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Executing Humanity: Legal Consciousness and Capital Punishment in the United States, 1915–1940

  • Daniel LaChance

From the 1830s to the 1930s, elites across the United States increasingly privatized executions and standardized execution protocols. These changes reflected and reinforced a more bureaucratic image of the state as an abstract entity run by professionals operating in rule-bound roles rather than particular actors governing in an unsystematic way. After this period of change, the aesthetics of the execution ceremony had so thoroughly changed that the death penalty had the potential to inspire critiques of the modern state as cold, detached, and callous. It rarely did, however. Changes to state killing threatened to diminish the recognition of human dignity in the nation's execution chambers were countered by melodramatic popular renderings of executions that preserved their sacred, traditional character. Toward the end of this period of change, from 1915 to 1940, playwrights, screenwriters, and journalists maintained executions as events in which the humanity of the state that killed and the condemned who died was constantly foregrounded, even as execution modes and protocols became rationalized and machine-like. Reflecting this ethos, images of condemned men in the nation's collective imagination became disproportionately white.

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He thanks Stuart Banner, Peter Brooks, Elaine Tyler May, Lary May, Rebecca McLennan, Britt Rusert, Barbara Welke, and the anonymous reviewers for Law and History Review for their helpful feedback on earlier versions of this article. He is also grateful for the excellent editorial and research assistance of Princeton University students Julie Chen, Ghita Guessous, Lawrence Liu, and Jessica Zou; and Emory University students Jonathan Bonsall, Jennifer Chung, Declan Hahn, India Jones, Takuya Maeda, Charmaine Marshall, Danielle Pitrone, James Radcliffe, and Tim Romans.

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1. Whitner Cary, “With Plea for Life of Wife, Thompson Goes to His Death,” The Atlanta Constitution, August 4, 1928, 1.

2. Loy Warwick, “Doors of the Death House Shut Behind Mell Gore,” The Atlanta Constitution, September 12, 1926, 11.

3. Gore survived his September 1926 brush with the electric chair, receiving a last minute stay. Months later, though, after a new set of appeals proved unsuccessful and the state set a new execution date, the purple prose coverage of the case resumed.

4. “Gore's Nerve Gone As Chair Beckons Him to Pay Today,” The Atlanta Constitution, June 3, 1927, 1.

5. “Gore's Nerve Breaks on Eve of Execution for Creek Crime,” The Atlanta Constitution, September 26, 1926, 1.

6. “Mrs. Gore Pens Last Appeal to Save Son,” The Atlanta Constitution, June 1, 1927, 1.

7. “Gore's Nerve Breaks.”

8. “Gore's Nerve Gone.”

9. Herb McCusker, “Lithia Springs to Receive Gore For Final Rest,” The Atlanta Constitution, June 4, 1927, 1.

10. Kant, Immanuel (trans. Ladd, John), The Metaphysical Elements of Justice (Indianapolis: Bobbs-Merrill, 1965 [originally published 1797]), 102. On the rise of human rights discourse in the eighteenth century, see Hunt, Lynn, Inventing Human Rights: A History (New York: W.W. Norton, 2007).

11. These changes reflected the rise of the legal-rational form of domination that Max Weber traced in Economy and Society. Weber, Max, Economy and Society (Berkeley: University of California Press, 1968). It also reflects one kind of consciousness about law that Americans presently hold, which Patricia Ewick and Susan Silbey have termed, following Kafka, “before the law.” In this popular mental representation, law is indifferent to the particularities of biography or personality; it is, instead, a “powerful, apparently autonomous place of ordered rationality whose capacity transcends particular human actions.” A cosmic distance separates the law from ordinary human beings, who “apprehend the consequences produced by it without identifying the mechanisms that accomplish those effects.” Law here is reified, rationalized, and bureaucratized. Legal decision makers are the vessels through which rules pass rather than the source of their application. Ewick, Patricia and Silbey, Susan, The Common Place of the Law: Stories from Everyday Life (Chicago: University of Chicago Press, 1998), 75.

12. I invoke, here, Émile Durkheim's sociology of punishment. Durkheim, Émile (trans. Halls, Wilfred Douglas), The Division of Labor in Society, (New York: Free Press, 1984).

13. The term “killing state” refers to the image and institutions of a government that uses death as a punishment. It comes from Sarat, Austin, ed., The Killing State: Capital Punishment in Law, Politics, and Culture (Oxford: Oxford University Press, 1998).

