Category Archives: Punishment
The November Coalition
The November Coalition
University of North Carolina Wilmington
In 1970, 16.3% of the Federal Prison population was serving time because of drug offenses. This represented a total of 3,384 individuals. By 2000, Prisoners sentenced for drug offenses represented a total of 57%. On September 30, 2000, the date of the latest available data in the Federal Justice Statistics Program, Federal prisons held 73,389 sentenced drug offenders. State prisons also hold a large number of drug offenders. In 2000, drug law violators comprised 21% of all adults serving time in State prisons. This represents 251,100 out of 1,206,400 State prison inmates. In 2001, 1 in every 146 U.S. residents was incarcerated in State or Federal prison or a local jail. As a result, the U.S. nonviolent prisoner population is larger than the combined populations of Wyoming and Alaska. As we know, the corrections population is not limited to those in prison. There were 5.9 million adults in the ‘correctional population’ by the end of 1998. This means that 2.9% of the U.S. adult population — 1 in every 34 — was incarcerated, on probation or on parole. The vast majority of those incarcerated for nonviolent offenses is behind bars, or otherwise involved with the corrections system, for a drug related offense.
If incarceration rates do not change, 1 of every 20 Americans (5%) can be expected to serve time in prison during their lifetime. For African-American men, the number is greater than 1 in 4 (28.5%). The primary reason for the remarkable increase in the incarceration rate is the adoption of mandatory minimum sentences for drug offenders. Since the enactment of mandatory minimum sentencing the Federal Bureau of Prisons budget has increased by 1,954%. Its budget has jumped from $220 million in 1986 to $4.3 billion in 2001. The November Coalition formed in response to the massive incarceration of offenders. In addition to the systemic problem of over-incarceration the November Coalition also points out the disproportionately devastating impact of mandatory sentencing on individuals and families.
According to their web site, the November Coalition includes “a growing body of citizens whose lives have been gravely affected by our government’s present drug policy. We are prisoners, parents of those incarcerated, wives, sisters, brothers, children, aunts, uncles and cousins. Some of us are loving friends and concerned citizens, each of us alarmed that drug war casualties are rising in absolutely horrific proportions.” The November Coalition is a non-profit, grassroots organization with the goal of “educating the public about the destructive increase in prison population in the United States due to our current drug laws. We alert our fellow citizens, particularly those who are complacent or naive, about the present and impending dangers of an overly powerful federal authority acting far beyond its constitutional constraints. The drug war is an assault and steady erosion of our civil rights and freedoms by federal and state governments.”
Formed in 1997 by survivors and victims of the drug war, the November Coalition uses real life examples to illustrate how a drug arrest can become a “frightening introduction to conspiracy statutes, government’s liberal use of informants, guideline-sentencing laws, and the nightmare usually leaves defendant and family confused and full of despair.” Long-term imprisonment has dramatic effects on personality and personal relationships. Prisoners suffer from severe restrictions on their human and constitutional rights, and all of these difficulties exact a toll on both the prisoner and those who love them.
Stories told by the Coalition provide support for the belief that tax dollars are endlessly poured into an ever expanding prison industrial complex that exists, in part to incarcerate the poor. The Coaltion argues that the discriminatory impact of drug policies should have been predicated, and if not, the discriminatory impacts are certainly clear to today’s policymakers. In effect, the policies create a situation in which the most vulnerable are least able to defend against injustice. In effect, our policies do not represent a realistic a war on drugs. They represent a war on people. The Coalition points out the similarities between alcohol prohibition of the 1920’s and drug prohibition today. Drug users have been dehumanized through demonizing propaganda, in particular “the crack epidemic,” that dominated national media during the late 1980’s.
The November Coalition seeks to rehumanize the victims of the drug war by telling their stories. By reading these stories it is clear that many drug war victims are regular people, good citizens and neighbors, whose lives have been derailed by a misguided war on drugs. The Coalition publishes “The Razor Wire” to report on drug policy reform efforts, legislative updates, and news about drug law vigils and meetings. This publication also includes letters from prisoners and others who have been victimized by the war on drugs. The organization also uses its extensive website, including “The Wall,” an online collection of prisoner photos and stories, to document the impact of the war on drugs.
The November Coalition provides an example of the internet’s potential for grassroots challenges to policy. The organization was started by a handful of people with a strong desire to educate people about a policy that they believed was having a devastating impact on individuals and society. As the November Coalition has demonstrated, the internet can be an extremely effective tool for information sharing. The organization has also demonstrated the internet’s potential as a tool for organizing those who share an opposition to a policy that has shaped our justice system, filled our prisons, and shaped the societies of America and many other countries.
References and Suggested Reading
Bonczar, T. and Glaze, L. (1999). “Probation and Parole in the United States.” Bureau of Justice Statistics. Washington DC: US Department of Justice.
Harrison, Paige M. and Beck, A.J. (2002). “Prisoners in 2001,” Bureau of Justice Statistics. Washington, DC: US Department of Justice.
Irwin, J., Schiraldi, V. and Ziedenberg, J. (1999). America’s One Million Nonviolent Prisoners. Washington, DC: Justice Policy Institute.
November Coalition – http://www.november.org
Common Sense for Drug Policy – http://www.csdp.org/
Criminal Justice Policy Foundation – http://www.cjpf.org/
Drug Policy Alliance – http://www.drugpolicy.org/
Media Awareness Project – http://www.mapinc.org/
National Drug Strategy Network – http://www.ndsn.org/
Students for Sensible Drug Policy – http://www.ssdp.org/
Felony Disenfranchisement Laws
Felony Disenfranchisement Laws
Kenneth W. Mentor
University of North Carolina Wilmington
At the center of the controversy surrounding felony disenfranchisement laws is the debate between the desire to punish and deter crime versus a desire to promote and protect civil liberties. Currently, nearly all incarcerated felons, and many with criminal records, are barred from voting. Forty-eight states disenfranchise incarcerated felons, thirty-seven disenfranchise felony probationers and/or parolees, and fourteen disenfranchise ex-felons who have completed their sentences.[i] The disenfranchised population has grown along with the criminal justice system. As the result of a reliance on incarceration, and the impact of felony disenfranchisement on recent elections, disenfranchisement has become an important issue. For example, in the 2000 presidential election, an estimated 4.7 million people were disenfranchised as the result of a felony conviction.[ii]
Many of those disenfranchised for a felony conviction have completed their criminal sentence. Another 1.4 million are on probation or parole. Familiar patterns of racism are apparent, with 13% of the black adult male population, approximately 1.4 million African American men unable to vote. This reflects a rate of disenfranchisement seven times the national average.[iii] Given current laws, 30-40% of black males will lose the right to vote at some point in their lives.[iv]
** Sidebar: State Disenfranchisement Laws
- 48 states and the District of Columbia prohibit inmates from voting while incarcerated for a felony offense.
- Only two states – Maine and Vermont – permit inmates to vote.
- 35 states prohibit felons from voting while they are on parole, 30 of these states also exclude felony probationers.
- Three states deny the right to vote to all ex-offenders who have completed their sentences. Nine others disenfranchise certain categories of ex-offenders and/or permit application for restoration of rights for specified offenses after a waiting period.[v]
**End of Sidebar
Although the right to vote seemed to have been settled by the Voting Rights Act of 1965,[vi] reliance on incarceration as a primary tool in the war on crime, and the demographics of those who have been disenfranchised, are bringing issues of felony disenfranchisement back to the forefront. Debate over disenfranchisement focuses on whether the practice is a relic of the past or justified by modern conceptions of democratic citizenship. Taking away the right to vote is similar to the medieval practice of “civil death,” where violations of the social contract resulted in loss of citizenship rights.[vii] In contrast to the practice of exclusion, the U.S. Supreme court held in Reynolds v. Sims (1965) that “the right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.”[viii]
The 14th Amendment, ratified in1868, recognizes African Americans as citizens with the right to vote. Section 2 of the Fourteenth Amendment reads:
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.[ix]
The “participation in rebellion, or other crime” caveat served as an opening for Jim Crow legislatures intent on denying blacks the right to vote. Southern states began to develop felony disenfranchisement laws specifically crafted to result in the disenfranchisement of newly freed African American males.[x] Although the right to vote was specifically granted to African Americans with the 1870 ratification of the 15th Amendment, the adoption of disenfranchisement laws continued with relatively few challenges until the 1970’s and 80’s, when these laws were challenged as violations of equal protection and voters’ rights.
