Anne Holsinger 0:01
Hello and welcome to Discussions with DPIC. I’m Anne Holsinger, Managing Director of the Death Penalty Information Center. Our guest today is Sandra Babcock, Clinical Professor at Cornell Law School, Faculty Director and founder of the Cornell Center on the Death Penalty Worldwide. Over the last 30 years, she has helped defend hundreds of men and women facing execution around the world. Currently, her clinic represents death sentenced women in the United States, Malawi and Tanzania. Thank you for joining us, Sandra.
Sandra Babcock 0:30
Thanks for having me.
Anne Holsinger 0:32
Could you start by providing an overview of the resources and services that the Cornell Center on the Death Penalty Worldwide offers?
Sandra Babcock 0:39
Sure. The Center on the Death Penalty Worldwide is focused on providing support to defense teams around the world who are defending the most vulnerable people facing execution. We engage in direct representation of clients in the United States, and Tanzania, and in Malawi. But our bigger impact I think, is in consulting with teams around the world who are trying to provide the best possible legal representation for their clients, but who might lack the resources or expertise in the particular issues that their clients are facing. We also produce research, primarily now, we’re focused on the intersection of gender and the death penalty. But we’ve also generated a lot of research around international legal issues and capital punishment. We also do trainings of lawyers. We have a Makwanyane Institute, which is named after the seminal South African Constitutional Court decision that abolished the death penalty in that country and that’s a program through which we have been able to train over 400 lawyers around the world in capital case representation.
Anne Holsinger 2:02
One thing that you have done is appealing for precautionary measures from the Inter-American Commission on Human Rights. One of your clients, Melissa Lucio was granted a precautionary measure last year. And of the 42 precautionary measures that the IACHR has issued this year, two were granted to U.S. death-sentenced prisoners — Richard Moore and Michael Tisius. Given that these precautionary measures are non-binding, and are, in fact routinely ignored by US states, what benefit do you see in securing them for your clients?
Sandra Babcock 2:35
You know, there’s a lot of reasons why I think it’s helpful to file petitions with the Inter-American Commission. The first is that this is the only human rights mechanism that is available to people in the US whose human rights have been violated. And I think that as lawyers, we can sometimes lose sight of the importance of documenting human rights violations, not only for the sake of immediate legal victories, but because this is a way of preserving the truth of the injustice that our clients have experienced. And one of the advantages of litigating before the Inter-American Commission is that we don’t face the same procedural hurdles that we often get bogged down in, in US courts. The Anti-terrorism and Effective Death Penalty Act does not apply in the Inter-American Commission. So you can tell your clients story, you can tell the story of how their due process rights were violated, the failings of their defense attorneys, the state’s misconduct, the racism that permeated their trial, and you can tell those stories fully and get a ruling on the merits, which is so hard to come by, in US courts in the post-conviction stage. It’s also the case that even though precautionary measures are not legally binding, they can still have an important impact on your ability to protect your client’s life. So the way that I, the way that most lawyers use the Inter-American Commission, or access it in their clients’ cases, they wait till the very last minute when everything else is, you know, has failed and they file, they throw this Hail Mary pass at the Inter-American Commission within weeks or months of their client’s execution date. And that is the least effective way of using the Inter-American Commission to try to achieve some kind of concrete result in your case. The best way to do it is before an execution date has even been set and then when you get precautionary measures, which is the the international equivalent of a TRO, or a preliminary injunction, that calls on the state not to execute your client, you can go to the courts, you can go to the prosecutor and say, don’t set a date, out of deference or out of comedy to this international, this international body of experts that is recognized by the United States that has the expertise and the entitlement, the right to review the human rights violations in this case, and allow that process to to run its course, before even considering whether it’s appropriate to set an execution date. And you can argue this as sort of soft law, right, it’s persuasive, just like you would argue that pending legislation is, is persuasive that someone else has determined that there is a legal or factual issue in your case that affects the integrity or the validity of your client’s death sentence. This is something that you want the courts to take into account. And in making those kinds of arguments, I have been successful in obtaining stays or deferring the setting of execution dates for three clients in three very different states, all of which were active executioners, but agreed not to set dates out of deference to the Inter-American Commission.
Anne Holsinger 6:26
The Cornell Center has a new partnership with the Center on Gender and Extreme Sentencing to establish a resource hub for women on death row globally. The partnership that’s been announced will include a website with data on women facing the death penalty worldwide, information on advocacy campaigns on behalf of women facing execution, and resources for legal teams representing women and transgender people, including sample legal briefs, clemency petitions and links to other reference materials. What inspired the creation of that project?
