Deciding to Kill: Revealing the Gender in the Task Handed to Capital Jurors

80 Pages Posted: 5 Dec 2012

See all articles by Joan W. Howarth

Joan W. Howarth

William S. Boyd School of Law, UNLV; Michigan State University College of Law

Date Written: 1994


Day after day, across this country, ordinary people are summoned to court for a selection process that ultimately leaves them in a room deciding, with other jurors, whether a criminal defendant should be killed. The task handed to these jurors is an awesome, personal, moral decision, encased within the complex legal standards and procedures that constitute modern capital jurisprudence. The doctrine that created and sustains this moment of conscience reflects an ongoing struggle of rule against uncertainty, reason against emotion, justice against mercy, and thus, at one level, male against female. Capital jurisprudence -- the law for deciding whether to kill -- is also a hidden battleground of gender.

As participants in an entrenched system of legal thought, we organize our thinking about law within this series of dichotomies, which include reason versus emotion, distance versus connection, and rule versus context. The dichotomous choices are not complementary, but rather conflict with and challenge each other. Those dualisms have a hierarchy; maleness is associated with the top end of the hierarchy, female with the bottom. Thus law is a gendered structure of power and meaning.

I test these premises by examining one awesome moment in law, the decision of a jury to punish someone by death. The power of the law is manifest in this moment. If gendered structures in fact operate within apparently neutral legal principles and procedures, they will be deeply at work in the legal procedures that give the ultimate task -- deciding life or death -- to a person, a juror.

Keywords: gender, society, juror, jury, capital, death penalty, masculine, feminine, role

Suggested Citation

Howarth, Joan W., Deciding to Kill: Revealing the Gender in the Task Handed to Capital Jurors (1994). Wisconsin Law Review, Vol. 1994, 1994, MSU Legal Studies Research Paper, Available at SSRN:

Joan W. Howarth (Contact Author)

William S. Boyd School of Law, UNLV ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

Michigan State University College of Law ( email )

318 Law College Building
East Lansing, MI 48824-1300
United States

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