No capital punishment statute classifies by gender, but it is arguable that gender bias infects the administration of capital punishment because the discretion of prosecutors, juries and judges is employed to the advantage of female murderers. Prior to Furman, capital punishment statutes typically gave sentencing authorities untrammelled discretion to mete out life or death. Although sentencing discretion has been substantially reduced in the modern death penalty regime, it remains arguable post-Furman that the sparseness of women on death row testifies to the discriminatory use of capital sentencing discretion. However, in light of the recent decision in McCleskey v. Kemp, in which the Supreme Court finally took up the question of racial discrimination in the application of the death penalty, it appears that even in the face of convincing evidence of gender disparity, male offenders could not expect to successfully challenge the death penalty on the grounds that males are disproportionately selected for death.
Some Questions About Gender and the Death Penalty, 20 Golden Gate U. L. Rev.