Incarceration on Death Row: A Microcosm of Communication? A thesis submitted to The University of Manchester for the degree of PhD in the Faculty of Humanities 2013 Mark N. Pettigrew School of Law Contents Chapter 1: A Reciprocal Communication: Dominant Cultural Attitudes & Death Row Detention 9 1.1 Culture and Death Row: A Communicative Loop 9 1.2 Cultural Communiqués 14 1.3 Communicating their Worth: Introducing the Punishment of Death Row Incarceration 16 1.4 An “American Communication”: The Death Penalty and Death Rows of the United States 18 1.5 Without Executions: An Increased Reliance on Death Row to Communicate Difference 22 1.6 Outline of Thesis 25 Chapter 2: Not Always the Way: Comparing Death Row Detention Across Time 28 2.1 Historic Death Row and a Different Treatment of the Death Sentenced Offender 28 Chapter 3: Communicating an Image: Legal Searching for ‘The Worst of the Worst’ 38 3.1 Hyper Regulation of the Death Penalty 38 3.2 Finding the Worst of the Worst? Reducing the Scope of Capital Punishment 39 3.3 The Uneasiness of Legitimising the Institution: How to Kill the Condemned? 56 o Baze v Rees: Silencing the Suffering of the Condemned 57 3.4 Communicating a Vision of the Condemned: Assertions of Future Dangerousness at Trial 60 3.5 Superficial not Substantive: Legal Regulation of How the Condemned Live 64 3.6 Prospect for Reform? 67 3.7 Supreme Court Reluctance to Review Death Row Wait 67 3.8 America the Outlier: International Responses to Long Death Row Waiting Times 73 3.9 International Concern for American Death Row Detention 75 Chapter 4: Why Death Row is Different: Communicating Offender Status at a Time of Declining Executions 78 4.1 Death Row as the Death Penalty 78 4.2 Relying on Death Row Communication: Impediments to Putting Offenders to Death 79 o Cost 80 o Innocence and Death Row Exonerations 82 o Life Without Parole 84 4.3 Communicating Mixed Messages: The Use and Problems of Lethal Injection 84 4.4 Extending Death Row: Capital Appeals Procedures 87 4.5 Without Inhibition on Punishment: Preference for Death Row over Execution? 92 2 Chapter 5: Worst of the Worst Conditions: Worst of the Worst Offenders? 95 5.1 The Importance of a Label: Leniency in Life Without Parole? 95 5.2 The Rise of Life Without Parole 96 5.3 Communicating a ‘Need’ for Death Sentences: The Wide Application of Life Without Parole 98 5.4 Lifers in the Prison System: Comparing Treatment to Capital Offenders 103 5.5 Nothing like Death Row? Punitive Detention for Non-Capital Offenders 107 Chapter 6: ‘If These Walls Could Talk’: Contemporary Death Row and the ‘Life’ of the Death Sentenced Offender 111 6.1 A Visible Message: Death Row Appearances 111 6.2 Offender Difference Produced and Affirmed by Death Row 112 6.3 Communicating the Difference: The Control of Death Row 115 6.4 Message Received (and Communicated): Death Row Conditions Confirming the Dehumanisation of Offenders 117 6.5 Implements of Communication: Guards on Death Row 122 6.6 One Death Row or 35? 128 6.7 Different Death Rows: Variations on the Same Message 141 6.8 Communicative Casualties: Voluntary Executions and Death Row Conditions 143 6.9 Death Row Syndrome and Death Row Phenomenon 153 6.10 The Dominant Message: Death Sentenced Offenders and a ‘Need’ for Segregation 155 6.1 1 No ‘Need’ to Segregate? The Modern Missouri Anomaly 159 Chapter 7: Conclusion 168 7.1 Executions not Required: Popularity and Persistence of the Death Penalty, without Death 168 7.2 The Abuses and Uses of Death Row Incarceration: Communicating the Value of the Condemned and a Need for Punishment 170 7.3 Cultural Appetite for Punishment: Making Death Row Communicative 175 7.4 Miscommunication: The Benetton Advertising Campaign ‘We on Death Row’ 178 7.5 Death Row as Communicative: Benefitting the Institution 183 Appendices 185 - 194 Cases Cited 195 - 197 References 198 - 215 Word Count: 76,316 3 Appendices Contents Appendix A: Death Penalty and Non Death Penalty States Appendix B: Female Death Row Populations Appendix C: Death Row Populations Appendix D: Voluntary Executions Appendix E: Death Sentence/Execution Conversions Appendix F: First Non-Voluntary Execution after Death Penalty Re-Enactment Appendix G: Enactment of Death Penalty Statutes after Furman v Georgia Appendix H: Life Without Parole Populations Appendix I: Missouri in the 1990s: Executing Behaviour During the Decade