In 1920, after the rape and murder of a little girl, Kentucky amended its death penalty statute, which called for electrocution of capital offenders, to provide that when a rape was involved the execution was to be carried out by hanging in the county jail yard, in the presence of at least 50 witnesses. One of the men to whom this law would be applied was a 22-year-old black man, Rainey Bethea, who was executed at sunrise on August 14, 1936, in Owensboro, Kentucky. Bethea has been convicted of raping, robbing, and killing Mrs. Elza Edwards, a 70-year-old white widow, on June 10, barely two months earlier.
No one had been hung in public in Daviess County for more than a generation. Folks from all over came to town for the spectacle. They began arriving in Owensboro the day before. By dawn on execution Friday, the crowd had grown to between ten and twenty thousand white people. Extra lawmen had been called in to keep the crowd from getting out of hand.
The Sheriff of Daviess County, Mrs. Florence Thompson, who had succeeded her late husband in office, presided over the hanging. She had retained the services of Arthur L. Hash, a former Louisville policeman, as executioner, and G. Phil Hanna of Illinois, as technical advisor, to perform the hanging.
Amid the boisterous crowd yelling taunts and encouragements to the execution party, Bethea knelt on the gallows in prayer and stood up to face the east, trying to watch one last sunrise before the hood was placed over his head. The trap was sprung at 5:28 a.m. Sixteen-and-a-half minutes later, he was pronounced dead by two doctors. Members of the crowd charged the gallows at this point and tore off pieces of his death hood as souvenirs of the execution.
On the same day in Tennessee, in exactly the same amount of time that it took Rainey Bethea to die, three black men were electrocuted for unrelated murders, one right after the other, in the same electric chair--three executions in 16 minutes. But it is Bethea's hanging that became the memorable historical event--the last public execution in America.
In some respects, the hanging of Rainey Bethea may have marked the high point of capital punishment in America. The number of legal executions peaked out in the latter half of the 1930s--increasing to 199 in 1935, 195 in 1936, and 190 in 1938. After the thirties legal executions began to decline, from an average of almost 170 per year in the 30s to 130 per year in the 40s and 70 per year in the 50s.
Popular support for capital punishment waned, to the point that by the May 1966 Gallup Poll, more people were opposed to capital punishment than in favor of it. That year only one man was executed in the United States, the next year only two. Then executions stopped altogether as we awaited a definitive U.S. Supreme Court ruling on the constitutionality of the death penalty. This ruling finally came with Furman v. Georgia (1972), declaring the death penalty as it was then being practiced "cruel and unusual punishment."
It was over; the death penalty had been abolished. Well, not exactly. In 1997, the 25th anniversary of Furman v. Georgia, the United States executed 74 men, a total not reached in this country since 1955. How did this practice, once thought to be so near dead, find a vital new place in end-of-the-millennium America? The people who attended Rainey Bethea's hanging could probably explain it to us.
Thirty-eight states, the federal government, and the military have capital punishment laws on the books today, but the death penalty is pronounced and carried out most often in the South. Every Confederate state and every borderland Southern state except West Virginia have the death penalty, all have people on death row, and all except Tennessee have carried out executions in the past 20 years. Sixty percent of the men and women on death row are confined in the 16 southern states; without California's huge death row, the ratio would climb to over two-thirds. Last year, 85% of America's 68 executions were in the South, half of them in two states--Texas and Virginia.
The death penalty remains hugely popular in the South today, both among the public and among the legal officials who make it work. It has an important place in an enduring Southern tradition--the cultural tradition of violence. This violence can be channeled in two ways. As interpersonal violence, it is responsible for high rates of criminal assault and homicide. As legal violence, it is directed against those criminals who have themselves committed the worst of those crimes of interpersonal violence.
Many scholars have addressed the problem of Southern violence. One of the best-known is Sheldon Hackney in his 1969 article, "Southern Violence." Drawing from many sources, Hackney first quantifies the problem and then discusses possible reasons for its existence. He cites H.C. Brearley's study of Southern homicide rates in the 1920s. Brearley, who found that Southern homicide rates in this era were two-and-a-half times greater than the rest of the country, defined the South as "that part of the United States lying below the Smith and Wesson line."
