Journal of Criminal Law and Criminology Volume 107 Article 6 Issue 4The Death Penalty's Numbered Days? Fall 2017 The Rhetoric of Abolition: Continuity and Change in the Struggle Against America's Death Penalty, 1900-2010 Austin Sarat Robert Kermes Haley Cambra Adelyn Curran Margaret Kiley See next page for additional authors Follow this and additional works at:https://scholarlycommons.law.northwestern.edu/jclc Part of theCriminal Law Commons Recommended Citation Austin Sarat, Robert Kermes, Haley Cambra, Adelyn Curran, Margaret Kiley, and Keshav Pant,The Rhetoric of Abolition: Continuity and Change in the Struggle Against America's Death Penalty, 1900-2010, 107 J. Crim. L. & Criminology757 (2017). https://scholarlycommons.law.northwestern.edu/jclc/vol107/iss4/6 This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. The Rhetoric of Abolition: Continuity and Change in the Struggle Against America's Death Penalty, 1900-2010 Authors Austin Sarat, Robert Kermes, Haley Cambra, Adelyn Curran, Margaret Kiley, and Keshav Pant This article is available in Journal of Criminal Law and Criminology:https://scholarlycommons.law.northwestern.edu/jclc/vol107/ iss4/6 SARAT ET AL. 10/10/17 5:46 PM 0091-416917/10704-0757 THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 107, No. 4 Copyright © 2017 by Austin Sarat et al. Printed in U.S.A. THE RHETORIC OF ABOLITION: CONTINUITY AND CHANGE IN THE STRUGGLE AGAINST AMERICA’S DEATH PENALTY, 1900–2010* AUSTIN SARAT ROBERT KERMES HALEY CAMBRA ADELYN CURRAN MARGARET KILEY KESHAV PANT This article seeks to understand when, how, and where the framing of arguments against capital punishment has changed. While others have focused exclusively on the national level, we studied the framing of abolitionist arguments in three American states: Connecticut, Kansas, and Texas. Each is located in a different region of the country, and each has its own distinctive death penalty history. We studied the framing of arguments against the death penalty from 1900 to 2010. Our study suggests that the rhetorical reframing of the campaign against capital punishment that has occurred at the national level has had deep resonance at the state level. Over the course of the 20th century in Connecticut, Kansas, and Texas, the focus on error and arbitrariness has assumed greater prominence among abolitionists. In each state, this change began to take hold in the late 1960s and 1970s and accelerated as the 20th century drew to its close. But, in each state, older frames persisted. Older arguments continued to occur with greater frequency than the new abolitionism. TABLE OF CONTENTS INTRODUCTION ..................................................................................... 758 I. TEXAS ................................................................................................... 763 II. CONNECTICUT ................................................................................... 768 III. KANSAS .............................................................................................. 775 CONCLUSION .......................................................................................... 779   757 SARAT ET AL 10/10/17 5:46 PM 758 SARAT [Vol. 107 INTRODUCTION Today the United States seems to be on the road to abolishing the death penalty. Support for capital punishment, which for the last quarter of the 20th century appeared firmly entrenched, is weakening.1 Moreover, across the U.S., the number of death sentences has dropped from a high of 315 in 1994 to forty-nine in 2015.2 Mirroring this trend, the number of executions peaked in 1999, and has been steadily declining over the past fifteen years, reaching a twenty-four year low in 2015.3 While thirty-one states still retain the death penalty,4 sixteen of those states and the federal government have not executed anyone in the past five years.5 There are, of course, many possible explanations for the changing situation of capital punishment. Relatively low rates of violent crime and the growth of life in prison without parole sentences are two such explanations.6 However, if the American death penalty eventually does end, it will be in no small part because abolitionists altered their political and legal arguments and, in doing so, successfully reframed the death penalty debate.7 Communications scholar Robert Entman broadly defines the term “framing” as “any effort to influence public opinion through the formulation of messages.”8 Issues of political import in a democracy are almost always being framed “as various political entrepreneurs [attempt] as best they can to affect the debate given changes in the stream of information coming in from * We are grateful for the indispensable help provided by Amherst College’s Missy Roser. 