Review Essay: Giving Life to the Death Penalty

Daniel LaChance, Austin Sarat, and Robin Conley’s recent studies of the death penalty in the United States invite much-needed scrutiny of the judicial instructions, legislative debates, and public interpretations—particularly by journalists and screenwriters—that give narrative life to the death penalty. These authors’ monographs underscore the moral and empathic distance between the juror, reader, or spectator and the condemned. Focusing on conceptions of ‘freedom,’ ‘legitimacy,’ and ‘responsibility,’ each author offers important and timely insights into specific dimensions of the death penalty, including capital trial proceedings (Conley), execution methods (Sarat), and common sense ideas about justice and punishment that make the sanction not only palatable but, for some, necessary (LaChance).

A significant contribution of this interdisciplinary set of studies is their attention to the shifting and contradictory discourse that supports capital punishment. The stakes of the authors’ focus on language and narrative are brought into relief by the Supreme Court’s 2008 opinion in Baze v. Rees. As features of everyday thinking (Douglas 1986) and legal technique (Riles 2011; Mertz 2007), analogies are frequently deployed to reconcile gaps in knowledge and bring order to diverse domains of human experience (Rosen 2006: 9). In Baze, which held that Kentucky’s lethal injection protocol did not violate the Eighth Amendment’s prohibition on “cruel and unusual” punishment, the Court referenced physician-assisted suicide drug protocols used in the Netherlands to argue that the use of muscle relaxants “could prevent a prolonged, undignified death” in medical and execution rooms alike (Baze v. Rees 2008: 19). Of relevance to this essay was the Baze Court’s reference to “dignity”— a word also (and often) invoked in “near death” hospital contexts (Kaufman 2005: 242).

The application of medical terminology to prison inmate executions is not without consequence. And the authors’ work de-familiarizes this word choice, inviting scrutiny of formulations of dignity, fairness and other keywords that pervade multiple social domains including lawyers’ and judges’ speech (Conley), the articles and rhetoric of journalists and politicians (Sarat), and narratives constructed by novelists and filmmakers (LaChance). Following anthropologists’ emphasis on the social permeability and cultural specificity of legal practices, each study reveals that the death penalty’s commentators and agents confront the same epistemological, legal, and political questions as the ordinary citizens who make sense of it (Sarat and Boulanger 2005). That is, when faced with capital punishment we see glimmers of our own intuitions about justice. After examining the concepts of ‘freedom,’ ‘legitimacy,’ and ‘responsibility’ the authors deploy to illuminate capital punishment in America, I revisit and critique the notion of a ‘dignified’ execution.

Freedom

Exemplifying anthropologists’ attentiveness to the movement of legal ideas in and out of the courtroom, LaChance traces shifting perceptions of—and support for—the death penalty in relation to Americans’ formulations of freedom. He argues that those who shared a positive view of freedom in the wake of World War II, and who welcomed government intervention (i.e., through New Deal social programs), contributed to abolitionist narratives. The primary function of punishment during this period was to rehabilitate and reform those convicted of crimes—drawing on an emergent thread of Cold War liberalism that relied on expert knowledge and institutions to promote social welfare. Retributive approaches to punishment, however, experienced a renaissance in the 1970s, reflecting a negative conception of freedom that pitted the government against individual autonomy. Ironically, as LaChance shows in Chapter 2, a brand of capital punishment in which jurors’ exercised “guided discretion” after the Supreme Court in Gregg v. Georgia (1976) offered a compelling response to the critiques of unpredictable sentences that had led to the death penalty’s suspension four years earlier. This history, LaChance argues, revealed the contradictory and unanticipated effects of civil libertarian critiques of unchecked government discretion that lay at the heart of rehabilitative approaches to punishment.

Throughout the book, LaChance identifies and analyzes the civil libertarian, neoliberal, and social conservative ideologies that supported retributive punishment. These ideologies found narrative expression in the domains of politics, popular movies and literature, judicial decisions, and print journalism. In each setting, LaChance argues, capital punishment was both a symbol and expression of an emergent punitive ethos. Deploying a culturally holistic approach, Chapter 1 examines a paradoxical chapter in capital punishment’s history. In the 1960s, during the same period that Legal Defense Fund attorneys were mounting a constitutional attack on executions, Americans consumed media that reflected their concern about white, middle-class mass murderers who seemed immune to the therapeutic and rehabilitative values emanating from Hollywood. This included Truman Capote’s In Cold Blood and short stories by Joyce Carol Oates and Flannery O’Connor. By the early 1970s, a confluence of journalistic, cinematic, literary, and academic visions of the nihilistic criminal positioned capital punishment as a moral and definitive antidote.