**Sidebar: Consequences of State Felony Disenfranchisement Laws
- An estimated 5.3 million Americans, or 1 in 41 adults, have currently or permanently lost their voting rights as a result of a felony conviction.
- Among those disenfranchised, 74% are currently living in the community.
- In 11 states, a conviction can result in lifetime disenfranchisement.
- 12 states disenfranchise more than 10% of their African American population.
- 1.4 million African American men, or 13% of black men, are disenfranchised, a rate seven times the national average. In some states, 1 in 4 black men are prohibited from voting.[xi]
**End of Sidebar
In Richardson v. Ramirez the U.S. Supreme Court denied an equal protection challenge by ruling that Section 2 of the Fourteenth Amendment permits the removal of criminals from voter roles. [xii] Challenges based on the Voter’s Rights Act were similarly unsuccessful as courts refused to strike down felon disenfranchisement statutes because of an absence of causality between the statutes and historical patterns of discrimination.[xiii]
After a period of calm resulting from the failure of challenges based on equal protection and voter’s rights, federal courts of appeals have recently reinstated two challenges to such laws.[xiv] Johnson v. Bush revived a challenge to Florida’ s disenfranchisement laws. In granting summary judgment, the district court held that the disenfranchisement provision in Florida’s 1868 constitution was enacted “with the particular discriminatory purpose of keeping blacks from voting.”[xv] In Farrakhan v. Washington, the court described the “disproportionate impact on minority voting power” and “minority under representation in Washington’ s political process” that resulted from disenfranchisement.[xvi] The Johnson court similarly asked “whether felon status ‘interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.’”[xvii] Each of these cases has resulted in optimism among critics of felony disenfranchisement laws.
**Sidebar: Impacting Elections
“Felony disenfranchisement laws, combined with high rates of criminal punishment, may have altered the outcome of as many as seven recent U.S. Senate elections and at least one presidential election.”[xviii] Research examining the impact of felony disenfranchisement suggests that the Democratic Party would have gained control of the U.S. Senate in 1986 and held control until the present. Results of the 2000 election “would have been reversed had just ex-felons been allowed to vote.” [xix] If disenfranchised felons in Florida had been permitted to vote, “Democrat Gore would certainly have carried the state, and the election.”[xx] Adding to the problems in Florida, where an estimated 600,000 former offenders were ineligible to vote, a flawed list of over 57,000 names was included in the list of felons denied the right to vote.[xxi]
**End of Sidebar
Felony disenfranchisement laws are under increased scrutiny. Since 1997, 16 states have taken steps to reform disenfranchisement laws, resulting in more than 600,000 people regaining the right to vote.[xxii] Following the 2000 presidential election, the National Commission on Federal Election Reform unanimously recommended that states not prohibit voting by people who have completed their sentences. [xxiii] As pressures to eliminate overly broad disenfranchisement laws continue, change is likely at legislative and judicial levels.
The public opinion tide may also have turned, with research indicating that 80% of Americans believe persons who have completed their sentence should have their right to vote restored.[xxiv] Support for voting rights even extends to violent felons, with 66% supporting voting rights for those who have served their entire sentence.[xxv] In the debate between a desire to punish and deter crime, versus a desire to promote and protect civil liberties, the latter appears to have greater public support.”[xxvi] If this perspective dominates future debate, further erosion on felony disenfranchisement laws can be expected.
Hull, E., (2006). The Disenfranchisement of Ex-Felons. Philadelphia: Temple University Press
Karlan, P., (2004). Convictions and Doubts: Retribution, Representation, and the Debate over Felon Disenfranchisement. 56 Stanford Law Review, 5.
Manza, J., and Uggen, C., (2006). Locked Out: Felon Disenfranchisement and American Democracy. New York: Oxford University Press.
Mauer, M., (2002). “Mass Imprisonment and the Disenfranchised Voter,” in Marc Mauer and Meda Chesney-Lind, eds., Invisible Punishment: The Collateral Consequences of Mass Imprisonment. New York: The New Press.
Uggen, C. and Manza, J., (2004). “Democratic Contradiction? Political Consequences of Felon Disenfranchisement in the United States,” American Sociological Review, 67(6), pg. 794.
[i] Fellner, J. and Mauer, M., (1998) Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States, Human Rights Watch and The Sentencing Project. http://www.soros.org/initiatives/justice/articles_publications/publications/losingthevote_19981001/losingthevote.pdf
[ii] Manza, J., and Uggen, C., (2006). Locked Out: Felon Disenfranchisement and American Democracy. New York: Oxford University Press.
[iii] Fellner and Mauer, pg. 1.
[iv] Marc Mauer, (2002). Felon Voting Disenfranchisement, 12 Fed. Sent. R. 248.
[v] The Sentencing Project (2006). Felony Disenfranchisement Laws in The United States. Washington D.C.: The Sentencing Project. http://www.sentencingproject.org/PublicationDetails.aspx?PublicationID=335
[vi] The National Voting Rights Act of 1965. 42 U.S.C. § 1973-1973aa-6
[vii] Ewald, A.C., (2002). “Civil Death: The Ideological Paradox of Criminal Disenfranchisement Law in the United States,” Wisconsin Law Review, 1045, 1060.
[viii] Reynolds v. Sims, 377 U.S. 533.
[ix] U.S. Constitution, amend. XIV, section 2 (emphasis added).
[x] Schall, J. (2006). The Consistency Of Felon Disenfranchisement With Citizenship Theory, 22 Harvard Blackletter Law Journal 53.
[xi] The Sentencing Project (2007). Federal Voting Rights for People with Convictions. Washington D.C.: The Sentencing Project. http://www.sentencingproject.org/PublicationDetails.aspx?PublicationID=574
[xii] Richardson v. Ramirez, 418 U.S. 24, 56 (1974).
[xiii] Wesley v. Collins, 791 F.2d 1255, 1261 (6th Cir. 1986).
[xiv] Karlan, P., (2004). Convictions and Doubts: Retribution, Representation, and the Debate over Felon Disenfranchisement. 56 Stanford Law Review 5.
[xv] Johnson v. Bush, 214 F. Supp. 2d 1333, 1339.
[xvi] Farrakhan v. Washington, 338 F.3d at 1011, 1017 n.14.
[xvii] Johnson v. Bush, 214 F. Supp. 2d 1333, 1339.
[xviii] Uggen, C. and Manza, J., (2004). “Democratic Contradiction? Political Consequences of Felon Disenfranchisement in the United States,” American Sociological Review, 67(6), pg. 794.
[xix] Uggen, 794.
[xx] Uggen, 792
[xxi] Palast, G., (2000). “Florida’s flawed ‘voter-cleansing’ program.” salon.com. http://dir.salon.com/story/politics/feature/2000/12/04/voter_file/index.html?pn=1
[xxii] King, R., (2006). A Decade of Reform: Felony Disenfranchisement Policy in the United States. The Sentencing Project. http://www.sentencingproject.org/Admin/Documents/publications/fd_decade_reform.pdf
[xxiii] National Commission on Federal Election Reform (2001). http://www.reformelections.org/ncfer.asp
[xxiv] Manza, J., Brooks, C., and Uggen, C., Public Attitudes Towards Felon Disenfranchisement in the United States. The Sentencing Project. http://www.sentencingproject.org/Admin/Documents/publications/fd_bs_publicattitudes.pdf
[xxv] Manza, F., Brooks, C., and Uggen. C., (2002). “”Civil Death” or Civil Rights? Public Attitudes Towards Felon Disfranchisement in the United States.” Institute for Policy Research Working Papers, WP-02-39, pg, 27.
