By Kathy Greenier, Director, Patricia M. Arnold Women's Rights Project, ACLU of Virginia
Teresa Lewis is sentenced to die tonight for her involvement in the murders of two family members.  Much has been written about how she will be the first female executed in Virginia in nearly 100 years, and how less than one percent of the 1,224 people executed since the reinstatement of the death penalty in the United States in 1976 have been women.
These statistics and the media's coverage of Lewis's case prompt us to ask the question, should gender matter when considering capital punishment?
The answer is yes, but the topic of gender and the death penalty is a complicated one that is risky whichever way the argument's sword is swung.  On one hand, it may be best to ignore gender when advocating against the death penalty since it diverts attention from the real argument that capital punishment is antiquated, cruel, and ineffective.  On the other hand, the argument for women's rights is not advanced in the least bit by suggesting that women should not be executed.  That stance promotes the idea that the frailty of females and their role as potential mothers precludes the death penalty.
Looking at the role of gender stereotyping in capital punishment, with Teresa Lewis as an example, does highlight significant flaws in the criminal justice system, as well as some of the obstacles to women's equality in general.
Lewis's case presents us with challenging facts.  She was not the actual killer, but was convicted of masterminding the murders of her husband and stepson, even though she is classified as borderline mentally retarded.  Matthew Shallenberger, who did not receive the death penalty despite being one of the two actual killers, told a friend that Lewis was "just what I was looking for: some ugly bitch who married her husband for the money and I knew I could get to fall head over heals [sic] for me."  Shallenberger also told a private investigator: "From the moment I met her I knew she was someone who could be easily manipulated.  From the moment I met her I had a plan for how I could use her to get some money."
Shallenberger's role in manipulating Lewis speaks to a dynamic at the foundation of gender relationships and society as a whole, namely, that men have more power than women.  This dynamic is the basis for the manipulation and violence that can enter into women's lives.  Lewis faced a double disadvantage in that Shallenberger took advantage of both her gender and her mental limitations.
Phillip Barron, a scholar who has written on the topic of sex discrimination and capital punishment, points out that some women "are more likely to land on death row than others not because they committed the worst crimes as defined by statutory law, but because they do not properly enact a feminine gender identity."
The double standard presented by the issues at stake here should not be lost on us.  Women are seen as too passive and kind to execute, yet when they act outside the expectation that women should be passive, kind mothers and wives, they are more likely to be sentenced to death.
We know that racial stereotyping plays a devastating role in the criminal justice system.  While controlling for all other factors, studies show that people of color are more likely than white people to be arrested, to be convicted, and to receive harsh sentences.  The race of an alleged perpetrator and victim plays a significant role in whether prosecutors seek the death penalty.
What we are discovering about the treatment of women in the criminal justice system is that it depends on whether they act in accordance with the role expected of their sex.  Those who fit the feminine norm may actually get some sympathy from the court, which promotes gender stereotypes.  Those who act outside the stereotype will receive harsher punishments than their male counterparts.
The law should be evenhanded.  When we know it is not, corrections to the system need to be made.  Just ask Teresa Lewis.
For additional insights into the Lewis case and gender bias in the criminal justice system, read Dahlia Lithwick's article in Slate Magazine.