LaChance’s analysis extends further, in Chapter 3, to state actors’ portrayals of capital punishment. He shines a light, for example, on the efforts by the Texas Department of Criminal Justice to differentiate those on death row by recording and broadcasting details related to their last words and meals, even as they carried out increasingly antiseptic and depersonalized execution protocols (94-101). These details suggest that efforts to highlight the blameworthiness and humanity of capital defendants, while simultaneously emphasizing their need for incapacitation, imbued the post-Gregg death penalty with narrative resilience.

Focusing on the American appetite for vengeful punishment, the final three chapters of the book show how fictional and journalistic accounts of capital punishment supported punitive ideologies that dovetailed with a neoliberal ethos of individual liberty. Turning to the 1980s and 1990s in Chapter 4, LaChance shows how the fictional renderings of condemned inmates’ moral and spiritual awakenings facilitated by their executions assuaged public anxiety about capital punishment’s disproportionate toll on African-American men and offered a corrective to the sterile and mechanized workings of the death penalty in practice (122). Extending this argument to a fresh narrative context in Chapter 5— media coverage of district attorneys in Texas and Oklahoma counties – LaChance shows how the death penalty was invoked as a heroic, individualistic fix for an overly technocratic judicial process. Drawing on imagery from frontier mythology, journalists and biographers of two prosecutors concealed the racist underpinnings of their skepticism about the welfare state and libertarian ideology (154).

In the book’s final chapter, LaChance examines the place of middle-class, patriarchal family values in political and fictional accounts of capital punishment’s retributive potential. Both in and outside of the courtroom these values were expressed through victim-centered death penalty advocacy and libertarian distrust of a government that undermined the sovereignty and moral authority of the family. Though the death penalty itself continued to leave Americans’ retributive interests unsatisfied, a popular 2006 television show, Dexter, fulfilled them by presenting a fictional serial killer who targeted violent criminals who had escaped justice. To explore the intuitions about justice that animated the show’s reception, LaChance turns to online message boards and popular memes. Both offer a public and democratized repository for criticism and analysis and—as it turns out—valuable empirical resources for ethnographic research on American legal culture (180-182).

According to LaChance, to the extent that abolitionist narratives emphasize the humanity and suffering of the condemned, they have the perverse effect of imbuing capital punishment with the retributive potential that has given it vitality outside penal settings (190). Building on the insights of Barbara Ewick, he argues that the demise of capital punishment might instead be hastened by encouraging perceptions of its inability to punish, proceeding, as it does, through long-delayed, costly, and bureaucratic procedures that produces prisoners who are stripped of their humanity long before their executions (Ewick 2013: 596). In the same vein, LaChance suggests that abolitionists would be wise to highlight the moral dissatisfaction of victims and their families whose suffering is prolonged by lengthy appellate litigation. Rather than glorify executions, death penalty narratives should draw attention to that which is unremarkable about capital punishment— depicting the sanction as a senseless interruption of life for the condemned (192).

Legitimacy

Like LaChance, Sarat’s research examines the extent to which shifts in execution methods were shaped by social and economic pressure that originated outside the legal system. Emerging from the joint efforts of the author and four undergraduate students named on the book’s title page, Sarat’s book looks at the death penalty from the perspective of capital defendants who suffered botched executions between 1890 and 2010. His chapters focus on four technologies of execution: death by hanging, electrocution, gas chambers, and lethal injection.

In the case of hanging, Sarat argues that the late 19th century middle class’s fixation on differentiating itself from lower classes led to critiques of grotesque public executions that recalled Civil War violence (43). This moment of shifting social tastes—when even cemeteries were removed from public view—often found expression through emphasis on the scientific and technical aspects of killing. Hanging, for example, was distinguished from military killing by its reliance on evidence-based expertise, including measurements that took a condemned person’s weight and physical characteristics into account. In the late 1880s, scientific experiments were performed on stray animals in order to make the case that electrocution offered a humane alternative to the noose (62, 92). A further ‘advancement’— lethal gas and then lethal injection— also entailed bringing scientific expertise into the execution chambers.

