University of Chicago Press

Feminism and Punishment

Author(s): Barbara Cruikshank
Source: Signs, Vol. 24, No. 4, Institutions, Regulation, and Social Control (Summer, 1999), pp.
1113-1117
Published by: University of Chicago Press
Stable URL: http://www.jstor.org/stable/3175608
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Barbara

Cruikshank

Feminism and Punishment

If you believein [capitalpunishment]for one, you believein it for
everybody.If you don'tbelievein it, don'tbelievein it for anybody.
- KarlaFayeTucker,December1997 (quotedin Verhovek1998)
aria Faye Tucker'sL

t-menielt,made shortly before she was killed by the

state of Texas in 1998, undercuts the liberal feminist argument that

one can be opposed to the death penalty and yet continue to hold that
so long as the death penalty is imposed, it should be imposed equally on
men and women. However, the target of Tucker'sstatement was not feminism, as we will see, but the one person who held her life in his hands,
Governor George W Bush. Tuckeris making a case not for liberal equality
before the law but against capital punishment, her own in particular.Neither is she calling the state's legitimacy into question; to my knowledge,
interviews with Tuckerdid not disclose any explicitly political claim against
the state or any political motivations for her crime. While her comments
were not explicitly political, I suggest that they were strategicallyaimed at
Bush in the final contest over KarlaFaye Tucker'slife.
In these brief comments, I consider gender as it bears in the strategic
contest over the life of the condemned. It is impossible here to fully defend
either treating capital punishment as a strategic contest or treating the
significance of gender only within that contest. However, it is enough,
I think, to realize that capital punishment is a contest in which the
condemned often believe they have a chance to win. Moreover, like both
Renee Heberle and Timothy Kaufman-Osborn, I understand capital punishment to be a discretionary system of decisions, conflicts, contests, and
trials. That means there is always a chance to intervene in the process leading up to death. The condemned are vying for their lives; that is why law
books are worth fighting for on the inside.' From death row, Mumia AbuJamalexplains that jailhouse lawyersmake up the largestgroup in disciplinary units because they are capable of using the law to alter prison condiOn the struggle for access to law reference materials in prison, see Pens 1998, 231.
Mumia Abu-Jamal points out that jailhouse lawyers are singled out for administrative and
disciplinary segregation (1998, 191-92).
in CultureandSociety1999, vol. 24, no. 4]
[Signs:Journa
ofWomen
? 1999 by The Universityof Chicago.All rightsreserved.0097-9740/99/2404-0013$02.00

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1114

Cruikshank

tions as well as to affect the outcomes of their own cases. When prisons
single out jailhouse lawyers, they too are acting strategically in a contest
over the lives and bodies of prisoners. If feminists treat each case as a strategic contest, there is always room for gender to matter differently.
For these reasons, understanding capital punishment as a strategic contest is not cynical. To the contrary, it is optimistic to think that feminists
might intervene at any point in a capital punishment case. By considering
gender here only as it plays a part in that strategic contest, I do not mean
to imply that gender has no deeper meaning or significance. Rather, my
point is that, at least as far as feminism is concerned, it is important to
concentrate on how gender figures as a part of the strategic contest in
which the condemned find themselves. Most important, it is possible that
gender could figure at every strategic point, and so it is crucial that the
meaning or significance of gender not be fixed in advance.
The strategy that Tuckerpursued was to deny the significance of gender
in her own case and in relation to her crime: "When we are talking about
the crime I committed, gender has no place as an issue" (Verhovek 1998,
3). Yet, given all the publicity that surrounded her execution because she
was a woman, how could she say that gender had no place?Moreover, why
did she say it? I believe her claims were made to escape death, not to express an article of faith or a principle. Her only chance for salvation in this
world was to make an argument that would convince Governor Bush to
grant her clemency. Bush claimed that her gender would not figure in his
decision because he was determined to apply the law in a liberal way, to
the individual qua individual. Gender, or the denial of gender, was a point
of resistancefor Tuckerin the sense that her refusalto see her case as exceptional undercut any justification of her execution that Bush could make
based on treating women the same as men. By making her own case against
the significance of gender, Tucker was trying to steal Bush's bluster.
She knew that if she tried to make the case that women should not be
killed, Governor Bush would let her die to demonstrate his own genderblindness. The two parties denied the significance of gender for opposite
reasons. They did so not because either held strongly feminist or antifeminist views but because they were caught up together in a contest that neither could win so long as gender was seen to play a part.
Tucker and other notable fundamentalists made the case that she was
saved in the eyes of God. As a born-again believer, she would supposedly
no longer be capable of murder and mayhem. This defense, however, depended on overcoming the dominant media interpretation of her case as
gendered. Unable to do so, it could be said, Tuckerwas executed. Despite
Tucker'ssalvation in the eyes of God and her redemption within a commu-