Another researcher, writing at the same time as Brearley but from a different perspective, came to much the same conclusion. Frederick L. Hoffman, consulting statistician with the Prudential Insurance Company studied American homicide rates in the 1920s. Hoffman wrote in the June 1928 Current History:
The homicide problem in America is not diminishing, but increasing in seriousness. . . . The homicide death rate is highest in the city of Memphis, which for many years has maintained an unenviable distinction. In 1927 the Memphis homicide rate was 69.3, against an average of 10.4 for all cities considered. In other words, the Memphis homicide death rate was seven times the normal for the country at large. . . .
In the case of the Southern cities, the situation is seriously complicated by the negro element, which is much more prone to murder than the whites. This explains in part the excessive homicide rate in Detroit, which has a substantial increase in the colored population in recent years. In 1927 the Detroit rate was 18.7, while that of New York was only 6.1 and that of Boston 3.9. The Chicago rate for the same year was 13.3.
. . . the outstanding fact of the homicide problem . . . can be traced to the ease with which firearms are obtainable and the common habit of "gun-toting" in many sections of the country. That the situation is much worse in the South than elsewhere is shown by the fact that during the same seven years only 48.4 percent of the deaths from homicide were caused by firearms in the City of Boston. In Birmingham, where conditions again are typically Southern and where gun-toting is a common practice, the proportion of homicide deaths by firearms was 73 percent. As is well known to every student of the homicide problem, the countries in which the murder death rate is lowest are the countries in which the carrying or possession of firearms is permissible only under strict Government regulations. All efforts to curtail the traffic in firearms have met with determined opposition on the part of the interests concerned.
Hackney shows, in his own article a generation later, that Southerners remained much less likely to commit suicide but far more likely to commit homicide than non-Southerners. In his discussion of possible explanations, he reviews such possibilities as:
The impact of the frontier experience in shaping individualism.
In the aftermath of slavery, heightened black aggression, most often directed intraracially, resulting from alienation against the dominant social order.
The white Southerner's world view of himself as a victim.
A siege mentality that denies responsibility and places fault with external forces.
Hackney does not solve the problem of Southern violence. No one really has yet. In a 1996 article titled "Law, Social Policy, and Violence: The Impact of Regional Cultures," appearing in the Journal of Personality and Social Psychology, Dov Cohen of the University of Illinois has pointed out that:
Acceptance of violence is present in almost all parts of American society. . . . (but) violence will be most condoned in the South and West because the frontier tradition is strongest in these regions. An important element in this tradition is the acceptance of violence used for self-protection and defense. In addition, the legacy of the dehumanizing and violent institution of slavery should make the South even more approving of violence, specifically when it is used to coerce, punish, and maintain social control.
Cohen suggests that while Southerners and Westerners both "talk" violence to a greater degree than Northerners, Southerners actually practice violence, including state-sanctioned execution, to a much higher degree than Westerners do.
In a recent study of changes in state and regional homicide rates from the 1970s through the 1990s, Michael Neustrom and Burk Foster found that, while homicide rates in two-thirds of the states declined during these two decades, in some Southern states and in other more urbanized states homicide rates increased. Southern homicide rates remain more than twice as high as those of other states. If you lived in Louisiana in 1992, for instance, you would have been more than ten times as likely to be murdered than if you lived in North or South Dakota, New Hampshire, Maine, or Iowa. And most of Louisiana's nation-leading homicide rate in the 1990s is directly attributable to a sharp increase in the murder rate in New Orleans, which has 10% of the population but 40% of the murders. This once led me to propose that the easiest way to reduce Louisiana's murder rate, to below the Southern average, was to simply expel Orleans Parish from the rest of the state-leaving us all feeling much safer.
It is in the South, with its climate of high rates of personal violence of many forms--domestic, neighborhood, drug- and alcohol-related, and predatory criminal--that support for the legal system's use of the death penalty flourishes as well. It has been so for 300 years in the South, from the colonial period to the present. In regard to the death penalty in the South, I want to make three historical observations before moving forward to discuss the ethics of capital punishment in the contemporary South:
Capital punishment historian Watt Espy, who operates the Capital Punishment Research Project in Headland, Alabama, has established that from colonial times to the present, about 55% of all legal executions in America have taken place in the South. Many of these occurred under local government authority before states assumed control over executions.