Sandra Babcock 7:00
We were inspired to, to launch a project at the Center on the Death Penalty Worldwide called the Alice Project, and to also found the Center on Gender and Extreme Sentencing because of our experiences, representing women, both in Sub-Saharan Africa and in the United States, and realizing that they have been overlooked by the capital-defense community, by the abolitionist community for decades. And as a result, there is widespread ignorance about the particular challenges that women face in capital proceedings and their life experiences that affect their pathways to incarceration. We launched the Alice Project in 2018 and it’s named after a client of mine named Alice Nungu, who was sentenced to death in Malawi, for killing her abuser. He had come home one night drunk, as he often did, throughout their marriage, he began beating her, he began beating her mother who was sleeping in the same room and she picked up a, an axe and she hit him with it, and he died. She was sentenced to death for that crime without, and the courts never took into account the fact that she was a woman and a survivor of severe gender based violence, who had been acting in self defense at the time that she killed her husband. We were eventually able to get Alice out of prison by telling her story in a resentencing process, but she died about six months after her release, because she’d been infected by, with HIV by her husband, and she eventually died of AIDS. So we named the Alice Project after her to honor her memory, and in an effort to help other women who are being sentenced to death around the world for crimes that are directly connected to their experiences of gender based violence.
Anne Holsinger 9:15
Since women make up such a tiny proportion of the death row population, what do you think is unique about their cases? And why is it important to have resources specially tailored for them?
Sandra Babcock 9:26
The thing that I believe is unique about women is that inevitably, their pathways to incarceration and to death sentences are inextricably linked to their experiences of gender oppression, of discrimination and violence. And I’ve heard from people, many colleagues in the death penalty community who say, well, you know, my male clients also experience violence and many of our male clients have endured horrific forms of interpersonal violence and abuse as children and exposure to violence in their communities. The difference, however, is that the violence that women experience is directed at them often because of their gender. And these experiences are, take place within a broader context, a broader societal context of extreme gender discrimination, and oppression. So when we talk about and, and when we investigate women’s experiences, our research has shown that over 90% of women who are currently on death row, have experienced at least one form of gender based violence, whether that be rape or sexual assault, which is very common, child sexual abuse, or intimate partner violence. And many of them have experienced more than one form of gender based violence. Black women and women of color are more apt to experience multiple forms of gender based violence. And one of the things that we have been struck by and I have noticed in the research that I’ve done that looks at the ways in which women experience discrimination in the course of their lives and during their capital trials, is that women of color have been rendered largely invisible in the research that’s been done to date that looks at race and the death penalty. When you look at every study that’s ever been done these large scale studies, the Baldus study, all of the race studies that have been carried out in states around the country that have revealed a race of victim bias or race of defendant bias in the way the death penalty is carried out, Black women’s experiences, the experiences of Latinx women of other women of color are completely invisible. And that is because this research is empirical in nature and because there are such a small number of women on death row, that their experiences are not taken into account in those studies, because the researchers say there’s too small of a sample size. What we’re trying to do is to tell those stories in a way that is holistic and intersectional, to illuminate the ways in which gender bias has a pernicious and lasting impact on the ways in which women are treated, and why it is that they are ultimately sentenced to death. I think these stories are critical to understand not only for our individual clients, and for women, and trans folks and non-binary folks, but also because this is another way in which the death penalty is, is so deeply unfair, so deeply discriminatory, and so deeply inadequate as a way of responding to interpersonal violence. The stories of women help us bring allies into this struggle, who might be moved by or compelled by these stories, because they illuminate a different, a different facet of the death penalty that they’d never thought of before. And in this way, I think telling the stories of women ultimately benefits women and men on death row because it’s a unique way of describing how trauma has lasting impacts on people’s behavior, on their mental health, and how it constrains their, their choices and their decision making. And these are stories that are ultimately universal, but in telling them in our, in the store in the cases of our women clients, we are able to, I think, to tell them in a different way than when we are telling our male clients’ stories. And I think that that, in itself can be a very, very powerful tool to change people’s minds about the merits, or morality of the death penalty.
Anne Holsinger 14:45
You spoke a little bit about gender based violence. What other common obstacles do you find that women on death row face regardless of the country that they’re in?
