Subscribe via RSS Feed

More on Patnernalistic Exemptions From Punishment For Women

[ 15 ] September 22, 2010 |

I strongly recommend Dahlia Lithwick’s article on the pending execution of Teresa Lewis, which covers some of the same issues of paternalism and the law I alluded to yesterday. I don’t believe that Lewis should be executed — but that’s because I oppose the death penalty. If she is to be spared, certainly her gender should be irrelevant, although there are other factors (such as her cognitive abilities) that might be. If the death penalty is defensible, it should apply to women who commit crimes that similarly situated men would be executed for. (And you respond that the death penalty is applied so arbitrarily that it’s impossible to make comparisons about “similarly situated” individuals at all — good point! — see my general position on the death penalty.)

An even better example of this was Karla Faye Tucker, as opposition to her execution actually became a cause celebre among right-wing death penalty supporters. Admittedly, there was also the pretext that her conversion to Christianity was the real reason to oppose her execution, but as Cal Thomas (to his credit) pointed out, it’s inconceivable that Pat Robertson et al. would have publicly campaigned to save a born-again African American man from the needle. The kind of paternalism this represents — even if it might benefit individual women in particular circumstances — is both indefensible and very bad for women in the long run.

As I said, my solution is to level up to a higher standard of human rights rather than level down to a lower one. But as long as the death penalty is given, it’s impossible to argue that women should be exempt from it. And if people argue for these exemptions, it’s good reason to believe that the punishment itself cannot be defended.

…see also this excellent post from Monica Potts.

Share with Sociable

Comments (15)

Trackback URL | Comments RSS Feed

  1. Observer says:

    Purely from a tactics perspective, if you don’t believe in capital punishment then you should be ok with an expanding list of exemptions.

    It shouldn’t matter if your opponents are being inconsistent or sexist.

    And before you go and throw in a “well what if the exemptions were for white people only rather than women” type argument, the answer is yes. Exempt white people, get that to be the law of the land in every state. Then expand that to blacks by a supreme court discrimination challenge when they try to execute a black person.

    Same strategy applies to women.

    • Scott Lemieux says:

      I’m not sure about that, even from a narrow strategic perspective. My guess is that exempting certain sympathetic groups strengthens the death penalty rather than weakening it.

      • cer says:

        Completely agree. If your short term goal is to reduce the number of people put to death, fine. But if your ultimate goal is to eradicate the death penalty then finding ways to make it appear more legitimate are not helpful. It’s like teaching undergrads and discussing the cases where people have been e onerated by DNA evidence, they respond that now that we have DNA evidence we know they’re guilty so the death penalty is awesome, even though many convictions involve no DNA evidence (or it is in dispute). Carving out that cases that make people uncomfortable will just make people more comfortable with the death penalty and leave some of the most vulnerable members out in the cold.
        Oh, and the obvious gender equity issues as well. I don’t think any law that positions women as moral patients is useful.

      • Observer says:

        You may both disagree as a matter of theory but as a matter of political practice, the “chipping away” tactic has been working fine for years.

        These are not clean analogies but:

        Taxes – the Norquist “pledge” has now conspired that even a Democratic presidential hopeful has to include “tax cuts” in every economic plan. And a permanent “tax cut for the middle class” is a foregone conclusion today proposed by Democrats.

        Supreme Court. The repubs developed a strategy only nominating “movement conservatives” even if they were unqualified like Thomas or Miers. Now they have a 20 year majority on the court made up of Federalist members.

        Abortion. The Repubs never miss a chance. Now about 22 states have attached conditions and again they’ve moved the debate so much that it is Democrats who included restrictions on abortions in the health care bill.

        Estate taxes and deregulation are other examples.

        The movement on all these issues is only one way.

        • cer says:

          Has “chipping away” at the death penalty caused a demonstrable reduction in the number of executions? Given the rarity of executing women in the first place it does not seem to be particularly effective chipping. This strategy has neither reduced the number of executions nor undermined support for the death penalty unlike anti-choice strategy which has rendered abortion increasingly difficult to obtain.

      • ajay says:

        My guess is that exempting certain sympathetic groups strengthens the death penalty rather than weakening it

        See also health care. Universal health care would be a lot easier to achieve if old people didn’t already have it.

  2. DrDick says:

    I’m sorry, but extenuating circumstances, like being male and especially those of color, are always germane in determining sentencing. It is exactly the same as if you deliberately planned to kill someone over several weeks rather than just doing so on the spur of the moment.

  3. Ed says:

    Abortion. The Repubs never miss a chance. Now about 22 states have attached conditions and again they’ve moved the debate so much that it is Democrats who included restrictions on abortions in the health care bill.

    To wit: http://thehill.com/blogs/healthwatch/health-reform-implementation/109383-aclu-steps-into-healthcare-reform-fray-over-abortion

    “The White House has decided to voluntarily impose the ban for all women in the newly-created high risk insurance pools,” Murphy writes. “What is disappointing is that there is nothing in the law that requires the Obama administration to impose this broad and highly restrictive abortion ban. It doesn’t allow states to choose to cover abortion and it doesn’t even give women the option to buy abortion coverage using their own money.”

    I see the argument for an equal-right-to-execution for women but if there was any chance at banning execution for any particular group I’d be for it. One ban or restriction tends to lead to more. Not going to happen, though, so the question is moot.

  4. Glenn says:

    But as long as the death penalty is given, it’s impossible to argue that women should be exempt from it.

    Well, while I’d agree that it’s impossible to argue that women should be exempt entirely from the death penalty, I do think it’s possible to offer a (non-paternalistic) argument that women should be subject to at least a higher threshold before the death penalty is imposed, based on the fact that women generally occupy an unequal position in society (at least, for now), and thus it’s a bit unfair to make the death penalty the one area in which you’re suddenly going to make women fully equal citizens. Put another way, you can argue that the generally disfavored position of women in our society should at least be considered a mitigating or extenuating circumstance when determining whether to impose the death penalty, and I would not consider that to be paternalistic.

    I’m not necessarily making that argument; since I oppose the death penalty in all circumstances I find it nearly impossible to argue for tweaks around the edges. But I don’t think that a heightened concern for women facing the death penalty is something that can be so easily dismissed out of hand as improper.

    • Lurker says:

      This line of argument is fine, but gender inequality is not the best subject to make it on. And I’m not sure if you are willing to follow that argument all the way until reduction ad absurdum.

      If the most vulnerability of the member of society should determine the sentence, then the most vulnerable persons should get the least sentences. Similarly, those in positions of powe should get far heavier puunishments.

      If taken to extreme, this should mean that a youth from a ghetto gets a short probational sentence for a murder, while a millionaire is condemned to death for assault. In fact, that might only be fair, considering the difference in their social stature. However, the current legal systems of almost every country in the world get it almost always the other way round.

    • ajay says:

      This argument doesn’t work because it wouldn’t do anything to help the vast majority of women. It’s similar to saying that, “based on the fact that women generally occupy an unequal position in society (at least, for now)”, female multi-millionaires should pay less tax than male ones.

  5. Simon says:

    What do you make of David Berkowitz’s newfound position as the latest cause celebre among the usually “tough-on-crime” right wingers?

Leave a Reply

You must be logged in to post a comment.