february 5, 2014 (usatoday)

Women make up less than 2 percent of death-row populations in the United States. There are two women on death row in Arizona, and no woman has been executed here since Eva Dugan was hanged in 1930.

On Jan. 17, the Arizona Supreme Court upheld the death sentence for Shawna Forde, a self-styled anti-immigration vigilante convicted of killing two people southwest of Tucson in 2009.

On Jan. 23, a Maricopa County Superior Court judge refused to reconsider her decision to allow a former Phoenix police detective to invoke the Fifth Amendment in the Debra Milke case, putting Milke’s potential retrial on hold until prosecutors can file a special action appeal. Milke was freed after 23 years on death row when the 9th U.S. Circuit Court of Appeals granted her a new trial.

Wendi Andriano, who was sent to death row in 2004 for murdering her husband, is back in Maricopa County Superior Court for the next two weeks in a stage called post-conviction relief, arguing that she deserves a new trial because her defense attorneys did not represent her effectively.

Marissa DeVault’s trial starts Thursday on charges of killing her husband with a hammer in 2009.

And Jodi Arias will go back to trial on March 17 to determine if she should be sentenced to death or to life in prison for the 2008 murder of her lover Travis Alexander.

Andriano and Arias were portrayed as lying vixens, their sex lives detailed right down to their choice of personal sexual lubricants.

The DeVault case is certain to be salacious; she was a stripper and claims the husband she killed was abusive and forced her to sleep with other men. All three allege domestic violence in their defense.

Meanwhile, one of DeVault’s lovers will be confronted over child pornography found in his computer when he testifies against her.

“If it’s a woman, (prosecutors) have to defeminize her before they can humanize her,” Streib said.

It may not matter.

“Once sentenced to death, the likelihood of being executed is practically zero,” Streib said.

Death-penalty cases are rarely clear-cut; less so when the defendants are women.

ast spring, a first jury could not reach a decision as to whether to let Arias live or die.

In 2010, a Superior Court jury balked at sending Marjorie Orbin to death row, even though it found her guilty of killing her husband and cutting him in pieces.

One chunk of his torso was found in a plastic tub in the desert in north Phoenix.

And in 2002, the Arizona Supreme Court threw out a death sentence for Doris Carlson, who paid two men to kill her mother-in-law in 1996, after determining that the murder was not committed in an especially cruel, heinous or depraved manner. That is one of the aggravating factors alleged in the DeVault case, and the Arias argument on the death penalty is based on the murder being considered especially cruel.

Capital cases against women also are often more complex because the crimes are often more passionate and more intimate.

“The death penalty is mostly about crimes against strangers. That really frightens people,” said Elizabeth Rapaport, a law professor at the University of New Mexico.

Those crimes often include rapes and robberies, “and women just don’t do those kind of crimes,” Rapaport said.

Women who kill tend to kill spouses, lovers, children and family members.

“Those cases are rarely capital cases,” she said.

And as Victor Streib added, there is a general reluctance on the part of juries to send women to death row.

“Women tend to be favored,” said Streib, a defense attorney and law professor who retired from Ohio Northern University. Streib, who has written books on female killers, also provided statistics on the subject to the Death Penalty Information Center in Washington, D.C.

According to the most recent statistics, as of January 2013, only 63 out of 3,125 inmates on death rows nationwide were women, about 2 percent. Only 14 women have been executed since 1973: four in Texas, three in Oklahoma, two in Florida, and one each in North Carolina, Arkansas, Alabama and Virginia., Texas

“What I always say when asked about this question is that there are no sophisticated studies indicating that women are treated more leniently in the capital-punishment system,” said Richard Dieter, executive director of the Death Penalty Information Center. “Their numbers are too small to draw statistically relevant conclusions. What we do know is that women commit about 10percent of murders, comprise about 2percent of death rows and account for about 1percent of executions.”

Death sentences are supposed to be reserved for the worst of the worst murderers. Each case has a unique set of facts and evidence, and there is no foolproof scientific way to make the assessment as to which are the worst. And prosecutors must find appropriate aggravating factors from a set list dictated by state statute. It’s not just a question of how horrible the murder seems to the public.

Still, the seeming randomness of the system is at times shocking: A drug cartel member cuts off the head of a rival who ripped him off, pleads guilty to second-degree murder and gets a 14-year prison sentence; a man beats his girlfriend to death, leaves her naked body in the street and is charged with second-degree murder.

Wade Bradford is accused of killing two girlfriends, one in front of a male rival in the garage of a Tempe condo; the other was found four years after her murder in a rented storage facility in the West Valley.

The first of his trials went to the jury on Tuesday. Neither case is capital.

“There may even be evidence that when women do cross the line into violent murders, they may face being punished more severely than men because their murders stand out,” Dieter said. “They are outside the expected behavior of women.”

But as Dieter pointed out, there are no studies to prove or disprove that theory.

When prosecutors seek death against women, the cases tend to be sordid. They are about money. Or sex. Or domestic violence. Or betrayal.

Prosecutors alleged that Milke, Andriano and DeVault killed for insurance money; Forde was trying to steal a drug dealer’s cash.

Andriano and Arias were portrayed as lying vixens, their sex lives detailed right down to their choice of personal sexual lubricants.

The DeVault case is certain to be salacious; she was a stripper and claims the husband she killed was abusive and forced her to sleep with other men. All three allege domestic violence in their defense.

Meanwhile, one of DeVault’s lovers will be confronted over child pornography found in his computer when he testifies against her.

“If it’s a woman, (prosecutors) have to defeminize her before they can humanize her,” Streib said.

It may not matter.

“Once sentenced to death, the likelihood of being executed is practically zero,” Streib said.