[xxvi] Manza, (2002). pg. 28. http://www.northwestern.edu/ipr/publications/workingpapers/wpabstracts02/wp0239.html
Fear and Loathing in an Age of Show Business: Reflections on Televised Executions
Fear and Loathing in an Age of Show Business: Reflections on Televised Executions
Paul Leighton – Eastern Michigan University
Copyright 1999 Paul Leighton. Permission is freely given to distribute paper copies at or below cost. All other rights, including electronic, are reserved. Contact the author regarding all other uses at the Dept of Sociology, Anthropology & Criminology, Eastern Michigan University, Ypsilanti, MI 48197. Small portions of this paper appeared in “Televising Executions, Primetime ‘Live’?” that appeared in The Justice Professional v 12 #2 (1999).
“The more civilized we become, the more horrendous our entertainments” – Frex in Wicked (Maguire 1995:320)
The idea of televising executions seems like a bad joke – a satiric comment on media values, audience taste or the latest in tougher-than-thou political campaigning. Any media cynic can quickly apply the logic of television to the event and create instant dark humor about summer reruns and slow motion reverse angles. What’s an appropriate commercial to go with them, or is this event more like a World Wrestling Federation pay-per-view program?
Grim humor aside, there is good reason to start examining televised executions: they are more proximate than we might like to believe and human lives are at stake. Televised executions may not be inevitable, but their prohibition rests on dated case law. A suit from the press, or even an Internet entertainment group, may prevail in a court, especially with a maverick tough-on-crime judge. Strange bedfellows like victim rights and open government advocates could form a coalition to broadcast at least one execution or someone could take advantage of miniaturized surveillance equipment to capture a bootlegged movie.
Even if the possibility is more remote than I believe, the stakes are potentially quite high. Politicians suggest that televising executions would be an effective part of a tough on crime agenda that would increase deterrence and save lives. The possibility also exists that the broadcast could propagate a brutalization dynamic that precipitates copy cats or inspires others to depravity that befits the promise of being executed before a worldwide audience. Even though a televised execution would be the first in the United States, the potential effects (good and bad) are international since the broadcast would go out to the global village. Video capture to the internet would ensure the dissemination of this image even further and preserve it for countless others in the future. Also at issue is public opinion and how a televised execution would change support for capital punishment. Would the televised image contribute a ‘reality’ to the taking of a life so that it undermines some of symbolic support for the death penalty, or could it make people complacent with an administrative death that resembles a medical procedure? Can the United States maintain credibility when railing against human rights abuses after broadcasting to the world our use of a sanction that other industrialized democracies renounce?
This paper cannot hope to resolve many of the issues surrounding televised executions, nor does it intend to. The purpose is to incite discussion. My belief is that footage of an execution will more likely than not appear on television or the internet at some point in the not so distant future. If this event really holds the promise of saving lives, then we should enact laws to make a televised execution happen as part of our legislative program to build a better world. If the event is going to touch off further violence, then there needs to be a debate about how to weigh that against a possible First Amendment right to free press or a belief that open government ideals require just such questionable practices to be done before the public. If a televised execution is going to touch off further violence, I think we should try to figure out what kind and how to minimize the harm done the broadcast’s fallout. (The possibility of this state-sponsored ‘snuff film’ being seen by billions and having no effect is both too disturbing and remote to be considered further.)
The following sections present the differing claims, identifying empirical issues and presenting data where possible. Some history of public and private executions starts the paper, followed by an examination of the claims that a televised execution would help deter people from committing homicide and the counterclaim that it might brutalize people or somehow encourage further violence. The next section analyzes the potential effect of televised executions is on public opinion and support for the death penalty – would a televised lethal injection shock our allegedly evolving standards of decency? A final section further engages these issues by imagining the televised execution of Oklahoma City bomber Timothy McVeigh.
Pathways to Televised Executions
Historically, executions have been public events attended by tens of thousands of people who had such a good time that our one of the terms for celebration – gala – comes from the word gallows (Johnson 1998). States started to restrict access in the 1830s through ‘private execution’ statutes to reduce unsightly public spectacles and thus undermine growing sentiment to abolish the death penalty (Bessler 1993). Courts accepted paternalistic justifications about the detrimental effects on the public from witnessing executions. One court, in upholding a fine for publishing details of a hanging that took almost 15 minutes to complete, stated that the execution needed to be surrounded “with as much secrecy as possible, in order to avoid exciting an unwholesome effect on the public mind. For that reason it must take place before dawn, while the masses are at rest, and within an enclosure, so as to debar the morbidly curious” (quoted in Bessler 1993: 365). But even denied direct access to the execution, people in places like Mississippi until the 1940s gathered “late at night on the courthouse square with chairs, crackers and children, waiting for the current to be turned on and the street lights to dim” (in Oshinsky 1996: 207).
Now, executions are largely shrouded in secrecy, although they are increasing open to the victim’s family and appear with some frequency as the subject of fictional movies. Although media representatives are official witnesses to an execution, the state statutes or prison media policies prohibit cameras. This exclusion is claimed to violate the First Amendment, but the presence of newsprint and radio reporters suggests the issue is more one of equal protection based on ‘reporting tools’: if a print reporter with a notebook is allowed, then a policy prohibiting a broadcast journalist with a camera is discriminatory. This argument has been rejected in one of the few rulings to date specifically on the question of televised executions. In 1977, Garrett had wanted to televise Texas’ first execution since 1964, but the federal Court of Appeals stated that he was still free to make his report by other means, including “by simulation” (in Bessler 1993: 375, quoting Garrett v Estelle). This precedent is binding only in the Fifth Circuit and could easily be overruled by citing other cases in which courts have noted that transcripts of proceedings are no substitute for television coverage. Indeed, in the two decades since this decision, several channels of CSPAN coverage of Congress supplement the Congressional Record and Court-TV broadcasts judicial proceedings. Further, “with television stations in the United States already broadcasting assassinations and executions in other countries…it is ironic and contrary to the First Amendment principles that executions performed by our own government are deemed inappropriate for television audiences in the United States” (Bessler 1993: 403)
Claims that executions should be televised because of the First Amendment or principles of open government share a basis in the importance of an informed public to participate in democratic self-governance. They differ, however, in that one claims the right of television to show the execution; the other claims a right of the general public to view the workings of government and television is the medium through which the information is carried. Courts have stated that visual impressions add dimensions that print does not and that “the importance of conveying the fullest information possible increases as the importance of the particular news event or news setting increases” (in Bessler 1993: 402 n 273). Because the death penalty is the ultimate act of state power — whether it is the first in many years or one of several dozen a state will do this year – citizens should have the fullest information possible from a televised proceeding. Indeed, Bessler notes that Eighth Amendment jurisprudence requires the prohibition on cruel and unusual punishment to be evaluated against the “evolving standards of decency that mark the progress of a maturing society” ( 1993: 423, quoting Trop v Dulles, 356 US 86 at 101, 1958). He argues that only with public executions can people have ‘full access’ to information regarding capital punishment, and only on this basis can a court divine whether the sanction violates contemporary standards of decency.