14. Dayan, Colin, The Law is a White Dog (Princeton: Princeton University Press, 2011), 64.

15. Bederman, Gail, Manliness and Civilization: A Cultural History of Gender and Race in the United States, 1880–1917 (Chicago: University of Chicago Press, 1995). Bederman has argued that such a decline changed the gender and racial identity of middle class white men: whereas a Victorian capacity for self-restraint was the sine qua non of this upwardly mobile class of men, they increasingly came to embrace, as their social and economic prospects shrank, a racial and gender identity rooted in virility, physical strength, and a willingness to do violence. Performances of physical prowess compensated for the rising experience, for these men, of social and economic weaknesses. In execution narratives, I argue, we can find the newly felt vulnerabilities of middle class white men laid bare. We can also see how they were managed not simply through the celebration of white men's virility and violence, but in discourse presenting their bravery in the face of annihilating forces beyond their control.

16. Some antebellum white Southerners invoked this construction of the condemned in their efforts to stop the spread of penitentiaries into the region. The confinement of white men in penitentiaries was degrading, they argued, compared to a more honorable and autonomy-respecting death on the gallows. Ayers, Edward L., Vengeance and Justice: Crime and Punishment in the 19th Century American South (New York: Oxford University Press, 1984).

17. For a comprehensive overview of many such changes, see Wiebe, Robert H., The Search for Order: 1877–1920 (New York: Hill and Wang, 1966).

18. Law, as William E. Forbath has shown, both expressed and moderated the technocratic turn in governance. Forbath, William E., “Politics, State-Building, and the Courts, 1870–1920,” in The Cambridge History of American Law, ed. Grossberg, Michael and Tomlins, Christopher, vol. 2 (New York: Cambridge University Press, 2011), 644.

19. Gottschalk, Marie, The Prison and the Gallows: The Politics of Mass Incarceration in America (New York: Cambridge University Press, 2006); and Stuntz, William J., The Collapse of American Criminal Justice (Cambridge, MA: Belknap Press, 2011). Gottschalk has shown how panics over everything from prostitutes to sexual psychopaths to bootleggers ultimately expanded the federal government's “capacity and legitimated its role in defining morality, running the punishment apparatus, and waging war against the criminal and the immoral.” The Prison and the Gallows, 76. In the late 1920s and early 1930s, the Hoover and Roosevelt administrations advanced these efforts significantly by establishing the Federal Bureaus of Prisons and Narcotics (1930), rebooting the agency that would become J. Edgar Hoover's Federal Bureau of Investigation (1935), and passing major crime packages aimed at making the federal government the “nerve center” of American law enforcement (1934). Quoted in Gottschalk, The Prison and the Gallows, 62.

20. Anxiety over the capacity of government to control gangsters was initially widespread during the period. As Gottschalk notes, “The popular media portrayed gangsters as powerful, technologically sophisticated crime executives who vanquished corrupt, inefficient cops and impotent federal agents. Gangsters were the subject of numerous newspaper and magazine articles, novels, plays, and more than a hundred Hollywood movies. These portrayals of criminals highlighted the weakness, ineptitude and corruption of government officials,” a reputation that prohibition efforts initially exacerbated. Ibid., 60.

21. Ibid., 62.

22. In texts such as Karl Marx's Economic and Philosophic Manuscripts of 1844 and Max Weber's The Protestant Ethic and the Spirit of Capitalism, nineteenth century social theorists documented the alienating and spiritually imprisoning effects of modern values and innovations. Marx, Karl (trans. Milligan, Martin), Economic and Philosophic Manuscripts of 1844 (Amherst, N.Y.: Prometheus Books, 1988), Weber, Max (trans. Parsons, Talcott), The Protestant Ethic and the Spirit of Capitalism (London: Routledge, 2001). Pippin, Robert B. traces this theme in nineteenth century political philosophy in Hollywood Westerns and American Myth: The Importance of Howard Hawks and John Ford for Political Philosophy (New Haven: Yale University Press, 2010).

23. As Lawrence Friedman writes, “A cop on foot was a familiar cop, a neighborhood cop; he knew his beat, and the beat knew him…But now a ton or more of steel separated the motorized officer from the community; police cruising in patrol cars were strangers to the dark, dangerous streets; these police tended to feel alien, beleaguered; the locals, for their part, thought of them as an outside, occupying force.” Friedman, , Crime and Punishment in American History (New York: Basic Books, 1993), 359.

