Staying Alive: Executive Clemency, Equal Protection, and the Politics of Gender in Women's Capital Cases

41 Pages Posted: 14 May 2009

See all articles by Elizabeth Rapaport

Elizabeth Rapaport

University of New Mexico - School of Law

Date Written: 2001

Abstract

In this Article, I will review the matrix in which executive decisions in women's capital clemency cases are made, a matrix supplied by modern equal protection law, the nature and scope of the clemency power, gender politics, and contemporary death row. I will then conduct two thought experiments. Each invented case tests the relevance of gender in legally and politically acceptable contemporary clemency decisions. The goal is to understand the politics and law of granting or denying that very rare boon-commutation of sentence - to a female death row prisoner. The exercise offers support for two conclusions. In the age of formal equality, women cannot be granted clemency simply because they are women. The rhetoric of chivalry is untenable for the contemporary executive. A governor who is courageous and rhetorically skillful, however, can sometimes successfully defend the commutation of the death sentence of a woman as a proper use of the power to grant mercy, done for her sake, the class she exemplifies, the conscience of the governor, and the public.

Suggested Citation

Rapaport, Elizabeth, Staying Alive: Executive Clemency, Equal Protection, and the Politics of Gender in Women's Capital Cases (2001). Buffalo Criminal Law Review, Vol. 4, No. 2, 2001. Available at SSRN: https://ssrn.com/abstract=1402796

Elizabeth Rapaport (Contact Author)

University of New Mexico - School of Law ( email )

1117 Stanford Drive, N.E.
MSC11 6070
Albuquerque, NM 87131-0001
United States

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