TWO YEARS AGO I ATTENDED A TRIAL in Houston that resulted in the death penalty for a woman. At the time, there had been several national stories about the number of death sentences handed down in Harris County, more by far than in any other county in the country, and I was there to see what I thought about it. Erica Yvonne Sheppard, who was then 21, had helped murder a woman for her car. The physical evidence against her was incontrovertible, and she had confessed as well. The crime was particularly brutal, Sheppard was particularly unrepentant at the time and seemed to regard her trial as a kind of entertainment, and tearful members of the victim’s family attended each day of the trial. I wrote then that if I had been on the jury, I would have voted for the death penalty too. Looking back at the trial and looking back at the senseless brutality of the crime, I would vote that way again today. But looking forward to Texas’ executing a woman, I have to say I might not.
There are seven women on death row in Texas. Three of them have been there more than ten years. Their cases are still on appeal, but the avenues of appeal are closing one by one. Although it is impossible to say exactly when, it is probable that before long an execution date will be set for one of the women. And the question is, Then what?
The laws in Texas concerning capital punishment do not mention gender at all. Only murder is a capital crime, and then, only murder in certain circumstances—murder of a peace officer, murder during a felony like rape or robbery, murder for hire or the expectation of profit, murder during a prison escape, and murder of more than one person. One of the reasons so few women arrive on death row is that few women commit the kinds of crimes listed above. A lover’s quarrel that erupts in murder, a common circumstance when women kill, is not a capital offense.
Nevertheless, women do arrive on death row, but no woman has been executed in Texas since 1863. No matter how the laws read, executing a woman is an act that offends some deep value we have held in Texas from 1863 until now. Our reluctance must be the most visible vestige of the belief that it is, after all, worse to hurt a woman than to hurt a man, that somehow the whole point of civilization is to protect women. The novelist Beverly Lowry, who has spent many hours in the visiting room of the death row for women in Gatesville, recalled one crusty prison official who routinely witnessed executions. Beverly said, “He told me one day, ‘I don’t think Texas will ever execute a woman. And if they do …’ His voice sort of trailed off.” Beverly went on: “I knew why he stopped when he did. He was going to say if they did it, he wasn’t going to be there to see it.” Yet, this view—unstated, uncodified in law, but persistent and powerful—is directly counter to current thinking. In all the debate over the death penalty, no one argues publicly that if there is a death penalty, it should apply only to men and not to women. The whole tenor of the times is to treat women and men the same. But does that belief extend even to the execution chamber? That’s what we are soon to find out.
For a century or more, governors in Texas had the power to commute sentences. They did so regularly. Sometimes they had good reasons for the commutations, and sometimes they had no reason at all. Public concern about the abuse of this power ebbed and flowed, but the governor’s power remained. From the late nineteenth century until modern times, Texas governors commuted 20 percent of the executions in the state, including every execution set for a woman. As reported in The Rope, the Chair, and the Needle: Capital Punishment in Texas, 1923—1990, the best academic study of the death penalty in Texas, a woman named Emma Oliver had a long criminal history, including vagrancy, prostitution, four arrests for murder, and seven for aggravated assault. Convicted of murder in 1947, she was released and then sentenced again in 1949 for murder in a dispute over $3. “Here I am. I killed him,” she yelled at the officers who came to arrest her. It would seem that nothing about her case could have saved her from execution. Still, Governor Allan Shivers, hardly a liberal with a bleeding heart, commuted her sentence to life in prison in 1951. All he said was this: “On file are letters and petitions signed by numerous citizens of Bexar County requesting a commutation of the Death sentence in this case.” Surely what saved her was her gender.
Today the rules have changed. The death penalty was declared unconstitutional in 1972 and reinstated in 1976, but with strict limitations. In 1983 a constitutional amendment put restrictions on the governor’s power to commute a sentence. Near the end of the appeals process, the judge in the original convicting court sets an execution date. Notification of the date is sent to both the governor and the Texas Board of Pardons and Paroles. Two thirds of the board’s eighteen members must vote to recommend commutation. If the board votes to commute, then the recommendation is sent to the governor, who can choose to commute the sentence or not. Without the vote of the board, all the governor can do is grant one 30-day stay of execution. While Ann Richards was governor, an execution was set for a retarded man who had raped and murdered a nun. The pope sent an appeal asking for clemency. The Board of Pardons and Paroles voted 17—0 against any commutation. Governor Richards did grant a 30-day stay, but after that, she was powerless. Texas executed the man despite the pope’s appeal.
When commutations were more common, governors