24. On the end of public executions in England, see McGowen, Randall, “Civilizing Punishment: The End of the Public Execution in England,” Journal of British Studies 33 (1994): 257–82. In the mediation that newspapers would provide, elites in both England and the United States saw an opportunity to maximize the deterrent effect of an execution while eliminating the opportunity for crowds to subvert its intended meaning. In England, the bishop of Oxford noted that the virtue of a private execution lay in the control it gave elites over the meaning of punishment. After an execution, Samuel Wilberforce argued, “the fact could be made known that the forfeited life had been sacrificed, with nothing to draw the attention of the spectators from the reality of the great act of justice.”  Quoted in McGowen, “Civilizing Punishment,” 279. The notion that “the papers would create a discreet distance between the act and its audience” may have succeeded in England, where McGowen explains that “the execution became an impoverished affair” in the aftermath of privatization. “Punishment was no longer an elevated spectacle; it was a mundane institution and set of practices for removing a fearful contagion.” “Civilizing Punishment,” 281. No such “discreet distance” was created in the United States. As will be discussed, empathy-inviting execution narratives preserved an image of capital punishment in the popular imagination as an act that foregrounded the humanity of the condemned and those charged with putting them to death.

25. See Masur, Louis, Rites of Execution: Capital Punishment and the Transformation of American Culture, 1776–1865 (New York: Oxford University Press, 1989); Banner, Stuart, The Death Penalty: An American History (Cambridge: Harvard University Press, 2002); and Foucault, Michel, Discipline and Punish: The Birth of the Prison (Paris: Editions Gallimard, 1975) trans. Sheridan, Alan [New York: Vintage Books, 1995]). Citations refer to the Vintage edition. Banner notes that, in the United States, pity for the condemned by members of the crowd was just as often a source of concern for elites as sadistic, voyeuristic pleasure or unruly behavior.

26. Linders, Annulla, “The Execution Spectacle and State Legitimacy: The Changing Nature of the American Execution Audience, 1833–1937,” Law and Society Review 36 (2002): 607–56.

27. Banner, The Death Penalty. For a compelling account of the backlash that this law created in Minnesota, and the role it played in that state's abolition of the death penalty, see Bessler, John D., Legacy of Violence: Lynch Mobs and Executions in Minnesota (Minneapolis: University of Minnesota Press, 2003).

28. Linders, “The Execution Spectacle and State Legitimacy.”

29. Quoted in ibid., 621.

30. Martschukat, Jürgen, ‘The Art of Killing by Electricity:’ The Sublime and the Electric Chair, The Journal of American History 89 (2002): 900921 .

31. Progressive efforts at democratizing government were often parried by an equally strong urge to substitute expert judgement for democratic preference. Legal realism, an intellectual movement partly born out of progressive discontent with the detached, formalistic use of law, initially sought to demystify the workings of law in order to combat the idea that the law was committed to maintaining an economically laissez-faire political economic order. The social backgrounds of judges and their skillful manipulation of precedent, not some gapless system of logic, explained the reactionary decisions that judges issued. But even as it revealed the “man behind the curtain,” legal realists sought to make judges beholden to an alternative to legal formalism—a technocratic reliance on social science—that was as inaccessible to the people and their elected representatives as formalism was. As Morton J. Horwitz argues, legal realism “provided the ideology for justifying the phenomenal expansion of the administrative state.” Its turn to social science ultimately “repressed the political passion and sense of injustice so powerful in early realism and pushed the argument for social reform into a starkly technocratic mode.” Morton J. Horwitz, Review of Legal Realism at Yale, 1927–1960 by Kalman, Laura, The Journal of American History 75 (1988): 299 .

32. Banner, The Death Penalty, 168.

33. Although the contents of “melodrama” as an analytical category have been the subject of scholarly debate for decades, scholars have tended to agree that melodramatic texts are narratives told in a “mode of excess” in which a surfeit of sentimental detail infuses characters, settings, and events with a heightened emotionality. In a typical melodramatic plot, one-dimensional antagonists who are wholly evil plot to ruin equally one-dimensional heroes or heroines who are wholly good and innocent.  Happy endings, when they happen, depend not on some act of cleverness by the innocent heroine, but on an act of fate over which she has no control: a rescue or resolution made possible by a person or event that saves the day just in the nick of time. Singer, Ben, Melodrama and Modernity: Early Sensational Cinema and Its Contexts (New York: Columbia University Press, 2001), (On “the mode of excess” endemic to melodrama and its emergence in the aftermath of the French Revolution, see Brooks, Peter, The Melodramatic Imagination: Balzac, Henry James, and the Mode of Excess [New Haven: Yale University Press, 1976].) Political revolutions, industrialization, and urbanization in the long nineteenth century shaped the melodrama's aesthetic form and social function. The genre expressed anxieties about those modern forces. In the threats faced by the innocent in melodramatic texts—trapped on railroad tracks in front of an oncoming train, destitute and unable to pay the rent, sexually exploited by cunning, cosmopolitan Lotharios—we can perceive, David Grimsted argues, concerns about the fate of the premodern self in the modern world. Grimsted, David, “Melodrama as Echo of the Historically Voiceless,” in Anonymous Americans: Explorations in Nineteenth-Century Social History, ed. Hareven, Tamara K. (Englewood Cliffs, NJ: Prentice-Hall, 1971), 8098 . But in resolutions in which the wicked were punished and the innocent saved, melodramas ultimately reassured audiences “that a higher cosmic moral force still looked down on the world and governed it with an ultimately just hand.” Singer, Melodrama and Modernity, 133. Melodramas also reassured the undereducated that they still possessed what was most important in leading a spiritually fulfilling life. In aesthetically privileging an “epistemology of feeling,” suggesting that emotion and intuition mattered more than education and social stature in grasping fundamental, “self-evident” truths, the genre popularized an anti-intellectualism in American political culture. Grimsted, “Melodrama as Echo,” 89.