Arguments opposing public executions suggest that the spectacle will be harmful and that people can be informed about executions without a broadcast. Many concerns about the harmful nature of public executions are based on paternalistic distaste of crowd behavior in earlier times. The suggestion that ‘harm’ might befall an audience watching a lethal injection is difficult to support given what one media critic describes as “the tube’s day and night splatterings of brutality, grossness, commercialism, exploitation and inanity” (Goodman 1991:C18). The same could be said of the notion that an execution would be ‘shocking’ or ‘offensive’, but these concerns are much weaker and more problematic reasons for not televising executions. The lower court in Garrett noted: “If government officials can prevent the public from witnessing films of governmental proceedings solely because the government subjectively decides that it is not fit for public viewing, then news cameras might be barred from other public facilities where public officials are involved in illegal, immoral, or other improper activities that may be ‘offensive,’ ‘shocking,’ distasteful’ or otherwise disturbing to viewers of television news” (in Bessler 1993: 375)
The larger context to this discussion is the extent to which television is critical to being ‘informed’ in the sense important to a democratic country. Already, there exists what Johnson (1998) calls a ‘cottage industry’ of people viewing executions and writing about them. People can view simulated executions in many movies and television crime dramas. But the argument is that the visual depiction of an actual execution provides additional knowledge and that it is more likely to be seen than a newspaper or book. One media critic even asserts that “for most of the nation, all those beer-and-pretzel people, the picture is the thing and television is the source” (Goodman 1991:C18).
Debate about televising executions thus involves many more values than simple support or dissent about capital punishment. Combined with other arguments about the potential of broadcast executions to deter or abhor, people on different sides of the capital punishment debate can find themselves united on the issue of televising it. For example, in Sister Helen Prejean’s Dead man Walking, one of the condemned decided he would like his electrocution televised because it “would change some minds” when people to “see what they are really doing” (1993: 207). The father of one of his victims believes “what we should do is fry the bastards on prime-time” to “see if that doesn’t give second thoughts to anybody thinking of murder” (1993:235).
Their positions represent others who favor televising executions. For example, now-retired talk show host Phil Donahue expressed his desire to televise a 1994 execution on the assumption that the exposure would be a step towards repealing capital punishment (Goodman 1994: C15). Senator Mark Hatfield proposed public executions for federal death penalty cases because he believed people would turn against it once they saw into the execution chamber (Bessler 1993: 368 n 60). Other legislators, though, suggest televising executions as part of tough on crime public policy (Bowers and Pierce 1980:453; Gugliotta 1994:A13; Varne 1995:B3). More recently, Mike Wallace of 60 Minutes suggested coverage of McVeigh’s execution for his part in the Oklahoma City bombing that killed 168 people: “If it’s a public policy to take an individual’s life, why in the world shouldn’t the American public be allowed to see it?” The executive producer – who would later agree to air footage of Dr Jack Kevorkian assisting in a suicide – said it would happen “over my dead body…I don’t see any point except shocking people” (in Turner 1997: 83).
Many of the assumptions underlying the various positions are open to question and explored in subsequent sections, but one important conclusion is that people with opposing views on capital punishment could become strange bedfellows in the politics of televising an execution. They could even have drastically different reasons for supporting it, but still work together to support legislation, a litigation strategy, or a mission to capture an image and distribute it.
Deterrence is the notion that the pain of punishment is justified because of the larger good it does by preventing other crimes and saving lives. It is premised on a rational choice model in which people weigh the pleasures or gains of a crime against the certainty, severity and swiftness of a possible punishment. Empirical studies have failed to find support for a deterrent effect from capital punishment, but the question here is how publicity affects deterrence. Importantly, though, few people revoke their support for the death penalty if asked to assume that it has no deterrent effect (Ellsworth and Gross 1994:27). Retribution thus drives support for the death penalty, so discussions about promoting public good and crime reduction may mask troublesome questions about our society’s blood lust, its voyeuristic interest in punishment and the specter of racism haunting retributive attitudes (Barkan and Cohn 1994; Cohn, Barkan and Halteman 1991; Ellsworth and Gross 1994:44).
Empirical evidence, derived from a variety of methods in several countries suggests that there is no greater deterrent effect from capital punishment than from imprisonment (Blumstein, Cohen and Nagin 1978; Bailey and Peterson 1994; Camus 1960:192; Kappler, Blumberg and Potter 1996:308-316). The few findings of a deterrent effect are not robust, but fragile artifacts of methodology, assumptions and data construction (Bowers and Pierce 1975, 1980; Kappler, Blumberg and Potter 1996:315; McGahey 1980). The argument about televising the death penalty, though, assumes that deterrence is low because executions occur in secret and capital punishment would deter if only more people knew of its use. Indeed, Camus suggested that if deterrence were a serious argument in favor of capital punishment, then people should be shown more photographs of it or the scaffold should be moved to the town square. “The entire population should be invited,” he said “and the ceremony should be put on television for those who couldn’t attend” (1960:181).
Camus’ sarcastic comment is argued in earnest because part of deterrence is related to communications theory. Punishment needs to be certain, swift and severe — and these attributes need to be made salient to a potential law breaker. Television is ideal to ‘get out the word’ because it is present in 98-99% of households — more than have indoor plumbing or refrigerators (Surette 1992:33). People watch frequently and for a long duration; they regard TV as the most credible ‘complete,’ ‘intelligent,’ and ‘unbiased’ source of news (Bailey 1990:628; see Postman 1985 for an eloquent dissent). However, anecdotal evidence from people with intense exposure to capital punishment does not suggest a deterrent effect. European pickpockets frequently plied their trade at the hanging of other pickpockets (Camus 1960:189); both inmates and law enforcement officers who have been around executions have gone on to commit capital murders (Espy 1980; Senate Judiciary Committee 1968). More controlled and systematic research on publicized executions and deterrence bears out the anecdotal findings. Bailey, for example, examines not just newspaper but also television coverage, and controls for whether the news included graphic details. The correlations for deterrence (and its opposite, brutalization) are not statistically significant — and they do not become significant in any model with lag effects ranging from 1 to 12 months (Bailey 1990).
One flaw in the deterrence argument is that people normally identify with those whom they admire or envy, and the condemned are “characteristically uneducated, impoverished misfits who have committed cruel or cowardly acts without provocation or remorse. They may have strangled small children, killed whole families, dismembered their victims, and the like” (Bowers and Pierce 1980:455). Indeed, the assumption that people may “contrast themselves with these wretches” (ibid) gains currency given the great popularity of police shows. Fox’s show COPS, for example, has many videos people rent and their Internet site (www.tvcops.com) sells a wide variety of merchandise with the COPS logo that people purchase to be identified with ‘the good guys’, not to be personally deterred from crime.
Another limitation on using publicity to increase deterrence is that the ‘rational choice’ model does not always apply to homicidal situations. Rationality can be short term rather than have a longer time horizon that includes punishments many years down the road after a capture and conviction that may seem unlikely. Decisions also involve irrational elements and situational seductions (Katz 1988, Barak 1998). People kill in the heat of passion; they get drunk and/or drugged up. They can also have brain damage, including from abuse as a child (Lewis 1986). Some people live in the midst of such violence that they — like those in a war zone — plan and think about their own funerals (Brown 1993:A1). Children who say, “if I grow up, Mr. Kemp, I want to be a bus driver” obviously experience other threats to their lives with such salience that they will not be deterred by state ordered execution, whether televised or not (Weisskopf 1996:A1; emphasis supplied). The argument about deterrence further assumes that execution footage would stand out in a medium where violence is more rampant than in the real world. The methods of execution, especially lethal injection, seem tame by comparison to thousands of other televised deaths played to viewers and gruesome mutilation many have performed in video games.
