Jodi Arias case: What's trend line on women getting the death penalty?

Among male murderers in the US, a smaller share has been drawing the death penalty in recent years. That's not so, though, for women killers. How societal views may factor into sentencing in instances such as the Jodi Arias case.

Whether Jodi Arias gets her wish – to be executed rather than spend her life in prison – is now up to the Arizona jury that on Wednesday found her guilty of brutally murdering her one-time boyfriend, Travis Alexander, in a jealous rage on June 4, 2008, in a Phoenix suburb.

The jury must consider whether the cruelty, brutality, and depravity of her attack on Mr. Alexander deserves a sentence of death, a finding that would make Ms. Arias the fourth woman to be awaiting execution on Arizona’s death row. (The state has not executed a woman since Eva Dugan, a cabaret dancer, was hanged in 1930.) Against that possibility, jurors will weigh potential mitigating circumstances, such as Arias's allegations of abuse, which she outlined at length during the trial. 

Largely because of an unedited video stream from the Arizona courthouse, incessant Twitter chatter, and cable news coverage about the case, the Arias trial took on the air of a celebrity procedural, with enough characters, drama, gore, betrayal, and lies to compete as a daytime soap opera for millions of Americans. The sentencing phase could take weeks.

The Maricopa County jury will deliberate against a backdrop of evolving societal views about female murderers. On one hand is a somewhat chivalrous sense that women are not capable of brutality at the same level as men and resort to it under extenuating circumstances – such as sexual abuse that Arias claimed at the hand of her victim. On the other is a sense that women can indeed be cold-blooded killers who are every bit as deserving of execution as male murderers. 

James Acker, a criminal justice professor at the State University of New York at Albany, describes the “competing theories" this way. One is that "this is about chivalry, where we’re all bending over backward to make sure no women, or members of the fairer sex, are treated this way, versus the less-sexist notion that women ... who do [commit capital murder] somehow tend to lose their identity as female and become a demonic killer that overwhelms the definition of a woman – that to dispatch someone to execution you almost have to relegate them [to being] outside the human family." Still, he adds, "it’s more difficult to do that with a woman than a man.”

The Arias case alone probably won’t provide much of a guidepost to the direction of sentiment in the US regarding executing women. But the sentencing phase comes at a peculiar time in the annals of death row – chiefly that the share of women murderers entering death row has stayed constant even as the percentage of men sentenced to die has noticeably dropped. 

From 1973 to 1999, the percentage of women murderers receiving death sentences sank to historic lows, but the rate since 2001 has rebounded to the historical average, says Victor Streib, a retired Ohio Northern University law professor who published a periodic report about women on death rows in the US. Meanwhile, the rate at which men are being sentenced to death has notably decreased. The result: The percentage of female death sentences has jumped from 2 percent of the total, on average, to 6 percent, a peak, in 2011.

Even so, women killers remain underrepresented on death row. Women commit 10 percent of murders in the US, but they are 2 percent of people on death row. The list of convicted female killers sentenced to death since the late 1970s, when the US Supreme Court ended a capital-punishment moratorium, is fairly short: 178 women have been sentenced to death and 12 have actually been executed.

Women in America are increasingly in trouble with the law. Their arrest rates are up 5 percent since 2000, according to US Justice Department statistics. Arrest rates for men have remained flat during that time. 

Death penalty experts, however, don’t correlate such statistics with a broader movement by US courts to end so-called “positive discrimination” regarding women suspects and convicts, such as a more lenient sentence than men receive for committing a similar crime. As the US Supreme Court wrote in the 1984 case of Mississippi University for Women v. Hogan, which found that a single-sex admissions policy violated the 14th Amendment’s equal protection clause: “… if the statutory objective is to exclude or ‘protect’ members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate.”

Still, Arias's lawyers had their reasons for putting their client on the stand for 18 days of testimony. One, Mr. Streib says, is “to get the jury to see [her] as a human being, so they don’t think they’re killing a monster or a faceless animal, but someone they’ve actually gotten to know.” In part of that testimony, Arias described Alexander as an abusive sexual deviant, but offered no proof.

“One of the lines in the [1996 movie “Last Dance”] was where a defense attorney said, ‘Now that women get rights and are treated equally, they can expect to get more death sentences’ – the idea being that if these women want to be treated equally, by golly, we’ll treat them equally,” Streib continues.

He points out that the movie script was not particularly prescient. Instead, Streib says, “My conclusion is that, for prosecutors, sentencing a woman to death is still like hitting a girl on a playground. In other words, he’s not a tough guy for getting a death conviction, but a guy who hits girls.”

But the sexual aspects of the trial – including the playing of a taped raunchy phone conversation between Arias and the victim – may undermine any sympathy for Arias among the jurors, Patricia Pearson, author of “When She Was Bad: How and Why Women Get Away with Murder,” writes in an e-mail to the Monitor. 

She notes that women who commit "sexual murder" often do not fare well in sentencing. “The sexual component to Arias' story," Ms. Pearson says, "makes her a more likely candidate for the death penalty, in terms of what kind of woman still gets that ultimate sentence.”