1 Richard C. Dieter, Changing Views on the Death Penalty in the United States, DEATH PENALTY INFO. CTR., 1, 11–15 (Oct. 7, 2007), http://deathpenaltyinfo.org/files/pdf/ Beijing07.pdf. 2 Death Sentences By Year: 1976–2015, DEATH PENALTY INFO. CTR., https:// deathpenaltyinfo.org/death-sentences-year-1977-present (last visited June 8, 2017); Facts about the Death Penalty, DEATH PENALTY INFO. CTR., http://www.deathpenaltyinfo.org/ documents/FactSheet.pdf (last visited Mar. 20, 2016); 3 Facts about the Death Penalty, supra note 2. 4 States With and Without the Death Penalty, DEATH PENALTY INFO. CTR., http:// www.deathpenaltyinfo.org/states-and-without-death-penalty (last visited Mar. 20, 2016). 5 Jurisdictions With No Recent Executions, DEATH PENALTY INFO. CTR., https:// deathpenaltyinfo.org/jurisdictions-no-recent-executions (last visited June 8, 2017). 6 The Sentencing Project, Fact Sheet: Trends in U.S. Corrections, THE SENTENCING PROJECT, 1, 8, http://sentencingproject.org/wp-content/uploads/2016/01/Trends-in-US- Corrections.pdf (last visited Mar. 6, 2017). 7 Suzanna De Boef et al., Strategic Framing and Cognitive Response to the Death Penalty, 1, 1, http://www.unc.edu/~fbaum/articles/Strategic_Framing.pdf (last visited Mar. 6, 2017). 8 BRIAN F. SCHAFFNER & PATRICK J. SELLERS, WINNING WITH WORDS: THE ORIGINS AND IMPACT OF POLITICAL FRAMING ix (2010). SARAT ET AL. 10/10/17 5:46 PM 2017] RHETORIC OF ABOLITION 759 forces beyond their control.”9 The framing of complex issues involves social, cultural, and political elements. In this way, debates surrounding the death penalty resemble other hot button issues in the United States. The importance of framing in political contests is illustrated by the struggle for gay and lesbian rights. Teresa Godwin Phelps notes that an “unprecedented shift in the rhetoric used about gays and lesbians—the names they are called, the kinds of images and metaphors that describe them, the stories about them” paved the way for the Supreme Court’s recognition of gay marriage in Obergefell v. Hodges.10 A large reason for the change, Phelps argues, was “the strategic rhetorical choices made by gay activists and advocates.”11 In the past half century, the framing of the death penalty debate has shifted and evolved dramatically. Perhaps the most important factor in this evolution has been wrongful convictions in death penalty cases. Since 1973 more than 150 people have been exonerated from death row.12 Abolitionists have used the phenomenon of wrongful conviction to change the story about capital punishment and the public’s understanding of what is at stake when the state kills.13 Professor Frank Baumgartner of the University of North Carolina at Chapel Hill and his colleagues examined this change in anti-death penalty rhetoric.14 Focusing exclusively on the last part of the 20th century, they traced the emergence of what they called the “innocence frame” which “diverts attention away from theoretical and philosophical issues of morality to focus simply on the possibility of errors in the criminal justice system.”15 Furthermore, Baumgartner et al. noted the way in which “the process of ‘framing,’ defining an issue along a particular dimension (e.g., fairness and innocence) to the exclusion of alternate dimensions (e.g., morality, constitutionality, or cost)” completely shifted the grounds of debate.16 They 9 FRANK R. BAUMGARTNER ET AL., THE DECLINE OF THE DEATH PENALTY AND THE DISCOVERY OF INNOCENCE 14 (2008). 10 Teresa Godwin Phelps, The Evolving Rhetoric of Gay Rights Advocacy, in RHETORICAL PROCESSES AND LEGAL JUDGMENTS: HOW LANGUAGE AND ARGUMENTS SHAPE STRUGGLES FOR RIGHTS AND POWER 82 (Austin Sarat ed., Cambridge U. Press 2016). 11 Id. 12 159 as of May, 2017. The Innocence List, DEATH PENALTY INFO. CTR., (May 11, 2017), https://deathpenaltyinfo.org/innocence-list-those-freed-death-row. 13 James D. Unnever & Francis T. Cullen, Executing the Innocent and Support for Capital Punishment: Implications for Public Policy, 4 CRIMINOLOGY AND PUB. POL’Y 3, 26 (2005). 