Mercer University School of Law Mercer Law School Digital Commons Faculty Publications Faculty 2014 Cold Comfort Food: A Systematic Examination of the Rituals and Rights of the Last Meal Sarah Gerwig-Moore Mercer University School of Law, [email protected] Follow this and additional works at: https://digitalcommons.law.mercer.edu/fac_pubs Part of the Criminal Law Commons, and the Criminal Procedure Commons Recommended Citation Sarah L. Gerwig-Moore, et al., Cold Comfort Food: A Systematic Examination of the Rituals and Rights of the Last Meal, 2 Brit. J. Am. Legal Stud. 411 (2014). This Article is brought to you for free and open access by the Faculty at Mercer Law School Digital Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Mercer Law School Digital Commons. For more information, please contact [email protected]. COLD (COMFORT?) FOOD: THE SIGNIFICANCE OF LAST MEAL RITUALS IN THE UNITED STATES SARAH L. GERWIG-MOORE1 Merceer University School of Law ANDREW DAVIES2 State University of New York at Albany SABRINA ATKINS3 Baker, Donelson, Bearman, Caldwell & Berkowitz P. C ABSTRACT Last meals are a resilient ritual accompanying executions in the United States. Yet states vary considerably in the ways they administer last meals. This paper ex- plores the recent decision in Texas to abolish the tradition altogether. It seeks to understand, through consultation of historical and contemporary sources, what the ritual signifies. We then go on to analyze execution procedures in all 35 of the states that allowed executions in 2010, and show that last meal allowances are paradoxically at their most expansive in states traditionally associated with high rates of capital punishment (Texas now being the exception to that rule.) We con- clude with a discussion of the implications of last meal policies, their connections to state cultures, and the role that the last meal ritual continues to play in contem- porary execution procedures. 1 Associate Professor, Mercer University School of Law. 2 Director of Research, New York State Office of Indigent Legal Services & Post-doctoral Fellow, State University of New York at Albany. 3 Associate, Baker, Donelson, Bearman, Caldwell & Berkowitz P. C. We would also like to express our deep appreciation for the able research and editorial assistances of Bethany Veasey, who gathered the lion’s share of the data relied on, and Natasha Crawford, Dale Brantley, and Jessica Lee. 409 3 Br. J. Am. Leg. Studies (2014) CONTENTS INTRODUCTION .......................................................................... 411 I. THE CONTEMPORARY POLICY CONTEXT IN TEXAS ............ 412 II. CONTEXT AND PERSPECTIVE............................................... 416 A. ORIGINS OF AND SUPPORT FOR THE TRADITION OF THE LAST MEAL ........................................................................... 417 B. LAST MEALS AS POLITICAL STATEMENTS: WHAT THEY MAY (AND MAY NOT) MEAN ................................................................... 418 C. LAST MEALS OFTEN REVEAL SOMETHING SPECIAL AND TENDER ABOUT A PRISONER- OR THE ONES GUARDING HIM ..................................................................................... 420 III. GETTING THE RITUALS RIGHT: WHY DO STATES MAKE THE DECISIONS THEY DO ABOUT LAST MEALS? ................ 422 A. APPETITE SUPPRESSANTS: A DESCRIPTION OF THE RESTRICTIONS STATES IMPOSE ON LAST MEALS .............................................. 422 B. ECONOMICS, PUNITIVITY OR RITUALISM? EXPLAINING THE CHOICES STATES MAKE ................................................... 427 i. Economics and Security ...................................................... 427 ii. Punitive Penal Culture ........................................................ 428 iii. Retributive Ritualism and the Use of Capital Punishment .......... 429 C. ANALYSIS AND RESULTS .......................................................... 429 D. DEATH REALLY IS DIFFERENT ................................................. 432 IV. ANALYSIS AND CONCLUSION ...................................... 433 A. DO MERCY AND CRUELTY SHARE THE SAME DINNER TABLE OR IS BLIND TRADITION THE MAIN COURSE? .................. 433 i. Cruelty ............................................................................ 433 ii. Guilt ................................................................................ 434 iii. Mercy .............................................................................. 435 iv. Blind Tradition .................................................................. 436 a. Historical Significance .................................................. 436 b. Texas .......................................................................... 