The Volokh Conspiracy

My data supports the conclusion that late nineteenth- and early twentieth-century intimate homicide cases in New York and Colorado produced remarkably similar results: “In both states, men who killed intimates risked a murder conviction, while female defendants tended to be acquitted or found guilty of lesser crimes by juries sympathetic to their stories of physical or emotional abuse.” However, New York and Colorado did not take the same approach to punishing male prisoners who had been convicted of intimate murder. The cultural and legal reasons for this divergence are worth exploring. To share my thoughts on the subject, I’ve posted another excerpt from my article, “Intimate Homicide: Gender and Crime Control, 1880-1920,” 77 Univ. Colo. L. Rev. 101 (2006):

. . . New York and Colorado differed dramatically in social and cultural terms in the late nineteenth century, and those differences produced divergent sentencing patterns. Whereas New York sentenced a relatively large number of intimate killers to death as a percentage of its total executions, Colorado did not. Instead, men who killed their paramours, spouses, and relatives in this western state most often received life sentences.

[My] article suggests that the disparity in execution rates for intimate murder in the two states owed much to the slow westward spread of norms of civilized masculinity and distaste for capital punishment. At the end of the nineteenth century and the beginning of the twentieth, Colorado’s eagerness to shed its frontier image helped fuel revulsion toward male defendants who killed their wives, lovers, or other family members. Hence, Colorado juries did not hesitate to convict men of intimate murder. But ideals of male civility were newer and less deeply rooted in this western state than in the northeast. Moreover, by the time Colorado experienced a surge of opposition to the death penalty, New Yorkers once again embraced it with fervor. Thus, in contrast to their east-coast counterparts, Coloradoans proved reluctant to use state-sponsored execution — a form of punishment they increasingly questioned — to exact retribution and deterrence in intimate homicide cases.

Plagued by adult crime, juvenile gangs, and inadequate law enforcement, Denver was a rough and dirty city in the late nineteenth century . . . One might expect that, in this setting, the state would have ordered men convicted of killing their wives, girlfriends, or relatives to swing from the gallows. Yet [between 1880 and 1920] not a single Denver prisoner was legally hanged for intimate homicide, although the state executed eleven people convicted of crimes in the city. Indeed, in the entire state of Colorado, only about eleven percent of all legal executions (four of thirty-seven) involved defendants found guilty of intimate killings. All men, save one, who were convicted of first-degree murder in Denver for killing their lovers, wives, or relatives received life sentences, many of which were commuted to shorter prison terms.

By contrast, New York executed at least seventy-six intimate murderers between 1880 and 1920 — about twenty-five percent of its total executions. And capital punishment in New York County during the same period claimed ninety-one prisoners, more than one-third of whom had killed their paramours, spouses, or other family members . . .

What accounts for the disparity between the New York and Colorado execution rates in intimate murder cases? The most legalistic answer simply looks to the statutes: First-degree murder carried a mandatory death sentence in New York, whereas in Colorado, for most of the period encompassed by [my research], it did not. However, going beyond the statutory explanation, it is possible to identify significant cultural differences between the two states.

As a general matter, the west lagged behind the east in the reception of social and cultural change. The separate spheres ideology — which accorded women the duty of keeping house and inculcating the next generation with religious values, while their husbands sallied forth into the business sphere — remained impracticable on the frontier through the mid-nineteenth century. Pioneer women had to perform a wide range of tasks including physical labor, in order for the family to survive. Although participation in breadwinning may have given frontier wives greater strength, the lack of distinct sex roles was paired with the survival of patriarchal norms that tacitly encouraged men’s use of violence to obtain female submission.

. . . The lack of established structures in the west also gave patriarchy lingering power and legitimacy that it lacked in the northeast. While public law enforcement developed later in New York than is often assumed, western legal institutions were even more ad hoc . . . There was no penitentiary in the Colorado territory until 1871, and as late as 1878, Denver had only one police officer for every 4,166 citizens, compared to New York City’s ratio of one patrolman for every 400 citizens . . . In the absence of a sufficiently large and well-trained police force, the authority of the male household head over his family retained political as well as social importance.

Anti-capital punishment agitation also followed a different chronology in Colorado than it did in New York . . . Colorado death-penalty opponents increased in strength and numbers in the 1890s, after New Yorkers had largely abandoned their agitation.

. . . Coloradoans’ opposition to the death penalty in the late 1800s, combined with the relative youth of social values condemning extreme violence toward frontier women, may account for the fact that the public response to men who killed their intimates was not quite as harsh in Colorado as it was on the east cost. In the late nineteenth century, several eastern states [including New York, considered using] the whipping post to deter wife-beating. The campaign for the corporal punishment of wife-beaters embodied many aspects of the [tough, Wild West image that Theodore Roosevelt and other east-coasters sought to convey at the turn of the century as an antidote to Victorianism’s staid respectability]. It represented a new muscular form of masculinity in which men who failed to protect their women were [to be] beaten, not merely jailed or censured.

. . . Although the whipping post campaign had a few adherents in the western United States, the state of Colorado did not participate as a matter of official law or policy . . . Colorado’s reluctance to use either the whip or the gallows to control intimate violence may have stemmed from its insecure position as a patriarchal, frontier society that sought to earn a more polished reputation [by building theatres, museums, libraries, and churches; expressing disapproval of lynching; and hiding state-sponsored capital punishment behind the walls of the penitentiary]. Until 1870, the state struggled with a gender imbalance that left women outnumbered six to one in Denver . . . When more women started to arrive, Denver faced the delicate task of convincing them that they were coming to a religious, female-friendly community where it would be safe and comfortable to reside. With regard to intimate murders, which occurred despite the civilizing ethos urged by the church and the municipal government, legal authorities weighed two options: they could bow to anti-death penalty forces (thus risking the appearance of being soft on intimate murder), or they could hang the culprits (potentially turning the spotlight on the city’s gendered tensions and dangers). They chose the former . . .