14 BAUMGARTNER ET AL., supra note 9, at 52. 15 Id. at 9. 16 Id. at 4. SARAT ET AL 10/10/17 5:46 PM 760 SARAT [Vol. 107 argued that the innocence frame came to dominate public discussion of the death penalty beginning in the mid-1990s.17 Building on Baumgartner’s work, Professor Austin Sarat of Amherst College argues that abolitionist rhetoric has so radically shifted that we are living in an era of what he calls “the new abolitionism,” an era in which moral, philosophical, and pragmatic opposition to the death penalty has been, he claims, displaced in importance by rhetoric that highlights problems in the processes of guilt determination and sentencing.18 “The campaign to abolish capital punishment,” Sarat observes: no longer takes the form of a frontal assault on the morality or constitutionality of state killing. Instead, arguments against the death penalty occur in the name of constitutional rights other than the Eighth Amendment, in particular due process and equal protection. Abolitionists today argue against the death penalty claiming that it has not been, and cannot be, administered in a manner that is compatible with our legal system’s 19 fundamental commitments to fair and equal treatment. Sarat’s argument underscores dramatic changes in the framing of abolitionist arguments against the death penalty. A change of the kind that Sarat describes can also be seen in jurisprudential opposition to capital punishment over the past forty years.20 The opinions of Supreme Court Justices William Brennan, Bryon White, Harry Blackmun, and Stephen Breyer, in high profile death penalty cases dating back to Furman v. Georgia in 1972, capture the evolution of anti-death penalty rhetoric.21 While Justice William Douglas’s opinion in Furman gave voice to elements of what emerged later as the new abolitionism, Justice Brennan’s Furman opinion drew heavily on a moral or philosophical interpretation of the Eighth Amendment.22 Justice Brennan noted that the argument about the death penalty is, at its core, a battle that has “been waged on moral grounds.”23 “The country,” he suggested, “has debated whether a society for 17 Id. at 9. 18 Austin Sarat, Recapturing the Spirit of Furman: The American Bar Association and the New Abolitionist Politics, 61 L. & CONTEMP. PROBS. 5, 9–10 (1998). 19 Id. at 9. 20 See, e.g., Glossip v. Gross, 135 S. Ct. 2726, 2755–77 (2015) (Breyer, J., dissenting); Callins v. Collins, 510 U.S. 1141, 1157 (1994) (Blackmun, J., dissenting); Furman v. Georgia, 408 U.S. 238, 258–306 (1972) (Brennan, J., concurring); Furman, 408 U.S. at 310–14 (1972) (White, J., concurring). 21 See, e.g., Glossip, 135 S. Ct. at 2755–77 (Breyer, J., dissenting); Callins, 510 U.S. at 1157 (Blackmun, J., dissenting); Furman, 408 U.S. at 258–306 (Brennan, J., concurring); Furman, 408 U.S. at 310–14 (White, J., concurring). 22 Furman, 408 U.S. at 296. 23 Id. SARAT ET AL. 10/10/17 5:46 PM 2017] RHETORIC OF ABOLITION 761 which the dignity of the individual is the supreme value can, without a fundamental inconsistency, follow the practice of deliberately putting some of its members to death.”24 In Justice Brennan’s view, capital punishment is cruel and unusual, and thus unconstitutional because “the deliberate extinguishment of human life by the State is uniquely degrading to human dignity.”25 Justice White joined Justice Brennan in voting to strike down the death penalty, but he did so more on pragmatic than on moral grounds.26 For Justice White, the problem with capital punishment was that it was “so seldom imposed” that it ceased to be “a credible deterrent or measurably to contribute to any other end of punishment in the criminal justice system.”27 The death penalty amounted to the purposeless infliction of pain.28 As Justice White put it: I accept the effectiveness of punishment generally and need not reject the death penalty as a more effective deterrent than a lesser punishment. But common sense and experience tell us that seldom-enforced laws become ineffective measures for controlling human conduct and that the death penalty, unless imposed with sufficient frequency, will make little contribution to deterring those crimes for which it may be 29 exacted. More than two decades after Furman, Justice Blackmun turned his attention from the philosophical, moral, and pragmatic problems with capital punishment to procedural problems with what he labeled as “the machinery of death.”30 In his 1994 dissent in Callins v. Collins, Justice Blackmun argued that: no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies . . . . The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and 31 reliable sentences of death required by the Constitution. Although Justice Blackmun mentioned the “moral error” of the death penalty, he focused, to a much greater degree than either Justices Brennan or White, on defects in its administration, and he gave voice to a new abolitionist 24 Id. 25 Id. at 291. 