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Abstract
Merging our work as grassroots activists and scholars, we map the master tropes of contemporary arguments both for and against the death penalty. This rhetorical work is preceded by analyses of who uses the death penalty and why, noting especially the overlap between lynching and capital punishment; the status of exonerations, moratoriums, and contested scientific evidence; and recent court cases affecting executions. In addition to providing this informational overview of, and rhetorical road map to, debates about executions, we argue that each master trope suggests useful political strategies for advocating against the death penalty.
The authors thank Richard Kamler, Robin Sohnen, Brett Kaplan, Jane Bohman, Robert Ivie, and Julilly Kohler for graceful editing assistance.
Notes
1. Thanks to Joseph Hart for sharing his poem; see Evelyn Nieves, “Hundreds Take Up the Cause of a Killer,” New York Times (26 April 1999): A15; for a portrayal of one of the San Quentin execution vigils mentioned here, see Stephen John Hartnett, Incarceration Nation: Investigative Prison Poems of Hope and Terror (Walnut Creek, CA: AltaMira, 2003), 117–34.
2. Cesare Beccaria, On Crimes and Punishments and Other Writings, trans. Richard Davies (1764; Cambridge: Cambridge University Press, 1995), 8; for overviews of Enlightenment arguments in antebellum debates about the death penalty see Louis Masur, Rites of Execution: Capital Punishment and the Transformation of American Culture, 1776–1865 (New York: Oxford University Press, 1989) and Philip English Mackey, Hanging in the Balance: The Anti-Capital Punishment Movement in New York State, 1776–1861 (New York: Garland, 1982); for a resurrection of Enlightenment arguments, see Hilary Mantel, “The Right to Life,” New York Review of Books (12 May 2005): 4–8.
3. James Arnt Aune, “Justice and Argument in Judaism: A D'Var Torah on Shofetim,” Rhetoric & Public Affairs 7:4 (2004), 449–60, quotation from 455; the SBC resolution, “On Capital Punishment,” is available online at www.sbc.net (accessed 18 September 2006); Neela Banerjee, “Bishops Fight Death Penalty in New Drive,” New York Times (22 March 2005): A15; on the alleged decline of theological arguments, see Andrew Delbanco, The Death of Satan: How Americans Have Lost the Sense of Evil (New York: Farrar, Straus & Giroux, 1995); for examples of their persistence, see the debate between H. Wayne House and John Howard Yoder in The Death Penalty in America: Current Controversies, ed. Hugo Adam Bedau (Oxford: Oxford University Press, 1997), 415–44.
4. As of 1 September 2006, 3,370 men and women were on death row; see Death Penalty Information Center (DPIC), “Facts About the Death Penalty,” available at www.deathpenaltyinfo.org (accessed 18 September 2006).
5. Shannan M. Catalano, Criminal Victimization, 2003 (Washington, DC: BJS, 2004), 1, 2; while violent crime has dropped since 1993, the murder rate has risen since 1960 (see Marc Mauer, Comparative International Rates of Incarceration: An Examination of Causes and Trends, a 20 June 2003 report presented before the US Commission on Civil Rights, available from The Sentencing Project, www.sentencingproject.org (accessed 18 September 2006) 6); 2003 execution figure from Thomas Bonczar and Tracy Snell, Capital Punishment, 2003 (Washington, DC: BJS, 2004), 1; Justice William Brennan Jr., Furman v. Georgia, 408 US 238 (1972), 192 as the decision appears in Bedau, Death Penalty; for an overview of the literature on deterrence, see William Bailey and Ruth Peterson, “Murder, Capital Punishment, and Deterrence: A Review of the Literature,” in Ibid., 135–61.
6. State-by-state tally from Bonczar and Snell, Capital Punishment, 2003, 1; 1930–1990 figure from Hugo Adam Bedau, The Case Against the Death Penalty (Washington, DC: ACLU, 2002), 8; US General Accounting Office, Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities (Washington, DC: USGAO, 1990), 5–6; and see Richard Dieter, “The Death Penalty in Black and White: Who Lives, Who Dies, and Who Decides,” a June 1998 report prepared for the DPIC.
7. State-by-state numbers of executions since 1976 (as of 14 March 2005) from DPIC, “State by State Information” and “Number of Executions by State and Region Since 1976”; similar information is available in Bonczar and Snell, Capital Punishment, 2003, table 9, p. 9; regarding New York's action, see the materials posted by Equal Justice USA (www.quixote.org) and New Yorkers Against the Death Penalty (www.nyadp.org), also see Patrick Healy, “Albany Closes Door on Death Penalty Measure,” New York Times (12 April 2005), n.p.
