Von Drehle - Among the Lowest of the Dead The Culture of Capital Punishment

AMONG THE LOWEST OF THE DEAD

Law, Meaning, and Violence

The scope of Law, Meaning, and Violence is defined by the wide-ranging scholarly debates signaled by each of the words in the title. Those debates have taken place among and between lawyers, anthropologists, political theorists, sociologists, and historians, as well as literary and cultural critics. This series is intended to recognize the importance of such ongoing conversations about law, meaning, and violence as well as to encourage and further them.

Narrative, Violence, and the Law: The Essays of Robert Cover, edited by Martha Minow, Michael Ryan, and Austin Sarat

Narrative, Authority, and Law, by Robin West

The Possibility of Popular Justice: A Case Study of Community Mediation in the United States, edited by Sally Engle Merry and Neal Milner

Legal Modernism, by David Luban

Lives of Lawyers: Journeys in the Organizations of Practice, by Michael J. Kelly

Unleashing Rights: Law, Meaning, and the Animal Rights Movement, by Helena Silverstein

Law Stories, edited by Gary Bellow and Martha Minow

The Powers That Punish: Prison and Politics in the Era of the Big House, 19201955, by Charles Bright

Law and the Postmodern Mind: Essays on Psychoanalysis and Jurisprudence, edited by Peter Goodrich and David Gray Carlson

Russias Legal Fictions, by Harriet Murav

Strangers to the Law: Gay People on Trial, by Lisa Keen and Suzanne B. Goldberg

Butterfly, the Bride: Essays on Law, Narrative, and the Family, by Carol Weisbrod

The Politics of Community Policing: Rearranging the Power to Punish, by William Lyons

Laws of the Postcolonial, edited by Eve Darian-Smith and Peter Fitzpatrick

Whispered Consolations: Law and Narrative in African American Life, by Jon-Christian Suggs

Bad Boys: Public Schools in the Making of Black Masculinity, by Ann Arnett Ferguson

Pain, Death, and the Law, edited by Austin Sarat

The Limits to Union: Same-Sex Marriage and the Politics of Civil Rights, by Jonathan Goldberg-Hiller

From Noose to Needle: Capital Punishment and the Late Liberal State, by Timothy V. Kaufman-Osborn

Communities and Law: Politics and Cultures of Legal Identities, by Gad Barzilai

The Jurisprudence of Emergency: Colonialism and the Rule of Law, by Nasser Hussain

Jurors Stories of Death: How Americas Death Penalty Invests in Inequality, by Benjamin Fleury-Steiner

Transformative Justice: Israeli Identity on Trial, by Leora Bilsky

Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts, edited by Timothy D. Lytton

Punishing Schools: Fear and Citizenship in American Public Education, by William Lyons and Julie Drew

Among the Lowest of the Dead: The Culture of Capital Punishment, by David Von Drehle

The Culture of Capital Punishment

DAVID VON DREHLE

The University of Michigan Press
Ann Arbor

Copyright by the University of Michigan 2006
First published in 1995 by Times Books, a division of Random House, Inc.
All rights reserved
Published in the United States of America by
The University of Michigan Press
Manufactured in the United States of America
Printed on acid-free paper

2009 2008 2007 2006 4 3 2 1

No part of this publication may be reproduced, stored in a retrieval system,
or transmitted in any form or by any means, electronic, mechanical, or otherwise,
without the written permission of the publisher.

A CIP catalog record for this book is available from the British Library.

Library of Congress Cataloging-in-Publication Data

Von Drehle, Dave.

Among the lowest of the dead : the culture of capital punishment/
David Von Drehle.

p. cm. (Law, meaning, and violence)

First published in 1995 by Times Books, a division of Random House, Inc.
Includes index.

ISBN-13: 978-0-472-03123-8 (pbk. : alk. paper)
ISBN-10: 0-472-03123-6 (pbk. : alk. paper)

1. Executions and executionersUnited States. 2. Death rowUnited States. 3. Death row inmatesUnited States. I. Title. II. Series.

ISBN 13 978-0-472-02698-2 (electronic)

To my mother

And I Tiresias have foresuffered all

Enacted on this same divan or bed;

I who have sat by Thebes below the wall

And walked among the lowest of the dead...

T. S. Eliot, The Waste Land

A book about a subject as controversial and fluid as the death penalty is inevitably a bucket pulled from a moving stream. No sooner is it published than readersand the authorbegin to wonder whether the water in the bucket still represents the whole river.

Has this book about a slow, costly and inefficient systeman arbitrary, chaotic... merry-go-round, in the words of one of the central figuresbecome outdated by the frequency with which Texas has carried out executions in the past ten years and by the burst of executions in states like Virginia, Oklahoma, and Missouri? (Indeed, a twenty-first-century death belt now runs north from Texas through Oklahoma and into Missouri. These three states regularly account for more than half of all executions each year. The former death belt, which ran from Florida to Texas across old Dixie, has been outdone, at least for now.)

Because of these few states, more men (and a handful of women) have been executed in the past decade than I expected when I wrote, in the closing pages of this book, that a random few dozen executions per year is still the limit of possibility. I remember wondering to myself how many executions the modern death penalty system could produce in a year and guessing that the limit would probably be around fifty. Five years later, in 1999, the states put ninety-eight people to death. Nor was that an aberration. In 2002, Texas alone executed as many people (thirty-three) as were put to death in Florida during the entire span of this book. I imagine a year with a hundred or more executions nationwidea rate unmatched in more than half a century in Americaremains possible.

A whole book, or maybe a shelf of them, could be written exploring the reasons for these higher rates in Texas and the new death belt. A fact alluded to in these pages is that Texas wrote a death penalty law in the 1970s that was unique, closer to a mandatory penalty than the elaborate weighing system upheld by the U.S. Supreme Court for other states. The Texas law is simpler and apparently less open to interpretation than laws like Floridas that are premised on guided discretion.A special Texas death courtthe state Court of Criminal Appealsexpedites capital cases, showing scant appetite for parsing the law. And the key federal court for Texas inmatesthe Fifth Circuit Court of Appealshas turned a cold eye on death row issues. At the same time, Texas has done little to provide strong advocates for its death row inmates; it is likely that Justice Ruth Bader Ginsburg had Texas at least partly in mind when she recently observed that she had never seen a death penalty case, in nearly ten years on the Supreme Court, in which the inmate had received a good defense at trial. Her colleague former justice Sandra Day OConnor echoed this assessment in a 2001 speech, having weighed capital cases on the Supreme Court for twenty years. Citing statistics showing that capital defendants in Texas with court-appointed attorneys were 28 percent more likely to be convicted than those who hired their own counseland 44 percent more likely to be sentenced to death if convictedOConnor ventured: Perhaps its time to look at minimum standards for appointed counsel in death cases and adequate compensation for appointed counsel when they are used. OConnor gave this speech not in Texas but in Minnesota, which does not have the death penalty. You must breathe a big sigh of relief every day, OConnor told her audience.