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S IG N S

Summer 1999

1115

nity of notable fundamentalists, she faced the ultimate condemnation in

this life. The dissonance between the saved Tucker and the condemned
Tucker did not work to offer Bush an alternativeto gender as grounds for
a stay of execution. (Perhapsonly a religious fundamentalist could think it
was possible to redeem Tuckerand erase the public significance of her gender by restoring her to the community of the faithful.) Though her strategy
failed, it makes clear that gender does not matter systematicallybut that it
does matter strategically.
Instead of arguing as Heberle does that women are "embodiments of
sex,"or that gender is solidified "on the outside," I hold (as does KaufmanOsborn) that gender confusion reigns in all kinds of contests that are ongoing within the liberal state. Gender is not something that we inhabit or
embody so much as something we negotiate on an ongoing basis within
the context of power relations. While systems of control on the outside
subject women in particularways, I suspect that gender, far from being
stabilized by extralegal social hierarchies, continues to undergo radically
destabilizing conflicts. That makes gender availableto all sides in any contest, which, in turn, means that the variabilityof gender presents both dangers and powerful possibilities to the strategies of the condemned and of
the state.
Gender should not be expected to matter strategicallyin the same way
again. For example, the execution of Judy Buenoano in Florida followed
shortly after that of Tucker, yet none of the same kinds of contests over
gender made her execution debatable. Nevertheless, it seems to me that
Buenoano was not "divested"of her gender identity when she was killed,
as Kaufman-Osborn puts it, so much as she was never vested in the first
place. Signs readers will understand what I mean when I say that not all
women are "women." Nor should gender be expected to matter only in
the context of political posturing and media discourses. In the strategic
contest over the life of the condemned, gender could figure in any number
of possible terrains of action. In their isolation, especially in lock-down
units, the condemned tend to focus their strategies on the law. Yet, in addition to the law and to the possibility of physical resistance such as riots,
hunger strikes, and labor strikes, there are several terrains of contestation
open to the condemned. Although none can offer stable ground to the
condemned, these avenues do suggest strategies in which gender could
possibly make the difference between life and death.
First, prisoners have their bodies. While both men's and women's bodies
and sexualities are commodities in the political economy of power and
desire on the inside, women's prisons are famous for recreating ties of
kinship and sustaining sexual relationships among women. Tucker was

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Cruikshank

exceptional in that she marriedthe prison minister, which no doubt limited

her relationships with other prisoners. Women are condemned to death or
to life in prison most often for the murder of their own children, lovers,
and husbands, and they recreatethose types of relations in prison. If samesex marriagewere legalized, for example, partnershipsin prisons could become significant in capital punishment cases. Also, if a woman on death
row could somehow become pregnant, it is possible that she could avert
any immediate attempts on her life. Nevertheless, women's bodies are not
uniformly gendered. The genders of masculine women and lesbian butches,
for example, would have significantly different strategic value than more
traditionally feminine genders. While sexual, kinship, and gang relationships on the inside might possibly have strategic value, there are certainly
grounds to think that they are as likely to be liabilities as they are on the
outside.
Contacts on the outside also present the possibility of wielding influence in the discretionary and convoluted system of execution. It is extremely rare for prisoners to have the kinds of contacts that Tucker had
in the ranks of fundamentalists, yet they certainly helped to bring publicity to her case. The often extraordinarysolidarity of outsiders with political prisoners demonstrates only that public pressure can effect either a stay
or an acceleration of an execution, depending on the circumstances. The
solidarity that feminists might feel with a certain prisoner could result in a
large-scale movement for amnesty or clemency. However, to my knowledge, there is no feminist case against capital punishment that could possibly unite feminists either on the issue or on particularcases. Nevertheless,
political solidarity might alter the strategic field for the condemned.
Finally, and perhaps most powerfully for the relatively powerless, prisoners can tell their stories. Recently, the incredible commodification of
biographies and "true stories" has even affected sentencing, which may
now explicitly prevent certain prisoners from profiting from book and
movie deals. The story of Aileen Wuornos, for example, became a commodity before she was convicted. Indeed, if Wuornos is correct, the selling
of her story was a good part of the reason she was convicted. Touted as
the first lesbian serial killer, Wuornos saw her story manipulated by everyone she came into contact with. In a court outburst, she vowed to expose
the corruption of the police and the courts and their complicity in creating
a story that would sell. Nevertheless, on a subcultural level, Wuoros is a
heroine for killing men who posed a threat to prostitutes. Similarly,feminists have defended women who kill their batterersby retelling their stories
with a feminist twist. Outlaw narrativesin films such as Thelmaand Louise

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Summer 1999

1117

and Bound suggest the possibility that feminist narrativescould be turned

to strategic purpose in particularcases.
Indeed, virtually any case could be transformedinto a feminist narrative.
When women end up on death row, they have committed the ultimate act
of their personal liberation from the restrictions of parenting, responsible
citizenship, and labor. As Michel Foucault (1977) so famously argued,
crime is one way to call the existing order into question. The danger of
such retellings is that they fix gender in ways that could be dangerous to
the condemned. To tell a story that is always open to contestation and
hence always of strategic use is improbable. In order to make sense on
one culturalplane - say, Hollywood - it would be necessaryto destroy the
resonance of a story on another- say, a sexual subculture. Still more improbable is telling the story in a way that sustains the voice of the condemned herself. Tucker found her voice projected by religious fundamentalists, but who knows how that sounded to her ears?
I am not convinced, as Tucker said she was, that one's moral position
on capital punishment is the central issue or that appeals to moral conscience might sway the populace to call for an end to capital punishment.
Much as I would like to be able to persuade the reader that capital punishment is wrong, any moral or humanist argument I might make about the
value of life is pointless in the present context, in which a substantialmajority is calling for blood. Capital punishment is not a strategic contest in
which morality has no part; it is one in which appealsto morality are themselves a part of the contest.
DepartmentofPoliticalScience
Amherst
UniversityofMassachusetts,

References

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Foucault, Michel. 1977. Disciplineand Punish: The Birth of the Prison. New York:

Penguin.
Inside
Pens,Dan. 1998. "Hungryfor Justicein L.A."In TheCellingofAmerica:An
Lookat the US. PrisonIndustry,ed. Daniel Burton-Rose, 231. Monroe, Maine:

CommonCouragePress.
NewYorkTimes,February
Verhovek,Sam Howe. 1998. "DeadWomenWaiting."
sec.
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