34. See the methodological note in the appendix for an explanation of how films were identified and coded.

35. See the methodological note in the appendix for an explanation of how newspapers were selected and execution coverage was found and coded.

36. “Builds Gallows for 65; Now He's 60 and Through,” The Chicago Tribune, January 1, 1927, 5.

37. McKenzie, Andrea, “Martyrs in Low Life? Dying ‘Game’ in Augustan England,” Journal of British Studies 42 (2003):167205 . In some ways, portrayals of the condemned in melodramatic, empathy-inviting execution narratives drew upon the well-established figure of the criminal who died “game,” that is, who “died advertising both his courage and cheerful indifference to death” (at 175). Studying the act of dying game in Augustan England, McKenzie argues that the figure was noxious to eighteenth century elites not because he embodied a rejection of sacred authority but because he appropriated the identity of the martyr. “[P]erhaps the most subversive of all the messages communicated by the game criminal was that his cheerfulness and courage stemmed not from bravado or impiety but from his ‘great Assurance of God's mercy to him’—an assurance that was… ‘not hope but certainty.’” (at 187, internal citations omitted).  By the end of the eighteenth century, McKenzie argues, social, cultural, and religious changes made the game criminal's appeal to the tradition of Christian martyrdom less recognizable and thus less effective in challenging, from a righteous standpoint, the legitimacy of the authorities who put him to death. She writes, “The relatively open forum enjoyed by the game criminal would after the middle of the eighteenth century begin to close, as public interest in accounts focusing on the dying words and behavior of the condemned began what would prove to be a precipitous decline” (at 205). In an age of reason, the equanimity of the condemned in the face of death appeared as evidence of his brutish irrationality rather than evidence that he had been divinely blessed. In the execution narratives that are my focus here, journalists admiringly revived, in somewhat altered form, the early modern vision of the game criminal as a martyr. These twentieth century men did not have the antagonistic relationship with authorities that were common in portrayals of the game early modern criminal, but their efforts to die well resembled, in a more secular form, the game criminal's self-presentation as an ordinary sinner who had received God's grace and was, as a result, unafraid to die. As a force that countered the rationalization of executions by the modern state, these heroic depictions of the condemned assured readers of the endurance of the spiritual fortitude that modernity had long been suspected of sapping from all human beings.

38. Cary, “With Plea for His Wife.”

39. Pierre van Paassen, “Satterfield, on Gallows, Smiles Welcome to Death,” The Atlanta Constitution, May 24, 1924, 1.

40. “75 See Bandit Die on Gallows as Murderer,” The Baltimore Sun, August 13, 1926; and Lewis Wood, “Becker Kept Vow to ‘Die a Man,’” The New York Tribune, July 31, 1915, 1.

41. “‘Oh What a Pal Was Mary,’ Sings One of 5 Greeting Death in Chair,” The New York Tribune, December 20, 1920, 1.

42. Smith, James L., Melodrama (London: Methuen and Company, 1973), 56.

43. The melodrama emerged in “the epistemological moment that symbolically, and really, marks the final liquidation of the traditional Sacred and its representative institutions (Church and Monarch), the shattering of the myth of Christendom, the dissolution of an organic and hierarchically cohesive society.” Brooks, The Melodramatic Imagination, 14–15. The tyranny of chance in melodramas was in some ways an emblem of a world that had lost its legibility and cohesion. Singer, Melodrama and Modernity.

44. Cary, “With Plea for Life of Wife.”

45. However, such endings undermined the way melodramas of triumph are happily resolved by the same forces of fate and chance that imperiled the protagonist. Here, it is the internal will of the protagonist that tames the psychologically debilitating forces of chance.