Espy's data does not include the several thousand lynchings or extralegal executions that took place in local communities, particularly in the period between the Civil War and World War II. Various sources estimate that there may have been over 5,000 lynchings, mostly in the South, alongside the legal executions being carried by state and local governments.
In the modern era of capital punishment, which is said to have begun in 1930, 455 men were executed for rape, that is non-homicidal rape in which the victim survived. All 455 were in the South; 405, or 89%, were black men, the great majority of whom were convicted of raping white women. Of the 14 men who were electrocuted for rape in Louisiana in the 1940s and 1950s, all were black, and 13 of the 14 were convicted of raping white girls or women.
The death penalty, both as a pronouncement and as an act carried out, remains highly popular in the contemporary South. The 16 southern states have death row populations ranging from 17, in Delaware and Maryland, to about 450 in Texas. Of the 12 states with death row populations of more than 100, seven are in the South--Texas, Florida, North Carolina, Alabama, Oklahoma, Georgia, and Tennessee.
Since capital punishment resumed in 1977, there have been just over 500 executions in America. Eighty-three percent of these have been in the South, led by Texas with 167, exactly one-third of the total, by itself. In terms of persons actually executed, all of the top ten states are in the South.
Delaware, although small in numbers, actually qualifies as the leading death penalty state in America. It has a much lower homicide rate but gives death sentences at a much higher rate than states like California or Texas, and it carries out executions at the highest rate of any state. If Delaware had the same population as Texas, it would have given more than a thousand death sentences and executed more than 200 people in the past 20 years. Don't kill anyone in Delaware.
Why does the South not only believe in the death penalty but practice it with religion-like zeal? The traditional rationales for the use of the death penalty focus on how the penalty will affect society. These include three principal purposes, deterrence, incapacitation, and retribution, which I argue are of declining significance, to the point of irrelevance today. Even prosecutors who argue for death rarely cite these purposes as justifications.
Deterrence suffers from declining support, except in conjunction with speeding up the appeals process. We simply do not kill enough murderers fast enough for capital punishment to have any demonstrable deterrent effect. Even when we did kill more faster, no short- or long-term deterrent effect could be proven.
Incapacitation, as protection from society's mad dogs, finds an occasional supporter, with the line that no executed criminal has ever come back from the dead to kill again. But with the availability of true life sentences and secure prisons today, the need to execute to protect has diminished. As the Pope said in St. Louis recently, the death penalty is "unnecessary in modern society," because we have the means to securely restrain our worst murderers for life.
Retribution, based on equivalence, may be slightly more relevant than the other justifications today, but as I will suggest its form has been altered away from what is due the victim or society and more in the direction of the victim's family.
Philosophical justifications don't matter much to the contemporary decision-makers. The death penalty is justified as a political expedient, a tough but direct action people can take in the war on violent crime. The emergent ethic of the death penalty in the South is made up of three parts:
1. respect for victims of crime, not just the dead but the family as well. I call it the "victim deference factor." What are the victims' wishes? Do they want the death penalty or not? The victims who complain the loudest get what they want from the prosecutor, even to dictating death penalty trials. Victim impact, which allows survivors to express their sense of loss, has become an important part of the penalty phase of the first-degree murder trial. To whatever extent the death penalty is based on objective criteria--that is, the gravity of the offense and the blameworthiness of the offender--the loudness of the family's cries ought to be a minimal force. Politically it is becoming just the opposite today.
Douglas Dennis, in an article in The Angolite prison magazine, had these observations on "victimhood:"
Victimhood is a ragingly popular philosophy nowadays, but some warn it is morally bankrupt. It endorses self-pity and gives license to divisiveness and hatred. . . .
Lost in all the raw, physical pain and emotional anguish suffered by crime victims is the perfectly sound reason why this nation's founding fathers barred them from the judicial process: Justice cannot be fair and equitable unless it is unbiased. Prosecutors and judges were invented so cool heads could dispense justice. "For the first time since the Normans and Danes went around hacking each other to pieces," said syndicated columnist Joe Bob Briggs, "you have all these angry revenge-seeking people in the courtroom, demanding blood for blood.
