and the only woman in the entire country sentenced to death for the type of crime that she committed. Lisa was sentenced to die despite her mitigating history of lifelong, constant, unimaginable trauma and her resulting severe mental illness.

Lisa is a survivor of child abuse, domestic violence, incest, multiple rapes, and child sex trafficking. Her abuse began even before she was born: Lisa’s mother, Judy, drank during her pregnancy with Lisa, and Lisa was born with organic brain damage. Judy was violent and neglectful. She beat young Lisa with belts, cords, and hangers, forced her into cold showers for hours as punishment, and duct-taped Lisa’s mouth shut when she didn’t want to hear Lisa speaking. One of Lisa’s earliest memories is learning not to cry when the duct tape was on her mouth, because her nose would become stuffed and she couldn’t breathe.

Lisa’s stepfather began sexually abusing her multiple times a week when Lisa was just eleven years old, and began raping Lisa once she was in her early teens. Lisa’s mother sexually trafficked Lisa from when Lisa was very young, selling Lisa to strange men in return for home repair services and allowing Lisa to be violently gang raped by groups of adult men, who beat, slapped, and urinated on Lisa. Lisa testified to the abuse during Judy’s divorce from Lisa’s stepfather and disclosed it to her cousin, a police officer, but no one ever intervened to help Lisa. At the age of seventeen, Lisa was pressured by her mother into marrying her stepbrother, who continued to violently rape and otherwise abuse Lisa.

The sexual torture that Lisa endured caused Lisa to dissociate from reality. Lisa now suffers from a plethora of mental illnesses, including bipolar disorder, temporal lobe epilepsy, dissociative disorder, and Complex Post-Traumatic Stress Disorder.  As a result of Lisa’s severely impaired neurological functioning, tasks that should be mindless were nearly impossible for Lisa, including getting dressed, preparing food, holding conversations with others, and maintaining her own hygiene. Lisa’s trauma is so profound that, even now that she is being treated with a complex cocktail of medication, she still panics—and often breaks out in hives—if she is in a room alone with a man.

Lisa’s trial was marked by staggering callousness and incompetence, exacerbating her symptoms of mental illness and perpetuating the constant cycle of violence that she endured her entire life. For example, the prosecutor ridiculed what little evidence the defense presented of Lisa’s severe abuse, trivializing it as “the abuse excuse” and painting Lisa as a bad mother who lived in a “filthy home.” Further, Lisa’s inexperienced defense team failed to present critical evidence of Lisa’s abuse and mental illness. Instead of explaining to the jury how Lisa’s torture and mental illness contextualized her crime, one of Lisa’s attorneys read a poem about rape during his closing argument. The jury never heard about the torture that Lisa suffered throughout her entire life.

Lisa’s case serves as a perfect example of the way that women’s underlying histories, which provide context for their crimes, go ignored at trial. Had Lisa’s attorneys presented evidence of Lisa’s trauma history or severe mental illness, she may not have been sentenced to death.  Because the jury and courtroom actors were ill-equipped to understand Lisa’s history and use it to contextualize her crime, however, Lisa stands to become the only woman executed by the federal government in nearly seventy years.

Conclusion

Female capital defendants experience unique issues in the criminal justice system that are commonly ignored. Women’s cases are emblematic of systemic discrimination at the intersection of gender, race, class, disability, and other identities. While this discrimination goes unacknowledged and overlooked, women will not receive equal treatment in criminal proceedings and the criminal justice system will continue to fail female capital defendants.

For more information, resources, and to advocate for women on death row, including Lisa Montgomery who faces execution on January 12, 2021, please visit www.savelisa.org and follow @DeathPenaltyWW on Twitter and @herwholetruth on Instagram.

The authors would like to thank Professor Zohra Ahmed, Professor Sandra Babcock, and the students of the International Human Rights Clinic at Cornell Law School.

^[1] The number of women on death row is currently in flux. Since DPIC last updated their list of women on death row, one woman, Heather Keaton in Alabama had her death sentence overturned. She has yet to have her capital resentencing hearing. Given that she is not currently under a sentence of death, the number in text does not include her.

^[2] The authors’ analysis of women’s representation from publicly available records, the DPIC’s databases, communications with women and their attorneys, and analysis of women’s trial transcripts is on file with the authors.

^[3] See id.

About the Authors:

Rosalind Major is a third-year at Cornell Law School. Before law school, Rosalind attended Davidson College, studying Gender and Sexuality Studies. Rosalind is passionate about capital and criminally long sentencing post-conviction work and trauma-informed legal defense work. At Cornell, Rosalind has been involved in the Capital Punishment Clinic, the Women’s Decarceration Practicum, and the International Human Rights Clinic. This past summer, Rosalind interned at the Capital Habeas Unit for the Federal Community Defender’s Office for the Eastern District of Pennsylvania.

Allison Franz is a third-year student at Cornell Law School.  Prior to law school, Allison earned her B.S. in Human Development from Cornell University. At Cornell, Allison is involved in the Capital Punishment Clinic and the International Human Rights Clinic, and plans to pursue a career in capital defense. This past summer, Allison assisted in the representation of death-sentenced clients at Justice 360.

Nathalie Greenfield is in her final semester at Cornell Law School where she has focused on human rights litigation at the intersection of gender and capital punishment. Nathalie hopes to continue this work after her graduation.

Suggested Citation: Rosalind Major, Allison Franz & Nathalie Greenfield, Gender Bias in Capital Cases: Punishing Traumatized Women with Death, Cornell J.L. & Pub. Pol’y: The Issue Spotter (Jan. 8, 2021), https://live-journal-of-law-and-public-policy.pantheonsite.io/gender-bias-in-capital-cases-punishing-traumatized-women-with-death/.

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