What Executioners Can—and Cannot—Teach Us About the Death Penalty

Abstract

Those who work with the condemned often come to reject the death penalty not only in individual cases, and not only on the ground that it is poorly implemented. They tend to conclude that the punishment is wrong. I argue that the perspective of the executioner helps illuminate the debate about whether to abolish capital punishment, and that indeed the perspective of those who work with the condemned raises the troubling possibility that support for the death penalty can survive only at a great remove. Jeffrie Murphy has also argued that the executioner’s perspective can be useful, but I contend that Murphy asks the wrong question. His essay considers whether an executioner may, under some circumstances, take pride in his work. The better question is whether anyone ought to be asked to do such work. On this latter question, the perspective of the executioner sheds important light. Like Murphy, I draw on works by and about Albert Pierrepoint, the “last hangman” of Britain. I also draw on the perspectives of numerous executioners, wardens, chaplains, and other death row personnel. I argue that their perspectives offer a powerful argument against the main rationale for the death penalty: retribution. If retribution is keyed to the offender’s character as well as his wrongful act, then post-conviction character ought to matter. The executioners’ accounts share a common theme: that death row inmates change over time and hold the potential for redemption.

Keywords:

• retributive theory
• punishment
• law and literature
• virtue ethics
• death penalty
• remorse
• sentencing

Notes

[Disclosure Statement: No potential conflict of interest was reported by the author.]

1 Friend, Dean of Death Row, 69.

2 See Bennett, “Considering Capital Punishment.”

3 Murphy, “People We Hire,” 90n5.

4 Ibid.

5 Ibid.

6 Lifton, Nazi Doctors, 419.

7 Pierrepoint, Executioner, 210.

8 Ibid., 211

9 Murphy, “People We Hire,” 94n3.

10 Ibid., 94 (emphasis added).

11 Murphy, “Legal Moralism,” 87.

12 Johnson, Moral Imagination, 188.

13 “Unusual” has also been interpreted to refer to punishments that have not been in longstanding use. See Bessler, “Cruel & Unusual”, 305–6. See also Justice Scalia's dissent in Atkins v. Virginia, 536 U.S. 304, 337 (2002).

14 Bessler, “Cruel & Unusual ”, 305–6.

15 Gregg v. Georgia, 428 U.S. 153, 173 (1976).

16 Justices Scalia and Thomas reject the “evolving standards of decency” approach to interpreting the Eighth Amendment. See e.g. Justice Scalia's dissent, joined by Justice Thomas, in Roper v. Simmons, 543 U.S. 551 (2005).

17 See Bessler, “Cruel & Unusual ”, 292–3.

18 Coker v. Georgia, 443 U.S. 584, 592 (1977).

19 Murphy, “People We Hire,” 89.

20 McCleskey v. Kemp, 481 U.S. 279 (1987).

21 Kennedy, Race, Crime, and the Law, 337.

22 Another practical goal of capital punishment is incapacitation, but that goal can be served by life in prison.

23 Many scholars claim that there is no empirical evidence supporting the death penalty's deterrent effect, and some argue that there can never be a definitive answer to this question. See generally Donahue and Wolfers, “Uses and Abuses.”

24 Jackson, “The Lottery.”

25 In the criminal justice system, many stakeholders may be “close to the action” in various ways, including victims and their family members and the families of the accused. As I have long argued, the criminal justice system must make difficult normative and practical choices about which perspectives are relevant and at what junctures. See e.g., Bandes, “Empathy, Narrative,” 389–90.

26 Bennett, “Considering Capital Punishment,” 375. Bennett's point, as I understand it, is that the executioner's proximity to the human being he is about to execute strips him of his ability to claim that he is just following orders. It requires him to come up with an “airtight” justification. This argument illustrates, for me, the troubling nature of his inquiry. It seems to take for granted that those we ask to do morally repugnant jobs have a special obligation to explain why they are doing them. Although some orders cannot be followed as a legal or a moral matter, it is too often the case that those who follow these orders are the only ones who suffer for it. See, for example, the prosecution of Lynndie England and Charles Graner for the torture at Abu Ghraib—and the complete failure to prosecute any of the architects of the torture program.

