BRITISH JOURNAL of AMERICAN LEGAL STUDIES VOLUME 1 - ISSUE 1 Spring 2012
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School of Law BRITISH JOURNAL OF AMERICAN LEGAL STUDIES VOLUME 1 - ISSUE 1 Spring 2012 ARTICLES Gruesome Spectacles: The Cultural Reception of Botched Executions in America, 1890-1920 Austin Sarat et al Feminist Engagement and the Museum Yxta Maya Murray The Long Shadow of Racial Profiling Sora Y Han Dispelling the Fog about Direct Taxation James R Campbell A Lockean Argument against the Death Penalty Vernon Thomas Sarver, Jr Sexual Misconduct with Congregants or Parishioners: Crafting a Model Statute Bradley J B Toben and Kris Helge The Conflicted Constitution: The Textual Absolutism of Justices Black and Thomas versus the Balanced Restraint of Justices Frankfurter and Breyer Zachary Baron Shemtob (Pro)motion to dismiss?: Constitutional Tort Litigation and Threshold Failure in the War on Terror Matthew Windsor Reading Between the Lines: Statutory Silence and Congressional Intent under the Antiterrorism Act Jesse D H Snyder ISSN 2049-4092 (Print) BRITISH JOURNAL OF AMERICAN LEGAL STUDIES Volume 1 - Editorial Board Editor-in-Chief: Dr Anne Richardson Oakes, Birmingham City University Associate Editors Student Editorial Assistants 2011-2012 Sarah Cooper, Birmingham City University Naomi Barnes Harpreet Kaur Dr Haydn Davies, Birmingham City University Nicole Bones Katie Layton Hannah Gorman, Birmingham City University Elizabeth Buck Athina Ouranidou Prof Julian Killingley, Birmingham City University Sophie Ferrier Christopher Reading Gareth Lee, Birmingham City University Daniel Gough Alice Storey Dr Jon Yorke, Birmingham City University Richard Hammond Stephanie Wright Simon Harris Editorial Board Hon Joseph A Greenaway, Circuit Judge 3rd Circuit, U.S. Court of Appeals Hon Raymond J McKoski, Circuit Judge (retired), 19th Judicial Circuit Court, IL Adjunct Professor of Law, The John Marshall Law School, Chicago, IL Prof Antonio Aunion, University of Castille-la Mancha Prof Francine Banner, Phoenix School of Law, AZ Prof Devon W Carbado, UCLA, CA Dr Simon Cooper, Reader in Property Law, Oxford Brookes University Prof Randall T Coyne, Frank Elkouri and Edna Asper Elkouri Professor, College of Law, University of Oklahoma, Norman OK Mark George QC, Garden Court Chambers, Manchester, UK Prof Larry Hammond, Osborne Maledon PA, Phoenix AZ Prof Carolyn Hoyle, Professor of Criminology, University of Oxford, UK Prof James Kousouros, CALS Visiting Professor, NY Prof Ian Loveland, City University London, UK Prof James Maxeiner, Center for International & Comparative Law, University of Baltimore School of Law, Baltimore,MD Prof Ruth Miller, University of Massachusetts, Boston, MA Dr Anne-Marie O’Connell, University Toulouse 1 Capitole Prof Austin Sarat, William Nelson Cromwell Professor of Jurisprudence & Political Science, Amherst College, MA Dr Stephen W Smith, University of Birmingham, UK Prof Carrie Sperling, Sandra Day O’Connor College of Law, Arizona State University, AZ Clive Stafford Smith, Reprieve Prof Adam N Steinman, Seton Hall University School of Law, Newark, NJ Prof Russell Wheeler, The Brookings Institution, Washington DC School of Law BRITISH JOURNAL OF AMERICAN LEGAL STUDIES VOLUME 1 - ISSUE 1 Spring 2012 ARTICLES Gruesome Spectacles: The Cultural Reception of Botched Executions in America, 1890-1920 Austin Sarat et al ......................................................................................................... 01 Feminist Engagement and the Museum Yxta Maya Murray ......................................................................................................... 31 The Long Shadow of Racial Profiling Sora Y Han .................................................................................................................... 77 Dispelling the Fog about Direct Taxation James R Campbell ..................................................................................................... 109 A Lockean Argument against the Death Penalty Vernon T Sarver Jr ..................................................................................................... 173 Sexual Misconduct with Congregants or Parishioners: Crafting a Model Statute Bradley J B Toben and Kris Helge ............................................................................. 189 The Conflicted Constitution: The Textual Absolutism of Justices Black and Thomas versus the Balanced Restraint of Justices Frankfurter and Breyer Zachary Baron Shemtob ............................................................................................ 217 (Pro)motion to dismiss?: Constitutional Tort Litigation and Threshold Failure in the War on Terror Matthew Windsor ....................................................................................................... 