Reading death sentences: The narrative construction of capital punishment

New York University Law Review

Volumn 71, Issue 3, 1996, Pages 732-760

  Meade, Christopher J ^a  

^a NONE

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EID: 0030507065     PISSN: 00287881     EISSN: None     Source Type: Journal    
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References (181)

1. Linda Greenhouse, A Capacity to Change As Well As to Challenge, N.Y. Times, Feb. 27, 1994, § 4, at 4; Bruce Tomaso, Texas' Deadly Ritual, Dallas Morning News, Oct. 1, 1995, at A1, A32.
2. Linda Greenhouse, A Capacity to Change As Well As to Challenge, N.Y. Times, Feb. 27, 1994, § 4, at 4; Bruce Tomaso, Texas' Deadly Ritual, Dallas Morning News, Oct. 1, 1995, at A1, A32.
3. See 56 Executions This Year Are Most Since 1957, N.Y. Times, Dec. 30, 1995, § 1, at 28; Alison Mitchell, Clinton Signs Measure on Terrorism and Death Penalty Appeals, N.Y. Times, Apr. 25, 1996, at A18 (reporting that statute restricting habeas corpus will "drastically accelerate executions by shaving years off appeals in most capital cases"); see also Tom Kuntz, The Rage to Kill Those Who Kill, N.Y. Times, Dec. 4, 1994, § 4, at 1 ("Sentiment in favor of capital punishment is sweeping the land.").
4. See 56 Executions This Year Are Most Since 1957, N.Y. Times, Dec. 30, 1995, § 1, at 28; Alison Mitchell, Clinton Signs Measure on Terrorism and Death Penalty Appeals, N.Y. Times, Apr. 25, 1996, at A18 (reporting that statute restricting habeas corpus will "drastically accelerate executions by shaving years off appeals in most capital cases"); see also Tom Kuntz, The Rage to Kill Those Who Kill, N.Y. Times, Dec. 4, 1994, § 4, at 1 ("Sentiment in favor of capital punishment is sweeping the land.").
5. See 56 Executions This Year Are Most Since 1957, N.Y. Times, Dec. 30, 1995, § 1, at 28; Alison Mitchell, Clinton Signs Measure on Terrorism and Death Penalty Appeals, N.Y. Times, Apr. 25, 1996, at A18 (reporting that statute restricting habeas corpus will "drastically accelerate executions by shaving years off appeals in most capital cases"); see also Tom Kuntz, The Rage to Kill Those Who Kill, N.Y. Times, Dec. 4, 1994, § 4, at 1 ("Sentiment in favor of capital punishment is sweeping the land.").
6. Mary McGrory, Radiance in the Shadow of Death, Wash. Post, Nov. 17, 1994, at A2 (quoting Leigh Dingerson, director of the Coalition Against the Death Penalty).
7. Todd S. Purdum, Voters Cry: Enough, Mr. Cuomo!, N.Y. Times, Nov. 9, 1994, at B11. Four out of five Pataki voters said they supported the death penalty. Jacques Steinberg, G.O.P. Strength Denies Cuomo a Close Finish; Suburbs Give Pataki Bounce, N.Y. Times, Nov. 13, 1994, § 13, at 1, 6; see also James Dao, In a Fury of Campaigning, Candidates Pursue Last-Minute Votes, N.Y. Times, Nov. 6, 1994, § 1, at 49, 52 (quoting Pataki supporter as saying, "Of course I'll support [Pataki] . . . . For the death penalty."); James Dao, Voters Wary of Promises, Especially from Cuomo, N.Y. Times, Oct. 7, 1994, at B4 (quoting Pataki supporter as stating, "My vote is on the death penalty. If Pataki weren't for it, I'd be up in the air."); David Firestone, Voters Give Cuomo a Struggle on His Home Turf, N.Y. Times, Oct. 8, 1994, § 1, at 1, 28 (quoting Pataki supporter as saying, "I don't know anything about Pataki except two things: he's for the death penalty and lower taxes . . . . That's all I need to know."); Ian Fisher, Clamor Over Death Penalty Dominates Debate on Crime, N.Y. Times, Oct. 9, 1994, § 1, at 45 (quoting Pataki supporter as saying that "[t]he death penalty for me is No. 1").
