Executing Freedom

The Cultural Life of Capital Punishment in the United States

Daniel LaChance

• Publisher: University of Chicago Press
• Year: 2016
• ISBN:
  9780226066721
• Topic: History
• Subtopic: World History
• Index: History

In the mid-1990s, as public trust in big government was near an all-time low, 80% of Americans told Gallup that they supported the death penalty. Why did people who didn't trust government to regulate the economy or provide daily services nonetheless believe that it should have the power to put its citizens to death?That question is at the heart of Executing Freedom, a powerful, wide-ranging examination of the place of the death penalty in American culture and how it has changed over the years. Drawing on an array of sources, including congressional hearings and campaign speeches, true crime classics like In Cold Blood, and films like Dead Man Walking, Daniel LaChance shows how attitudes toward the death penalty have reflected broader shifts in Americans' thinking about the relationship between the individual and the state. Emerging from the height of 1970s disillusion, the simplicity and moral power of the death penalty became a potent symbol for many Americans of what government could do—and LaChance argues, fascinatingly, that it's the very failure of capital punishment to live up to that mythology that could prove its eventual undoing in the United States.

Part 1

From Rehabilitation to Retribution

CHAPTER ONE

“Inside Your Daddy’s House”

Capital Punishment and Creeping Nihilism in the Atomic Age

Increasingly, I have come to believe that the death penalty is fundamentally a symptom of bewilderment and confusion in society. A culture that resorts to the death penalty as a method of coping with its troubled is evidencing the same desperation, panic and outrage as the emotionally twisted individual who, in his instability, kills a fellow human being.1 — Byron E. Eshelman, Death Row Chaplain (1962)

“Buried treasure. Wake up, little boy. There ain’t no caskets of gold. No sunken ship. And even if there was—hell, you can’t even swim.”2 — Truman Capote, In Cold Blood (1965)

In 1966, hundreds of thousands of Americans flocked to bookstores to buy In Cold Blood, Truman Capote’s true crime account of the murder of a midwestern family and “its aftermath.”3 The story had mixed all the salacious details of a thriller with the gravitas of a tragedy. Acting on false information, two inept ex-cons, Perry Smith and Dick Hickock, had traveled across the state of Kansas to rob a wealthy farming family, the Clutters, of the mountains of cash they thought they would find in a safe. When they arrived, though, they discovered that no safe existed. In frustration, the pair tied up members of the family in separate rooms and killed them—leaving with nothing more than a few dollars.

Capote followed the case from the hatching of the ill-fated plot to the hanging of Smith and Hickock on a rainy night some five years later. Reconstructing what had happened from extensive interviews he conducted with the killers and members of the community their crime upended, Capote told a complex story. He wrote not of a morally innocent world sundered by crime and repaired through punishment, but of a morally troubled world in which superficial innocence masked collective self-doubt. In his hands, the crimes of the deviant revealed a widespread sense of emptiness lingering beneath the surface of wholesome American values.

Nowhere was this moral ambiguity more evident than in Capote’s description of the punishment of Smith and Hickock. The long-awaited punishment of the men seemed as devoid of purpose as the crime had been. The book’s title had a double meaning, Capote told an interviewer at the time: “in cold blood” referred not only to the way the press had covered the murder of the Clutters, but to the chillingly antiseptic process of putting the two killers to death.4 The writing subtly invited readers to compare the pointless violence of the executions with the pointless violence of the crimes. By the time they climbed the twelve steps of the Kansas gallows, life in the town their crime had disrupted had returned to normal. No members of the Clutters’ extended family came to see the hangings. What there was to see, Capote reported, was violence as unnecessary and aimless in character as what it was punishing.

Although few knew it at the time, Vintage had released the book at a pivotal moment in the history of the American death penalty. In that same year, a team of lawyers from the Legal Defense Fund (LDF), a legal advocacy organization for African Americans with ties to the NAACP, launched a full-out attack on the constitutionality of the sanction. They would ultimately argue, among other things, that the death penalty was a cruel and unusual form of punishment banned by the Eighth Amendment to the Constitution. The Supreme Court had, in earlier decisions, pegged the definition of cruel and unusual to Americans’ “evolving standards of decency.” The LDF faced a number of indicators—like the failure of state legislatures to abolish capital punishment—that suggested that such standards had not yet evolved to encompass abolition of the death penalty. To overcome that hurdle, its lawyers planned to argue that it was only because the death penalty’s use was so infrequent and biased that it was tolerable to a majority of Americans, who would never tolerate the widespread, frequent executions that a fair system would produce. Armed with this larger strategy, the LDF took on the case of any capital defendant who lacked counsel and flooded the courts with appeals. Executions stopped by the middle of 1967 as lower courts began delaying them to see how the Supreme Court would respond.5

By some measures the time seemed ripe for an all-out effort to end the death penalty. Both its use and its popularity had been in a slow decline since the end of World War II. Liberal elites had long challenged the wisdom of retributive, eye for an eye justifications for punishment. It was barbaric, they claimed, not only because it was an affront to human dignity, but also because, in light of the rehabilitative techniques the state had at its disposal, it was unnecessary. By the middle of the 1960s, their perspective seemed to be trickling down to many ordinary Americans. A 1966 poll had found that 42 percent of Americans were in favor of capital punishment,6 one of the lowest numbers in decades.