According to Sarat, technological innovations were believed at each juncture to facilitate death painlessly, quickly, and efficiently—and yet, no technology of killing delivered on this promise. The case of the United States’ predominant method of execution today, lethal injection, is particularly instructive in this regard. Though one of the drugs administered to kill the condemned causes paralysis that could mask physical expressions of pain, Sarat notes that over 7% of lethal injections between 1980 and 2010 were botched. While the condemned often appeared peaceful to onlookers as they died, executions repeatedly featured unexpected expressions of perceptible pain documented in first-hand witness accounts (155).

In the book’s final chapter, Sarat turns to the question of why botched executions in America have failed to galvanize opposition to the death penalty. Part of the answer, he argues, can be found in journalists’ stylistic conventions when covering capital trials. He shows, for example, that sensationalistic articles about botched executions in the early 20th century were often tempered by affirmations that an effective status quo was usually in place. He also examines the narrative effects of journalists’ later conception of objective reporting as “balanced” reporting, in which opposing viewpoints were paired in the same story. Where journalists might have portrayed the death penalty’s grim reality in a manner that challenged the sanction’s legitimacy, journalistic practices instead suppressed the abolitionist potential of their reporting. Under the pretense of assuming a detached and unbiased perspective, however, journalists went further: they tacitly reassured readers that suffering caused by executions-gone-wrong was aberrational, exceptional, or just bad luck.

A compelling dimension of Sarat’s critique of journalistic discourse is the alternative he offers in his own accounts of eighteen botched executions. Each of the narratives he fashions conforms to the same style. First, he describes the circumstances of a capital defendant’s execution. In each case, a procedure designed to be “efficient, reliable, and painless” (26) resulted in unexpected brutality. The condemned suffered—sometimes visibly—by struggling to breathe, choking, sputtering, and writhing over the course of minutes or hours.

Drawing on a review of contemporaneous media coverage, he then gives an overview of the lives of capital defendants before their sentences. A common thread in these accounts is the continuity of capital defendants’ hardship both in and outside of jail cells and execution rooms. In many of the cases he describes, the incarceration of capital defendants’ was preceded by suffering that resulted from their struggles with poverty, racism, mental illness, and parental abuse. In the case of Jimmy Lee Gray who was convicted and sentenced to death for the rape, kidnaping, and capital murder of a child, even the defendants’ mother decided her son should be executed—a fact that was reported in a regional paper (110).

The accounts do not conclude with the deaths of the condemned but rather with critical commentaries on the circumstances of their executions. In his account of the botched lethal injection of Rickey Ray Rector, for instance, Sarat leaves his readers to question whether Rector ever fully comprehended his crime or sentence. Contending that his client did not understand he would be executed, Rector’s defense attorney pointed to his client’s habit of eating prison meals early (when they were served) but saving his dessert to eat before bed. When prison officials cleaned Rector’s cell after his death, the defense attorney noted, they “found his pecan pie,” as though he intended to follow his usual routine that day (136).

Sarat’s narratives offer the kind of contextualized and deep “witnessing of the execution scene” he chastises journalists for omitting from accounts that pair images of suffering with assurance of the sanction’s efficacy and legitimacy (175). Alongside increasing coverage of exonerated defendants, Sarat contends that these narratives can contribute to a fulsome critique of American state killing.

Responsibility

Robin Conley’s ethnography of the death penalty draws on participant observation in four capital cases in Texas between 2009 and 2010. As part of this fieldwork she interviewed twenty-one jurors— including some who participated in the trials she observed and some from five other capital cases who were willing to discuss their experience. The book’s explicit point of departure is the premise that state killing is problematic. Conley’s aim is thus to examine the language jurors used to “negotiate their involvement in and attitudes” toward the sentences they authorized (9). Their language, in Conley’s view, was inherited from prosecutors whose voir dire questions, and opening and closing statements, referred to defendants in impersonal terms. From here, Conley advances a causal argument: jurors’ distancing and dehumanizing language facilitated their decisions to sentence defendants to death (45).