8. Todd S. Purdum, Voters Cry: Enough, Mr. Cuomo!, N.Y. Times, Nov. 9, 1994, at B11. Four out of five Pataki voters said they supported the death penalty. Jacques Steinberg, G.O.P. Strength Denies Cuomo a Close Finish; Suburbs Give Pataki Bounce, N.Y. Times, Nov. 13, 1994, § 13, at 1, 6; see also James Dao, In a Fury of Campaigning, Candidates Pursue Last-Minute Votes, N.Y. Times, Nov. 6, 1994, § 1, at 49, 52 (quoting Pataki supporter as saying, "Of course I'll support [Pataki] . . . . For the death penalty."); James Dao, Voters Wary of Promises, Especially from Cuomo, N.Y. Times, Oct. 7, 1994, at B4 (quoting Pataki supporter as stating, "My vote is on the death penalty. If Pataki weren't for it, I'd be up in the air."); David Firestone, Voters Give Cuomo a Struggle on His Home Turf, N.Y. Times, Oct. 8, 1994, § 1, at 1, 28 (quoting Pataki supporter as saying, "I don't know anything about Pataki except two things: he's for the death penalty and lower taxes . . . . That's all I need to know."); Ian Fisher, Clamor Over Death Penalty Dominates Debate on Crime, N.Y. Times, Oct. 9, 1994, § 1, at 45 (quoting Pataki supporter as saying that "[t]he death penalty for me is No. 1").
9. Todd S. Purdum, Voters Cry: Enough, Mr. Cuomo!, N.Y. Times, Nov. 9, 1994, at B11. Four out of five Pataki voters said they supported the death penalty. Jacques Steinberg, G.O.P. Strength Denies Cuomo a Close Finish; Suburbs Give Pataki Bounce, N.Y. Times, Nov. 13, 1994, § 13, at 1, 6; see also James Dao, In a Fury of Campaigning, Candidates Pursue Last-Minute Votes, N.Y. Times, Nov. 6, 1994, § 1, at 49, 52 (quoting Pataki supporter as saying, "Of course I'll support [Pataki] . . . . For the death penalty."); James Dao, Voters Wary of Promises, Especially from Cuomo, N.Y. Times, Oct. 7, 1994, at B4 (quoting Pataki supporter as stating, "My vote is on the death penalty. If Pataki weren't for it, I'd be up in the air."); David Firestone, Voters Give Cuomo a Struggle on His Home Turf, N.Y. Times, Oct. 8, 1994, § 1, at 1, 28 (quoting Pataki supporter as saying, "I don't know anything about Pataki except two things: he's for the death penalty and lower taxes . . . . That's all I need to know."); Ian Fisher, Clamor Over Death Penalty Dominates Debate on Crime, N.Y. Times, Oct. 9, 1994, § 1, at 45 (quoting Pataki supporter as saying that "[t]he death penalty for me is No. 1").
10. Todd S. Purdum, Voters Cry: Enough, Mr. Cuomo!, N.Y. Times, Nov. 9, 1994, at B11. Four out of five Pataki voters said they supported the death penalty. Jacques Steinberg, G.O.P. Strength Denies Cuomo a Close Finish; Suburbs Give Pataki Bounce, N.Y. Times, Nov. 13, 1994, § 13, at 1, 6; see also James Dao, In a Fury of Campaigning, Candidates Pursue Last-Minute Votes, N.Y. Times, Nov. 6, 1994, § 1, at 49, 52 (quoting Pataki supporter as saying, "Of course I'll support [Pataki] . . . . For the death penalty."); James Dao, Voters Wary of Promises, Especially from Cuomo, N.Y. Times, Oct. 7, 1994, at B4 (quoting Pataki supporter as stating, "My vote is on the death penalty. If Pataki weren't for it, I'd be up in the air."); David Firestone, Voters Give Cuomo a Struggle on His Home Turf, N.Y. Times, Oct. 8, 1994, § 1, at 1, 28 (quoting Pataki supporter as saying, "I don't know anything about Pataki except two things: he's for the death penalty and lower taxes . . . . That's all I need to know."); Ian Fisher, Clamor Over Death Penalty Dominates Debate on Crime, N.Y. Times, Oct. 9, 1994, § 1, at 45 (quoting Pataki supporter as saying that "[t]he death penalty for me is No. 1").
11. Todd S. Purdum, Voters Cry: Enough, Mr. Cuomo!, N.Y. Times, Nov. 9, 1994, at B11. Four out of five Pataki voters said they supported the death penalty. Jacques Steinberg, G.O.P. Strength Denies Cuomo a Close Finish; Suburbs Give Pataki Bounce, N.Y. Times, Nov. 13, 1994, § 13, at 1, 6; see also James Dao, In a Fury of Campaigning, Candidates Pursue Last-Minute Votes, N.Y. Times, Nov. 6, 1994, § 1, at 49, 52 (quoting Pataki supporter as saying, "Of course I'll support [Pataki] . . . . For the death penalty."); James Dao, Voters Wary of Promises, Especially from Cuomo, N.Y. Times, Oct. 7, 1994, at B4 (quoting Pataki supporter as stating, "My vote is on the death penalty. If Pataki weren't for it, I'd be up in the air."); David Firestone, Voters Give Cuomo a Struggle on His Home Turf, N.Y. Times, Oct. 8, 1994, § 1, at 1, 28 (quoting Pataki supporter as saying, "I don't know anything about Pataki except two things: he's for the death penalty and lower taxes . . . . That's all I need to know."); Ian Fisher, Clamor Over Death Penalty Dominates Debate on Crime, N.Y. Times, Oct. 9, 1994, § 1, at 45 (quoting Pataki supporter as saying that "[t]he death penalty for me is No. 1").