46. Cary, “With Plea for Life of Wife.” Jim Moss was African American, and the article was exceptional for its inclusion of an African American in a melodramatic execution narrative. It was also the only story we have found, thus far, to print an image of a condemned black man. The story approvingly suggests an odd moment of interracial solidarity in 1930s Georgia: “[I]t is a story of how two men, one white and the other black, met death without fear” and its author writes admirably about Moss's “remarkable” nerve. He and Thompson bore their fate with “Spartan courage, forgiveness for their enemies, a firm, bountiful belief that they were about to reap the fruits of salvation.” And yet racial hierarchy was nonetheless present. The story's headline, “With Plea for Life of Wife, Thompson Goes to His Death,” made no mention of Moss, and although it lauded his courage, it also indulged, at times, in the stereotype of the happy-go-lucky, blissfully ignorant African American man, noting that he “eats with a relish, remarking with quaint humor that ‘this is one more meal than I had expected to enjoy’” and “chats joyously with newspapermen, flashing his golden smile.”

47. The image of law as a “net” is used by Patricia Ewick and Susan S. Silbey to describe a form of legal consciousness that sees law as an alien, malevolent force opposed to human interests and well-being. See The Common Place of the Law.

48. “Murderers of Chapman Hang,” The Los Angeles Times, January 17, 1925, 4.

49. “Whitman in Tears as Mother Pleads for Her Son's Life,” The New York Tribune, August 31, 1917, 4.

50. Ibid.

51. “Slayers Likely to Die Tonight,” The Boston Globe, January  4, 1927, 1.

52. “Desatnick Executed in Killing of Child,” The Boston Globe, July 17 1928, 1.

53. “Goes to Chair as Babies Sleep in Warden's Home,” The New York Herald-Tribune, March 13, 1925, 1.

54. “Raise Fund For Family as Man Dies in Chair,” The New York Times, March 13, 1925, 21.

55. “Gets to Prison at 11.35 P.M.” The New York Times, July 30, 1915, 1.

56. W.G. Foster, “Baker Boy Pays Supreme Penalty in La Fayette Jail,” The Atlanta Constitution, April 28, 1923, 1.

57. “Gricius and M'Wane Hanged,” The Chicago Tribune, December 31, 1926, 1.

58. “Gleason Executed, Calm to the End,” The Boston Globe, March 13, 1928, 1.

59. Lewis Wood, “Becker Kept Vow to ‘Die a Man,’” The New York Tribune, July 31, 1915, 1. Ten years later, in its coverage of John Farina's execution, The New York Tribune explicitly identified the executioner, whose identity was apparently no longer a secret, and commented on his demeanor: “Solemnly and with scientific precision executioner John Hulbert, a deep chested man with close cropped hair, shocked the three men to death serially.” “Diamonds Die with Farina, Denying Guilt,” The New York Tribune, May 1, 1925, 1.

60. “Becker Unnerved Goes to Chair,” The New York Times, July 31, 1915, 1.

61. “Diamonds Die with Farina.”

62. Films that expressed this anxiety included Who Shall Take My Life (1917), Troublemakers (1917), A Game of Fate (1918), Confession (1918), The Victim (1920), and Love's Battle (1920), and Circumstantial Evidence (1935).

63. Whereas Griffith had, in Birth of a Nation (1915), depicted the lynching of a black man as a prelude to the emotionally satisfying recuperation of Southern white manhood in the aftermath of Reconstruction, in Intolerance he depicted the converse: the avoidance of lethal punishment by a Northern white man wrongly accused of murder.

64. May, Lary, Screening Out the Past: The Birth of Mass Culture and the Motion Picture Industry (New York: Oxford University Press, 1980), 85.

65. The father had abandoned the mother years earlier, taking the toddler Nickie with him and leaving Nickie in a reform school. When Nickie comes of age, his father, whose face Nickie has long forgotten, hires Nickie to work in a bootlegging operation in a jazz hall. He keeps his son ignorant of their relationship until the events of the film unfold.

66. George O'Neil, I'd Give My Life (Release Dialogue Script), August 7, 1936, 5:5. Paramount Pictures Scripts Collection, Production Files—Produced, Series 1.  Margaret Herrick Center for the Study of Film, Academy of Motion Picture Arts and Sciences, Los Angeles (Hereafter MHC), 6:1.

67. Ibid., 6:2–3.

68. The finding of the Supreme Court in Mutual Film Corporation v. Industrial Commission of Ohio that films were not protected by the First Amendment legitimated the existence of state censorship boards. States were free to require that all films exhibited within their borders have approval from their censorship boards. Mutual Film Corporation v. Industrial Commission of Ohio 236 U.S. 230 (1915). These boards were authorized to ban films from exhibition or to require that changes be made to them prior to exhibition. Their legislative mandates were broad. The Ohio legislature, for example, wrote, “Only such films as are in the judgment and discretion of the Board of Censors of a moral, educational or amusing and harmless character shall be passed and approved by such Board.” Ohio General Code, Sec. 871–49. Quoted in Brychta, Ivan, “The Ohio Film Censorship Law,” Ohio State Law Journal 13(1952): 377 . The boards in Ohio and New York appear to have been concerned with discharging their duty to prevent films from transmitting harmful messages by insisting on an image of the state as fair (New York) and preventing the spread of (immoral) anti-death-penalty sentiment (Ohio).