The United States has already experimented with a ‘scared straight’ program in the form of a television documentary based on the Juvenile Awareness Project created by the Lifers’ Group at Rahway Prison (New Jersey). The rap sessions were meant to explain the consequences of crime and “demonstrated the unpleasantness and brutality of prison life by verbal abuse and physical intimidation directed towards the juveniles” (Cavender 1981:433). This program that “scared the hell” out of juveniles received extensive favorable media coverage and widespread calls for replications of its design (ibid:437). One set of inmates replicating the scared straight program even wanted a drama coach for maximum effect (Cavender 1981:438 n 4). Serious evaluation of the program, however, found no deterrent effect from the harassment and threats of violence that included rape. Some research indicated participants did slightly worse in terms of frequency and severity of subsequent offenses than a control group (ibid:434-5).
A replication involving broadcasting an execution raises serious issues about deterrence and the media. At what point does ‘communicating the consequences’ for a crime become an exercise in terrorizing people into submission? What are the ethical issues involved for the media in dramatizing an execution for heightened deterrence and/or ratings? Should the media – the National Entertainment State in the form of a ‘user-friendly’ Big Brother 1 (in Barak 1998:270-71) – help propagate terror to keep the rabble citizens submissive within a social order heavily marked by racial and class inequality?
Backfire Effects & Brutalization
If more publicity creates greater deterrence, then logic would suggest maximum effect from grisly executions that are frequently replayed. The rather obvious flaw is that at some point people may well become desensitized to violence or even brutalized, so a televised execution may result in increased homicides. Although most research finds neither a deterrent or brutalization effect following executions, more research indicates an increase in homicides. The question, as with deterrence, is what potential publicity has to magnify the effect. Brutalization research has not specified a single dynamic at work to explain why there are greater numbers of homicides following an execution. This section explores several possible paths, such as murder-suicide, copycat, imitation and celebrity criminals through which a deterrent effect could undermined or negated.
One of the strongest brutalization findings is from research by Bowers and Pierce, who conclude an overall brutalization effect for non-televised executions to be “two homicides one month later and one homicide two months later,” which they believe to be a minimal estimate (1980:481). Their analysis applied only to New York State, yet publicity about executions may carry a brutalization effect beyond its geographical boundaries and the limits of two months. Televising executions would certainly have this effect by making the image available across the nation – perhaps the world — and for redisplay at unlimited frequency for the indefinite future. The authors suggest the results of their study are “ominous”, and the “cost in innocent lives would be outstanding” if death rows were emptied through execution (1980:483). Even those who do not give full credence to these findings may wish to pause to do further research before televising executions and a brutalization effect for publicized executions seems at least likely enough that media wishing to televise the spectacle have some moral duty to ensure that their actions – however well meaning and within First Amendment rights – will not result in increased slaughter.
While deterrence rests on the notion that executions convey a message ‘crime doesn’t pay,’ it may also tell the audience that “a man’s life ceases to be sacred when it is thought useful to kill him” (quoted in Camus 1960:229). Executions can strengthen social solidarity by “drawing people together in a common posture of anger and indignation” (in Reiman 1998:40). A person who identifies with the state may then associate “the person who has wronged him with the victim of an execution” and see “that death is what his despised offender deserves” (Bowers and Pierce 1980:456). The issue is not simply about devaluing life, but about modeling and imitation, which are most likely when the violence is “presented as (1) rewarded, (2) exciting, (3) real, and (4) justified; when the perpetrator of violence is (5) not criticized for his behavior and is presented as (6) intending to injure his victim” (Phillips 1983: 561). Indeed, Phillips’ work on boxing – another example of acceptable and rewarded violence – is especially disconcerting in finding a greater increase in homicides following a heavily publicized boxing prizefight than a less publicized one, and finding that homicide victims bear at least some resemblance to the loser of the prizefight (Phillips 1983). This research certainly adds another strong reason for caution in approaching a televised execution.
Another chilling possibility is that publicity about an offenders misdeeds that accompanies a televised execution could unleash great harm to family and associates of the condemned – people who have neither done harm nor share guilt. Although the issue is not frequently discussed, hostility targeted at the condemned spills over onto others who act as a proxy for rage that may continue even after the murderer has been executed. Mikal Gilmore writes about the aftermath of his bother Gary’s execution in Utah – the first in the nation after the Supreme Court lifted the death penalty moratorium in 1976:
“I took comment after comment from people who betrayed their own intelligence and grace with the remarks and jokes they made, and each time, something inside me flinched. I felt that nobody would ever forget or forgive me for being the dead fucking killer’s brother. I learned a bit of what it is like to live on in the aftermath of punishment: as a living relative, you have to take on some of the burden and legacy of the punishment. People can no longer insult or hurt Gary Gilmore, but because you are his brother – even if you’re not much like him – they can aim at you” (1994: 357-8).
Mikal notes he received letters from people who told him he had no right to hold a job with Rolling Stone where he had the attention of young people; others wrote that he should be shot alongside his brother (1994: 356). Hours after the bar closed, people would pull up outside of the trailer where Gary’s mom lived: “she would hear voices, whispers, laughs, profanities, threats. Some people would yell horrible things, some people threw bottles or cans at the trailer” (1994: 359).
Sister Helen Prejean notes that her mother “gets angry phone calls about her daughter’s ‘misplaced kindness'” in being spiritual advisor to condemned men (1993: 68). The mother of one condemned man found a dismembered cat on her front porch one morning (1993: 107) and one of the attorneys had garbage dumped all over his yard (1993: 161). The examples make clear that misplaced public retaliation already occurs. Televising an execution has serious potential to expand such behavior by widely publicizing the offender’s misdeeds.
Further, backfire effects can happen when people who identify with the condemned see him as a hero. Indeed, Kooistra’s fascinating work Criminals as Heroes notes that hero status occurs when an audience finds “some symbolic meaning in his criminality” (1989:152), which is most likely under structural conditions that include widespread portions of the public feeling “‘outside the law’ because the law is no longer seen as an instrument of justice but as a tool of oppression wielded by favored interests” (1989:11). At such times, or among groups with this perception, there is a ‘market’ for symbolic representations of justice and “a steady need for the production of celebrities” (Kooistra 1989:162; Barak 1998: Chapter 11). These dynamics suggest that the execution of an African American activist like Mumia Abu-Jamal (1995) could elevate his status among some to a martyr and hero, thus precipitating racial strife reminiscent of what followed the verdict in the Rodney King beating case.
Another mechanism through which televised executions could contribute to violence is through a ‘murder/suicide’ phenomenon. This clinically recognized syndrome applies to killers who figure “the State will execute him and thereby accomplish what he himself cannot bring about by his own hand” (Strafer 1983:863 n 12). In this sense the death penalty “breeds murder” and becomes “a promise, a contract, a covenant between society and certain (by no means rare) warped mentalities who are moved to kill as part of a self-destructive urge” (in Strafer 1983:864 n 13; Bowers and Pierce 1980:458; Parker 1989a). For example, Ted Bundy went to Florida and Gary Gilmore went to Utah; they intentionally chose states that had capital punishment. Jeffrey Dahmer told the judge at his 1992 sentencing, “I wanted death for myself” (quoted in Barak 1998). This dynamic may not have much of an effect at present because of capital punishment’s infrequent and freakish application, but a televised execution would advertise this contract broadly and potentially stimulate the more self-destructive amongst us (Farberow 1980).
Indeed, Sellers suggests that power and attention contribute to capital murder where the murderer’s sense of wrong doing can find assuagement only at the hands of someone greater than himself. His private despair and desirable suicide turn a mean face upon him, he wishes to resolve his puniness and make of his death something grand; all his life’s prospects have drained into the ignoble, and nothing less than mass hatred and execution can vindicate his will (1990:36).
Research on serial killers seems to confirm this dynamic, including his observation that “society gave Ted [Bundy] what he so eagerly sought throughout his life: infamy, notoriety, and the attention of millions of people” (Hickey 1997:162). Bundy, “like some other serial killers” found his fortune in “recognition and celebrity status” (ibid); he was “reveling in the notoriety”, suggests Hickey (1997:164).