A valuable contribution of Conley’s research to the anthropology of law is its ethnographic support for the insight that legal discourse is not inherently racialized or dehumanizing (12). Rather, linguistic practices can be deployed to dehumanize people— or buttress racial stereotypes—in particular contexts. To this end, capital trials emerge in her writing as one setting among others in which linguistic ideologies and techniques of distancing can highlight or elide particular characteristics. In Chapter 5 of her book, for example, Conley observes that jurors’ references to defendants in language that emphasizes moral distance (i.e., ‘the defendant’ rather than ‘David Johnson’) sever empathic feeling in a manner that denies the individuality and humanity of the accused. To the extent that jurors (or lawyers) sought to empathize with victims, they utilized humanizing reference forms (i.e., ‘David Johnson’ rather than ‘the defendant’).

In Chapter 3, Conley argues that jurors bracketed empathic and emotional considerations—contrary to the Supreme Court’s ruling in Woodson v. North Carolina, 428 U.S. 280 (1976). Citing jurors’ contradictory instructions during the culpability and sentencing phases of capital trials, Conley shows that jurors conformed to an ideology of objectivity that pervaded the trial. Building on this concern, Conley argues in Chapter 4 that jurors’ ideas about the primacy of language over nonverbal expression led them to minimize their empathic responses to defendants “and thus sentence them to death” (117). To explain this phenomenon, Conley pinpoints the ambiguous legal instructions related to the evidence that the jury should consider or ignore. She argues that these instructions created a space of discretion for jurors to consider the defendant’s nonverbal communication, including their eye gaze, facial expression and interactions with others in the courtroom. By their own accounts during post-verdict interviews, jurors interpreted defendants’ displays of emotion (or lack thereof) as an indication of their lack of remorse or poor moral character.

Though Conley expresses her concern that capital jurors are denied agency by judges and prosecutors, her ethnography paints a nuanced picture of legal actors’ experiences of capital trials. Her analysis of jurors, for instance, often overcomes the impulse to frame them as “rule-governed” (195). In one interview, a juror went so far as to describe the jury as a “buffer” between the state and defendant’s fate (188).

Complementing Conley’s attention to in-court legal discourse, LaChance and Sarat’s projects invite us to consider the pervasiveness of “authoritative legal discourse” beyond the courtroom walls (Conley 48). Jurors’ language might have been influenced, for example, by common sense ideas about justice, conventions of newspaper coverage or judicial opinions that similarly obscured executioners’ agency (Sarat 161, LaChance 71). And further ethnographic research may illuminate how jurors’ are influenced by defense counsel’s presentations of humanizing details about the hardship faced by defendants during the sentencing phase of capital trials or particular defense witnesses’ testimony.

Working backwards from courtroom speech, Conley examines the relationship between prosecutors’ references to individualizing details about defendants and their strategic aims during trial. During the sentencing phase of proceedings, for example, she observed that prosecutors referred to defendants’ names, the specificity of their crimes, and interactions with victims. During jury selection proceedings, too, Conley noted that prosecutors’ use of humanizing or distancing language appeared to depend on whether they wished to empanel or dismiss a particular prospective juror. Conley’s participant observation alongside defense attorneys enabled her to participate in this strategic work herself. At one point, for example, she advised defense counsel to refrain from asking prospective jurors to set aside sympathy and prejudice during jury selection proceedings. In her view, references to sympathy might call the vulnerability of victims to jurors’ minds, rather than induce them to disregard prejudiced thinking about the accused that might be advantageous to the defense (117).

Conley’s final chapter offers empirical support for the insight that responsibility is deferred and dispersed in the process through which capital defendants are executed (Sarat 1994). She argues that ambiguous sentencing instructions for jurors contributed to a broader process of attenuating lay decision-makers’ feelings of responsibility for imposing the death penalty. In particular, she cites jurors’ use of passive voice when describing sentencing verdicts and their ambivalence about being polled individually about their decisions. Like Sarat, Conley concludes her book with a critique of ideologies of impartiality and objectivity that impede critiques of capital punishment. She also points to the need for greater ethnographic engagement with lay participation in legal systems in the United States and elsewhere.

