ISA MONTGOMERY WAS EXECUTED BY LETHAL INJECTION ON JAN. 13at a facility in Terre Haute, Ind., that bears the Orwellian name “FederalCorrections Complex.” The first woman executed by the federal governmentsince 1953, Montgomery was among 13 inmates killed in the waning days ofthe Trump administration.

Kelley Henry, one of the lawyers who tried to save Montgomery’s life, noted in astatement that “our Constitution forbids the execution of a person who is unable to ra-tionally understand her execution.” She described her client as a “victim of unspeakabletorture and sex trafficking” who suffered from long-term debilitating mental disease, in-cluding psychosis and auditory hallucinations.

Montgomery’s death sent me in search of a feminist case against the death penalty.For decades, the movement to abolish the death penalty has been driven by strong and

outspoken women who serve as public defenders, lawyers, activists, elected officials,judges, teachers and scholars, and who are the mothers, sisters and partners of the vic-tims of brutal killings and the people who have been convicted of those killings.

Nearly 20 years ago, in “A Feminist Look at the Death Penalty,” published in Law andContemporary Problems, Amy E. Pope pointed out that in all the debate over the deathpenalty, “no one has suggested how a feminist perspective might improve the discus-sion.” She observed that the decision to impose the death penalty presents “traditionallymale ways of looking at the problem … that offer only limited views of the world, boiling

www.feminist.org

THE FEMINISTCASE FOR ENDING THE

Women have been at the forefront of theabolitionist movement because they have every

reason to oppose this inhumane punishment

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choices down to black and white.”She reasoned that “imposing a femi-nist lens on the procedure will roundout the largely one-sided argument”by paying “attention to bias and pow-er disparity” without “perpetuating asystem of white, male, middle-classbias with the most extreme results forall marginalized groups.”

Since then, few scholarly workshave been written specifically devel-oping a feminist case against thedeath penalty. Nevertheless, a coher-ent and compelling feminist aboli-tionist perspective does emerge fromthe work and the words of many fem-inist activists, lawyers and scholars.

Speaking at a women’s studies con-ference in 2015, civil rights activistand feminist theorist Angela Davisobserved, “What has been done inthis country has been to try to trans-form capital punishment into some-thing so rationalized that it can beconsidered humane. Humane formsof capital punishment—to me that[is] oxymoronic. But yet the debateshave been … [about] the most hu-mane way to kill someone.” Punish-ment is connected to “the lack ofeducation or illiteracy, economic in-justices, privatization of prisons and

the fact that punished bodies become the sources of vast profit,” Davis contin-ued. And she linked racial and institutional violence to violence againstwomen: “Violence at the hands of police, violence in prison often producesgender violence in the free world … violence against gay men, lesbians, trans,intersex people … as long as it’s OK to inflict violence against women, then somany of the other modes of violence will continue to persist.”

When Diann Rust-Tierney, who began her work on capital punishment,women’s rights and civil rights at the American Civil Liberties Union (ACLU)and now heads the National Coalition to Abolish the Death Penalty, considersher opposition to capital punishment from a feminist perspective, she thinksabout “a political and social analysis that challenges existing power structures,dynamics and prescribed roles.” For Rust-Tierney, “ending the death penaltyis about dismantling power structures that, above all else, reinforce, prop upand promote a racialized caste system and gender inequality,” she says. “Thedeath penalty must fall because it is a lie. It is a lie not unlike the lie that limitsthe goals and aspirations of a broad and diverse world of women and girls.”

Feminists have every reason to be suspicious of capital punishment. Deathpenalty laws in the U.S. were enacted by legislatures dominated by men; deathsentences are sought by prosecutors who are predominately men; juries thatcondemn defendants to death have historically been mostly male; and judgeswho sentence defendants to death are overwhelmingly male.

In 1972, the U.S. Supreme Court struck down capital punishment in Furmanv. Georgia as being unconstitutionally arbitrary and capricious. But state legisla-tures promptly went to work reinstating the death penalty. By the end of 1975,in only 12 states did women make up more than just 10 percent of state legisla-tors. The highest percentage just was in Arizona, with only 20 percent.

Over the 45 years since the reinstatement of capital punishment, juries incriminal cases have also been predominantly male. Indeed, the U.S. has ashameful record when it comes to women serving on juries. It would take until1994 for the Court to rule in J.E.B. v. Alabama ex rel T.B. that peremptory chal-lenges to prospective jurors on the basis of gender were unconstitutional.

State courts, too, have always been overwhelmingly male. In 2008, 75 per-cent of these judges were men. By 2014 the number of female state courtjudges had reached only 30 percent. The American Constitutional Society,which keeps track of such things, reported in a study published in 2016, “Nota single state has women on the bench in the numbers commensurate withtheir representation in the general population.” And the percentage of womenprosecutors likewise lags far behind, at only 24 percent in 2019.

