The Journal of Gender, Race & Justice

Sophie Doroba, Student Writer, The Journal of Gender, Race & Justice

Last week Virginia executed a woman for the first time in almost 100 years. Teresa Lewis, 41, was sentenced to death for arranging the murders of her husband and stepson in order to benefit from their life insurance. However, the actual murders were carried out by Matthew Shallenberger and Rodney Fuller. Both men were sentenced to life in prison, while Lewis was sentenced to death after pleading guilty to the crimes.

Mr Rocap, Lewis’s attorney, argued that she was actually the one manipulated in the murder. He stated that Lewis’s borderline intellectual disability and dependency issues made her a perfect target for manipulation. He claimed that Matthew Shallenberger, with whom Lewis was having a relationship, staged the entire relationship to use Lewis as a pawn the the murders. Shallenberger, who committed suicide in prison, allegedly admitted to masterminding the murders. However, this evidence was not enough to stop her execution.

The Governor of Virginia rejected Lewis’s plea for clemency after deciding that there was not enough evidence to establish her mental disability. The Supreme Court then denied the writ of certiorari blocking Lewis’s execution. The only two members of the court to rule in favor of the stay were Justice Ginsburg and Justice Sotomayor, notably two of the three women on the Court.

So what is it about this case that has drawn so much attention? Is it the simple fact that Teresa Lewis is a woman? Is it her low IQ?  Or is it the execution itself?

A very compelling argument can be made that Lewis’s gender brings extra attention to the case. After all, Virginia has not executed a woman in nearly 100 years. Why start now? It may be that women in Virginia are just not committing the types of crimes that are considered to warrant the death penalty. However, there seem to be two different approaches to her gender. There is the argument that she received the death penalty because she was a woman. The reasoning behind this idea is that society holds females, wives and mothers in particular, to a higher moral standard than males and in turn views their criminals acts as more depraved. Here Lewis was sentenced to death while the two trigger men were given life sentences. Did the court view them differently because of their genders? On the flip-side, this is the first execution of a woman in Virginia in a century. It’s possible that women have not received the death-penalty simply because of their gender, suggesting an odd type of chivalry in the criminal justice system. Perhaps Lewis’s case is just a sign that this suggested chivalry is ending?

Maybe it wasn’t Lewis’s gender at all, but her low IQ that has attracted so much attention? Lewis’s attorney has repeatedly argued that her IQ score qualifies her as borderline intellectually disabled (she scored 72 on the administered IQ test and 70 is considered disabled). The prosecution in the case questioned the accuracy of the test, claiming that she had every incentive to perform poorly. The Governor of Virginia also did not consider the test to be enough evidence to grant her clemency. Was this the right call? Teresa Lewis was 2 IQ points away from being exempt from execution (Atkins v. Virginia, 2002). Bright line rules exist to aid in the application of statutes and rules, however when 2 points are the difference between life and death it seems like the issue should be explored in great depth. Lewis may have been above the level of intellectual disability qualifying her execution as cruel and unusual punishment, but the uncertainty seems to have brought a lot of attention and disagreement.

Finally, the attention given to her case may just be because executions garner a lot of attention. Capital punishment is a controversial issue in our country, and around the world, and whenever a person is executed all eyes are on them. Whether it was because of her gender, her low IQ, or the use of capital punishment, it was clear that all eyes were on Teresa Lewis as she was put to death last Thursday.

Scott Lyon, Student Writer, The Journal of Gender, Race & Justice

            In the 2003 movie The Life of David Gale, Kevin Spacey portrays the titular character, an archetypal if not slightly clichéd professor of philosophy, who is also a prominent anti-death penalty activist.  The film makes multiple chronological jumps to tell the story surrounding Gale’s murder conviction and death sentence, but one early scene stands out.  In it, Gale is engaged in a televised debate on capital punishment with the governor of Texas, and handily embarrasses him by tricking him into agreeing with a quote by Adolf Hitler.  Furious, the governor issues a blunt challenge to Gale: Demonstrate that the state of Texas has executed just one innocent person, and he will order an immediate moratorium on executions.  Unable to do so, Gale loses the debate.