27 Camus, “Reflections on the Guillotine,” 175.

28 Cabana, Death at Midnight, 17.

29 NPR (National Public Radio), Fresh Air, “Interview with Reverend Carroll Pickett.”

30 See Friend, Dean of Death Row, 71.

31 See Feldman, “Former Warden Reconsiders Executions.”

32 See Silverstein, “Ron McAndrew.”

33 PBS (Public Broadcasting Service), Frontline, “Interview with Reverend Jim Brazzil.”

34 NPR, All Things Considered, “Witness to an Execution.”

35 Ibid.

36 I also draw on the accounts of Leigh-Anne Gideon and Wayne Sords, both reporters who covered executions at The Walls and participated in the “Witness to an Execution” discussion on NPR's All Things Considered.

37 Cabana, Death at Midnight, 17.

38 Ibid., 18.

39 Ibid., 17.

40 Ibid., 180.

41 Ibid., 186.

42 Ibid., 192.

43 NPR, All Things Considered, “Witness to an Execution.”

44 Silverstein, “Ron McAndrew.”

45 Ibid.

46 Ibid.

47 Ibid.

48 PBS, Frontline, “Interview with Reverend Jim Brazzil.”

49 Major Kenneth Dean, NPR, All Things Considered, “Witness to an Execution.”

50 Captain Terry Graham, ibid.

51 Jim Willett, quoted in Rimer, “Busiest Death Chamber.”

52 Captain Terry Graham, NPR, All Things Considered, “Witness to an Execution.”

53 Major Kenneth Dean, ibid.

54 Major Kenneth Dean, quoted in Rimer, “Busiest Death Chamber.”

55 Unidentified Man #7, NPR, All Things Considered. “Witness to an Execution.”

56 Ron McAndrew, quoted in Silverstein, “Ron McAndrew.”

57 Observation by Warden Jim Willett, NPR, All Things Considered, “Witness to an Execution.”

58 . Ibid.

59 Major Kenneth Dean, quoted in Rimer, “Busiest Death Chamber.”

60 Reported by Wayne Sords (News Director of KASM, Huntsville, Texas) in NPR, All Things Considered, “Witness to an Execution.”

61 Friend, Dean of Death Row, 71.

62 Woodson v. North Carolina, 428 U.S. 280 (1976).

63 See Murphy, “Legal Moralism,” 88–9n13.

64 Murphy, “Last Words on Retribution,” 39.

65 Ibid.

66 Murphy, “Remorse, Apology, and Mercy,” 161.

67 I agree with Murphy that if we are to evaluate post-conviction behavior, a negative evaluation must also be relevant. In fact, courts already take negative information into account. See, for example, the denial of clemency to Tookie Williams in California, based on his unrepentant behavior while on death row. Murphy, Punishment and the Moral Emotions, 162, 168.

68 See Seidel and Sfondeles, “Tears, Apologies, Pleas.” The argument was relevant, but ultimately unsuccessful.

69 A governor has broad discretion to pardon or to award clemency, and so a change of character, like any other factor, could influence such decisions.

70 See Haney, Sontag, and Constanzo, “Deciding to Take a Life,” 163.

71 Murphy, Punishment and the Moral Emotions, 150.

72 See Haney, Sontag, and Costanzo, “Deciding to Take a Life,” 163.

73 See Bandes, “Remorse, Demeanor,” 190.

74 Murphy raises an additional concern: he posits that the truly remorseful should welcome their punishment. It is a valid point that the truly remorseful should wish to pay their debt to society. But this is not an argument in favor of the death penalty. To say that the remorseful should welcome the death penalty begs the question of whether the death penalty is a legitimate punishment. In addition, a truly remorseful person may well desire sufficient time to atone for the wrongs he has done.

75 See Goldstein, “Too Old?”

76 Carlson, “Human Nature,” 165; emphasis in the original.

77 Ibid.

78 Camus, “Reflections on the Guillotine,” 221.

79 Bennett, “Considering Capital Punishment,” 375.