Prosecutors put Brenda Andrew's gender on trial. Now, will Oklahoma execute her?

This week, the U.S. Supreme Court will review the case of an Oklahoma woman named Brenda Andrew, who was convicted and sentenced to death in 2004 for the murder of her husband ― despite deeply disturbing sexism exhibited throughout her trial. Prosecutors elicited testimony about her attractiveness, questioned her fitness as a mother and even held up her private undergarments as part of their closing statements. The court should intervene and ensure that a death sentence is based on evidence about the commission of a crime, not on testimony that can serve to inflame and sex shame.

As others have forcefully argued, Andrew’s trial was marred by gender bias and prosecutorial overreach. In an effort to convince the jury to convict her and condemn her to death, prosecutors put Andrew’s status as a woman, a wife and a mother on trial; their troubling gender-based stereotyping and attacks are all over the trial transcripts. Prosecutors produced former boyfriends to detail specific sexual encounters on the witness stand, and even read aloud journal entries about an alleged sexual relationship she had as an unmarried college student ― nearly 20 years before the murder of her husband.

It has everything to do with sex:Why has Brenda Andrew been on death row for two decades?

The prosecutors weaponized gender stereotypes to compare Andrew to “normal” women, asking one witness what a “good mother” would do and whether Andrew failed in this regard. They characterized her as an emotionless widow, bringing up her demeanor or lack of tears nearly 30 times throughout the trial. Prosecutors acknowledged their intention was to put in doubt whether Andrew was a good mother.

The prosecutors seemed to be on a mission to sex shame Andrew. They produced male witnesses who testified that she wore “improper” and “provocative” clothing unbefitting of a housewife. In their closing arguments, the male prosecutor displayed Andrew’s underwear before the courtroom, asking whether a “grieving widow” would wear “this” before urging the jury to convict.

Sex-shaming women in criminal cases dates back to the 1600s

Judge Arlene Johnson, of the Oklahoma Court of Criminal Appeals, said that Andrew was sentenced to death based on “evidence that has no purpose other than to hammer home that Brenda Andrew is a bad wife, a bad mother, and a bad woman… . The jury was allowed to consider such evidence … in violation of the fundamental rule that a defendant must be convicted, if at all, of the crime charged and not of being a bad woman.”

Sadly, these tactics are nothing new ― scholars have traced the use of sex-shaming in criminal cases against women back to the 1600s. To this day, prosecutors often knowingly weaponize gendered expectations against female defendants in order to dehumanize them and secure convictions, regardless of their relevance to the alleged crime. That’s exactly what happened here.

Andrew's case is an example of gender bias in Oklahoma's criminal legal system

While Andrew’s case is an egregious example of gender bias in Oklahoma’s criminal legal system, it is far from the only example. Women’s incarceration has grown twice as quickly as men’s incarceration in recent decades. Issues like poverty, mental illness, trauma and gender violence are often root causes of women’s involvement in the criminal legal system. Oklahoma is not only one of the worst states for women’s mental health, but also incarcerates women at double the national average and the highest per capita rate in the country. This produces cycles of destabilization, poverty and despair.

Grading Oklahoma:Status of women in our state is not good

Like so many needlessly punitive sentences in this country, sentencing Andrew to death is not justice; it’s the result of a system that too often prioritizes securing a conviction over all else. That’s why more than a dozen former prosecutors and gender justice organizations have called on the Supreme Court to overturn her conviction. The Inter-American Commission on Human Rights has found that “there is a serious and urgent risk of irreparable harm to Ms. Andrew’s right to life and personal integrity” and has called on Oklahoma not to carry out her execution while they investigate the circumstances of her capital trial.

If this “pro-life” Supreme Court allows a death sentence to be carried out when the conviction relies on such blatant sexism, it would set a dangerous precedent that maintaining a conviction ― and especially one that leads to state-sanctioned murder ― is more important than the constitutional guarantees to a fair trial and the constitutional rights of women. And if the Supreme Court is unwilling to do the right thing, then we can only hope that the state of Oklahoma will acknowledge the deep concerns implicated by this case and ensure that Brenda Andrew is not put to death.

Miriam Aroni Krinsky is the executive director of Fair and Just Prosecution, a former federal prosecutor and the author of "Change from Within: Reimagining the 21st-Century Prosecutor."