Serial killers are in some ways an extreme example, but the potential infamy and attention from a televised execution may have an impact on those whose violence comes out of a sense of powerlessness and need for attention. For severely neglected people, negative attention in the form of mass hatred is better than continued neglect. If part of the ‘contract’ is not just a desired death but nationwide media exposure, might there not be people motivated to kill by the promise of publicity — people who resolve their puniness not just by 15 minutes of fame but a television spectacle that includes the promise of made for TV movies? Might a televised death penalty move people to commit murders so they can be annihilated in the glare of the media lights?3
Seltzer asks many intriguing questions about “death as theater for the living” (Seltzer 1998:22) and argues that the U.S. already has a ‘pathological public sphere’ characterized by a ‘wound culture’: “The public fascination with torn and open bodies and torn and opened persons, a collective gathering around shock, trauma, and the wound” (ibid:2). Such a culture is a breeding ground, he argues, for serial killers like Dennis Nilsen, who dismembered bodies while listening to Aaron Copeland’s Fanfare for the Common Man. Nilsen described “his final public service as a mass spectacle of pathology and abjection. He was a black hole of violation and pollution about which the contemporary national body gathers, spectates, and discharges itself: in his words, he was ‘a national receptacle into which all the nation will urinate'” (1998: 19). The question, then, is whether televised executions would create more characters like Nilsen. Does the U.S. wants to use television to indulge him – and ourselves – in gathering, spectating, and discharging while under surveillance by the global village?
Television and the ‘evolving standard of decency’
Another possibility is that televising executions will create an unsettling spectacle and adding fuel to the abolitionist movement. In this view, executions are akin to making sausage and law – because being a spectator makes it less palatable. As Johnson (1998) notes, executions are not the hallmarks of civilization so exposure has the potential to increase awareness of capital punishment’s status as a regrettable lapse of civility. Publicity could fuel the abolitionist movement by increasing the salience of premeditated murder being done in our name, especially when the condemned is young, severely mentally retarded or female. If the reality of death in our name is not enough, then perhaps the actual methods when shown on television will be seen as inconsistent with our self-image as a civilized nation and world leader of human rights. A further possibility is that as people become more informed about capital punishment, they support it less.
In the scope of history, current executions are very secret events and the act of hiding executions ‘suppresses the horror’, which Camus said needs to be undone by showing — perhaps forcing — people to look at the executioner’s hands each time. This principle is extended to all those who have responsibility for bringing the executioner into being (1960:187; see also Prejean 1993: 197), and death penalty opponents have used this logic to suggest that judges and juries be required to witness any executions they impose as sentence (Hentoff 1995:A19). Support for the death penalty drops if people are required to be an ‘active participant’ such as juror or executioner (Howells et al 1995:413; Zakhari and Ransom 1999), so the increased awareness of executions could especially undermine support with people who want to “preserve the symbolism of capital punishment without having to witness a bloodbath” (Costanzo and White 1994:7). Publicity “simply makes the reality inescapable, and our role undeniable. If we want it, we should be able to look at it. If we can’t bear to look at it, maybe it’s time to rethink our desires” (in Howells et al 1995:414). Goodman, though, notes that people may have a difficult time with consistency in determining which atrocities to televise in the name of democracy (1991:c18) – an issue he raises with respect to the Gulf war but which is more problematic when applied to abortion.
This argument about television highlighting the reality of the death penalty is independent of the actual method used for the execution. The method is important, but executions are ultimately ugly because people representing the state gang up for the premeditated killing of a helpless person (Amnesty International 1989; Prejean 1993: 216). Those who participate in the process display discomfort and at times acute stress in spite of their efforts to see it as ‘just doing their job’ and trying to do it professionally (Johnson 1998; Prejean 1993). Although their feelings might not come across in a televised execution, people watching have to confront the reason for their distress — a cold-blooded killing.
Further, the methods used for execution may create revulsion, and although lethal injection is tame, television would also expose mistakes or irregularities that might offend the audience’s sense of justice. When Camus suggested that “the man who enjoys his coffee while reading that justice has been done would spit it out at the least detail” [1960:187; also quoted in Glass v Louisiana 471 US 1080, 1086 (1985)], he meant the guillotine in France. Since the 1960s, our methods of execution have involved less frequent dismemberment. Execution mostly involves a pinprick (preceded by an alcohol swab to prevent infection) rather than ‘the sound of a head falling’, although crude depictions of violated bodies have increasingly become part of our public entertainment on television and computer games advertised as “decapitating, spine-crushing fun!” (Interaction Magazine, Holiday 1996, p 46; see generally Bok 1998). The television program The Day After did have a modest impact on social consciousness about the effects of nuclear holocaust, but reactions included at least one person disappointed that “there weren’t a lot of people with their faces melting away” (in Oskamp 1989: 296). Electrocutions would be more intense, but there are few outward signs of pain more extreme than the “gasp or yawn” exhibited by the condemned in a lethal injection (Prejean 1993: 217). Indeed, electrocutions and lethal injections appear to be less painful than they are, which might produce complacency with contemporary methods (Johnson 1998:Chapter 2; Glass v Louisiana 471 US 1080;Trombley 1992).
Complacency can also be generated because the effect of decades on death row is difficult to capture on television, yet it is a crucial part of the pain experienced because of the sanction. Indeed, the stress of this time period is the reason the European Court of Human Rights refused to extradite a person to the U.S. for execution on the ground it was ‘inhuman and degrading punishment’ and violated article 3 of the European Convention on Human Rights (in Johnson1998:222; Grant 1998: 25).
Research that involves showing depictions of executions is inconclusive. Howells et al (1995) showed subjects seven minutes of footage from the commercial videotape Faces of Death that depicts execution by gas chamber and by electrocution. Twice as many people became less supportive of capital punishment than more supportive (57% and 27%), though the authors note that the condemned were nameless and anonymous people. A televised execution could acquaint viewers with the details of the crime and/or the human qualities of the defendant, and this context may contribute heavily to the net effect. The execution will always be more subdued than the crimes it is punishing, which could diffuse potential abolitionist sentiments. Further, a televised reenactment of the crime is likely to undermine both the potential deterrent or abhorrent effects because there is less reaction to real violence when it follows the viewing of fictional aggression (Howells et al 1995:423).
Abolitionist sentiment may get a boost from mistakes or flaws in the execution process that offend public sensibilities and generate ‘suddenly realized grievances’ (Haines 1992). Modern execution protocols are heavily bureaucratic affairs designed to drain much of the emotion out of the event; they create a certain etiquette of dying that ensures cooperation from the condemned and helps the execution team “face the morning of each new execution day” (in Haines 1992: 126; Johnson 1998). Ruptures in the execution routine that make the procedure more difficult and traumatic both for the participants and spectators include ones: (1) that are technically botched, (2) where condemned do not play the expected calm and noncombative role, (3) where solemnity of the death chamber compromised, and (4) involving irregularities in conviction that come to light (Haines 1992; Weyrich 1990). Haines does note that flaws, especially if only sporadic, may be interpreted as a need for technological improvement or as part of what a subhuman offender ‘had coming’ (1992:127).
Abhorrence also may be generated by spectators’ glee or exuberance at another’s death. For example, the last public execution was in 1936, when the hanging of a nineteen year old black youth named Rainey Bethea attracted an estimated 15,000 to 20,000 people. Espy notes the disorderliness of the crowd (and general scathing manner of the press) was one of the reasons for halting public hangings for rape (1980:540). More recent executions have attracted people to the prison gates, where they register sometimes intense support for the sanction, but the involvement of television adds to the possibilities for generating indignities both through its own sensationalism and by allowing new forms of collective celebration. Local football-style tailgate parties could become ‘happy hour’ events at bars with large screen televisions.
