Death for the worst of the worst?

The death penalty is allegedly reserved for the worst of the worst. Would it be fair for a man to be executed for a crime less horrific or more justifiable than that committed by a man sentenced to life? Surely not, and yet if you take the United States of America as a whole it happens all the time. Take for example a man who lives in West Virginia and a man who lives in Virginia – they might commit exactly the same crime, but the man in West Virginia is not eligible for the death penalty because he has the good fortune of residing in and committing his dreadful deeds in a state which does not have the death penalty. His next door neighbor however is not so lucky. The simple fact of geography, and not merely the nature of the crime, may determine whether someone lives or dies.

In 1972, in the case of Furman v Georgia, the Supreme Court made void the death penalty statutes throughout the country. It is unfair, they cried, that this most serious of sentences be ‘freakishly’ imposed. Justice Stewart likened being sentenced to death to being struck by lightning, because it is a sentence handed out to a “capriciously selected random handful”. The Supreme Court determined the death penalty was in violation of the 8th Amendment in being cruel and unusual punishment because it was administered arbitrarily and discriminatorily. Four years later, after some rewriting of the laws, in the case of Gregg v Georgia 1976 the Supreme Court determined the new death penalty statutes were constitutional and the effective moratorium was lifted.

The new statutes reflected the concern that juries were not given the proper guidance in how to reach the decision of whether or not to kill a defendant they found guilty. Juries would henceforth be directed to consider the gravity of the crime, the aggravating factors involved in the crime, and the mitigating factors affecting the culpability of the offender. There are however additional factors which need to be addressed to prevent the death penalty from being arbitrary and capricious; as mentioned above, geography comes into play, consider also the fact that very few women are sentenced to death even when considered proportionately to men convicted of similar crimes. But perhaps more significantly is the issue of finance; those without money are forced to rely on overworked and underpaid public defenders, intelligent as such attorneys may be, they cannot always provide the most adequate of counsel. As Justice Ruth Ginsburg stated in 2001, “People who are well represented at trial do not get the death penalty… I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial.” Justice should be blind should it not? How is it then that the system seems to see where a defendant lives, what race he or she is and how much money he or she has?


I mentioned above that women are rarely sentenced to death, but in order to exemplify how relevant these additional factors are to the ‘freakish’ nature of the death penalty I am going to present you with two women: Gaile Owens and Mary Winkler. These Tennessee women were both diagnosed by the same psychologist with battered woman’s syndrome, and they were both responsible for the deaths of their respective husbands. In 2006 Winkler shot her husband in the back, she was indicted for first-degree murder, convicted of voluntary manslaughter and is now free with custody of her children. Owens on the other hand hired someone to kill her husband, and is now on death row. Winkler testified to the abuse she suffered, Owens did not. Winkler’s friends hired for her an experienced criminal lawyer. Owens’ first attorney withdrew from the case due to lack of funding. Winkler plead not guilty due to being a battered woman, Owens attempted to plea bargain for her life but was unsuccessful. Two very similar cases with drastically different outcomes reflective of the manner in which the cases were tried: how the attorneys handled the cases, and the judges and jury dealt with the ‘battered women syndrome’ defense. Surely a sterling example of the arbitrary nature of the system leading to a death sentence, when a woman under similar circumstances not only avoided the same but served a sentence of only two months!

Compare Gaile Owens to Wayne Glasser. Gaile was a woman responsible for killing a man at whose hand she suffered years of abuse. Wayne Glasser is a rapist, he has sexually assaulted at least 12 children including his own stepdaughter, and admits to forced sexual contact involving 25 adult victims including his sister and other relatives. He was convicted last year of raping a woman in 1996, and faced 60 years in prison. Rape is not a crime eligible for the death penalty, yet surely Glasser’s prolific violent offenses are far worse than the desperate act committed by Gaile Owens. What kind of a justice system allows a sexual fiend to be sentenced to 60 years, when a battered woman must pay with her life?

Again referring to a woman sentenced to death I present to you the case of Teresa Lewis. Teresa, with two other men, killed her husband and stepson. Within months of her trial and sentencing, a letter from one of the two men turned up indicating that it was he, not Teresa, who had planned the murders. In a post conviction hearing one psychiatrist testified that Teresa has an IQ of 72, which when taking into consideration the 5 point standard deviation, is within the range of mental retardation. Since the 2002 case of Atkins it is unlawful to execute the mentally retarded. Nonetheless, Teresa is scheduled to be executed in less than two weeks. Perhaps this case still doesn’t seem shocking, or relevant to the point at hand, but while Teresa faces being put to death on September 23, her two co-conspirators, one of whom is admittedly more responsible for the crime than she, have only a life in prison to face.

Gary Ridgway, aka the Green River Killer, was very fortunate. Although he couldn’t afford an attorney, the State of Washington provided him with a fabulous team. On this team was Mark Prothero who has written a book, ‘Defending Gary’, which I recently read and would highly recommend to anyone interested in getting an insight into the enormous amount of work and huge commitment (not to mention the finance) a capital case requires, or into the mind of a prolific serial killer which admittedly is what enticed me. Gary Ridgway may well be responsible for the deaths of as many as 70 women, so many he lost count. He is surely by definition ‘the worst of the worst’. He confessed to 48 murders, and in providing the police with all the details he could recall so that they might close some cases and provide closure to families still waiting for their missing daughter/mother/wife to return, Ridgway avoided the death sentence. I wrote last time about the evils of using the death penalty as a bargaining chip – how it might cause false confessions and pervert the course of justice. In this case it was a benefit to the defendant – a guilty man managed to avoid the punishment supposedly reserved specifically for men such as himself, by admitting his deeds and divulging the gory details. As someone vehemently against the use of the death penalty one might expect me to rejoice that a person managed to avoid it, but what really strikes me about this case is how it exemplifies the horror of how unfairly this punishment is applied. If the death penalty is reserved for the worst of the worst how is it that you can execute a man who shoots one woman, but not do the same to a man who strangles at least 48? I’d rather of course that no one was executed, but I hope you get the point I’m trying to make – the death penalty is still arbitrary and capricious.

While there are many more examples of how unfairly the death penalty is applied, I feel I have ranted and raved enough for now. The conclusion I have tried to draw out with these cases is that the very reasons for which the Supreme Court quashed the death penalty in 1972 still exist – it remains arbitrary and capricious! It is not reserved for the worst of the worst; not only might two people who committed similar offenses under similar circumstances received different sentences, but that sentence can also be considerably harsher than someone who committed an undeniably more horrific offense.