8. Franklin Zimring, The Contradictions of American Capital Punishment (New York: Oxford University Press, 2003), 89–118 in full, quotations and figures from 89, 90, 91, 99; for images of vigilante justice in action, see James Allen, Without Sanctuary: Lynching Photography in America (Santa Fe, NM: Twin Palms, 2000); Peter Ehnenhaus and A. Susan Owen, “Race Lynching and Christian Evangelicalism: Performances of Faith,” Text and Performance Quarterly 24: 3 & 4 (July/October 2004): 276–301, quotation from 277; and see Stephen Hartnett, “Prison Labor, Slavery, and Capitalism in Historical Perspective,” Dark Night Field Notes 11 (Winter 1998): 25–29, and Donald Braman, “Families and Incarceration,” in Invisible Punishment: The Collateral Consequences of Mass Imprisonment, ed. Marc Mauer and Meda Chesney-Lind (New York: New Press, 2002), 117–35.
9. Ken Armstrong and Christi Parsons, “Half of State's Death-Penalty Cases Reversed,” Chicago Tribune (22 January 2000): 1, 5; Ken Armstrong and Steve Mills, “Ryan: ‘Until I Can Be Sure’: Illinois is First State to Suspend Death Penalty,” Chicago Tribune (1 February 2000): 1, 7; Report of the Governor's Commission on Capital Punishment, George H. Ryan, Governor, 15 April 2002 (Chicago: State of Illinois, 2002); 7, 10, and see Summary Tables 1 and 2 (from the Appendix, n.p.) for the fate of the reversals; for a profile of Ryan see Scott Turow, Ultimate Punishment: A Lawyer's Reflections on Dealing with the Death Penalty (New York: Farrar, Straus & Giroux, 2003), 16–19.
10. The Grassroots Investigation Project, Reasonable Doubts: Is the US Executing Innocent People? (Hyattsville, MD: Quixote Center, 2000); on Lloyd, see Jodi Wilgoren, “Man Freed After DNA Clears Him of Murder,” New York Times (27 August 2002): A10, and “Confession Had His Signature; DNA Did Not,” New York Times (26 August 2002): A1, 12; and see “Innocence and the Death Penalty,” a 1993 Congressional report reprinted in Bedau, Death Penalty, 344–60.
11. Tribune quotation and KY information from Robert Sherrill, “Death Trip: The American Way of Execution,” The Nation (8–15 January 2001), 21; Governor George Ryan, “I Must Act,” speech of 11 January 2003, p. 2 of the version downloaded from www.stopcapitalpunishment.org (accessed 18 September 2006), hereafter cited in the text; and see the Kentucky Coalition to Abolish the Death Penalty at www.kcadp.org (accessed 18 September 2006).
12. Jim Yardley, “Man Jailed in Rape is Freed; Case Led to Chemist Inquiry,” New York Times (8 May 2001): A1, 20; Barry Scheck and Peter Neufeld, “Junk Science, Junk Evidence,” New York Times (11 May 2001): A31; Griffith story from Henry Weinstein, “Death Penalty Debate: Can New Violence Be Predicted?” Los Angeles Times (6 November 2000): A1, distributed online by the Texas Coalition for Abolishing the Death Penalty, www.tcadp.org; and see Jim Dwyer, Peter Neufeld, and Barry Scheck, Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted (New York: Doubleday, 2000), 158–71.
13. Rob Warden, Executive Director of the Center on Wrongful Convictions (CWC) at the Northwestern University School of Law, “How Mistaken and Perjured Eyewitness Identification Testimony Put 46 Innocent Americans on Death Row,” paper given to the authors by Warden; Jennifer Thompson, “I Was Certain, but I Was Wrong,” New York Times (18 June 2000): A15.
14. Exonerated figure from Richard Dieter, “The Death Penalty in 2004: Year End Report,” 1, a December 2004 document available from the DPIC; despite Ryan's moratorium, as many as 200 cases in Illinois are currently being considered capital cases, meaning pro-death penalty prosecutors are preparing, pending future gubernatorial reversal of the moratorium, to restock the state's death row; for a blistering critique of this practice, see Jane Bohman Questioning a Broken System: Capital Punishment in Illinois in 2003 (Chicago: ICADP, 2004), available at www.icadp.org (accessed 18 September 2006).
15. Atkins v. Virginia, 536 U.S. 304 (20 June 2002), available at http://caselaw.lp.findlaw.com (accessed 18 September 2006); and see Linda Greenhouse, “Citing ‘National Consensus,’ Justices Bar Death Penalty for Retarded Defendants,” New York Times (21 June 2002): A1, 14, and Adam Liptak and Sara Rimer, “With Little Guidance, States Face Hard Debate on Who is Retarded,” New York Times (21 June 2002): A1, 15.