Sandra Babcock 14:56
Just unbelievable gender bias on the part of prosecutors and defense attorneys. It’s more extreme that, I would say on the part of prosecutors and I and courts as well and it’s not just defense attorneys and prosecutors, it’s, it’s legal actors generally, who are just profoundly ignorant about women’s experiences. But more than that, and especially in the case of prosecutors, they employ these gendered tropes to encourage jurors to condemn women to death, not just for the crimes that they may or may not have committed, but for their perceived deviance from established norms of femininity. And when you read these transcripts, in women’s cases, you think to yourself like okay, was this tried in the 20th century? Or am I reading something that took place 200 years ago, because sometimes the tropes and stereotypes are so archaic, and they’re wielded with impunity, without objection. As a result, juries are frequently encouraged to judge women because of their performance as mothers, as wives, girlfriends, because of the clothing they wear, because of their sexuality, their expression of their sexuality, or because of these stereotypes that are just not grounded in reality.
Anne Holsinger 16:32
How do you think that experience is similar or different for transgender and non-binary prisoners?
Sandra Babcock 16:40
First of all, the experience of transgender and non-binary prisoners facing the death penalty has received way too little scrutiny. This is, the number of transgender prisoners on death row is something that wasn’t even tracked until sometime within the last two years, when we started looking at numbers of trans women and working with DPIC to start to, to track and record those numbers. They were largely invisible in our community, and we never discussed them. So one of the problems that trans and non-binary persons face is their invisibility. And that I think, obscures their experiences, and how the criminal legal system operates in a way not just to erase those experiences, but again, to treat them in ways that are deeply discriminatory and dehumanizing. So the best example, I think of you know, how trans prisoners specifically, how their experience differs from those of cis-women is in prison conditions. Trans folks are at higher risks of sexual and physical violence in prisons and jails, and from police. The conditions that they face are much more torturous in some ways, because of prisons, and law enforcements’ failure to make accommodations for their gender identity. And that is something that has inspired organizations like Black and Pink, like the Transgender Law Center, to bring lawsuits against prisons around the country, for failing to treat trans folks, you know, in accordance with basic human dignity. So I think that we’re still uncovering the data around the experiences of, of trans folks within the system of capital punishment, but I think that the evidence that we have seen is that they suffer even greater forms of discrimination, especially once they’re in the criminal legal system.
Anne Holsinger 19:10
You’ve spoken about the power of these stories to move people could you share a case example or two that you think illustrate the issues of systemic gender discrimination in capital punishment?
Sandra Babcock 19:22
I think one of the best cases that illustrates the pernicious use of gender stereotypes is the case of Brenda Andrew in Oklahoma. Brenda Andrew was convicted and sentenced to death for the murder of her husband, a crime for which she asserts her innocence, but she was convicted, nonetheless, along with a male co-defendant. The prosecution’s case against Brenda really revolved around her perceived infidelity. Testimony of witnesses who were brought in exclusively for the purpose of testifying about Brenda’s flirtatiousness, about clothing that she wore. It was the steady drumbeat of, of testimony that she was essentially a harlot. She had taught Sunday school before her arrest, she was somebody who had no prior criminal history. So in the penalty phase of this capital case, in Oklahoma, there was nothing that the prosecution could hang its hat on to show that Brenda was so irredeemable, so inclined to violence, that she should be exterminated from the human race. So what they relied on was literally, the lace underwear that was in her suitcase when she was arrested. And in closing arguments, the prosecution took out pieces of her underwear and waved them in front of the jury and said, is this the kind of underwear that a grieving widow would wear. They went further than that, though, and in some of their testimony that they elicited from their witnesses, they castigated Brenda, for having the audacity to flirt with other men while she was married, and to do so in the presence of her children. So that the evidence in the end and this is there was a judge from the Oklahoma Court of Criminal Appeals, a woman-judge, who is now deceased, who said, you know, this evidence had no purpose, other than to show that Brenda Andrew was a bad woman and a bad mother. And that’s exactly the effect that it had. It blows my mind that courts have repeatedly upheld Brenda’s conviction and death sentence, when this case presents the most egregious example of the deliberate injection of gender bias to influence the jury’s deliberations that I’ve ever seen. And she is now before the Supreme Court, she’s about to file a cert petition, and if she loses, Oklahoma is almost certain to set an execution date. And if they move forward with this execution, it’s going to be, I think, a real illustration of how little regard the legal system has for gender bias, and how and again, how women’s experiences of bias are deemed to be inconsequential in determining whether or not their their trials were fair and in accordance with due process. So the other case that I think, provides a really great illustration of of how gender bias works is the case of Melissa Lucio, in Texas. Melissa Lucio was convicted and sentenced to death for the, in connection with the death of her child. Melissa always maintained her innocence, and she was, when she was originally arrested, she was