of Mainstreaming 4 State Abbreviations AL – Alabama AK – Alaska AR – Arkansas AZ – Arizona CA – California CO – Colorado CT – Connecticut DE – Delaware FL – Florida GA – Georgia HI – Hawaii IA – Iowa ID – Idaho IL – Illinois IN – Indiana KS – Kansas KY – Kentucky LA – Louisiana MA – Massachusetts MD – Maryland ME – Maine MI – Michigan MN – Minnesota MO – Missouri MS – Mississippi MT – Montana NC – North Carolina ND – North Dakota NE – Nebraska NH – New Hampshire NJ – New Jersey NM – New Mexico NV – Nevada NY – New York OH – Ohio OK – Oklahoma OR – Oregon PA – Pennsylvania RI – Rhode Island SC – South Carolina SD – South Dakota TN – Tennessee TX – Texas UT – Utah VA – Virginia VT – Vermont WA – Washington WI – Wisconsin WV – West Virginia WY – Wyoming 5 Abbreviations ACLU – American Civil Liberties Union DPIC – Death Penalty Information Center ECHR – European Court of Human Rights HRW – Human Rights Watch JLWOP – Juvenile Life Without Parole LWOP – Life Without Parole 6 Abstract Death row is a space across the United States that continues to expand, not only in numbers, but in the length of time inmates spend confined there. Fewer and fewer inmates are executed and death row is now increasingly the only punishment of capital convicts. This thesis examines the retributive and punitive treatment of death-sentenced offenders within that space and, by viewing that form of imprisonment as part of a communication process, it assesses the contribution it makes to the death penalty more generally in the USA to argue that death row imprisonment is crucial in sustaining the distinction of capital offenders, and the death penalty itself. Just as death row receives images from wider culture, it simultaneously generates images that complement and validate those it receives, of death sentenced offenders as dangerous monsters. These images, of offenders who require punitive detention, align with the dominant supportive rationale of capital punishment, retribution, and provide a basis for continued death penalty support in an era of declining executions. In the “hidden world” of death row, prisoners are left to be abused, mistreated, and denied privileges and opportunities available to other prisoners. The capital offender is presented by his death row incarceration as different from all other offenders serving other sentences, even life without parole. Death row incarceration communicates the worth and status of the condemned, presenting him as a dangerous, and dehumanised other, who needs to be securely detained, and restricted. Thus death row validates and justifies the cultural needs of capital punishment. Just as wider culture, including, specifically, the legal community, dictates a requirement for punitive detention, death row corroborates that image with its own in a self-affirming loop. Death row is therefore functional beyond the mere holding of offenders, it affirms cultural descriptions of the condemned and thus justifies, and provides support for, the very continuation of capital punishment itself. The University of Manchester Mark N. Pettigrew PhD Incarceration on Death Row: A Microcosm of Communication? 2013 7 Declaration No portion of the work referred to in the thesis has been submitted in support of an application for another degree or qualification of this or any other university or other institute of learning. Copyright Statement The author of this thesis (including any appendices and/or schedules to this thesis) owns certain copyright or related rights in it (the “Copyright”) and s/he has given the University of Manchester certain rights to use such Copyright, including for administrative purposes. Copies of this thesis, either in full or in extracts and whether in hard or electronic copy, may be made only in accordance with the Copyright, Designs and Patents Act 1988 (as amended) and regulations issued under it or, where appropriate, in accordance with licensing agreements which the University has from time to time. This page must form part of any such copies made. 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Death row is a space, across the United States that continues to expand; not only in numbers, with sentencing outpacing executions, but in the length of time inmates spend confined there. Fewer and fewer inmates are executed and death row is now increasingly the punishment of capital convicts.