241 Reading Between the Lines: Statutory Silence and Congressional Intent under the Antiterrorism Act Jesse D H Snyder ....................................................................................................... 265 GRUESOME SPECTACLES: THE CULTURAL RECEPTION OF BOTCHED EXECUTIONS IN AMERICA, 1890-1920* Austin Sarat Aubrey Jones Madeline Sprung-Keyser Katherine Blumstein Heather Richard Robert Weaver Amherst College ABSTRACT This paper examines the cultural reception of botched executions in late nineteenth and early twentieth century America, a crucial period in the modern history of America's death penalty. We draw on newspaper ac- counts of botched executions to describe the ways they were presented to the public. We argue that, in an era when executions were moved behind prison walls, newspapers played a critical mediating role between the exe- cution scene and the American public and that as newspapers competed for readership, stories about botched executions became more and more sensa- tionalized. Newspapers generally presented two competing narratives: a sensationalist narrative, which played up the gruesomeness of botched exe- cution, and an opposing, recuperative narrative, which sought to differen- tiate law’s violence from violence outside of the law. The recuperative nar- rative helped to maintain the legitimacy of capital punishment in an era when the death penalty was already widely popular. However, the tension between these two narratives, and the constant public justifications of capi- tal punishment in the wake of botched executions, points to a deeper am- bivalence emerging during this period about whether or not the govern- ment can ever properly control the violence inherent in the death penalty. 1 1 Br. J. Am. Leg. Studies (2012) CONTENTS I. ONE BUNGLED JOB: THE HANGING OF ARCHIE KINSAULS .... 2 II. CHANGES IN CULTURE AND PUNISHMENT: TRENDS IN TURN OF THE CENTURY AMERICAN LIFE ........................................ 6 III. EXPANSION, COMPETITION, AND SENSATIONALISM IN THE AMERICAN PRESS .......................................................... 10 IV. THE ULTIMATE MELODRAMA: NEWSPAPERS AND BOTCHED EXECUTIONS ........................................................................ 11 V. TWO STORIES: THE CULTURAL RECEPTION OF BOTCHED EXECUTIONS, 1890-1920 ..................................................... 18 APPENDIX ONE: STANDARDS FOR IDENTIFYING BOTCHED EXECUTIONS ........................................................................ 20 APPENDIX TWO: BOTCHED EXECUTIONS FROM 1890 TO 1920 .................................................................................... 21 I. ONE BUNGLED JOB: THE HANGING OF ARCHIE KINSAULS On September 28, 1900, the state of North Carolina hanged Archie Kinsauls for a murder committed in Sampson County. Born in that county in 1865, Kinsauls lived there his entire life and married a local girl, Posun- nie Gibsy Bass, in 1896. Even though Archie weighed only 110 pounds, he was said to be “tough as iron.”1 He had the unfortunate habit of getting into violent arguments and carried on a long running feud with John C. Herring, his neighbor. One night, when he was in Archie Vann's Store at Beaman's Crossroad, an argument began. “Kinsauls reached into the meat box and got a sharp butcher knife and stabbed young Herring to such an extent that he died during the night.”2 * We are grateful to the Mellon Foundation for its support of Amherst College’s Project on Student-Faculty Research Collaboration in the Humanities and Social Sciences and to Am- herst’s Dean of the Faculty, Greg Call, for his support of our work. 1 See Claude Moore, The Story Of Art Kinsauls, OUR HERITAGE (Friday, October 18, 1991), http://files.usgwarchives.net/nc/wayne/heritage/kinsauls.txt. 2 Id. 2 Gruesome Spectacles Kinsauls was arrested a few days after Herring’s death and taken to the county jail in Clinton. Helped by a group of his friends he soon es- caped, avoiding capture for nine months. The sheriff and a posse only managed to recapture Kinsauls after a gunfight at his farm during which he was seriously wounded. Brought to trial in October 1899, he was found guilty of murder and sentenced to be hanged. On the surface at least, there was nothing remarkable about North Carolina’s plan for the Kinsauls execution. Hanging had been the primary method of execution in the United States since the founding of the Ameri- can colonies. It was an inexpensive, low-tech way of putting people to death, allowed executions to be handled at the local level, and did not re- quire an elaborate execution protocol.3 Awaiting his execution, Kinsauls refused to go quietly. Twice he tried to kill himself, first with an overdose of sleeping pills and later by trying to cut his throat. Both attempts failed, but each resulted in a postponement of his execution. In the