Television also shows our use of capital punishment to all of our neighbors in the global village, where the trend has been to renounce use of the death penalty even in cases of mass murder like genocide. The Parliamentary Assembly of the Council of Europe expressed the view that “the death penalty has no legitimate place in the penal system of modern civilized societies…it application may well be compared with torture” (in Grant 1998:20). Grant exposes the problem in her aptly titled article “A Dialogue of the Deaf?” (1998): the United States already demands exceptions to various international human rights convention to be able to continue not just the death penalty, but also executions of juveniles and the mentally retarded – even as it demands other countries make drastic changes in their legal systems. The claim the U.S. has to leadership in the area of human rights is potentially in jeopardy here as is our dedication to the basic concept of human rights: “The point of human rights language is that it maintains there are no culturally appropriate excuses for cruelty, inhuman and degrading punishment…The political culture of Texas is no less exempt from human rights scrutiny than that of Tehran or Baghdad” (in Grant 1998: 29; see also Prejean 1993: 197).4
Lastly, attitudes may change from exposure to information about the death penalty from commentary and discussions that surround the actual broadcast, but little evidence exists to support the notion that exposure to information has a significant impact on people’s attitudes (Bohm et al 1993). Social scientists have examined what has become known as the Marshall hypothesis, so named after a remark by that Justice in Gregg v Georgia suggesting that the “opinion of an informed citizenry” would oppose the death penalty (in Haney and Logan 1994:81; Bohm et al 1991).
Justice Marshall had in mind certain facts about the arbitrary and unjust administration of the death penalty (Fitzpatric 1995: 1072), though researchers use many methods to measure ‘informed opinion’. Ellsworth and Gross, however, indicate that results are fairly robust: “most people care a great deal about the death penalty but know little about it, and have no particular desire to know” (1994:40). In fact, “a large proportion of the American public already believes the death penalty is unfair, but supports it nonetheless” (ibid, 36). Information is not important because attitudes are “fundamentally noninstrumental symbolic attitudes, based on emotions and ideological self-image” (ibid, 31), including our basic political and social attitudes regarding liberalism, authoritarianism” (Howells et al 1995:413). When exposed to an environment rich in conflicting information – such as what would characterize a televised execution – people assimilate the “evidence that favored the position they already held, and rejected the contrary evidence” (Ellsworth and Gross 1994:34).
Also, television is a commercial enterprise that makes a profit through the audience size. Television is “an institution that exists primarily to translate the phenomenon of simultaneous mass viewing into a commodity that can be sold to advertisers” (in Cummings 1992), so televised executions would be driven by concerns about marketable images and audience share. At a time when 80% of the population supports the death penalty, no network would create a program that would possibly alienate such a substantial segment of its viewers and would be likely to be give viewers what they want – or what the television executives think people want.
McVeigh: Television and Terrorism
Previous sections of this paper have drawn on empirical studies where possible to illustrate the numerous possible outcomes of televising an execution. This section, while remaining necessarily speculative, attempts to further illustrate and engage these issues through a case study: the broadcast execution of Oklahoma City bomber Timothy McVeigh. McVeigh committed one of he most flagrant instances of mass murder when he placed a truck bomb in front of the Murrah Federal Building and blew the front off it in an explosion that killed 186 and wounded almost 800 others (Hamm 1997). Although many Americans assumed that the terrorist was Middle Eastern or at least foreign, the later discovery that the perpetrator was white and Midwestern did not change the assessment that the explosion was an act of terrorism felt throughout the country.
Feelings ran so deep in Oklahoma City that the judge moved the trial to Denver, where the jury pool would be less prejudiced. Those who suffered substantial loss because of the blast could watch a closed circuit broadcast of the proceedings in an auditorium back in Oklahoma City. A jury first found McVeigh guilty, then sentenced him to death. Public opinion supported the result and people tended to feel that if the US is going to have a death penalty, then McVeigh is just the type of criminal who should be executed. If we are not going to execute someone responsible for a body count that numbers in the hundreds, then who really does deserve capital punishment?
If McVeigh’s death sentence stands up on appeal and there is a date set for his execution, all those who watched the trial on the closed circuit television would have a strong argument that they should also be able to witness the execution through the same means. Former Chief Justice Burger outlines the logic, which blends a victim’s rights perspective with open government arguments:
Civilized societies withdraw both from the victim and the vigilante the enforcement of criminal laws, but they cannot erase from people’s consciousness the fundamental, natural yearning to see justice done – or even for retribution. The crucial prophylactic aspects of the administration of justice cannot function in the dark; no community catharsis can occur if justice is ‘done in a corner [or] in any covert manner’ (in Bessler 1993:431)
If it is true that this act of terrorism harmed the entire nation, then everyone should have the opportunity for catharsis by watching the final step in the administration of justice – McVeigh’s execution. Indeed, President Clinton indicated that the immediate casualties were not the only victims because, “this was an attack on the United States, our way of life and everything we believe in” (in Hamm 1997: 71).
The victim’s rights argument, either with respect to McVeigh or in other cases, is problematic to the extent that it is built on the assumption that watching the execution will help put closure on the event and promote healing. ‘Therapeutic vengeance’ seems better as an idea than in reality because people focus on their hatred of the killer rather than moving through the grieving process. Indeed, one grief counselor indicated that watching the execution did not fill a void: “Not too many people will honestly [say] publicly that it didn’t do much, though, because they’ve spent most of their lives trying to get someone to the death chamber” (in Brownlee, McGraw and Vest 1997: 28; see also Minow 1998). Sister Helen Prejean likewise describes the reaction of a father who watched the execution of his daughter’s killer as being like “a very thirsty man who had just had a long drink of salt water” (1995).
Before being sentenced to death, McVeigh uttered only four sentences, the key part of which was a sentence penned by former Supreme Court Justice Brandeis: “Our government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by its example” (in Thomas 1997: A14, quoting Olmstead v US 277 US 438, 1928). The cryptic remark seems to be a reference to actions of the government in Waco that ended in the deaths of innocent civilians at the Branch Davidian compound – an event occurring exactly two years before the Oklahoma City bombing. Indeed, Justice Brandeis, in dissenting from an opinion permitting a government wiretap wrote about the importance of the “indefeasible right of personal security, personal liberty and private property” (277 U.S. at 475) and penned his classic phrase about how the Bill of Rights conferred “the right to be let alone” (277 U.S. at 478).
In this context, the government laying siege to the compound and burning it to the ground not only violated cherished personal rights but also served as an example for McVeigh’s action that leveled the Murrah federal building. The comment, however, also serves to provoke thought about the lessons that are taught through execution. For example, is it a lesson about deterrence and how McVeigh’s violence is intolerable in a civilized society? Or is it a lesson about brutalization and how violence is an acceptable response to violence, so that McVeigh’s execution would invite further violence? Would televising McVeigh’s execution help in the task outlined by a speaker at one of the services in Oklahoma City when he asked, “How do we turn an act of insanity into a gracious act for humanity” (in Hamm 1997: 233).
Broadcasting the execution helps to “correct the wrongdoer’s false message that the victim was less worthy or valuable than the wrongdoer” and “reasserts the truth of the victim’s value by inflicting a publicly visible defeat on the wrongdoer” (Minow 1998: 12). The bombing already had the effect of rallying people around conventional values. People who had emphatically denounced government as corrupt found they had more in common with those they were debating about government reform than anti-government ‘patriots’ like McVeigh. Even many militias that were fearful of government tyranny ended up disbanding or moderating their militant rhetoric. McVeigh’s televised execution thus holds the potential to create further social solidarity and the widespread support for his execution means it would fulfill Camus’ dictum that “one must kill publicly or confess that one does not feel authorized to kill” (1960:187). International reaction, however is still a question, especially because countries are increasingly renouncing capital punishment for mass violence including genocide (Grant 1998). Indeed, how would other countries respond to criticism by the U.S. that they were not treating political prisoners with appropriate respect for their human rights?