16. Linda Greenhouse, “Justices Say Death Penalty is Up to Juries, not Judges,” New York Times (25 June 2002): A1, 20; Adam Liptak, “Fewer Death Sentences Likely if Juries Make Ultimate Decision, Experts Say,” New York Times (25 June 2002): A21; Scalia quotation from “Excerpts from Ruling and Dissent on Who Decides the Death Penalty,” New York Times (25 June 2002): A20; Adam Liptak, “A Florida Judge Upholds State Death-Sentence Law,” New York Times (3 July 2002): A18; Adam Liptak, “A Supreme Court Ruling Roils Death Penalty Cases,” New York Times (16 September 2002): A13; see Ring v. Arizona, 536 U.S. 584 (24 June 2002), available at http://caselaw.lp.findlaw.com (accessed 18 September 2006); on Scalia's legal formalism, see Margaret Talbot, “Supreme Confidence,” New Yorker (28 March 2005): 40–55.
17. Roper v. Simmons, 543 U.S. 551 (1 March 2005), is available at http://caselaw.lp.findlaw.com (accessed 18 September 2006); and see David Stout, “Supreme Court Bars Death Penalty for Juvenile Killers,” New York Times (1 March 2005): A1, and Charles Lane, “Kennedy Reversal swings Court Against Juvenile Death Penalty,” Washington Post (7 March 2005): A17; for historical perspective, see Victor L. Streib, The Death Penalty for Juveniles (Bloomington: Indiana University Press, 1987), and “Moratorium on the Death Penalty for Juveniles,” Law & Contemporary Problems 61:55 (Autumn 1998): 55–90; the treaties are available as follows: Geneva Convention IV at www.yale.edu/lawweb/avalon/lawofwar/geneva07.htm (accessed 18 September 2006); International Covenant at www1.umn.edu/humanrts/instree/b3ccpr.htm (accessed 18 September 2006); Convention on the Rights of the Child at www.unicef.org (accessed 18 September 2006).
18. Gilmore quotation from her keynote address at “Education or Incarceration? Schools and Prisons in a Punishing Democracy,” a conference hosted by the University of Illinois Center on Democracy in a Multiracial Society, 22–24 January 2004; figures since 1999 from Dieter, “The Death Penalty in 2004: Year End Report,” 4; “too broke to fix” was the popular refrain spurred by Governor Ryan's speeches circa 2000–2003.
19. Space precludes a discussion of the methods underlying our tropological approach, but see Kenneth Burke, “Four Master Tropes,” A Grammar of Motives (1945; Berkeley: University of California Press, 1969), 503–17; Hayden White, “The Rhetoric of Interpretation,” in The Rhetoric of Interpretation and the Interpretation of Rhetoric, ed. Paul Hernadi (Durham, NC: Duke University Press, 1989), 1–22; and Fredric Jameson, “Figural Relativism; or, The Poetics of Historiography” (1976), in The Ideologies of Theory: Essays, 1971–1986 (Minneapolis: University of Minnesota Press, 1988), 153–66.
20. Douglas quoted in Robert Jay Lifton and Greg Mitchell, Who Owns Death? Capital Punishment, the American Conscience, and the End of Executions (New York: William Morrow, 2000), 203; Teer quoted in Steve Brewer, “17th Annual Crime Victim Week on Tap,” Dallas Morning News (18 April 1998): A36; for Glenda Palmer's quotation, see http://legalminds.lp.findlaw.com/list/deathpenalty/msg01556.html (accessed 18 September 2006); Zimring, Contradictions, 59, 62.
21. For additional stories from the perspectives of families of death row prisoners, see Rachel King, Capital Consequences: Families of the Condemned Tell Their Stories (New Brunswick, NJ: Rutgers University Press, 2005).
22. Sylvester Schieber is quoted at the DPIC website; See Kate Nelson, “Death-Penalty Vote Brings Rep to Tears,” The Albuquerque Tribune (14 February 2003): A1; see Shepard's statement to the court during the sentencing of the boy who killed his son Matthew at http://www.matthewsplace.com/dennis2.htm (accessed 18 September 2006).
23. Aune, “Justice and Argument in Judaism,” 455, 456.
24. Erik Doxtader, “Reconciliation: A Rhetorical Concept/ion,” Quarterly Journal of Speech 89:4 (November 2003): 267–92, quotation from 284.
25. Amalia Ortiz, poem read as part of a community conversation about the death penalty in Huntsville, Texas, 15 January 2000, in the Sam Houston Memorial Museum.
26. Carlson quotations from Rachel King, Don't Kill in Our Names: Families of Murder Victims Speak Out Against the Death Penalty (New Brunswick, NJ: Rutgers University Press, 2003), 65, 73.
27. Contact Murder Victims’ Families for Reconciliation (MVFR) at www.mvfr.org (accessed 18 September 2006); for MVFR member stories, see King, Don't Kill in Our Names, and Not in Our Name: Murder Victim's Families Speak Out Against the Death Penalty, comps. and ed. Susannah Sheffer, Kate Lowenstein, and Renny Cushing (Boston: Red Sun Press, 2003).