"In other words, we forgot the whole reason for having state prosecutions in the first place. It was to keep these people out of it, to make sure it was fair by not having any emotional revenge speeches in the courtroom." "Victims' rights" is not progress, it is a regression to justice by vendetta.
2. moral repudiation. To be on a death penalty jury, you must be willing to vote for death. Jurors by their nature then agree in principle that death is the appropriate punishment for certain criminals committing specific criminal homicides. They agree on the death penalty because they think killing is wrong. Their position is moral and absolute; they are taking a stand that brooks no argument. They have in effect taken the moral high ground, leaving the moral "low ground" to those who would argue that mitigating circumstances would merit a penalty other than death.
3. the good citizen obligation. Your civic duty requires you to make a difficult decision in the war on crime. Responsible citizens have to take a stand. "We sentence you to death because it is our public duty to do so." A juror in a Baton Rouge trial said as much last year: "We felt it was our obligation to the community to sentence this man to death."
The effect of the death penalty on society or on other criminals does not matter. The focus is on the courtroom--the situation immediately at hand. We owe it to the victim and the local community to impose the death penalty. The emphasis is not on some possibly beneficial philosophical purpose, but on the act of achieving consensus, which occurs in three steps:
1. the prosecutor recommends it.
2. the jury decides it.
3. the judge approves it.
In this scenario, there is no effect on society, no underlying purpose. The death penalty in the South today is means-driven, not ends-driven. What is important is achieving the consensus of moral condemnation. There are no objective standards of when an offense merits the death penalty. Heinousness, like beauty, is in the eye of the beholder; it is purely situational. It allows certain prosecutors and judges and certain populations, acting as jurors, to think and do their worst, while others around them do very nicely with minimal use or no use at all of the death penalty.
What it takes for a particular legal jurisdiction to get a lot of death sentences today is a prosecutor willing to take the trouble to seek the death penalty, a public-spirited citizenry looking for some people to give death sentences to, and judicial officials willing to let nature take its course--they unite in a symbolic act expressing sympathy with the victims and solidarity with their fellow human beings.
Sears and Kinder in 1971 described symbolic attitudes as "almost wholly abstract, ideological, and symbolic in nature." Such attitudes are not concrete, instrumental, or goal oriented, but expressive. They "have almost no conceivable personal relevance to the individual, but have to do with his moral code or his sense of how society should be organized."
Phoebe Ellsworth and Samuel R. Gross of the University of Michigan have written about the importance of emotion and symbolism to the death penalty. In a 1994 article titled "Hardening of the Attitudes: Americans' Views on the Death Penalty," they suggest that symbolic collective representations, such as public attitudes toward the death penalty, are "value expressive, emotional, and closely tied to the deep, fundamental beliefs of a culture." They go on to say:
Research over the last 20 years has tended to confirm the hypothesis that most people's death penalty attitudes (pro or con) are based on emotion rather than information or rational argument. People feel strongly about the death penalty, know little about it, and feel no need to know more. . . . most people's attitudes toward capital punishment are basically emotional. The "reasons" (to be for or against) are determined by the attitudes, not the reverse.
Ellsworth and Gross argue that:
Whatever the relationship between crime and support for the death penalty, it is not driven by personal experience. Many studies have shown that people who have been victimized themselves, or who fear for their personal safety, are no more likely to support the death penalty than those who have been more fortunate, or are less fearful. . . . If there is any one emotion that mediates between crime and support for the death penalty, it is probably frustration rather than fear. Year after year we live with high crime rates, we see graphic coverage of violence, we hear politicians promise to win the war against violence, against gangs, against drugs, against crime-but nothing changes. It is not hard to understand why many people support capital punishment even though they believe it does not deter crime and is not fair. The death penalty is concrete, it is forceful, and it is final (which nothing else seems to be); it is something, and being for it means that you insist that something be done.
How does this symbolic act fit into the legal system of the South today? As a practice, the death penalty is not pervasive, like a stain spreading evenly across each state of the South. Rather, the pattern resembles blood spatters, drops of blood falling here and there, across the geography and ecology of the South. We talk about the "death belt," reaching from Texas and Oklahoma across to the Atlantic Coast, but what we really have are "death pockets" within the larger boundaries.
