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Executions, the Public and the Press in Nineteenth Century New York

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Buffalo Law Review Volume 43 Number 2 Article 3 10-1-1995 Forbidden Spectacle: Executions, the Public and the Press in Nineteenth Century New York Michael Madow Brooklyn Law School Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview Part of the Legal History Commons Recommended Citation Michael Madow, Forbidden Spectacle: Executions, the Public and the Press in Nineteenth Century New York, 43 Buff. L. Rev. 461 (1995). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol43/iss2/3 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. Forbidden Spectacle: Executions, the Public and the Press in Nineteenth Century New York MICHAEL MADOWt CONTENTS Introduction ..................................... 462 I. The Modernization of Execution Practice in Nineteenth Century New York: An Overview ....... 469 A. Capital Punishment in New York: 1825 and 1892 469 B. A Comparative Analysis of "Traditional" and "Modern" Execution Practice ................ 476 1. Privatization ............................. 476 2. Rationalization ........................... 479 3. M edicalization ........................... 486 I1. The Abolition of Public Executions in Antebellum New Y ork ....................................... 490 A. The Decline of Public Punishments: The Contemporary Historiographic Debate ......... 491 B. The Social and Cultural Origins of Privatization 498 C. The Resilience of Hanging Day: Popular Resistance to Legislative Reform .............. 503 D. The End of Hanging Day?: The Act of 1835 ... 506 Il. "Private" Executions in New York: 1835-1888 ...... 511 A. Reconstituting the Execution Audience ........ 512 1. Public Access to Executions after 1835 ..... 512 2. Size and Composition of the Official Execution Audience ...................... 514 3. Press Access to "Private" Executions ...... 519 B. The (Slow) Decline of Hanging Day Ritual ..... 523 t Professor of Law, Brooklyn Law School. B.A., 1971, Amherst College; M.A., 1978, Harvard University;, J.D., 1982, Columbia University. I owe thanks to C. Edwin Baker, Ur- sula Bentele, Deborah Denno, Paul Finkelman, Susan Herman, Beryl Jones, Gary Minda, and David Papke for their helpful comments on drafts of this Article. Andrea Hecht, Eric Wertzer, and especially Lorca Morello provided excellent research assistance. The generous financial support of the Brooklyn Law School Summer Research Fund is gratefully acknowledged. BUFFALO LAW REVIEW [Vol. 43 C. The End of the Rope: The Electrical Execution Act of 1888 ................................. 530 IV. Electrocution, the Public and the Press ............ 538 A. The Anti-Publicity Provisions of the Electrical Execution Act ............................... 538 1. Execution Site ........................... 539 2. Visitation ............................... 539 3. Execution Audience ...................... 539 4. Disposition of the Corpse ................. 540 5. Restrictions on the Press ................. 541 B. The "Gag Law": Defiance, Debate, and Repeal. 542 V. Conclusion ...................................... 556 Our courts of justice must be open to the public; the deliberations of our legislature must be public; not even a poor freemasonry society is to be tol- erated because its ceremonies are secret; but when life is to be taken, when a human being is to be smitten down like an ox, when a soul is to be vio- lently hurled into eternity, the most solemn occasion that can be witnessed on earth, then the public must be excluded. But the American people will not long submit to this.' [Clapital punishment remains fundamentally, even today, a spectacle that must actually be forbidden.2 INTRODUCTION Executions in America today are semi-covert events-closed to the general public, yet not altogether secret. In some states, the law expressly requires the inclusion of reporters among the official witnesses. In most others, press representatives routinely attend executions as a matter of administrative custom. Nowhere, how- ever, may a reporter bring a camera or tape recorder with her into the death chamber. As a result, the little knowledge most of us have about how the State "does death" comes in "the most highly mediated way"-"as a rumor, a report, an account of the voiceless expression of the body of the condemned."3 Should we know more? Should ordinary citizens reclaim their traditional place in the execution audience-today as television viewers, rather than scaffold crowd? Would television have any im- 1. REv. THoMAS UPHAM, THE MANUAL OF PEACE 15 (1836) quoted in Loues P. MAsuR, RrrEs OF ExEcUTIoN: CAPITAL PUNISHMENT AND THE TRANSFORMATION OF AumcCAN CULTURE 1776-1835, 110 (1989). 2. MIcHEL FOUCAULT, DiscnuLE AND PUNISH: THE BrTH OF THE PRISON 15 (Alan Sheri- dan trans., 1977) (1975). 3. Austin Sarat, Speaking of Death: Narratives of Violence in Capital Trials, 27 LAw & Soc'y REv. 19, 52 (1993). 