Jennie Tarkington was 18 when she gave birth to a son, Gabriel. After the birth, Ms Tarkington
fell into postpartum depression. While in a depressive episode, Ms. Tarkington drowned her ten
children in the swimming pool and then slit her wrists. She recovered, and was tried for murder.
Her trial was a circus, with gavel –to-gavel TV coverage and interviews with jurors
on Ellen and Today. Ms. Tarkington was sentenced to death. In her jurisdiction, the state has a
bifurcated process with a sentencing phase that includes explicit possible aggravating and
mitigating factors. Post-partum depression is not one of the mitigating factors. Given that her
case met one of the aggravating circumstances (death of a child), Ms. Tarkington was sentenced
to death. On appeal, she argues that her conviction is a violation of the 8th Amendment
prohibition against cruel and unusual punishment and her 14th Amendment right not be deprived
of life without due process. On the first, she argues that the execution of post-partum women is
cruel and unusual punishment. She notes that 15 of the 32 states allowing the death penalty
explicitly forbid death sentences for women suffering from postpartum depression (note: I’m
making that number up, well only 32 states do currently authorize the death penalty). On the
second, she argues she has a fundamental right to life, so government imposition of the death
penalty must pass strict scrutiny. She argues that the government’s interests in executing her is
not compelling, fails to achieve the interests asserted and is not the least restrictive means
A) Ms. Tarkington argues that the execution of post-partum women is cruel and unusual
punishment
The Eighth Amendment states that “excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted”. Ms. Tarkington contend that her
sentence is a cruel and unusual punishment as 15 out of the 32 states allowing death penalty
explicitly forbid the death sentence for women suffering from postpartum depression. In
Trop v. Dulles, the Court stated that the “Eighth Amendment must meet the evolving
standards of decency that mark the progress of a maturing society” (pg. 575, par. 2). 15 states
is not a majority and thus, does not yet constitute as unacceptable according to societal
standards. Since 1947, the Court has held that the death penalty is inherently neither cruel nor
unusual (pg. 575, par. r5). In Solem v. Helm, the Court stated that punishment given to an
individual must be proportionate. It is punishments that are disproportionate to the crime
committed and barbaric punishment that the 8th Amendment proscribes (pg. 573, par. r2).
Justice Powell outline three factors that would determine whether the sentence is so
disproportionate that it would violate the Eight Amendment; “1) the gravity of the offense
and the harshness of the penalty; 2) the sentences imposed on other criminals in the same
jurisdiction; 3) the sentence imposed for commission of the same crime in other
jurisdictions” (pg. 573, par. r2). Since this bifurcated process was followed and the due
process of law was also uphelp, the death penalty was valid. In Harmelin v. Michigan, Justice
Scalia stated that proportionality principle was an aspect in our death penalty jurisprudence
(pg. 573, par. r3). 1) Ms. Tarkington’s actions was, without a doubt, highly offensive as she
drowned all her ten children. Therefore, the penalty does not seem to be very harsh; 2)
Supreme Court jurisprudence has used the death penalty in other murder cases as the
appropriate form of punishment, as the Court argued in Gregg v. Georgia that careful and
judicious use of the death penalty may be appropriate if carefully employed; 3)
Ms. Tarkington’s age must also be discussed. In Kennedy v. Lousiana, the court asked to
dismiss the death sentence because she was under eighteen when the factors that led to the
crime was committed (pg. 592, par. r2). Ms. Tarkington however, was eighteen when giving
birth to her son Gabriel. There is no information whether any of her children were born
before she was eighteen, but the assumption is made that Gabriel was her first son. Therefore,
Ms. Tarkington would not receive the prohibition against executing juvenile offenders.
Prior to taking Ms. Tarkington’s post-partum depression into context, the state would not
violate her Eighth Amendment right by imposing the death penalty as the present Court
remains committed to the position. However, her post-partum depression must be taken into
context as a mitigating factor as it should constitute as a mental illness. In Eddings v.
Oklahoma, the Court argued that mitigating factors cannot be refused to be heard pointing to
the defendant’s youth, troubled childhood, and history of mental problems (pg. 585, par. r2).
In Atkins v. Virginia, the Court concluded that states cannot impose the death penalty on the
mentally retarded (pg. 592, par. r3).
B) Ms. Tarkington also argues she has a fundamental right to life, so government imposition
of the death penalty must pass strict scrutiny. She argues that the government’s interests
in executing her is not compelling, fails to achieve the interests asserted and is not the
least restrictive means.
In matters dealing with fundamental rights, strict scrutiny must be used. The Fourteenth
Amendment states that “…nor shall any State deprive any person of life, liberty, or property
within its jurisdiction the equal protection of laws”. Even though there are not precedents for
using strict scrutiny, the death penalty could constitute as a deprivation of a fundamental
right, the right to life. Therefore, strict scrutiny is warranted. To pass the test, the State must
prove that it had a compelling interest in imposing the death penalty on Ms. Tarkington
would and was the least restricting means of achieving its interest. The State could argue, as
a compelling interests, the protections of the public, and serving as a deterrent and
reattributing factor, Gregg. However, the State’s interest must outweigh the right that is
imposed. Protecting the public is no longer a strong claim as Ms. Tarkington recovered from
her depressive episode, as stated within the case’s facts. Furthermore, even though it would
serve as a deterrent factor, it is not the least restrictive means of achieving the State’s interest
in deterrence. The State could, for example, sentence Ms. Tarkington to life in prison. The
State should thus, find alternative means to achieving its compelling interest in deterring
similar crimes as the death penalty would fail the strict scrutiny test in context to the
Fourteenth Amendment.
C) Did Ms. Tarkington receive a fair trial?
Ms. Tarkington’s case involved excessive media coverage. In Sheppard v. Maxwell, the Court
held that the accused did not receive a fair trial as the media coverage inflamed jurors’ minds
against Sheppard, therefore, violating his Sixth Amendment right. Similarly, media coverage of
Ms. Tarkington’s may have cause the jurors to act with bias. As a result of the media coverage,
Ms. Tarkington has failed to receive a fair trial with due process of the law.
Therefore, Ms, Tarkington should get a re-trail as her Sixth Amendment right to a fair trial was
violated and her post-partum depression must be taken into account as a mitigating factor as she
was not acting in full mental capacity at the time of the event took place.