But if optimism about the state’s ability to rehabilitate criminals had grown, so too had concern about the nation’s soul. In the 1950s and 1960s, acts of mass murder committed by white men periodically rocked the nation. To some these crimes seemed symptomatic of a nation whose culture had been infected by pernicious forces: a crass materialism that valued things more than people, a dangerous moral relativism that held all value judgments to be equally valid, and a profane secularism that prioritized momentary pleasure over long-term spiritual fulfillment. The result, many American critics warned, was a kind of nihilism—a belief that life was meaningless—that violent crime reflected. Some on the right associated the nation’s reluctance to punish with the impoverishment of its soul. And they presented the death penalty as a way to regain what had been lost. Thus, while the death penalty was languishing in one corner of American culture, it was being reborn in another.

Popularizing the Rehabilitative Ideal

Nurtured by the role experts had played in overseeing New Deal programs in the 1930s and the unprecedented part scientists played in winning World War II, a technocratic approach to government continued to flourish during the early years of the Cold War.7 Government, Democratic and Republican liberals of the era agreed, had affirmative obligations to the well-being of the people, and experts ought to play a prominent role in helping it meet those obligations.

Such a philosophy extended to the state’s power to punish. Across the country, prominent psychiatrists regularly spoke about the nation’s criminal justice policy in public forums and advised progressive administrators in state and federal justice systems. Underlying the advice they tendered was the principle that the state had the means and the expertise to make rehabilitation, not retribution, the purpose of punishment.8 For its most progressive proponents, rehabilitative psychotherapy would be a process of self-discovery that would guide inmates to law-abiding lives when they left prison. Caryl Chessman, an inmate on California’s death row in the 1950s, became an international cause célèbre by writing best-selling books like Cell 2455, Death Row (1954) and Trial by Ordeal (1955). In them he presented himself as an amateur criminologist and advanced this vision of an empowering therapeutic state.9 Turning the psychoanalytic lens on himself, Chessman told readers that his first contact with the criminal justice system had hardened rather than helped him:

Emphasis, as it too often is, was placed on neutralizing my drives instead of finding legitimate and challenging outlets for them. I never felt or was led to feel that “straightening out” would mean other than a disastrous defeat. Indeed, defeat seemed to be the goal of those dealing with me. The youngster in trouble, if he is to be helped, must believe that society is a genuinely interested big brother, not a grim patriarch who demands submissive conformity or else.10

The assumption, for Chessman and the liberal criminologists his best seller channeled, was that repression led to antisocial behavior. If the criminal found prisons staffed by liberal psychiatrists instead of authoritarian guards, Chessman claimed, he would be more apt to abandon his antisocial stance toward society.

Chessman was not the only popularizer of liberal criminology. In a series of mass-market films about capital punishment in the 1950s and 1960s, Hollywood filmmakers consciously sought to win audiences over to the cause of abolishing the death penalty by showing them that the condemned were not rebels, but rather victims of a world that had beaten them down and left them powerless mentally as well as physically. In Walter Wanger’s I Want to Live! (1958) and Irvin Kershner’s The Hoodlum Priest (1961), the condemned were not savvy heroes but pitiful souls, victims of social forces or the winds of fate who needed that “genuinely interested big brother,” as Chessman put it.11

I Want To Live! shrewdly dramatized the rare case of a woman on death row.12 In an Academy Award–winning performance, Susan Hayward played Barbara Graham, a California woman who is wrongly executed for the murder of a wealthy socialite during a burglary gone bad.13 Tough on the surface after a life of bad breaks, Barbara is soft underneath. Wanger had urged the film’s director, Robert Wise, to create “the feeling that this girl is isolated, in a cage, from the rest of the world,”14 and Wise had delivered with a film that exploited viewers’ understanding of women as vulnerable, maternal figures incapable of real criminal agency. Barbara’s baby boy visits her on death row, reminding audiences that her impending execution could never be a triumph of individual courage: it was a merciless severing of the sacred bond between a mother and her child. The execution scene, too, capitalized on Victorian gender roles to portray going to the gas chamber as a degrading, pornographic spectacle. To avoid facing the condemning or voyeuristic looks of witnesses, Barbara receives permission to wear a sleep mask to her execution. Mask on, she stumbles helplessly toward the gas chamber, at one point falling backward in fear (see fig. 2). Instead of offering closure, Barbara’s last words are a rhetorical question. When a guard advises her to breathe the cyanide fumes deeply so as to avoid pain, she hisses back, “How would you know?” This—a condemned woman terrified by the unknown and literally unable to face her fate—was Wanger’s deromanticized vision of death at the hands of the state: isolating, disorienting, humiliating, terrifying.