In spite of potential for strengthening the collective conscience against violence, McVeigh’s broadcast execution has serious potential for backlash by those on the survivalist right who see McVeigh as embodying Jefferson’s quote about how the tree of liberty must be renewed by the blood of patriots. They fulfill the conditions identified by Kooistra for heroic criminals because they see symbolic meaning in McVeigh’s actions against the government and the tyranny they see in it. These self-proclaimed patriots see themselves as outside the law, which they see as a tool wielded by people so corrupt as to have lost any claim to legitimate power. McVeigh would be the latest and perhaps greatest hero among many who have died for the cause or become a ‘prisoner of war’ (see Hamm 1998; Dyer 1997; Stern 1996; Ridgeway 1995).
The remarks of Justice Brandeis that precede the ones McVeigh quoted at his sentencing are potentially disturbing in this respect. Justice Brandeis wrote that “crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for the law; it invites everyman to become a law unto himself; it invites anarchy” (277 US at 485). He stated quite strongly that if in the administration of criminal law the end is held to justify the means or that the government may commit crimes “would bring terrible retribution” (ibid). For many in the survivalist right, the government does not have the moral authority to rule, so McVeigh’s death sentence is invalid and can be seen as a state crime. In this context, McVeigh’s words about his execution are a warning and a call to arms. Televising his execution furnishes an image of the event that will be a symbol of injustice to some and an incitement to “terrible retribution”. Replays of the execution could easily fan the flames of rage and continue a cycle of violence that started with government wrongdoing in Waco, which was countered by McVeigh’s bombing, which is responded to with his execution – which will invite what forms of government contempt, anarchy and retribution?
The origins of this paper lie in a time when I was doing work for Robert Johnson on the first edition of Deathwork and happened across Postman’s provocative Amusing Ourselves to Death: Public Discourse in an Age of Show Business (1985). Although my more serious research on this issue did not start until later, I had many discussions about televising executions. A surprising number of people thought it was a good idea and articulated a single reason – abhorrence or deterrence – that aligned with their stance on the death penalty. Few people considered other possible effects or that there might be multiple effects. In short, I was bothered by the casualness with which people seemed to advocate televised executions and my hope in writing this article is to expose the complexity of the issue. Indeed, most people who have not studied the death penalty are not aware of brutalization dynamics, but the very real possibility that a televised execution would precipitate further violence means society should take the issue seriously. Further research should be done to inform public policy, especially to the extent that lives are at stake.
Further, in making sense of the issue, more explicit attention needs to be paid to what it means to be a civilized society and how that relates to what Seltzer calls ‘death as theater for the living’ (1998:22).5 I am reminded of a story about a sailor who is shipwrecked alone on an uncharted island. His apprehension about the inhabitants, though, is relieved when he sees a gallows: “At last, I’ve reached civilization!” (Johnson 1996, 1998). The story highlights that only people who were well settled would build an apparatus for punishment, but the assumption of ‘civilization’ is simultaneously undermined by the suggestion of deliberate and ceremonious cruelty. Does this theater of punishment attract large numbers of ‘civilized’ people, and how do they react to the spectacle of suffering?
The story can be updated because televising executions requires sophisticated technology that suggests an advanced society, but the content of the broadcast serves to question how civilized the society is. One can imagine, for example, the sailor at the dawn of the new millennium returning from a tour of duty dictated by a temporary employment agency and checking on e-mail from friends washed up on other corners of the globe. S/He navigates the Internet to check out the latest promotional spin-offs from the COPS television show, then follows a link to information about an imminent execution. After reading a description of the crime and some statements from the victim’s family, the cybernaut clicks on a button that turns the computer screen into a high definition television set and programs the VCR to record the event. The monitor tunes in to the Criminal Justice Network (channel 237), and s/he sits back to watch the televised execution.
Earlier practices included quartering the body and sending hunks to places where the condemned had committed crimes, or alternatively hanging the body in chains “there to remain so long as one piece might stick to another” to serve as testament and deterrent (in Hartshorne 1893:15). The current idea is to capture the image of the execution and broadcast the virtual body far and wide, to exist in perpetuity. Previous practices of publicly dissecting the body in an anatomy hall (Richardson 1987) are replaced by deconstructing the spectacle in discussions over lattes or in Internet chat groups (alt.rec.tv.executions).
And what would the postmodern spectator think if the condemned’s final words to the executioner were, “Hey, man, you shouldn’t be killing people for no four hundred dollars” (in Prejean 1993: 182).
1 McKenna discusses ‘electronic drugs’ in a chapter entitled ‘Heroin, Cocaine and Television’ (1992). He argues it is a high-technology drug that creates an “alternative reality by acting directly on the user’s sensorium, without chemicals being introduced into the nervous system” (1992:218). He continues: “No epidemic or addictive craze or religious hysteria has ever moved faster or made as many converts in so short a time… no drug in history has so quickly or completely isolated the entire culture of its users from contact with reality. And no drug in history has so completely succeeded in remaking in its own image the values of the culture that it has infected. Television is by nature the dominator drug par excellence” (ibid:218-220).
2 The execution of serial killer Ted Bundy, for example, attracted many people with T-shirts reading ‘The Bundy BBQ’, ‘Toast Ted’, and ‘Burn Bundy Burn’; one person passed out electric chair lapel pins while another held a sign saying “Roses Are Red, Violets Are Blue. Good Morning, Ted. We’re Going to Kill You’; and state officials approved a vanity license plate reading ‘FRY TED’ (Parker 1989a; 1989b). Perhaps Bundy and others are like the protagonist in Camus’ novel The Stranger: “For all to be accomplished, for me to feel less lonely, all that remained to hope was that on the day of my execution there should be a huge crowd of spectators and that they greet me with howls of execration” (in Montague and Matson 1983:36).
3 Similarly, a televised execution may encourage self-destructive behavior and the abandonment of legitimate appeals by the condemned who already see death as an escape from the bleak conditions on death row (Johnson 1998; Strafer 1983).
4 I already received a cartoon of Secretary of State Albright in China being introduced: “The emissary from the country with the world’s largest prison population wishes to criticize our justice system, sir.” (Signe Wilkinson/ Philadelphia Daily News). But then the world has already heard an Alabama Department of Corrections official say of the state’s chain gang that “[i]t became real humane on my part to put these inmates out there in leg irons because they have virtually no chance of escaping. Therefore, they’re not going to get shot… It’s not that I’m a softie. It’s expensive” (in Gorman 1997: 455). More on the international view of US and capital punishment can be found in the United Nations Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions (http://www.unhchr.ch/html/menu4/chrrep/98chr68a3.htm)
5 Certainly violence, suffering and death are subjects that historically capture our attention, so some of this inquiry needs to focus on television as a medium for mass communication. In his brilliant work, Postman argues that entertainment is the super-ideology of television (1985). Not all programming will be entertaining, but what television does best is show dramatic pictures – such as sex and/or violence – that are visually stimulating to keep the viewer tuned in for the commercial. Television is not completely bereft of information; Postman suggests, however, that the ever-changing, almost hyper-active pace of images creates decontextualized and fragmented information. It is like a game of peek-a-boo with subjects appearing then vanishing, and its foundation in show business means that good television seeks “applause, not reflection” (Postman 1985: 77, 91). Television amuses but cannot challenge the viewer the way a book can challenge a reader who makes a commitment to sit down by herself in a state of intellectual readiness to “be confronted by the cold abstractions of printed sentences” (ibid, 50). Less charitably, Charren and Sandler (1983:38) state: “What speaks in the great tragedies speaks through the word, speaks to the imagination, speaks for the understanding of human life – its misery – its wonder. But in television, the word is void and the violence is there as violence – like raw sewage in a river.”
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