Adding ethnographic flesh to LaChance’s contention that death penalty narratives would benefit from accounts that highlight its retributive hollowness, Conley is attentive throughout her book to the adverse effects of capital cases on jurors who participated in them. She recalls cases, for example, where jurors’ empathy with victims caused acute discomfort (3), as well as a case in which her request for an interview was viewed as stirring traumatic memories a juror hoped to leave behind (46-47, 57,77, 192). In some cases, former jurors’ reflections revealed the ambivalence, empathy, and emotional struggle that shaped their personal and collective deliberations. These accounts of discomfort are echoed and amplified by those of witnesses to executions described by Sarat.

Dignity

While LaChance, Sarat, and Conley draw attention to the narrative techniques that lend legitimacy to capital punishment, an additional aspect of this discussion that is not explicitly defined by these authors relates to the implications of merging legal and medical formulations of dignity. “The Commonwealth has an interest in preserving the dignity of the procedure,” Justice Roberts wrote for a divided Court in Baze, “especially where convulsions or seizures could be misperceived as signs of consciousness or distress” (Baze v. Rees 2008: 19). Justice Stevens’ concurrence—and a chorus of legal scholars—took issue with the opinion’s apparent emphasis on the undignified appearance of suffering caused by lethal injection which bracketed the condemned person’s experience of pain (Ferguson 2014, Kaufman-Osborn 2009, Blecker 2008, Yehuda 2013). Seven years later, invocations of a condemned person’s ‘dignity’ resurfaced in the Court’s Glossip v. Gross opinion (2015), which arose from an execution method challenge related to the use of the anti-anxiety medication midazolam in a three-step lethal injection protocol: “The team eventually believed that it had established intravenous access through Lockett’s right femoral vein, and it covered the injection access point with a sheet, in part to preserve Lockett’s dignity during the execution” (Glossip v. Gross 2015: 7).

What are the rhetorical stakes of conflating the swiftness and ‘dignity’ of an execution? To the extent that patients associate physician-assisted suicide in the medical domain with conceptions of a dignified death, what are we to make of the silence of a condemned person who does not wish to die with dignity but to live? Might efforts to confer dignity on a condemned person render executions “successful degradation ceremonies for many penal spectators” that “satisfy retributive demands” (LaChance 190)? These questions direct attention to dignity as “always depending on particular modes of authorization” with reference to “particular publics and political subjects” (Von Schnitzler 2014: 344).

Implicit in the Court’s analogy is a rhetorical elision of differences between euthanasia at the hand of a doctor and lethal injection at the hand of a state actor. In the first setting, physician-assisted suicide represents the negotiation of a person’s end-of-life wishes—often in response to their suffering (Kaufman 2005). In the latter setting, death is a penal response to suffering inflicted by a condemned person. The juxtaposition of punitive and medical imagery, as well as the appropriation of medical language in penal contexts, has piqued the attention of interdisciplinary legal scholars. Such scholars — including the authors reviewed here — note lethal injection’s peculiar character as a semi-private procedure in spaces resembling examination rooms stocked with a gurney, heart monitor, anesthetic drugs, syringes, and individuals with medical expertise (Sarat 9, LaChance 81). And they explore the extent to which the bureaucratized and technocratic character of lethal injection aims to distinguish lawful executions from unlawful murder, diminishing sympathy for the condemned in the process.

Read together, the authors’ engagements lead to a transformed perspective on capital punishment in America. With the benefit of fresh techniques of narration, analysis, and analogy, the death penalty becomes representable as something closer to torture than euthanasia (Wagner-Pacifici 2009, Brooks 2008). And through ethnographic accounts that highlight the trauma of jurors and the ambivalence of aggrieved family members, capital trials can be seen to produce more injury and injustice than they rectify (Hirsch 2006). As Clifford Geertz reminds us — and the authors demonstrate— one cannot counter pernicious analogies by refusing to acknowledge them. As citizens and researchers complicit in the circulation of the metaphors we take for granted, we must “get down to the details of the matter, to examine the studies and to critique the interpretations” (Geertz 2000: 26). By probing the language of former capital jurors, journalists, elected officials, filmmakers, and novelists, the authors bring life to new abolitionist narratives.

Anna Offit, Princeton University

Reviewed in this essay:

Conley, Robin. Confronting the Death Penalty: How Language Influences Jurors in Capital Cases, Oxford University Press, 2016. 256 pp. $29.95 hardcover. Read more at Oxford University Press.

