The Cultural Life of Capital Punishment in the United States, 1945-Present

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The Cultural Life of Capital Punishment in the United States, 1945-Present Condemned To Be Free: The Cultural Life of Capital Punishment in the United States, 1945-Present A DISSERTATION SUBMITTED TO THE FACULTY OF THE GRADUATE SCHOOL OF THE UNIVERSITY OF MINNESOTA BY Daniel LaChance IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY Elaine Tyler May, Advisor January 2011 © Daniel LaChance 2011 ACKNOWLEDGEMENTS Writing a dissertation in the humanities can be a lonely experience. I am grateful for the intellectual and emotional support that I‘ve enjoyed from family, friends, mentors, and colleagues. Colleagues in my cohort in the Department of American Studies provided stimulating first-year discussions that have influenced how I‘ve approached this topic: Adam Bahner, Alex Mendoza, Alex Urquhart, and Scott Shoemaker made me think about culture in different ways. I‘ve greatly benefited from the feedback provided on my work by members of Elaine and Lary May‘s monthly dissertation writing group. Jason Stahl and Jeff Manuel, in particular, responded generously and helpfully to my work in its earlier stages. Beyond the University of Minnesota, I‘ve benefited from colleagues in the fields of history and law and society who have provided me with invaluable advice and help. Paul Kaplan, now an Assistant Professor at California State University, San Diego, and a collaborator on a future project, was several steps ahead of me in graduate school and wrote a fantastic dissertation about the hegemony of individualism in the practice of capital punishment in the United States that supported and inspired my own thinking on the topic: his influence is widely present here. Rob Owen, an appellate attorney specializing in capital cases and Professor of Law at the University of Texas, Austin, patiently answered my questions about Texas‘s legal system, provided me with important practical knowledge and advice, and welcomed me into his home for dinner while I was completing my research in Austin. Lastly, colleagues at the Hurst Summer Institute in Legal History at the University of Wisconsin, Madison, provided important perspectives on my work as I began the process of revision. Two fellow graduate students at the University of Minnesota have had the greatest influence on me throughout the process of writing this dissertation. Caley Horan and Ryan Murphy read every chapter of this dissertation and knew exactly what I needed at a given moment, whether it be irreverent exasperation at the absurdities of graduate student life or probing questions about the foundations of my ideas. I can‘t think of two better people with whom to have shared the highs and lows of dissertation writing. My mentors at the University of Minnesota have shaped this dissertation in ways too numerous to count. I was incredibly fortunate to land in courses taught by Joachim Savelsberg and Barbara Welke my first semester in graduate school. I‘ve been continually grateful for their rigor, diligence, scholarship, honesty, and generosity. Thanks to Lary May for modeling an intrinsic love for ideas and intellectual open-mindedness. Thanks to Ellen Messer-Davidow, i whose incisive critiques of my writing have improved it. Finally, and most importantly, thanks to my advisor Elaine Tyler May, whose work proved so foundational for my own in ways I have only recently come to appreciate fully. In both the small things (responding to an e-mail with lightning-quick speed) and the big things (strategizing about how to situate myself in academia), Elaine has been a mentor, model, and friend. I‘d like to thank the staff at the various archives and clerks‘ offices in California, Nebraska, Texas, and Wisconsin. Tony Black, librarian at the Texas State Archives and Library; Rhonda Noll and Colleen Clark, clerical workers at the Harris County District Clerk‘s Office; and clerical staff at the Texas Court of Criminal Appeals in Austin all responded to multiple requests to locate records that proved invaluable to my research. Thanks, too, to the 38 former jurors and 11 members of the Texas Coalition to Abolish the Death Penalty who allowed me to interview them in Texas. Thanks to colleagues at Riverdale Country School who have provided cheerleading and professional support for me, particularly in the final few months of my work on this project, especially Mike Sclafani, Ricky Lapidus, Melissa Miness, Priscilla Morales, Tom Gatch, Ellen Baker, Dwight Vidale, Kent Kildahl, and Susan Katz, who proofread the defense draft. In the world beyond academia, Andy Grover, Jeff Hnilicka, Kevan Choset, Greg Penta, Rachel Buchberger, Aundi Hammer, Dana Bontemps, Nick Eigen, and Dan Weiner have supported me in innumerable ways. Thanks to them. Generous fellowship support from various sources gave me the time and resources I needed to complete this work. Thanks to the donors who have underwritten the Graduate Student Fellowship, the Doctoral Dissertation Fellowship, The Stout Wallace Fellowship, The