28. Michael Bradbury, “The Death Penalty is an Affirmation of the Sanctity of Life,” Los Angeles Times (24 September 2000): M5; Connor's statement posted at www.murdervictims.com (accessed 18 September 2006); Mireya Navarro, “Relatives of Sept. 11 Victims Aid the Prosecution,” New York Times (28 March 2002): A15.
29. Justice Potter Stewart, Gregg v. Georgia, 428 US 153 (1976), quoted as the decision appears in Bedau, Death Penalty, 200; mitigating factor number 7 from Georgia's death penalty statute, in Ibid., 203; within four years this aspect of Georgia's law was ruled “too vague to be constitutionally permissible” (Bedau, “Habeas Corpus and Other Constitutional Controversies,” Ibid., 239).
30. David Weeks, statement as part of a community conversation about the death penalty in Huntsville, Texas, 15 January 2000, in the Sam Houston Memorial Museum.
31. Ehrenhaus and Owen, “Race Lynching,” 279; Renée Girard, Violence and the Sacred, trans. Patrick Gregory (1972; Baltimore, MD: Johns Hopkins University Press, 1977), 10; Garry Wills, “The Dramaturgy of Death,” New York Review of Books (21 June 2001), pp. 1–2 of the version downloaded from www.nybooks.com (accessed 18 September 2006).
32. Tillis and Patterson quoted from their presentations before “The Death Penalty, The Prison-Industrial-Complex, and The Future of Democracy in America,” The University of Illinois Center on Democracy in a Multiracial Society, 20 February 2003; Tillis's second quotation from his biography, posted by the ICADP; additional information about Patterson (and Burge's torturing him) is available via the Canadian Coalition Against the Death Penalty, www.ccadp.org (accessed 18 September 2006), and the Northwestern Law School's Center on Wrongful Convictions, www.law.northwestern.edu/wrongfulconvictions (accessed 18 September 2006).
33. Monster's Ball (Lion's Gate, 2001; dir. Marc Foster); for speculation on how certain punishments produce violence, see Stephen Hartnett, “Prisons, Profit, Crime, and Social Control: A Hermeneutic of the Production of Violence,” in Race, Class, and Community Identity, ed. Andrew Light and Meck Nagel (New York: The Humanities Press, 2000), 199–221, and Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (1975; New York: Vintage, 1995), 257–92.
34. On the “hysteria business,” see Jimmie Reeves and Richard Campbell, Cracked Coverage: Television News, the Anti-Cocaine Crusade, and The Reagan Legacy (Durham, NC: Duke University Press, 1994), 47, and Stephen Hartnett, “Imperial Ideologies: Media Hysteria, Racism, and the Addiction to the War on Drugs,” Journal of Communication 45:4 (1995): 161–69; for examples of the work called for here, see Criminology as Peacemaking, ed. Harold Pepinsky and Richard Quinney (Bloomington: Indiana University Press, 1991), and The Politics of Everyday Fear, ed. Brian Massumi (Minneapolis: University of Minnesota Press, 1993).
35. Justice Blackmun quoted from Callins v. Collins, 510 U.S. 1141 (22 February 1994); Marky quoted in David Von Drehle, Among the Lowest Dead: The Culture of Death Row (Ann Arbor, MI: University of Michigan Press, 1995), 409; Thurgood Marshall's Speech at the American Bar Association's 1990 “Annual Dinner to Honor the Judiciary,” as cited in The National Law Journal (8 February 1993): 8; Ryan, “I Must Act,” 13.
36. Bohman, Questioning a Broken System, 10, 16: for more on Diaz (and the source of the “undocumented alien” quotation), see Patricia O'Connor, “Protesters Challenge Diaz Death Penalty Decision,” ICADP press release, 23 July 2003; Richard Dieter, Innocence and the Crisis in the American Death Penalty (Washington, DC: DPIC, 2005); Grassroots Investigation Project, Reasonable Doubts; Michael Radelet, Hugo Adam Bedau, and Constance Putnam, In Spite of Innocence: Erroneous Convictions in Capital Cases (Boston: Northeastern University Press, 1992); Sister Helen Prejean, The Death of Innocents: An Eyewitness Account of Wrongful Executions (New York: Random House, 2005).
37. For more on Gary Graham, see Grassroots Investigation Project, Reasonable Doubts, 43–45.
38. Justice Powell, quoted in McClesky v. Kemp, 481 US 279 (1987), as printed in Bedau, Death Penalty, 256, 260, emphases added; on the shameful McClesky decision, see Phoebe Ellsworth, “Unpleasant Facts,” in Challenging Capital Punishment: Legal and Social Science Approaches, ed. Kenneth Haas and James Inciardi (Thousand Oaks, CA: Sage, 1988), 187–89.