437 B. IF THE PHILOSOPHY IS KINDNESS, THE KEY IS CODIFICATION ..................................................................... 438 410 Cold (Comfort?) Food INTRODUCTION There is no shortage of controversy surrounding capital punishment in Amer- ica. From innocence to lethal injection, from remorse to retribution, the issue is as complex and painful as any modern policy issue can be. About the same time that Troy Davis – a man whose innocence was proclaimed by supporters from his trial witnesses to the Dalai Lama – was executed in Georgia in the fall of 2011, the execution of a Texas man convicted of a brutal hate crime sparked its own brand of controversy. Lawrence Russell Brewer’s case, however, seems to have gained notoriety more because of the change in Texas policy it provoked than because of Brewer’s crime or eventual punishment. Brewer had been convicted in the late 1990’s and sentenced to die by lethal injection for dragging James Byrd, 49, to his death in Jasper, Texas.4 With his execution looming, Brewer requested a final meal of two chicken fried steaks, a triple meat bacon cheeseburger, a cheese omelet, fried okra, fajitas, a pint of ice cream, a pound of barbecue with white bread, a pizza, and three root beers.5 With an extravagant meal in front of him (although it is not clear that he was served his entire request), Brewer didn’t eat a bite. When Texas State Democratic Senator John Whitmire learned of the request (and Brewer’s failure to eat his final meal), he wrote a letter to the Texas Criminal Justice Division requesting that it immedi- ately end the last meal practice and warning that if it did not, he would introduce legislation to end the practice in the next session. “It is extremely inappropriate,” Whitmire wrote, “to give a person sentenced to death such a privilege.”6 In this article we review the meaning and substance of the last meal ritual through a consideration of legal and empirical evidence. In Section I we raise the question of what Texas ‘lost’ when it discarded the last meal tradition. We exam- ine the manner in which the decision was taken, the process used, and the reasons given by those involved. We end with a consideration of the possible impact on those most directly affected – condemned inmates and their jailers. In Section II we review evidence on the cultural roles that last meals play, and have played, in execution rituals. A brief historical review reveals many forms last meals have taken, and their remarkable endurance through different epochs. Next, we review the use of last meals as a means of sending a political message – both by condemned inmates and other commentators. Last, we consider the rare- fied interactions that the occasions of last meals produce between condemned in- mates and their jailors – from the somber to the light-hearted, the disengaged to the compassionate. In Section III we examine the different rules that exist in states regulating the content of last meals. We review the details of these policies, and then divide states into groups based on whether they permit greater or lesser choice among inmates 4 See 3 Whites Indicted in Dragging Death of Black Man in Texas, CNN.COM (July 6, 1998 11:07 pm), http://edition.cnn.com/US/9807/06/dragging.death.02/ 5 See TEXAS ENDS ‘LAST MEALS’ FOR DEATH ROW INMATES, LA TIMEs Blog (Sept. 23, 2011, 2:03 pm), http://latimesblogs.latimes.com/nationnow/2011/09/texas-ends-death-row- inmates-final-meals.html. 6 See Manny Fernandez, Texas Death Row Kitchen Cooks Its ‘Last Meal’, N.Y. TIMES, Sept. 23, 1991, at A17, available at http://www.nytimes.com/2011/09/23/us/texas-death-row- kitchen-cooks-its-last-last-meal.html?_r=0. 411 3 Br. J. Am. Leg. Studies (2014) in what they might request for their final meal. We then use some statistical com- parisons to show that states which execute the most people are also those with the fewest restrictions on what might be provided in a last meal. Further, our findings also suggest a strong relationship between fundamentalist Protestant religious pop- ulations in states and their willingness to honor elaborate meal requests. We sug- gest some possible interpretations of these findings, which suggest that those with the strongest attachment to the death penalty may also be those most invested in the panoply of ritual which surrounds executions themselves. In Section IV we elucidate four major themes present throughout contempo- rary discussions of the last meal: that it is cruel, that it is offered out of guilt, that it is a gesture of mercy, and that it is a vestige of a bygone era. Our discussion suggests these descriptions may all be fair at times, but that above all the ritual itself has the intrinsic property of recognizing the humanity, if not the dignity, of the condemned inmate, and that