LaChance, Daniel. Executing Freedom: The Cultural Life of Capital Punishment in the United States, Chicago: University of Chicago Press, 2016. 272 pp. $35.00 cloth. Read more at University of Chicago Press.

Sarat, Austin. Gruesome Spectacles: Botched Executions and America’s Death Penalty, Stanford: Stanford University Press, 2014. 288 pp. $18.95 paper. Read more at Stanford University Press.

References cited:

Baze v. Rees. 2008, 128 S. Ct. 1520. Supreme Court.

Blecker, Robert. 2008. “Killing Them Softly: Mediations on a Painful Punishment of Death Symposium: The Lethal Injection Debate: Law and Science.” Fordham Urban Law Journal 35: 969–98.

Brooks, Peter. 2008. “Death in the First Person.” South Atlantic Quarterly 107 (3).

Douglas, Mary. 1986. How Institutions Think. Syracuse University Press.

Ewick, Patricia. 2013. “The Return of Restraint: Limits to the Punishing State.” QLR 31 (3): 577.

Ferguson, Robert A. 2014. Inferno: An Anatomy of American Punishment / Robert A. Ferguson. Cambridge, Massachusetts ; London, England: Harvard University Press. https://library.princeton.edu/resolve/lookup?url=http://site.ebrary.com/lib/princeton/Doc?id=10841961.

Geertz, Clifford. 2000. Local Knowledge: Further Essays in Interpretive Anthropology. 3rd ed. New York: Basic Books.

Glossip v. Gross. 2015, 136 S. Ct. 20. Supreme Court.

Hirsch, Susan F. 2006. In the Moment of Greatest Calamity: Terrorism, Grief, and a Victim’s Quest for Justice. Princeton, N.J: Princeton University Press.

Kaufman, Sharon R. 2005. –And a Time to Die: How American Hospitals Shape the End of Life / Sharon R. Kaufman. New York: Scribner.

Kerr, Andrew Jensen. 2015. “Facing the Firing Squad.” Georgetown Law Journal Online 104: 74–86.

Mertz, Elizabeth. 2007. The Language of Law School: Learning To “think like a Lawyer.” Oxford [England] ; New York: Oxford University Press.

Wagner-Pacifici, Robin in Ogletree, Charles and Sarat, Austin (Eds.) 2009. The Road to Abolition? The Future of Capital Punishment in the United States. Charles Hamilton Houston Institute Series on Race & Justice. New York: NYU Press. https://library.princeton.edu/resolve/lookup?url=http://www.jstor.org/stable/10.2307/j.ctt9qg887.

Riles, Annelise. 2011. Collateral Knowledge: Legal Reasoning in the Global Financial Markets. Chicago Series in Law and Society. Chicago: University of Chicago Press. http://searchit.princeton.edu/primo_library/libweb/action/dlDisplay.do?institution=PRN&vid=PRINCETON&docId=PRN_VOYAGER6573668.

Rosen, Lawrence. 2006. Law as Culture: An Invitation. Princeton University Press.

Sarat, Austin. 1994. “Violence, Represenation, and the Responsibility in Capital Trials: The View from the Jury.” Indiana Law Journal 70: 1103.

Sarat, Austin, and Christian Boulanger. 2005. The Cultural Lives of Capital Punishment: Comparative Perspectives / Edited by Austin Sarat, Christian Boulanger. The Cultural Lives of Law. Stanford, Calif: Stanford University Press.

Von Schnitzler, Antina. 2014. “Performing Dignity: Human Rights, Citizenship, and the Techno-Politics of Law in South Africa.” American Ethnologist 41 (2): 336–50. doi:10.1111/amet.12079.

Yehuda, Jonathan. 2013. “Tinkering with the Machinery of Death: Lethal Injection, Procedure, and the Retention of Capital Punishment in the United States Note.” New York University Law Review 88: i-2352.

About Matthew Wolf-Meyer

Matthew Wolf-Meyer is an Associate Professor of Anthropology at Binghamton University in the State University of New York system. He received his Ph.D. from the Department of Anthropology at the University of Minnesota, specializing in medical anthropology and the social study of science and technology. He is author of the forthcoming book The Slumbering Masses (UMN Press), which focuses on sleep in American culture and its historical and contemporary relations to capitalism.

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