1995] EXECUTIONS, THE PUBLIC AND THE PRESS 463 pact on how executions are conducted or on what the public thinks of them? Would anybody want to watch? Could anybody bear to watch? These questions have taken on urgency of late, as television broadcasters-both the high-minded and the ratings- driven-agitate and litigate for access to America's death chambers. This controversy began in earnest in 1991, when San Francisco public television station KQED was denied permission to video- tape the execution of Robert Alton Harris in San Quentin's gas chamber.4 Three years later, talk-show host Phil Donahue was re- fused permission to videotape the electrocution of David Lawson in North Carolina. In each case, the courts held that the Warden's exclusion of television cameras from the death chamber did not violate the First Amendment.' These events, in turn, have gener- ated a broad and spirited debate among legislators,7 members of the bar," editorialists,' pundits,10 and legal scholars,11 about the 4. Harris had previously given KQED his consent to the videotaping. KQED's stated intention was to include footage of the Harris execution in a comprehensive documentary about the death penalty. See William Bennett Turner & Beth S. Brinkmnan, Televising Ex- ecutions: The First Amendment Issues, 32 SANTA CLARA L. Rzv. 1135, 1135-38 (1992); Ron LaBrecque, Stay Tuned for the Execution of Robert Harris, 13 WASH. JOURNALISM REv. 34 (1991). 5. See, e.g., Bruce Nolan, Debate Rages Over Airing of Execution, TmsS-PicAyuNE, May 22, 1994, at Al; Robert P. Laurence, DonahueBelieves in Spectacle of Execution, SAN DiEGO UNION-THm., May 23, 1994, at El0; Walter Goodman, Viewing an Execution from the Sofa, N.Y. TIMES, June 13, 1994, at C15. As in the KQED case, the condemned man (Lawson) had consented to the videotaping. Indeed, he originated the idea, and joined with Donahue in the lawsuit against the prison warden. See Bernard Schwartz, Death T.V.? Is There a Press Right of Access to News That Allows Television of Executions?, 30 TULSA L. REv. 305, 305-06 (1994). 6. See KQED v. Vasquez, No. C 90-1383, 1991 U.S. Dist. LEXIS 21163 (N.D. Cal. 1991); Lawson v. Dixon, No. 198P94-2, 1994 N.C. LEXIS 314 (N.C. 1994) (denying plain- tiff's petition for rehearing). A detailed account of the KQED litigation can be found in Turner & Brinkman, supra note 4. The KQED case was not the first constitutional chal- lenge to a prohibition on television cameras at executions. See Garrett v. Estelle, 556 F.2d 1274 (5th Cir. 1977); Halquist v. Department of Corrections, 783 P.2d 1065 (Wash. 1989). 7. See, e.g., Jim Shumaker, Hang 'Em High, CHARLOTTE OBSERvER, March 6, 1994, at 9. 8. See, e.g., Naftali Bendavid, As Viewers Tune to 'Cops' and 'Most Wanted', Is Death TV Next?, REcoRDER, May 31, 1994, at 1; Karl Olson & Erin Daly, TV Station Fights to Show Execution, CONN. L. TPm., Feb. 18, 1991, at 16; Victoria Slind-Flor, Film at 11? Law- yers Debate TV Executions, NAV'L L. J., June 10, 1991, at 8; Gerald F. Uelman, State-Made Snuff Films, N.J. L. J., April 12, 1990, at 9. In July, 1992, the Young Lawyers Division of the ABA recommended to the House of Delegates that the ABA adopt a position opposing the enactment of any legislation that "would allow audio or video broadcasts, live or delayed, of the execution of individuals sentenced to death." See Pamela J. Roberts, Report to the House of Delegates, A.B.A. YOUNG LAW. DIVISION 124A (1992). This recommendation was strenuously opposed by the National Conference of Lawyers and Representatives of the Media. See Letter from Murray Richtel and J. Laurent Scharff, Co-chairs, National Confer- ence of Lawyers and Representatives of the Media, to Pamela Roberts, Chair of the A.B.A. BUFFALO LAW REVIEW [Vol. 43 practical wisdom and moral legitimacy of concealing executions from public view. Many of those opposed to televised executions invoke the his- tory of public executions to buttress their case. A televised execu- tion, it is said, would be a lamentable regression to a less "civi- lized" and less "humane" mode of capital punishment. Public executions, we are told, were repudiated long ago because they came to be seen for what they were - barbaric and indecent spec- tacles that degraded and brutalized the condemned and the spec- tators alike. Large crowds of people - men, women, even children - gathered at the scaffold to cheer and leer, joke and laugh, drink and brawl. Do we really want to "go back" to that? Anthony Lewis, for example, recalls Charles Dickens' description of the cal- lousness and unseemly levity - Dickens called it the "brutal mirth" - of the London crowd at the public hanging of the Man- nings in 1849, and warns that if executions are televised people will "invite friends over for beer, pretzels, and death. '12 A law school Young Lawyers Division (July 14, 1992) (on file with author).
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