69. Eliminations Report of the Production Code Administration, January 14, 1928, The Noose Production Code Administration File, MHC.

70. Ibid.

71. Rowland, Richard A., The Noose, directed by John Francis Dillon (First National Pictures: Los Angeles, 1928), 8 reels. Screened by the author at the Modern Museum of Art, New York City, October 11, 2013.

72. The violence of capital punishment, Austin Sarat has argued, is often masked by the very law that deploys it. Efforts are frequently made by state actors to “to show that the state, though it comes into the world born of physical violence, or the violent disruptions of the existing order of things, can transcend the violence of its origins.” “Killing Me Softly,” in Pain, Death, and the Law, ed. Austin Sarat (Ann Arbor: University of Michigan Press, 2001), 69. Cover, Robert M., “Violence and the Word,” The Yale Law Journal 95(1986): 1628 .

73. Holworthy Hall and Robert Middlemass, The Valiant, McClure's Magazine 53 (1921): 9. As the man explains to the warden, natural law, immune to modernization, will vindicate him if there is indeed an afterlife in which he will be held accountable for his earthly actions: “And an hour from now, while my body is lying in there, if a couple of angel policemen grab my soul and haul it up before God….I'm not afraid, because the other fellow will certainly be there, too, won't he? And when God hears the whole story and both sides of it, which you never heard and never will—and they never heard it in the court room either—why then, if he's any kind of God at all, I'm willing to take my chances.” Ibid., 10.

74. Ibid., 11.

75. Ibid., 11.

76. Ibid., 10.

77. Fox Film Corporation Publicity Summary of The Valiant, undated. The Valiant Production Code Administration Record, MHC; Jason S. Joy to Carl E. Milliken and Lamar Trotti, 1929 (precise date cut off), The Valiant Production Code Administration Record, MHC.

78. Many films of the era tackled the question of cases in which a state actor—an executioner, a governor, a prosecutor, a judge—had a personal connection to the condemned man. They included The Girl and The Crisis (1917), Love's Battle (1920), Every Woman's Problem (1921), Trail of the Lonesome Pine (1923), Going Crooked (1926), The Silent Power (1926), The Man in the Shadow (1926), The Night Patrol (1926), Lightning Speed (1928), Fast Life (1929), The Lawyer's Secret (1931), I'd Give My Life (1936), The Accusing Finger (1936), Wives Under Suspicion (1938), and Buried Alive (1939).

79. Analogous depictions of European executions during this period generally strengthen the claims I am making here about the depiction of capital punishment in films set in the then-contemporary United States. Films set outside the United States nearly always depicted executions in the context of war (especially World War I), espionage, and elite political conflict. I found no films in the American Film Institute Catalog set outside the United States in which a non-American protagonist was convicted and sentenced to death for committing a domestic crime. In films set abroad, the state actors charged with sentencing persons to death or conducting executions were negatively depicted as the political or foreign enemies of the condemned and executed. In contrast, films set in the United States were almost always about protagonists sentenced to death for criminal acts against other private parties, and state actors had a neutrality that made plausible the positive depictions of them as dutiful, yet gentle civil servants. Films set abroad shared with their American counterparts a tendency to construct the condemned as brave and ennobled by their ability to die with honor; however, they lacked positive countervailing constructions of the state. For examples of such films, see The Spy (1917), Soldiers of Chance (1917), Souls in Pawn (1917), The Woman the Germans Shot (1918), The Case of Sergeant Grischa (1930), This Mad World (1930), Dishonored (1931), The World and the Flesh (1932), and Nurse Edith Cavell (1939). The Earl of Chicago (1940) represents a quasi-exception to the trend that I have detailed here. In this film, a Chicagoan who inherits a British estate travels to England to try to sell it. He is accompanied by a fellow American friend who secretly defrauds him. The protagonist kills the man in retaliation and is sentenced by Parliament to death at the Tower of London for his domestic crime. Here, an American is justly executed in London for a nonpolitical crime.

80. In the period from 1925 to 1934, for example, African Americans were 3.3% of the population in the Northeast, but represented 22.5% of all persons executed; they were 23.8% of the population in the South, but represented 67.8% of all persons executed; they were 3.2% of the population in the Midwest, but represented 30% of all persons executed; and they were 1% of the population in the West, but represented 8% of all persons executed. Calculations based on the 1930 census and a survey of the Espy data from 1925 to 1934 (See methodological note for more information on the Espy data.)