“The principles underlying feminism are wholly consistent with oppositionto the death penalty,” Cassandra Stubbs, director of the ACLU Capital Pun-ishment Project, says. “Abolitionists and feminists both reject a dehumanizing,

From far left: A lethal injection chamber; as

a child, Lisa Montgomery was “a victim of

unspeakable torture”; scholar Angela Davis

calls the idea of humane capital punishment

“oxymoronic”; protesters hold signs bearing

the names of people executed in the U.S.;

Diann Rust-Tierney heads the National

Coalition to Abolish the Death Penalty.

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punitive, carceral approach to violence that turns a blind eye to systemic in-equalities. Both seek to disrupt systems that dehumanize individuals and over-incarcerate while working to change the social conditions of injustice thatcontribute to cycles of violence and trauma.”

Since 2006 Stubbs has represented death row defendants and inmates in tri-als and appeals in Alabama, Mississippi, Louisiana, South Carolina, NorthCarolina and Tennessee. She has worked to expose the persistent racial dispar-ities in capital punishment and to refute the myth that the death penalty detersfuture murders. “Centering the voices and experiences of my clients, theirfamilies and their communities is necessary to confront the dehumanizingcampaign of the prosecution and save the lives of our clients,” she explains.“This approach of using deeply personal investigation draws heavily from thenarrative lessons and traditions of feminists, who have long challenged the pa-triarchal presentation of history from a single white, male viewpoint.”

Kimberly J. Cook, a member of the editorial board of Wrongful ConvictionsLaw Review, says, “The feminist case against the death penalty has several di-mensions. No matter who is sentenced to death, women in their lives are se-verely impacted. Mothers of death row inmates often feel a profound sense ofshame and guilt, and are often judged as unfit mothers due to the sexist culturalshame placed on women when their children do something wrong.” Cook,who has studied wrongful convictions, domestic violence and restorative jus-tice for almost 30 years, adds that “the infliction of this punishment is antithet-ical to the type of cultural change that feminist movements are trying to create;it reproduces brutality rather than resolves it.”

Stacy Mallicoat, author of Women and Crime: A Text/Reader, teaches feministcriminology and the death penalty at California State University, Fullerton. Sheargues that “feminist research in the context of the death penalty gives us aunique opportunity to understand the people involved in these cases as wholebeings, and not just from these single moments in time that have defined themas crime victims, exonerees, people on death row or those who have been exe-cuted by the state.” Mallicoat adds that she views “feminism as a concern for in-tersectional and diverse gendered issues … [and] how we see and respond toissues, particularly ones like the death penalty, where decision-making has his-torically been very gendered, racially motivated, classist and heteronormative.”

I first met Sandra Babcock in the summer of 1998 in San Jose, Costa Rica,where we were both testifying at a hearing before the Inter-American Court ofHuman Rights on international aspects of the death penalty. She has been a cap-ital litigator for 30 years and is currently helping defend eight women sentencedto death in cases here and around the world while serving as a clinical professorand faculty director of the Cornell Center on the Death Penalty Worldwide.

When I spoke to Babcock recently, she said, “I found it difficult to discernwhether my opposition to the death penalty stems in part from my identity as afeminist or whether it is rather a humanist impulse. I tend to think it’s the lat-ter.” But she was very clear that the “death penalty is a punishment that wasconceived of by men, and it continues to be largely implemented by men.” Shepointed out that “prosecutors in many jurisdictions have excluded women from

juries in capital cases because of a be-lief that they will be more hesitant torecommend a death sentence.”

In Texas, Babcock is part of the le-gal team that is currently trying tosave the life of Erica Sheppard, aBlack woman who was sentenced todeath for a crime she committed atthe age of 19 after enduring a life-time of sexual and physical violence.According to Babcock, Sheppard hada “horribly inept lawyer” who pre-sented almost no mitigating evi-dence. “The entire penalty phasedefense lasted little over an hour—less time than a yoga class,” shesays. The jury never learned aboutthe scope or impact of the traumaSheppard endured. She was prose-cuted by two male prosecutors, rep-resented by a man and sentenced todeath by a male judge.

In post-conviction proceedings, afemale judge reviewed evidence thatwas never presented at trial and ruledthat Sheppard’s death sentence shouldbe vacated. But her decision was over-turned by the seven men and twowomen who made up the Texas Courtof Criminal Appeals in 1997. On re-view, the federal district judge, awoman, said she would have foundthat Sheppard was entitled to a newsentencing hearing based on trialcounsel’s ineffectiveness, but underfederal law, she was bound by the de-cision of the Texas appeals court. The5th U.S. Circuit Court of Appeals(one male and two female judges) re-jected Sheppard’s claims—thoughone of the women dissented, writingthat Sheppard’s constitutional rightswere violated because her trial lawyerfailed to present more than “snippets”of the “extensive abuse and traumathat she suffered throughout her life.”