Using Louisiana as an example, Orleans Parish has about five times as many homicides as each of the three next largest parishes-Jefferson, East Baton Rouge, and Caddo. But in the decade of the 1990s, Orleans has given 12 death sentences, while East Baton Rouge has given 15, Jefferson 9, and Caddo 6. Fewer than half the parishes in the state have given anyone a death sentence in the past two decades; only 14 parishes (of 64) have given more than two.
James Liebman, a law professor at Columbia University, said in a 1995 New York Times article, "Lots of states have death belts. In southern Georgia, there are lots of death sentences; in northern Georgia, there aren't. In Tennessee, there are tons of death sentences in Memphis and East Knoxville, but not in Nashville."
The same article points out that of 254 counties in Texas, only 42 had sent any inmates to Texas's death row, and half of those only one. Almost a third of Texas's death row came from one jurisdiction, Harris County, where DA Johnny B. Holmes is famous as the "deadliest prosecutor" in America.
Most states have similar death pockets, judicial districts with disproportionately high rates of death sentences. What you expect to find in such a locale is:
1. A hard-core, conservative, politically popular prosecutor.
2. Judges who generally go along with the prosecutor's office.
3. A jury pool in which white conservatives predominate.
4. A small lower class, including significant numbers of blacks and hispanics, that commits enough death-qualified crimes (usually felony murders such as robbery and rape against middle-class white victims) to generate a significant number of prosecutable capital cases.
The real death pocket of America is not Houston, Texas, but the "City of Brotherly Love," Philadelphia, whose DA, Lynne Abraham, seeks the death penalty in over half of all homicides and finds it very often: more than half the inmates on Pennsylvania's death row come from Philadelphia. William Penn and the correctional reformers who founded the American penitentiary would be shocked at this strange turn of events.
The appellate courts, which according to Gregg are supposed to be assuring proportionality in the application of death sentences across the state, ignore any notion of national or statewide standards in favor of local autonomy. The result is a system far more arbitrary and capricious than the once described in Furman v. Georgia a quarter-century ago, but with a far less critical Supreme Court looking at it.
How would one rationally counter this political spirit that promotes high rates of capital punishment in the South today?
1. By citing numbers, as in the recent decline in the homicide rate. The murder rate has fallen off sharply in recent years. It now stands at about 7.0 per 100,000 population nationwide; in many cities, murder rates are back to the levels of the 1960s, rates that were, incidentally, much lower than they had been at other times in the American past, including one homicide peak in the 1930s. Of course, proponents of the death penalty suggest that the decline in murders is due to the increase in executions. We should keep the execution rate high to keep murders in decline.
2. By arguing costs, that it is more expensive to execute than imprison. The most rigorous studies suggest that putting someone to death costs two to three times as much as a real life sentence. The increased costs are mostly legal expenses associated with appeals. Proponents of capital punishment would argue that the way to reduce these costs is to speed up and reduce appeals, which many states and the federal courts are apparently trying to do.
3. By selling fortuity, the one in 60 chance of getting a death sentence. There were 20,000 murders last year, and barely 300 death sentences. The death penalty is applied so capriciously, I don't know anyone who argues that it is done fairly. But proponents would argue that we need more, not fewer death sentences. Increasing the number of death sentences would distribute them more fairly but state, by district, by race, by class, by gender, by age, by any of the other discriminatory criteria.
4. By proposing alternatives, such as the true natural life sentence. More states are turning to real life sentences which carry no chance of parole. Louisiana has almost a thousand first-degree murderers serving real life sentences, most of them at our well-known Angola penitentiary. Proponents argue that real life lacks the impact of death. Abolitionists argue that what Professor Eric Trump calls "death in prison" --irrevocable, endless confinement at hard labor for a full lifetime--is a more severe punishment than early death.
Will any of these (or all of these in combination) make a difference? Not likely. I would like to present two other possibilities:
1. Changes in the makeup of the U.S. Supreme Court. Some death penalty abolitionists, giving up on popular opinion and state legislatures, see a more liberal Supreme Court as the only short-term hope for abolition of capital punishment.
