Gordon Morris Bakken - Invitation to an Execution: A History of the Death Penalty in the United States

Invitation to an Execution

A History of the Death Penalty in the United States

Edited by Gordon Morris Bakken

University of New Mexico Press, Albuquerque

ISBN for this digital edition: 978-0-8263-4858-6

2010 by the University of New Mexico Press

All rights reserved. Published 2010

Printed in the United States of America

The Library of Congress has cataloged the printed edition as follows:

Invitation to an execution : a history of the death penalty in the United States / edited by Gordon Morris Bakken.

p. cm.

Includes bibliographical references and index.

ISBN 978-0-8263-4856-2 (cloth : alk. paper)

1. Capital punishmentUnited StatesHistory. 2. Capital punishmentUnited StatesStates. 3. Executions and executionersUnited States. 4. Executions and executionersUnited StatesStates.

I. Bakken, Gordon Morris.

HV8699.U5.I58 2010

364.660973dc22

2010010258

To Richard B. Bilder

and

the memory of Gordon B. Baldwin

Admirals of the University of Wisconsin Law School

Invitation to an Execution

In November 2004, Evan J. Mandery of the John Jay College of Criminal Justice in New York wrote, It is meaningless, really, to speak about the death penalty in America without being geographically specific. Each death penalty state, as well as the federal government, has its own system of determining who shall be subject to capital punishment. These systems share some basic features, but they are each unique, and some are more problematic than others. This book focuses on these differences and many of the similarities among the states and with the federal government. I must thank all of the librarians who wrote for this project and who gave so many hours helping the scholars researching this most difficult topic. Without the librarians, the research would be virtually impossible given the bulk of material available to researchers. Further, the librarians helped to separate the law review material from the social science scholarship for many of the authors. Thank you!

Gordon Morris Bakken

California State University, Fullerton

Note

1. Evan J. Mandery, Foreword, in Jon Sorensen and Rocky Leann Pilgrim, Lethal Injection: Capital Punishment in Texas during the Modern Era (Austin: University of Texas Press, 2006), ix.

Invitation to an Execution

Invitations to executions were very much a part of the ritual of death concluding a criminal proceeding in the United States. Until the early twentieth century, lawmen issued printed invitations to executions. These invitations were the last gasp of public executions in death penalty states. These volumes are an invitation to readers to an understanding of the death penalty in America. The goal of the essays is to put death penalty statutes and practices in particular contexts. Moreover, these original essays use history to illuminate the circumstances of law and politics. Stuart Banner persuasively argues, Many aspects of capital punishment today appear paradoxical without an appreciation of its history. Some of those paradoxes include the United States commitment to human rights worldwide amid executions not practiced in the industrialized western world. The death penalty was to serve as a deterrent, yet executions have been moved from the public square in front of crowds of thousands to the confines of prisons, hidden from public view. Some say the death penalty should be retributive, but we have come to the position that death must be relatively painless. History, particularly American cultural history, facilitates understanding of this movement in time and place.

An emphasis on place in time and history provides another dimension helping us to understand the evolution of American cultural attitudes about crime and the death penalty. In November 2004, Evan J. Mandery of the John Jay College of Criminal Justice in New York, wrote, It is meaningless, really, to speak about the death penalty in America without being geographically specific. Each death penalty state, as well as the federal government, has its own system of determining who shall be subject to capital punishment. These systems share some basic features, but they are each unique, and some are more problematic than others. One part of this work is devoted to a regional analysis in the scholarly context of regionalism and regional studies. The split of the American Civil War commonly defines the North and South. The Midwest emerged from the settlement of the Old Northwest. The Great Plains was first the Great American Desert and was later marked by aridity, dry-land farming, and irrigation. The Northwest of Washington and Oregon also was part of a settlement pattern, but now in the influence of the Pacific rains, coastal mountains, and arid interiors. The regional essays put death penalty issues in this geographic and cultural context.

The American West is less well defined. Readers of Gordon Morris Bakken and Brenda Farrington, editors, The American West: Interactions, Intersections, and Injunctions (2001), will find the question of Where is the West? debated by fourteen scholars. Parts of this West are included in the essay on the Great Plains because of physiographic characteristics. California, Montana, and Texas have separate chapters because of their unique histories and the centrality of the death penalty in the criminal justice systems of the three states.

The death penalty is part of the criminal justice system and the system is frequently the target of criticism as part of the death penalty abolition movement. Criminal punishment was a product of English tradition, liberal democracy of the early national period, and the creation of the penitentiary. In addition to reforming deviants, the prison as well as the death penalty was to be a deterrence of people from crime. Lawrence Friedman argues that deterrence works, but the relationship between punishment and behavior is not a straight line but a curve; it flattens out as more and more people are, in fact, deterred. Yet if murder is a crime of passion in some cases, how can the death penalty deter such behavior?

Some argue that race is a factor in the criminal justice system with African Americans accused, arrested, tried, and jailed out of all proportion to their numbers. Black defendants were sentenced to death at higher rates than white defendants. This was particularly true in the American South. But southern justice was not solely in black and white. American Indians suffered similar discrimination in state criminal courts. Racism was not merely a psychological response driven by irrational gut instinct, nor solely a collective symbolic construction to define American whiteness, it served white economic and political interests. Racial stereotypes were transported into jury boxes. The nature of the jury was part of criticism of the system as unfair.

The jury, the democratic protector of liberty and the foundation of justice, was only one part of the system. Lawrence Friedman sees crime as national in scope, but criminal justice is as local as local gets. It is not a system but a jigsaw puzzle with a thousand tiny pieces. Legislators write statutes, police enforce the rules of the statutes, district attorneys prosecute the criminally accused, defense lawyers defend the accused, and in the courtroom judges and juries go their own way. It is easy to argue that the system is flawed.

It is even easier to find fault through specific cases. For example, Bill Neals Getting Away with Murder on the Texas Frontier: Notorious Killings & Celebrated Trials (2006) demonstrates that many of the criminally accused slipped through the criminal justice net for a wide variety of reasons. David R. Dows Executed on a Technicality: Lethal Injustice on Americas Death Row (2005) tells many tales of justice failing to function in Texas. Among those cases is that of Randall Dale Adams. A jury found Adams guilty of the murder of Robert Wood, a Dallas police officer, gunned down in 1976. Adams, a man without a criminal charge or a criminal conviction on his record, lost at trial due to the testimony of David Harris, a career criminal, who lied to avoid the death penalty. Harris did even better based on his testimony. He was not charged with anything. Adams went to death row and Harris went free only to murder. This time the jury sent him to death row and Texas ended his life in 2004. Harris admitted to the Wood murder long before his execution, but that did not get him off death row. Rather a documentary filmmaker, Errol Morris, produced The Thin Blue Line , it gained public notice, Adamss lawyers went to the Texas Court of Criminal Appeals and won a new trial. The prosecution did not move to trial and Adams was a free man. He returned to his law-abiding lifestyle. The system had flaws on both sides.