Babcock admits that this is onlyone case. “But,” she points out, “atleast in Erica’s case, the only judgeswho recognized the significance ofher trauma and abuse were all fe-male.” Recently, the majority conser-vative U.S. Supreme Court, whosejustices are six men and three women,refused to review Sheppard’s case.

DEATH PENALTY

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“The death penalty must fall because it is alie. It is a lie not unlike the lie that limits thegoals and aspirations of a broad and diverseworld of women and girls.”

—DIANN RUST-TIERNEY, NATIONAL COALITION TO ABOLISH THE DEATH PENALTY

More than 45 years ago, well beforeshe was appointed to the SupremeCourt, Ruth Bader Ginsburg cowrotea groundbreaking amicus brief argu-ing that the death penalty should notbe authorized for the crime of rape.“The historical origin of the deathpenalty for rape lies in the long-standing view of rape as a crime ofproperty where the aggrieved wasnot the woman but her husband orfather,” she wrote. “In the Southernstates this view coalesced with a tra-dition which valued white women ac-cording to their purity and chastityand assigned them exclusively towhite men.” Ginsburg’s approachhelped win a historic 7–2 decision inCoker v. Georgia, ending the use ofthe death penalty for rape.

Some feminist abolitionists are in-creasingly concerned that the #MeToomovement is becoming more punitive.“Women’s criminal law activism [has]not made prosecution and punishmentmore feminist; [it has] made feminismmore prosecutorial and punitive,” saysAya Gruber, author of the unflinchingnew book The Feminist War on Crime:The Unexpected Role of Women’s Libera-tion in Mass Incarceration. According toGruber, “in the zeal to fight sexualmisconduct, millennial feministsabandon their liberal (in the doublesense of ‘progressive’ and ‘respectingindividual rights’) commitments.”

As “a feminist, woman of color, de-fense attorney and survivor,” Gruberis baffled. “One is left to wonder howfeminism became a legitimator ofpenalty in an era of declining faith incriminal punishment,” she says.“How did the feminist anti-violenceagenda become so tethered to thetough-on-crime position? How comegender crime gets a carve-out from oreven veto over criminal justice re-form?” She advances an approachthat does “not view policing, prose-cution and punishment as the mostpromising avenue toward genderequality” because they are “largely

fixed institutions, with embedded authoritarian and racialized features.” In July 2019, Rep. Ayanna Pressley (D-Mass.) co-introduced a bill to abolish

the federal death penalty, declaring on Twitter in 2020 that the “death penaltyhas no place in a just society.” In January of this year, as the Trump administra-tion carried out its final three executions, Pressley co-introduced the bill again,and made a powerful case echoing what I’ve heard from other feminists: “State-sanctioned murder is not justice, and the death penalty, which kills Black andbrown people disproportionately, has absolutely no place in our society,” shesaid. “We must finally abolish this inhumane form of punishment.”

Pressley pointed out that the United States “stands alone among its peers inexecuting its own citizens. The barbaric punishment denies the dignity andhumanity of all people and is disproportionately applied to people who areBlack, Latinx and poor.” She noted that Black people are less than 13 percentof the population but make up more than 42 percent of those on death row.

Pressley cited a study that found that at least one in 25 people sentenced todeath are innocent. Her office noted in a press release that “many conservativeleaders have called for an end to its use because it is costly, ineffective and in-accurate. Carrying out these executions during the pandemic has been partic-ularly expensive, with an estimated cost of more than $900,000 per execution.”

According to a 2019 Gallup survey, American support for the death penaltyhas dropped 7 points since 2014 to 56 percent, down from a peak of 80 percentin 1994. When given the choice, 60 percent of those surveyed rejected thedeath penalty in favor of life in prison without parole. What’s significant is thatthe figure was 66 percent of women surveyed but only 53 percent of men.

In a recent conversation, Rust-Tierney expressed a note of optimism, whichI share. “As feminist abolitionists continue to make their influence felt andconnect to the broader struggles for civil and human rights, I have no doubtthat we will see an end to the death penalty,” she says.

In its place, she envisions “the seeds of a society centered on the innateworth of every human being; our connection to one another; and our collectiveresponsibility for the safety and health of our communities, [grounded in]healing and just accountability.” n

STEPHEN ROHDE represented a California death row inmate and was part of theclemency team for Stanley Tookie Williams, who was executed in 2005. He is the au-thor of “Choosing Life: Reflections on the Movement to End Capital Punishment.”ABIGAIL PALMQUIST provided valuable research assistance for this article.

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Rep. Ayanna Pressley is one of the

most outspoken opponents of capital

punishment in Congress.