Figure 2. In contrast to films that had shown condemned men bearing their fate with courage, I Want to Live! (1958) presented execution as degrading and disorienting.

The Hoodlum Priest, released several years later, adopted a similar tack.15 In it, a liberal priest takes Billy Lee Jackson, a sympathetic white hoodlum, under his wing. Billy goes straight, taking a job at a produce market, but he cannot shake his reputation as an outlaw. When his employer unjustly fires him for stealing from the company, he gives up on a legitimate life and burglarizes the market in retaliation. Caught red-handed, he kills his former employer in a panic and is sentenced to death for the crime.

Like I Want to Live! the film depicted the condemned as a victim of social forces, his good-faith efforts to become a law-abiding citizen stymied by a world that does not give second chances. It too sought to unsettle audiences with its execution scene. Whereas older Hollywood renderings of capital punishment kept viewers aware of how much time the condemned had left—usually by shots of a clock ticking inexorably toward the appointed time—The Hoodlum Priest kept audiences unsure of how much time Billy has left once his execution day arrives. He is moved from his regular cell to a holding cell to the gas chamber in one dizzying, continuous sequence. Without the ritual buildup, the punishment is both disorienting and mechanical. Time magazine’s movie critic pointedly adopted impersonal language to describe an execution scene he found profoundly moving: “The condemned object is swiftly, efficiently prepared for the gas chamber. In the boy’s eyes, wide with horror, the spectator reads the incredulous realization: in a few short minutes his life, the only life he has or will ever have, is with absolute certainty going to end.”16 The execution was not a sublime moment of moral closure, but an unceremonious death by assembly line.

But perhaps the most explicitly liberal film of the bunch was Richard Brooks’s 1967 film version of Capote’s In Cold Blood. Before filming began, Brooks, who both wrote and directed the film, traveled to the Menninger Clinic in Topeka, Kansas. Headed by Karl Menninger, a prominent liberal psychiatrist, the clinic was a nationally renowned therapeutic training and treatment center at the forefront of making the case that psychiatry could and would revolutionize the criminal justice system.17

Over the course of two days of meetings, Brooks got a crash course in the tenets of liberal criminology. Criminals, he learned, were not like normal people. Their criminal behavior stemmed from an internalized sense of inferiority that had itself been caused by a variety of environmental conditions. Poverty, a dysfunctional family, or humiliating childhood experiences had stunted their moral and emotional development, leaving them bereft of self-esteem and unable to respond to provocations in the way normal people would. Crime was not something they chose. It was more like something that happened when they stumbled blindly into situational traps and saw violence as their only means of escape. One of the Menninger clinicians compared committing murder to losing a chess game: “You make one move and you are caught by that. You have to make another move, then you have to make another move, you know? Many times we say, ‘How did I ever get caught in something like that?’ We got caught . . . without even being aware. We made one small move after the other.”18 In such circumstances, who could justify the death penalty? It was not punishment, but one final act of cruelty from a world that had often been tormenting a person for decades. It was especially cruel because it was unnecessary. Modern psychiatric research conducted at places like the Menninger Clinic promised a near future in which psychologists could defuse these ticking human time bombs. As he sat in meetings with their researchers and clinicians, Brooks confirmed his suspicions: psychiatry had changed the criminological landscape, yet Americans still stubbornly clung to a retributive way of thinking about punishment.

Energized by his two days at the clinic, Brooks decided to make the Menninger perspective central to the film. The opening titles prominently acknowledged his debt to the experts at the clinic. Menninger research, audiences learned, showed that every “senseless” murderer had issued a cry for help before he killed. And Perry Smith, Brooks pointedly showed them, had done just that, only to be ignored by a prison staff that lacked the training to recognize it. “Maybe if they’d had a head doctor here during my first stretch, he’d have known I had a bomb ticking inside of me. He’d have known I wasn’t ready for parole,” Perry tells the prison chaplain shortly before his execution, driving home the film’s heavy-handed faith in psychiatric expertise.19

Liberal criminologists and enlightened jurists applauded these films. Donald E. J. MacNamara, dean of criminology at the New York Institute of Criminology and chairman of the Annual Meetings Program for the American Society of Criminology, screened I Want to Live! for criminologists at the society’s annual conference. Afterward, he ...