81. The films that gave significant attention to the plight of an African American on death row were Nobody's Children (1920), His Darker Self (1924), and Bargain With Bullets (1936). Films that featured women as condemned inmates were The Twinkler (1916), Cheating the Public (1918), Lilies of the Streets (1926), The Swan (1927), and The Picture Snatcher (1933).

82. Fictional plots with lynchings were rare until the 1930s, when Hollywood began producing antilynching films such as Fury (1936). One crucial exception was D.W. Griffith's Birth of a Nation (1915). See Wood, Amy Louise, Lynching and Spectacle: Witnessing Racial Violence in America, 1890–1940 (Chapel Hill: University of North Carolina Press, 2009).

83. To control for race, I excluded from this statistic articles covering the execution of multiple men on one day, as those stories sometimes covered the execution of men of different races. If the pool of stories is expanded to include the coverage of these executions, the picture shifts: Although white men's executions were the subject of 68% of articles printed, they were the subject of 77.2% of those articles longer than fifteen paragraphs and 85.4%  of those articles longer than twenty-five paragraphs.

84. The scholarly literature on this period and the decades preceding it is dotted with evidence suggesting that executions had qualitatively different meanings for communities when the condemned were white. Banner notes, for example, that, conscious of the way his execution would be represented in the press, “William Delaney of Long Island [declared] that he would go to the gallows ‘like a man, and not like a nigger with his mouth open.’” Amy Louise Wood points to a lynching crowd that used a chain rather than a rope on an African American victim, as a rope was a “white man's death.” And Seth Kotch and Robert P. Mosteller have noted that in North Carolina, “[r]ather than ascribing white perpetrators’ crimes to innate animal impulse, newspaper coverage of the executions of white criminals who committed similarly horrendous crimes against similar victims was characterized by a good deal more sobriety and even sympathy.” Banner, The Death Penalty, 159; Wood, Lynching and Spectacle, 42; and Kotch, Seth and Mosteller, Robert P., “The Racial Justice Act and the Long Struggle with Race and the Death Penalty in North Carolina,” North Carolina Law Review 88 (2009–10): 2069 . A much larger literature is instructive about the different racial meanings of capital punishment in the colonial, early republic, and antebellum periods. See, for example, Slotkin, Richard, “Narratives of Negro Crime in New England, 1675–1800,” American Quarterly 25 (1973): 331 and DeLombard, Jeannine Marie, In the Shadow of the Gallows: Race, Crime, and American Civic Identity (Philadelphia: University of Pennsylvania Press, 2012).

85. As Timothy V. Kaufman-Osborn has argued, “To burn and then display the corpse of a black man reduced to the status of a nonhuman creature, or to hang a sign on that corpse in order to warn others about the boundaries of acceptable race-specific conduct, or to photograph that corpse and then circulate its image in the form of a postcard, as was often done, is to compel the body to signify long after its capacity to speak has been destroyed. To blacks, and especially black men, the lynched body communicated their vulnerability, their debasement, their exclusion from the community to which, by federal law, they now uneasily belonged. To whites, that same body reaffirmed…the collective integrity of the master race at a time when its exclusive title to the rights and privileges afforded by the social contract was no longer altogether secure.” Kaufman-Osborn, Timothy V., “Capital Punishment as Legal Lynching?” in From Lynch Mobs to the Killing State: Race and the Death Penalty in America, ed. Ogletree, Charles Jr., and Sarat, Austin, (New York: NYU Press, 2006), 30. Numerous other scholars have shown how lynching signified the denial of the civic personhood and basic humanity of African Americans. See, for example, Harris, Trudier, Exorcising Blackness: Historical and Literary Lynching and Burning Rituals (Bloomington: Indiana University Press, 1984); Wiegman, Robyn, American Anatomies: Theorizing Race and Gender (Durham, NC: Duke University Press, 1995); Gunning, Sandra, Race Rape, and Lynching: The Red Record of American Literature, 1890–1912 (New York: Oxford University Press, 1996); Hale, Grace Elizabeth, Making Whiteness: The Culture of Segregation in the South, 1890–1940 (New York: Pantheon Books, 1998); Markovitz, Jonathan, Legacies of Lynching: Racial Violence and Memory (Minneapolis: University of Minnesota Press, 2004); and Wood, Lynching and Spectacle.

