Sexism and Capital Punishment: How the Criminal Legal System Harms Mentally Ill Women

Image Description: The thumbnail image shows a black gavel next to a sign that reads “Death Penalty.”

Content Warning: The following article includes references to sexual violence, abuse, and infanticide.

Melissa Lucio was awake for nineteen hours when she confessed, five hours into her interrogation by the police.[1] Lucio was handed a doll, and asked by officers to demonstrate what she’d done to cause her daughter’s injuries. “Show me how you would do it,” the officers said, “do it real hard.”[2]

Earlier that day, on February 17th, 2007, the paramedics had been called to the apartment Lucio shared with her boyfriend, Robert Alvarez. They found Lucio’s 2 year old daughter, Mariah, “unattended” on the floor, not breathing and without a pulse. A paramedic observed that Lucio was “distant” and not “overly distressed,” and found the behavior “so out of the ordinary” that he put it in his report.[3]

Mariah, who showed signs of physical abuse—including a broken arm and bruising–was declared dead later that evening. The cause, according to the county coroner, was blunt force trauma to her head. Lucio said that Mariah had accidentally fallen down a flight of stairs two days ago. Later, one of Lucio’s other children confessed that she had pushed her sister down the stairs.

During the trial, the prosecution likened Lucio (who is Mexican American) to “a dog that bites a human person.”[4] In the defense’s closing argument, Lucio’s team opened their statement by admitting their client “is not up for ‘mother of the year.’”[5] This, despite the fact Child Protective Services found no evidence of any history of aggression or violence towards her children.

Lucio had been sexually abused as a child, starting when she was six years old.[6] Her first husband—who she married when she was 16 years old—was emotionally, verbally, and physically abusive.[7] Her next boyfriend—Mariah’s father—was equally abusive. By the time she was 39, she’d had fourteen children. During her trial, Lucio was not allowed to present testimony about her long history of abuse.[8] Nor was she allowed to call psychology and mental health professional experts, all of whom could have testified about how that abuse may have shaped her response to her daughter’s death and subsequent interrogation.[9] After a short trial, Lucio was sentenced to death for the murder of her daughter. The prosecution presented no evidence or testimony that established Lucio abused any of her children, including Mariah. Instead, their entire case rested on the taped confession.

Children, people with certain mental illnesses, and those with intellectual disabilities are more likely to falsely confess. People like Lucio, with histories of prolonged abuse, are among those vulnerable to false confessions. People like Lucio, who have experienced trauma (from either physical abuse or the death of a child), are also more likely to confess to something they did not do.[10]

Melissa Lucio represents the failures of our criminal system, both for women and those charged with capital crimes. Her story is a textbook example of how mental illness and gender coalesce to create a fundamentally flawed system of punishment. By examining her case, we can learn how crimes that violate gender norms—specifically, infanticide—are punished harshly.

There are currently 50 women on death row in the United States. (Note that there is a single transgender woman held on California’s death row. She was sentenced before her transition.) By learning about how it is applied to women, we can more clearly highlight the central issue with the death penalty as it is applied today: that the practice is arbitrary and capricous, akin to being struck by lightening.

For the unfortunate few women who are convicted of capital crimes, a key piece of data mirrors the same patterns as the men: “the victim’s race plays a decisive role in whether or not the death penalty is imposed in homicide cases.”[11] Maybe this is the reason that the race of death row female defendants more closely reflects the average racial breakdown of the United States. Of the 51 women currently on death row, 23.5% are Black and 58.8% are white.[12][13]

Why does there seem to be less of a racial bias against Black female defendants of capital crimes than Black male defendants? It may have to do, again, with the “domestic” nature of most female murderers. Women are most likely to kill victims they know, and women who receive the death penalty are even more likely to have killed an “intimate,” i.e. parent, child, or romantic partner. One reason white women are more proportionally represented on death row could be because they are most likely to have killed white children.

It appears that women who commit murder are less likely to be charged with a capital crime. But for those who are, gender ceases to be a  “strength” in defense cases, and can instead be weaponized by the prosecution. A report from the Cornell Center’s Alice project found that women who are seen as violating gender norms are more likely to receive the death penalty.[14]

Women who kill men are seen as greater threats to the social order, specifically because their crime is an exertion of power over men.[15] But women who kill children are seen as something altogether more alarming—those who are so fundamentally flawed that they must be insane or evil (or both). Elizabeth Rappaport, who studies gender in capital crimes, has split women accused of infanticide into two archetypes: those perceived as a “mad woman,” and those percieved a “desperate girl.”[16] Although men are much more likely to kill infants and children than women, mothers who kill their children are much more likely to receive attention from the media and academia.[17] Rapaport argues that criminalizing infanticide is much less about the protection of children and much more about the regulation of women.[18] Therefore, the fate of women charged with infantide rests not on the prosecution’s ability to prove the elements of the crime charged, but rather on whether or not the jury believes her to be a “Good Mother.”[19]   