2. Pressures in the world court of public opinion. We can cite recent examples of protests from Mexico and Canada., when their citizens were about to be executed, or the international outcry at the execution of Sean Sellers in Oklahoma, condemned for three murders committed at age 16 and finally executed two weeks ago. What does international opinion matter to a popularly elected DA in the South? I could say it more graphically, or I can say it in a word, nothing.
Built upon a tradition of personal violence in which state violence is a perfectly legitimate, even necessary response, the death penalty has found an ethic for survival for at least one more generation in the South, and likely in most of the rest of the country as well, though not to the same extent in practice. Other nations, and even some of our own United States, have done well without the death penalty for a long time.
Michigan was the first state to abolish the death penalty, in 1847, followed by Rhode Island in 1852 and Wisconsin in 1853. The last execution in Michigan was carried out in 1830. But the death penalty, as we have already determined, will not stay dead. The restoration of capital punishment was debated in the Michigan legislature no fewer than 25 times between 1885 and 1952. Restoration was defeated in the legislature 23 times, vetoed by the governor once, and rejected once by popular vote.
Michigan is one of eight states sufficiently civilized to have abolished capital punishment, but on April 16 its Senate voted 21 to 10 to restore the death penalty. If concurred in by the House and signed by the Governor, the measure will have to go before the people for a popular vote. The Senate's action is a backward step, and final approval of its measure would be a disgrace to the State and a set-back for the cause of law-enforcement in this country . . . .
A recent testimonial to that effect is from Frederick L. Hoffman, consulting statistician of the Prudential Insurance Company, as a conclusion to his analysis of the homicide figures for 1928. Writing in the Spectator, an insurance journal published in New York City, Mr. Hoffman says:
If we are not willing to enforce the death penalty, it would certainly be much better to do away with it. That we are not willing to enforce it is made clear in nearly every trial for murder of the first degree, in which the resources of the law are exhausted to save a convicted person from the electric chair, the hangman's rope, the lethal gas chamber, or the firing squad. . . . Certainly the states in which the death penalty is enforced show a higher murder death-rate than the States in which it is not enforced. A good illustration is the State of Rhode Island where the death penalty has not been enforced since 1852. During the year under review, Providence, R.I., had a homicide death rate of only 3.8 per 100,000, while Pawtucket, R.I., had no deaths from homicide at all during 1928, nor for that matter during 1927. . . . Or Providence, R.I., with 286,000 population and 11 deaths from homicide in 1928 may be compared with Houston, Texas, with 275,000 population and 72 deaths from homicide. This argument could be extended to practically every section of the country and no evidence can be produced to show that capital punishment acts as a deterrent or hindrance to even the worst of murder records conceivable. The death penalty, rather to the contrary, acts a deterrent to swift and adequate justice, imposes heavy burdens upon the taxpayers as the result of long trials, fosters sensationalism of the worst possible type, and stains the civilization of those who enforce it.
The numerous violent deaths in the United States do little credit to our supposed high civilization. One way of reducing this toll is through swift and sure justice, and one way to swift and sure justice is to do away with that relic of barbarism, capital punishment. Michigan should stand by the law it has.
This prophetic article was from the May 1, 1929, The Nation. In this instance, capital punishment was once more resigned to the ranks of the restless undead, at least in Michigan, though sponsors have promised to bring it back again(as a referendum to amend the state constitution) in the 1999 legislative session.
Away from the northern borders of the contiguous 48 states, and particularly in the South, the death penalty has made a spirited comeback. The year of our Lord 1996, with 74 executions, took us almost back to the "happy days" of 1955. Soon, perhaps this year, we will return to the Korean War of 1951, the last year with more than 100 executions. If we persevere, within the next decade we can return all the way back to Rainey Bethea and the 195 executions of 1936 Depression-era America.
This article is a slightly revised version of a presentation given at Saginaw Valley State University in Michigan on February 17, 1999. It was part of a symposium titled "Ethics and the Administration of the Death Penalty," sponsored by SVSU's annual Albert J. Beutler Forum on Ethics and Practice under the direction of Dr. Clifford Dorne, chair of the Department of Criminal Justice at SVSU.