26 Id. at 310–12. 27 Id. at 311. 28 Id. at 312. 29 Id. 30 Callins v. Collins, 510 U.S. 1141, 1145 (1994) (Blackmun, J., dissenting). 31 Id. at 1145–46. SARAT ET AL 10/10/17 5:46 PM 762 SARAT [Vol. 107 perspective.32 That perspective informed Justice Breyer’s dissenting opinion in Glossip v. Gross, a 2015 case in which the Supreme Court approved the use of midazolam as a lethal injection drug.33 Justice Breyer offered a wide- ranging account of possible constitutional problems with America’s death penalty.34 Justice Breyer cited three main defects: “(1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose.”35 All three of Justice Breyer’s reasons for opposing capital punishment highlighted faults in the administration of the death penalty. The salience of new abolitionist rhetoric was also seen in the American Bar Association’s (ABA) resolution in 1997 calling for a moratorium on capital punishment.36 The ABA resolution said that the death penalty as “currently administered” was not compatible with central values in our Constitution.37 Like Justices Blackmun and Breyer, the ABA embraced the new abolitionism, eschewing a direct address to state violence and relying instead on an indirect, though nonetheless devastating critique.38 “This effort, while speaking to some of the most pressing issues facing today’s capital punishment system, recaptures the spirit of Furman.”39 The ABA example suggests the relevance and usefulness of new abolitionist rationales in forums other than the Supreme Court.40 Our research seeks to understand when, how, and where the framing of arguments against capital punishment changed. We focus on politics and popular culture rather than jurisprudence and law. While others have focused exclusively on the national level, we studied the framing of abolitionist arguments in three American states: Connecticut, Kansas, and Texas.41 Each 32 Id. 33 See generally 135 S. Ct. 2726 (2015). 34 Id. at 2756. 35 Id. 36 AMERICAN BAR ASSOCIATION, DEATH PENALTY MORATORIUM RESOLUTION  (1997), http://www.americanbar.org/groups/committees/death_penalty_representation/resources/dp- policy/moratorium-1997.html (last visited Mar. 6, 2017). 37 Id. 38 Sarat, supra note 18, at 27. 39 Id. 40 Id. at 9. 41 In each state, we examined newspaper coverage of capital punishment, drawing on newspapers that have been digitized, with minimal gaps, back to 1900. Furthermore, each state had additional digitized records available on NewspaperArchives allowing articles found in the more prominent newspapers in each state to be supplemented by articles from regional newspapers. Every newspaper article was searched using a consistent system designed to SARAT ET AL. 10/10/17 5:46 PM 2017] RHETORIC OF ABOLITION 763 is located in a different region of the country, and each has its own distinctive death penalty history.42 Moreover, we extended the time period for the analysis of the rhetoric of abolition beyond the period previously studied by Baumgartner et al. and Sarat. We studied the framing of arguments against the death penalty from 1900 to 2010. In this analysis, we ask whether the development of the “new abolitionism” at the state level tracked national developments and whether it evolved in similar or different ways in three different death penalty jurisdictions.43 We begin with Texas, the long-time capital of America’s death-belt.44 I. TEXAS Texas has a long and storied death penalty history.45 Throughout most of that history, executions were carried out in the locality in which the crime was committed or the criminal was captured.46 Records dating back to before the founding of the Republic of Texas reveal that from 1819 until 1923 there were 394 legal executions in Texas, 390 by hanging and 4 by firing squad.47 Of course, like all southern states during this period, there were also frequent extrajudicial lynchings, forms of private revenge for which records were not consistently kept.48 In May 1922, an outbreak of lynchings in central Texas led state capture any article that contained, in the body or in the title, the words “capital punishment” or “death penalty” in addition to, when possible, the words “abolition,” “abolish,” or “abolitionism.” Lastly, in the course of our analysis, we drew upon legislative debates to contextualize and better understand the rhetoric found in the press. 