Erickson Legal History Fellowship, the Mulford Q. Sibley Fellowship, and the Hurst Summer Institute in Legal History. Professional development funding from the Department of American Studies at the University of Minnesota and Riverdale Country School helped me to travel to conferences and defrayed research expenses. Finally, I thank my parents, John and Karen LaChance, whose love and support have meant the world to me. For nearly thirty years, my Dad, a criminal defense attorney in Massachusetts, has defended the rights of the accused, many who committed crimes that inspired widespread horror and disgust. His empathy, grace, and zealous advocacy for the least popular (and often least fortunate) among us are awe-inspiring. This dissertation is for him. ii ABSTRACT This dissertation examines the waning of capital punishment in the immediate post-World War II period and its resurgence in the 1980s and 1990s. Some scholars understand the revival of the death penalty in the United States as part of a socially conservative backlash in a society undergoing immense social change. Qualifying and building upon these accounts, I argue that the migration of Americans‘ sense of political community away from the public sphere and a concomitant resurgence of individualism in the post-World War II period played an under-examined role in the growth of the American demand for capital punishment. State killing, I show, was compatible with a cultural consensus that social problems could be solved only by individual acts of will and not by large-scale social engineering. The revival of the death penalty reflected Americans‘ discomfort with the way that modern, utilitarian approaches to punishment, which peaked in the years after World War II, failed to take individuals seriously, prioritizing social goals over individual autonomy. In this context, capital punishment legitimized, rather than simply masked, the state‘s withdrawal of its claim to being the central provider of social, economic, and personal security. And it denied, rather than endorsed, the state‘s role as a dispenser of traditional morality. Contradictory understandings of the role of the killing state as normatively and descriptively strong and weak worked, moreover, to sustain the practice of capital punishment in the United States. iii TABLE OF CONTENTS Introduction ―When Bundy Buckles Up‖ Page 1 Chapter One Before the Backlash: Lethal Punishment in an Age of Rehabilitation Page 22 Chapter Two State of Confusion: Strong and Weak State Visions of the Death Penalty Since 1977 Page 66 Chapter Three Reinforcing Death: The Functional Effects of Contradictory Visions of the State Page 102 Chapter Four Reflecting Life: Capital Punishment as an Indicator of a New Political Landscape Page 141 Bibliography Page 207 Appendix Scope and Methodology Page 212 iv INTRODUCTION ―WHEN BUNDY BUCKLES UP‖ In the late 1980s, Florida residents vented frustration at their state‘s new mandatory seatbelt law by affixing bumper stickers to their cars that read, ―I‘ll buckle up when Bundy buckles up.‖ The stickers linked the state‘s attempts to regulate their behavior in cars with its failure to execute convicted serial killer Theodore Bundy, who had been sitting on the state‘s death row for eight years.1 Their sneering protest of the state‘s new seatbelt law imagined a state that was wasting its time criminalizing the acts of decent people while failing miserably to incapacitate permanently those who posed real danger to the public. ―Our state has its priorities backwards,‖ this bumper sticker announced: Florida was intruding on the right of law-abiding folks to use their property in ways that harmed no one but themselves, while failing to intrude enough on the rights of a serial killer. In just seven words, the Bundy bumper sticker expresses a larger, statistically significant correlation that has puzzled scholars of the death penalty: in recent decades, many Americans‘ support for the death penalty has been directly proportional to their sense of alienation from government.2 Why, scholars have wondered, would Americans who express the highest degree of distrust in their government be so willing to grant it power over life and death? 1 Kirk Makin, ―Bundy Makes Final Bid to Beat Chair,‖ The Globe and Mail (Canada), April 11, 1988. 2 Steven F. Messner, Eric P. Baumer, and Richard Rosenfeld, ―Distrust of Government, the Vigilante Tradition, and Support for Capital Punishment,‖ Law and Society Review 40 (2006): 559-590. 1 This contradiction inhabits the cultural life of capital punishment in the contemporary United States. On the one hand, the death penalty symbolizes the state‘s strength, its rightful role as guarantor of order and security. On the other hand, executions symbolize the state‘s weakness: they are the only way we can be sure that, in an age of parole and probation, dangerous criminals stay off the streets for good. But the contradiction is not simply symbolic. More than ever before, executions resemble medical procedures conducted by trained professionals.
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