charged alongside her, her life partner, a man, both of them had caretaking responsibilities for their daughter, who ultimately we discovered, and I should say the the Innocence Project was, played a very key role along with the, with the Austin Capital Habeas Unit in this case, in uncovering forensic evidence that demonstrated that Melissa’s daughter died, not from child abuse, as the prosecution alleged, but from a fall that she had suffered down a flight of stairs a few days before she died. But when the police arrested Melissa and her partner, they brought them into a police interrogation room, they separated them and then they interrogated that. When you look at the interrogation of Melissa and you compare it to the interrogation of her partner, what you see is that the police repeatedly interrupt her every single time she asserts her innocence. They berate her for her mothering. They criticize the food that she gave her children. They go back over and over again to, that she was a mother and as a mother, she had had to have known what was happening to her children, and that she had to be responsible. With her partner, they simply, the police noted that he was taking care of, they had 13 children that he was taking care of 13 children, and boy, that must be tough. And the cop says, you know, I’m a father myself. I know how difficult it is. And then they let him tell his story, they interrupt him twice. They interrupt her more than 50 times. And this, to me is also a really clear illustration of how bias works and how insidious it is. We only found this out by dissecting the transcripts of the interrogation that we had, and then by giving them to linguists to analyze the differences in the in the two transcripts, but they’re really classic differences. This is something that then, of course, came into Melissa’s trial, because after being berated, and after her innocence, her claims of innocence were overwritten by the police officers again and again and again. And Melissa is a survivor of gender based violence and intimate partner violence, was sitting there with male police officers who are touching her, who were leaning into her space who are armed. She eventually said, I don’t know what you want me to say, I guess I’m responsible and they construed that as a confession. They introduced that against her at trial and that became part of the basis for the jury’s conviction and death sentence. So this is another example, very different from Brenda Andrews case, but equally powerful in showing how gender affects the outcomes of women’s capital trials.
Anne Holsinger 26:40
Thank you for those stories. Those are both really powerful. I just want to note for our listeners that Melissa Lucio received a stay of execution in 2022, and is now waiting for a decision from her trial court. Is that right?
Sandra Babcock 26:55
That’s right.
Anne Holsinger 26:55
So she is still on death row, but her execution was halted. So in your opinion, Sandra, what is the most pressing issue facing women and or other gender minorities on death row? And what immediate changes? Would you recommend to address the issue?
Sandra Babcock 27:09
That’s a great question. I think that the most pressing issue is the failure of the courts to recognize gender bias. And to make clear that defense attorneys have an obligation to provide gender sensitive legal representation, and that prosecutors cannot be permitted to inject gender bias and use gender stereotypes in capital trials of women. And that if they do, they’re that the courts will overturn women’s convictions and death sentences. If there were that willingness on the part of the courts, then we wouldn’t see this kind of gender bias at play. As it stands, defense attorneys receive no training on gender sensitive legal representation. Until very recently, the last few years, major national trainings for capital defenders never included any components on gender sensitive legal representation. So, defense attorneys and defense teams are, are really uninformed about how to best represent a woman client or a trans client or a non-binary client, and how to tell their stories and how to do that in a way that resonates with a jury. Defense attorneys, prosecutors, courts, in this country don’t even know the most basic terminology to talk about women’s experience. The term gender based violence is something that most attorneys, courts, and prosecutors aren’t even familiar with, they don’t even know what it means. They use outmoded terminology. The gender bias is so normalized in our society, to an extent that that I think is very different from racial bias. Racial bias is endemic in the application of the death penalty, it is pernicious and I’m not drawing a false equivalence. But what I do think is true is that there has been a lot more focus on how racial bias taints the application of the death penalty, whereas gender bias has been largely tolerated. And of course, in the case of women of color, with multiple intersecting, intersecting identities, they experience the effects of both racial and gender bias, as well as other forms of bias that exist depending on their identities. So I think that this, you know, this ignorance and the willful sort of disregard, particularly by courts, is the biggest problem that we need to overcome. Training of defense teams, of course, is critical. And defense teams really need to be objecting more to the injection of gender bias when it happens. And they have to be really attuned to their own internal biases, there we have a lot of work to do as a community in recognizing our own biases, and making sure that they don’t affect the way, the assumptions that we’re making about our clients, and the way that we’re presenting their stories.
Anne Holsinger 30:42
Well, thank you so much for taking the time to speak with us today. To visit the Cornell Center on the Death Penalty Worldwide, visit deathpenaltyworldwide.org. To learn more about the death penalty, you can visit the DPIC website at deathpenaltyinfo.org And to make sure you never miss an episode of our podcast, you can subscribe to Discussions with DPIC on your podcast app of choice.