The relationship between gender and mental health is often overlooked by attorneys. This is partially a failing of the fields of psychiatry and psychology: mental health research has historically overlooked “gender-specific differences in the etiology and symptomology of mental illnesses.”[20] But incarcerated women tend to have higher rates of serious mental ilness, substance abuse, and past physcial and sexual abuse than incarcerated men.[21] The connection between abuse and Post Traumatic Stress Disorder (PTSD) has been shown over and over again. Women are particularly vulnerable to trauma and resulting PTSD: the likelihood is even higher for women with multiple marginalized identities.[22]

All of these factors coalesce to create a toxic combination of abuse, lack of psychological care, and bias. In crimes involving children, mothers become lead targets for investigators. But if a child is abused or hurt in some way, there is a higher likelihood of wider household abuse. Women living in abusive households become traumatized, which can lead to complex PTSD, which can lead to suspicious behavior. One study found that over 30% of exonerated women were wrongly convicted of killing a child (as compared to 17% of exonerated men).[23], [24]  

Judges and juries often seek out narrative consistency as a sign of reliability.[25] But trauma can shape the way defendants recall memories, or cause them to act in ways that don’t “conform” to other people’s expectations.[26]  It can affect a person’s ability to present a “cohesive narrative,” which is essential for defendants at the trial-level.[27] Again, women are judged by their demeanor. If they “perform” their gender roles correctly (grieving widow or mother), a jury may be more inclined towards sympathy. But if they behave oddly, they are more likely to be viewed as guilty, strange, or insincere. 

Lucio’s case is mired in prosecutorial misconduct, weak forensic science, and a history of trauma and abuse. The prosecuting attorney is currently serving a 13-year federal prison sentence for bribery and extortion. There was no evidence of Lucio engaging in child abuse, despite being monitored by CPS for years. There was never an investigation into whether Mariah’s death could have been an accident. Instead, the conviction rested on a confession, and Lucio's defense team was not allowed to present evidence that the confession was coerced. Specifically, they were not allowed to show that Lucio suffered from long term abuse and associated PTSD, which would explain both her "flat affect" that the prosecution pointed to throughout the trial, and why she would have confessed in such a way. (After hours of interrogation the day her daughter died: "I guess I did it.")

In 2019, a three-judge federal panel overturned Lucio's sentence, holding that the factual basis for the trial court’s finding was bogus, and that excluding evidence “of such a magnitude or so egregious that [it] render[ed] the trial fundamentally unfair.” It was later reinstated by the 5th Circuit, but the original overturn is nearly unprecedented. It also indicates that at least some of the judiciary is beginning to consider the effects of PTSD and other mental illnesses as evidence. And either way, it seems like the evidence is flimsy enough to question justifying an execution.

Lucio is still scheduled to be executed on April 27. The Supreme Court declined to hear her case. With almost no legal alternatives left, Lucio’s last chance is to receive clemency from Texas Governor Greg Abbot. To act, sign a petition requesting Governor Abbot to stop the execution. 

[1] Lucio Amici Brief, 14

[2] The State of Texas vs. Melissa, Hulu Doc

[3] Lucio v. State, 351 S.W.3d 878, 880 (Tex. Crim. App., 2011).

[4] Lucio v. State, 351 S.W.3d 878, 890 (Tex. Crim. App., 2011).

[5] Lucio v. State, 351 S.W.3d 878, 884 (Tex. Crim. App., 2011).

[6] https://innocenceproject.org/who-is-melissa-lucio-death-penalty-texas-execution-innocent/

[7] Lucio v. State, 351 S.W.3d 878, 888 (Tex. Crim. App., 2011).

[8] https://innocenceproject.org/who-is-melissa-lucio-death-penalty-texas-execution-innocent/

[9] https://innocenceproject.org/who-is-melissa-lucio-death-penalty-texas-execution-innocent/

[10] Police-Induced Confessions: Risk Factors and Recommendations, 34 L. & Hum. Behav. 3, 22 (2010).

[11] Judged for More than her Crime, 33

[12] https://deathpenaltyinfo.org/death-row/women, 30 white women and 12 Black women.

[13] https://www.census.gov/quickfacts/fact/table/US/PST045221, Black people account for about 13% of the population, and non-hispanic whites for about 60%.

[14] Judged for More Than Her Crime, 4.

[15] Judged for More than her Crime, 32

[16] Mad Women Desperate Girl 102

[17] Mad Women Desperate Girl 103

[18] Mad Women Desperate Girl 104

[19] Mad Women Desperate Girl 105

[20] Defending Women, 17

[21] Defending Women, 17

[22] Defending Women, 18

[23] See Kim E. Drake et al., Gender Differences in the Interplay Between Exposure to Trauma and Parental Disturbances Within the Home, Stress-Sensitivity and Reported False Confessions in Adolescents, 87 Personal and Individual Differences 282 (2015).

[24] It may be important to note that women accused of killing their children do have an advantage over men: capital defense lawyers will tend to raise postpartum psychosis as an insanity defense—sometimes very successfully. See Defending Women, 25. Additionally, women accused of killing intimate partners can also successfully deploy the “Battered Woman Syndrome” defense—something typically unavailable to individuals who do not perform femininity. (But cf. the use of the provocation defense, which tends to be more utilized by men, particularly as a defense against “unfaithful” sexual partners or as a kind of “gay panic” defense.)

[25] Defending Women, 18

[26] Defending Women, 18

[27] Defending Women, 18