The Death Penalty : an American History / Stuart Banner
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AN AMERICAN HISTORY STUART BANNER HARVARD UNIVERSITY PRESS Cambridge, Massachusetts, and London, England INTRODUCTION Copyright © 2002 by the President and Fellows of Harvard College All rights reserved Printed in the United States of America First Harvard University Press paperback edition, 2003 Third printing, 2003 Library of Congress Cataloging-in-Publication Data Banner, Stuart, 1963– The death penalty : an American history / Stuart Banner. p. cm. Includes bibliographical references and index. ISBN 0-674-00751-4 (cloth) ISBN 0-674-01083-3 (pbk.) 1. Capital punishment—United States—History. 2. Capital punishment—Moral and ethical aspects—United States. 3. United States—Social conditions. I. Title. HV8699.U5 B367 2002 364.66′0973—dc21 2001047047 For Tamara: donec gratus sum tibi, Persarum vivo rege laetior Abbreviations ix Introduction 1 1. Terror, Blood, and Repentance 5 2. Hanging Day 24 3. Degrees of Death 53 4. The Origins of Opposition 88 5. Northern Reform, Southern Retention 112 6. Into the Jail Yard 144 7. Technological Cures 169 8. Decline 208 9. To the Supreme Court 231 10. Resurrection 267 Epilogue 307 Appendix: Counting Executions 313 Notes 315 Acknowledgments 371 Index 373 AAS American Antiquarian Society, Worcester, Mass. CHS Chicago Historical Society, Chicago, Ill. CTA Connecticut State Archives, Hartford, Conn. CTL Connecticut State Library, Hartford, Conn. FDR Franklin D. Roosevelt Library, Hyde Park, N.Y. GAA Georgia Department of Archives and History, Atlanta, Ga. ILA Illinois State Archives, Springªeld, Ill. JC Jimmy Carter Library, Atlanta, Ga. LC Library of Congress, Washington, D.C. LFP Lewis F. Powell, Jr., Archives, Washington and Lee University School of Law, Lexington, Va. MAA Massachusetts Archives, Boston, Mass. MDA Maryland State Archives, Annapolis, Md. MOA Missouri State Archives, Jefferson City, Mo. NA National Archives, College Park, Md. NCA North Carolina State Archives, Raleigh, N.C. NYA New York State Archives, Albany, N.Y. NYDT New-York Daily Tribune NYHS New-York Historical Society, New York, N.Y. NYL New York State Library, Albany, N.Y. NYT New York Times PAA Pennsylvania State Archives, Harrisburg, Pa. PG Pennsylvania Gazette SCA South Carolina Archives & History Center, Columbia, S.C. TXA Texas State Archives, Austin, Tex. VAA Library of Virginia, Richmond, Va. VG Virginia Gazette INTRODUCTION INTRODUCTION tephen clark was hanged in Salem, Massachusetts, in the Sspring of 1821. No one had been hurt when Clark had set ªre to a barn late one night the previous summer, but the ªre had spread to some of the neighboring wooden houses, and arson of a dwelling during the night was a capital crime. Ever since his conviction in February, petitions had been presented to the governor seeking to have Clark’s sentence com- muted to imprisonment. Clark was easy to sympathize with. He was only sixteen years old, pale and thin, with no criminal record, from a respect- able family. But clemency had been denied. “Those who have been so anxious to have him spared, would allow mercy to wink justice out of sight,” one local newspaper insisted; “they do not take into their estima- tion the vast amount of anxiety, of distress and misery that has followed his crime.” The execution began around noon, when Clark was taken from jail to the gallows in a carriage, escorted by a military guard, along with the sheriff and his deputies, mounted and armed. The jailer rode with Clark, as did a few ministers, who raced the clock to ensure that Clark attained penitence, and thus the possibility of an inªnite afterlife, before it was too late. Hundreds, maybe thousands, of spectators walked alongside the pro- cession. They caught no glimpse of Clark until the carriage arrived at the gallows. As the crowd watched quietly, Clark emerged and climbed the steps up to the scaffold. The ministers and the sheriff followed. Clark wobbled and nearly fainted from fear; he had to lean on one of the ministers while the sheriff read his death warrant to the crowd. When the time came for Clark to address the spectators, he was too shy to speak. Instead, at his re- quest, the Reverend Mr. Cornelius read a few sentences Clark had com- THE DEATH PENALTY posed in jail the day before. “May the youth who are present take warning by my sad fate, not to forsake the wholesome discipline of a Parent’s home,” Clark urged with the aid of Cornelius’s voice. “May you all pray to God to give you timely repentance, open your eyes, enlighten your un- derstandings, that you may shun the paths of vice and follow God’s com- mandments all the rest of your days. And may God have mercy on you all.” The Reverend Mr. Carlisle delivered a sermon. The two ministers joined Clark in private prayer for a few minutes. Then