Capital Punishment and the Citizen-Subject

“So much has been written and said on the subject of capital punishments,” opined the Philadelphia Repertory in 1812, “that it looks almost like presumptive vanity to pursue the topic any farther” (qtd. in Banner 112). By the early-nineteenth century, Americans felt that all points of debate for or against the death penalty had been made. Yet two centuries later, David Garland notes that “there has been no let up in writing and talking about [the death penalty]”: “the one thing that is indisputable is that the death penalty produces an endless stream of discourse,” and he vividly conjures up the “bookstore shelves and law library stacks” that “groan under the weight of writing provoked by this institution” (9). The groaning in certain sections of those libraries, however, is not only occasioned by the ever-growing number of criticisms and defenses of the death penalty that almost each generation of Americans has produced since Benjamin Rush published Considerations on the Injustice and Impolity of Punishing Murder by Death (1792). The commentary on this debate and criticism of the legal, sociopolitical, literary, or (auto)biographical writing that has accompanied the death penalty since colonial times, and that has come to be seen as “an intrinsic part of the institution” (Garland 14), has considerably added to the weight that makes the shelves bow. What then, one wonders, can three new monographs and an edited collection that fall into the latter category add to our understanding of capital punishment’s “cultural life” (Sarat “The Cultural Life of Capital Punishment”) that isn’t already on those shelves?

Like all legal forms of punishment, the death penalty depends on culture to imbue it—or the desire for its abolition—with legitimacy and meaning. The death penalty’s legal framework and administration, as well as its attendant practices (such as the gallows procession or the last meal), are shaped by cultural attitudes and sensibilities. Without changes in collective moral judgment, for example, capital punishment would not have changed from a punishment for a great number of crimes to one reserved for first-degree murder; without shifts in middle-class identity and polite taste, executions would not have been moved from the public square to the “private” space of the prison; without “evolving standards of decency” (8), new methods of execution, such as the electric chair, would not have been introduced and minors might still be considered executable subjects. Such attitudes and sensibilities can be explored only by attending to the texts that a culture produces to negotiate the meaning of capital punishment; such texts—from the early execution sermon via crime literature and abolitionist tracts to Dead Man Walking (1995)—offer points of entry to anyone wishing to comprehend the sociocultural logics of American life. The relationship of culture and the law, however, is no one-way street: the death penalty is not only shaped by culture, but it shapes culture in turn. It produces social roles and identities, it becomes a salvo in cultural battles that go far beyond the matter of punishment, and engenders forms of cultural expression and communication. These, too, must be explored through a study of texts—and these, too, can be seen as windows onto even more fundamental sociocultural structures. While stressing these reciprocal dynamics that characterize the relationship of law and culture has become a mainstay of the law-and-culture school, this second direction is certainly the one less traveled in historical and literary scholarship on the death penalty.

Recent studies by John Barton, Jeannine DeLombard, and Stephen Hartnett open up...