86. Sociologist David Garland has argued that the legal revival of capital punishment in 1976, after a decade of wrangling by federal courts over its constitutionality, was shaped by justices acutely aware of the racially lopsided use of the death penalty in the past and, in particular, its uncomfortable connection to the spectacle lynchings of African American men. The development of a jurisprudence aimed at achieving fairness was an integral part of the courts’ late twentieth century construction of the death penalty as an “antilynching.” But if it took until the late twentieth century for the death penalty to be legally reconstructed as antilynching, its cultural construction as antilynching came much earlier, in and through empathy-inviting execution narratives that featured white men nobly meeting their ends at the hands of the state. Garland, David, Peculiar Institution: America's Death Penalty in an Age of Abolition (Cambridge, MA: Harvard University Press, 2010).

87. Bederman, Manliness and Civilization: and Markovitz, Legacies of Lynching.

88. Wood, Lynching and Spectacle.

89. Bischoff, Samuel, The Last Mile, directed by Sam Bischoff (Los Angeles: K.B.S. Productions, 1932) (July 30, 2016).

90. Wexley, John, The Last Mile (New York: Samuel French, 1930), 7071 .

91. Ibid., 112.

92. The reformer was Naomi White, chairwoman of the Motion Picture Committee for the Los Angeles District of the California Federation of Women's Clubs at the time the film was released. The five boys in the film might have regarded Rocky as a coward, she wrote, “but in the eyes of the five or ten MILLION REAL boys and girls who may see this, the gangster is a glorious hero, even in his death. Undoubtedly, this picture began with a fine theme—to show the effects of different environment upon two boys, and as such it could have been a powerful picture, but this theme is lost sight of, and the bravery, cleverness, and success of the ruthless gangster is constantly before us.” Letter to Joseph Breen, November 10, 1938, Angels with Dirty Faces Production Code Administration File, MHC. Emphasis in original.

93. Eshelman, Byron E. with Frank Riley, Death Row Chaplain (Prentice Hall: New York, 1962), 220.

94. Faith in rehabilitation declined precipitously in the 1960s and 1970s, as those on the left and the right sides of the political spectrum became increasingly critical of liberalism. The ideological retreat from liberalism, I have argued elsewhere, underlay the resurgence of harsh punishment in the late twentieth century. On the rise of a post-World War II abolitionism rooted in rehabilitation and of a pro-death-penalty backlash rooted in distrust of technocracy, see Hamm, Theodore, Rebel and a Cause: Caryl Chessman and the Politics of the Death Penalty in Postwar California, 1948–1974 (Berkeley: University of California Press, 2001); and LaChance, Daniel, Executing Freedom: The Cultural Life of Capital Punishment in the United States (Chicago: University of Chicago Press, 2016).

95. Banner, The Death Penalty.

96. Take, for example, the persistence of the practice of serving the condemned a custom-ordered last meal or soliciting a final statement from that person. Into the twenty-first century, both practices continue to individualize a punishment that has become quite routinized.

97. My argument here complements work by Philip Smith, who challenges scholarship that frames punishment in the contemporary era as governed by a passionless modernity. See Punishment and Culture (Chicago: University of Chicago Press, 2008).

98. Individualist ideologies lubricate acquiescence to disciplinary forms of power; as one scholar of Foucault puts it, the rhetoric of individualism “turns individuality into an instrument of domination and subjection,” making persons unable to hear the “low hum of a vast machinery that fabricates us as individuals.” Clifford, Michael, Political Genealogy after Foucault: Savage Identities (London: Routledge, 2001): 6, 15.

99. See Whitman, James Q., Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe (Oxford: Oxford University Press, 2005).

100. Berns, Walter, For Capital Punishment: Crime and the Morality of the Death Penalty (New York: Basic Books, 1979), 154.

101. Colman McCarthy, “America the Executioner,” The Washington Post, June 7, 1979, A17. I write about Berns's vision of capital punishment and McCarthy's critique of it in Executing Freedom.

102. Garland, Peculiar Institution.

103. M. Watt Espy and John Ortiz Smykla, Executions in the United States, 1608–2002: The Espy File, 4th ed. Compiled by M. Watt Espy and John Ortiz Smykla (Ann Arbor: Inter-University Consortium for Political and Social Research, 2004) (December 7, 2010).

He thanks Stuart Banner, Peter Brooks, Elaine Tyler May, Lary May, Rebecca McLennan, Britt Rusert, Barbara Welke, and the anonymous reviewers for Law and History Review for their helpful feedback on earlier versions of this article. He is also grateful for the excellent editorial and research assistance of Princeton University students Julie Chen, Ghita Guessous, Lawrence Liu, and Jessica Zou; and Emory University students Jonathan Bonsall, Jennifer Chung, Declan Hahn, India Jones, Takuya Maeda, Charmaine Marshall, Danielle Pitrone, James Radcliffe, and Tim Romans.

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Law and History Review
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