42 See State Information, DEATH PENALTY INFO. CTR., http://www.deathpenaltyinfo.org/state-information (last visited Mar. 6, 2017). 43 Our research initially identified twenty-four unique arguments against the death penalty, which we eventually collapsed into three categories: (1) new abolitionism, (2) old abolitionism, and (3) pragmatic. New abolitionist arguments criticize capital punishment for failing in terms of equal protection and due process. In contrast, old abolitionist arguments focus on the alleged immorality of the death penalty, draw on philosophical or religious sources, and invite one to sympathize with the perpetrator of a crime rather than simply opposing state killing on procedural grounds. Pragmatic arguments include arguments relating the costs associated with capital punishment, potential alternatives to capital punishment, and the ability of capital punishment to deter crime. 44 See generally Casey Tolan, Texas Is No Longer America’s Death Penalty Capital, VICE (Dec. 15, 2016), https://www.vice.com/en_us/article/texas-is-no-longer-americas-death- penalty-capital. 45 JAMES W. MARQUART ET AL., THE ROPE, THE CHAIR, AND THE NEEDLE: CAPITAL PUNISHMENT IN TEXAS, 1923–1990 ix (1994). 46 Id. at 12. 47 Id. 48 Id. at 5. SARAT ET AL 10/10/17 5:46 PM 764 SARAT [Vol. 107 officials to consider policy changes to curb that unsanctioned violence.49 The state decided to centralize all executions in the Huntsville prison and to adopt the electric chair in 1924.50 Officials hoped that by removing the responsibility for executions from local authorities, and using a more advanced mode of execution, they could professionalize and further legitimize state killing.51 Texas’s use of capital punishment continued unabated until 1964 when the state halted executions.52 In 1982, six years after the Court’s reinstatement of capital punishment in Gregg v. Georgia, the first person was put to death under Texas’s updated sentencing statute.53 Despite its slow post-Gregg start, the state quickly accelerated its use of the death penalty. By 1992, Texas led the nation with twelve executions since 1976.54 Looking back over the course of the last century reveals that the framing of anti-death penalty arguments in Texas has exhibited elements of both continuity and change. At the start of the 20th century, almost 67% of abolitionist arguments were made in philosophical, moral, and religious terms.55 By the century’s end, only about 40% of abolitionist arguments were framed in that way.56 Arguments about the high cost and/or lack of deterrence associated with capital punishment have remained a relatively constant feature of criticism of capital punishment in Texas.57 At the start of the 20th century, about 25% of 49 Id. at 13. 50 Id. 51 Id. at ix. 52 Id. at 107. 53 Id. at 130. 54 Number of Executions by State and Region Since 1976, DEATH PENALTY INFO. CTR., https://deathpenaltyinfo.org/number-executions-state-and-region-1976 (last visited Jun. 11, 2017). 55 Our analysis was conducted on several of the major Texas newspapers in the 20th Century, including: DALLAS MORNING NEWS, GALVESTON DAILY NEWS, SAN ANTONIO EXPRESS AND NEWS, AMARILLO GLOBE TIMES, BAYTOWN SUN, ABELINE REPORTER NEWS, and BROWNSVILLE HERALD. This number was calculated by averaging the proportion of old abolitionist arguments in each decade between 1900 and 1940. Note for all future statements of proportionality: in order to account for varying quantities of data over the decades, we averaged the proportions of the individual decades, rather than deriving the percentage from the total number of arguments made during the forty- year period. In this way, we give equal weight to each decade. 56 This number was calculated by averaging the proportion of old abolitionist arguments in each decade between 1970 and 2010. 57 Pragmatic arguments, those about cost and deterrence, have moved from 23% in the first four decades of the 20th Century to 20% between 1970 and 2010.