            The issue of innocent persons on death row never plays out in real life with the kind of cinematic reveals of David Gale (I won’t ruin the movie for those who haven’t seen it).  And though no sane person could support a system that inflicts the ultimate punishment on someone wholly innocent of the crime charged, the possibility of proof that the state has put to death a person wrongly convicted remains, as journalist David Grann wrote last year, a “grisly Holy Grail” for death penalty abolitionists.  If such an egregious failure of the system could be conclusively shown to have occurred, such knowledge would certainly cause widespread ripples in the criminal justice community, and mandate re-examination of the death penalty as an acceptable form of punishment.      

 The tragic story of Cameron Todd Willingham might well end up being that case which sways public support for the death penalty.  Willingham was executed in Texas in 2004, after having spent 12 years on death row for setting the house fire that killed his three young daughters.  Less than a year after his death, a Chicago Tribune investigative report called into question the accuracy of the forensic evidence that was the basis for his conviction, and accused Governor Rick Perry of ignoring the reports from an independent fire investigator that showed Willingham’s innocence.  The case has since been taken up by the anti-death penalty group The Innocence Project, and has been lingering before Texas’ Forensic Science Commission, which last month acknowledged the use of “flawed science” by the two fire investigators in charge of investigating the scene, but denied that misconduct or negligence could  be shown.  This latest bittersweet victory for Willingham’s relatives, who continue to proclaim his innocence, was blunted in the same meeting when the commission announced that it would push further discussion of the case to no sooner than mid-October, when it will determine whether or not to conduct a complete investigation.

            It has been argued that the release of death row inmates upon exoneration is evidence that the system is working to ensure the innocent are not executed.  However, the mere conviction of innocent persons concretely illustrates what most of us already know—the justice system is fallible.  We try to account for this fallibility by way of high standards of proof required to deprive persons of their liberty, and we tacitly acknowledge it in the oft-repeated Blackstone quotation: “Better that ten guilty persons escape than that one innocent suffer.”  Cameron Todd Willingham has suffered irreversibly, and an alarming amount of evidence seems to show that he was innocent.  If this is true, then systemic flaws have resulted in the state-sanctioned murder of an innocent person, and we must ask ourselves if faith in the use of the death penalty is faith misplaced.

(Willingham and daughter)

A prisoner on death row in Utah recently got the country talking again about the death penalty when he made an unlikely choice. Rodney Lee Gardner, sentenced to death in 1985 and now scheduled to die on June 18, was given a choice under Utah law, to die by firing squad or lethal injection. He chose the firing squad.

What may seem like an absurd choice was quite possibly well reasoned. As found by Amnesty International, lethal injection is an extremely cruel and unusual form of punishment. Lethal injection involves a three-drug cocktail: one to knock the prisoner out, one to paralyze the prisoner, and one, excruciatingly painful chemical, to induce cardiac arrest. The drug causing paralysis renders it impossible for us to know if the prisoner is in pain, and, if so, the extent of that pain.

California has experienced the depth of this issue. In 2006 two anesthesiologists who were to monitor the lethal injection of Michael Morales backed out at the last minute. Afterwards, the legality of the practice was challenged in two courts. U.S. District Judge, Jeremy Fogel, ruled that it posed a risk of cruel and unusual punishment.

Since then the process has gone through multiple revisions and rejections, including a rejection earlier this week. The next revision is due October 6^th. Until the process can be found constitutional in federal court, none of the 702 inmates on death row will be put to death.

North Carolina has also run into legal issues related to lethal injection. However, instead of constitutional questions, these issues relate to the role of the doctor. In order to avoid the possibility of an inmate experiencing the pain described above, in 2006 a federal judge allowed an execution to go forward only as long as a doctor was present, tracking the inmate’s consciousness.

In January of 2007, the North Carolina Medical Board adopted a policy which said that their physician’s code of ethics would be violated by a doctor taking part in an execution. Doctors in violation of the code of ethics subsequently have their medical licenses revoked. This policy thus, put all executions in the state on hold. By passing this policy, the North Carolina Medical Board became the only known state board expressing an interest in disciplining a doctor for participating in an execution.

In May of 2009, the Supreme Court of North Carolina sided with the Department of Correction, against the Medical Board, ruling that the Medical Board was attempting to exercise powers that it did not have. Executions, however, are still stayed because of a different suit.

Even with the state Supreme Court’s ruling however, the Catch-22 still exists: Can doctors participate in lethal injections?