the ministers hur- ried down the steps, leaving Clark on the stage with the sheriff and his deputies. The deputies tied Clark’s hands behind his back and opened his shirt a bit so the rope would touch his skin. Clark submissively lowered his head to make it easier for the deputies to slip the noose around it. Up on the platform, surrounded by spectators, Clark seemed young, small, helpless before the assembled power of the state. Sighs and groans could be heard from the crowd. Like many executions, Clark’s would inspire maudlin but evidently sincere poetry, placing in ironic juxtaposition the stern jus- tice imposed on Clark the criminal and the widely felt tenderness toward Clark the human being. When the deputies drew the cap over Clark’s head, obscuring his face, everyone knew the moment was near. The sher- iff gave a signal, a deputy sprang the trap door in the ºoor, and Clark dropped, stopping with a sudden jerk a few feet down, “dangling between heaven and earth” as the nineteenth-century cliché put it.1 xecutions are very different today. No one is hanged for arson. In fact Eno one is hanged for any crime—even most of our murderers are sent to prison, and for those we execute, the usual method is lethal injection. The execution does not come within months of the crime, but only after a decade or more of litigation over whether the trial was conducted in ac- cordance with the Constitution. The crowds don’t number in the thou- sands or even the hundreds, but rather around twenty or so, all that will ªt into the small drab concrete-block rooms deep within the state prison. No children watch. There may be a minister, but the condition of the condemned person’s soul and his chances of entering heaven are not among the government’s major concerns. There are no afternoon ser- mons or speeches—just a group of grim prison employees, shortly after midnight, trying to ªnish the job as quickly as they can. In 1821, when 2 INTRODUCTION Stephen Clark died, an execution was outside, open to the public, and embedded in ritual; now it is behind closed doors, accessible only to a few, with as little ceremony as possible. The execution itself has been hidden from public view, but the issue of capital punishment has grown extraordinarily visible. Death was once the standard punishment even for nonviolent crimes like burglary and coun- terfeiting, and few judged the law too severe. For the past two centuries, however, the death penalty has been the subject of some of our most bit- ter debates. Whether phrased in philosophical, political, or economic terms, the arguments have been rooted in a basic moral question: Are there any crimes so grave, or any criminals so evil, that death is the only just punishment? Is it right for the state, acting in our name, to put crimi- nals to death? From Stephen Clark to Gary Gilmore, from Bruno Hauptmann to Timothy McVeigh, Americans have argued passionately about the purposes, methods, and effects of capital punishment. As the annual number of executions in the United States approaches one hun- dred, and as swelling death rows in many states promise to push the exe- cution rate sharply higher, the debate will only grow in volume and in- tensity of feeling. This book is about the many changes in capital punishment over the years—changes in the arguments pro and con, in the crimes punished with death, in execution methods and rituals, and more generally in the way Americans have understood and experienced the death penalty. Many aspects of capital punishment today appear paradoxical without an appreciation of its history. Americans pride themselves on their commit- ment to human rights, but the United States is virtually alone among Western nations in putting its criminals to death, and in some parts of the world America’s use of capital punishment is considered inconsistent with human rights. The death penalty is intended in part to deter others from committing crimes, but we inºict it in private. It is often justiªed in retributive terms, and yet we take great care to make it as painless as possi- ble. We can resolve these apparent paradoxes only by looking back at how they came to exist. he execution of Stephen Clark was not soon forgotten. Fifteen years T later, when a committee of the Massachusetts House recommended abolishing the death penalty, Clark’s case was the committee’s primary 3 THE DEATH PENALTY evidence that the state’s criminal code was too severe. A decade after that, when the reformer Charles Spear needed an example of the harshness of capital punishment, he too turned to Clark.2 Had Clark been imprisoned for his ªre no one would have remembered him a year later, but because of his death sentence Clark dangled in public memory far longer than he had lived on earth, as an image invested with meanings of which he him- self could never have dreamed.