12. Todd S. Purdum, Voters Cry: Enough, Mr. Cuomo!, N.Y. Times, Nov. 9, 1994, at B11. Four out of five Pataki voters said they supported the death penalty. Jacques Steinberg, G.O.P. Strength Denies Cuomo a Close Finish; Suburbs Give Pataki Bounce, N.Y. Times, Nov. 13, 1994, § 13, at 1, 6; see also James Dao, In a Fury of Campaigning, Candidates Pursue Last-Minute Votes, N.Y. Times, Nov. 6, 1994, § 1, at 49, 52 (quoting Pataki supporter as saying, "Of course I'll support [Pataki] . . . . For the death penalty."); James Dao, Voters Wary of Promises, Especially from Cuomo, N.Y. Times, Oct. 7, 1994, at B4 (quoting Pataki supporter as stating, "My vote is on the death penalty. If Pataki weren't for it, I'd be up in the air."); David Firestone, Voters Give Cuomo a Struggle on His Home Turf, N.Y. Times, Oct. 8, 1994, § 1, at 1, 28 (quoting Pataki supporter as saying, "I don't know anything about Pataki except two things: he's for the death penalty and lower taxes . . . . That's all I need to know."); Ian Fisher, Clamor Over Death Penalty Dominates Debate on Crime, N.Y. Times, Oct. 9, 1994, § 1, at 45 (quoting Pataki supporter as saying that "[t]he death penalty for me is No. 1").
13. See James Dao, Death Penalty in New York Reinstated After 18 Years; Pataki Sees Justice Served, N.Y. Times, Mar. 8, 1995, at A1. In addition to shaping the votes of legislators, public opinion is increasingly important as death penalty opponents bring their appeals in specific cases to the general public. See Kenneth B. Noble, As Executions Increase, Appeals Go to the Public, N.Y. Times, Dec. 2, 1995, at A1; see also John C. Freed, Convict Appealing Death Sentence Turns to the Internet for Aid, N.Y. Times, May 7, 1995, § 1, at 25. Public opinion is also important in the death penalty context because Supreme Court jurisprudence looks to public opinion as a relevant factor in determining what constitutes "cruel and unusual" punishment. See, e.g., Penry v. Lynaugh, 492 U.S. 302, 334 (1989) (examining whether states have prohibited execution of mentally retarded persons as indication of whether it violates Eighth Amendment's "evolving standards of decency" (internal quotations omitted)); Gregg v. Georgia, 428 U.S. 153, 179-80 (1976) (looking to 35 states that enacted post-Furman death penalty statutes as indication that death penalty does not violate Eighth Amendment); Furman v. Georgia, 408 U.S. 238, 242 (1972) (stating that what constitutes cruel and unusual punishment "is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened" (internal quotations omitted)).
14. See James Dao, Death Penalty in New York Reinstated After 18 Years; Pataki Sees Justice Served, N.Y. Times, Mar. 8, 1995, at A1. In addition to shaping the votes of legislators, public opinion is increasingly important as death penalty opponents bring their appeals in specific cases to the general public. See Kenneth B. Noble, As Executions Increase, Appeals Go to the Public, N.Y. Times, Dec. 2, 1995, at A1; see also John C. Freed, Convict Appealing Death Sentence Turns to the Internet for Aid, N.Y. Times, May 7, 1995, § 1, at 25. Public opinion is also important in the death penalty context because Supreme Court jurisprudence looks to public opinion as a relevant factor in determining what constitutes "cruel and unusual" punishment. See, e.g., Penry v. Lynaugh, 492 U.S. 302, 334 (1989) (examining whether states have prohibited execution of mentally retarded persons as indication of whether it violates Eighth Amendment's "evolving standards of decency" (internal quotations omitted)); Gregg v. Georgia, 428 U.S. 153, 179-80 (1976) (looking to 35 states that enacted post-Furman death penalty statutes as indication that death penalty does not violate Eighth Amendment); Furman v. Georgia, 408 U.S. 238, 242 (1972) (stating that what constitutes cruel and unusual punishment "is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened" (internal quotations omitted)).
15. See James Dao, Death Penalty in New York Reinstated After 18 Years; Pataki Sees Justice Served, N.Y. Times, Mar. 8, 1995, at A1. In addition to shaping the votes of legislators, public opinion is increasingly important as death penalty opponents bring their appeals in specific cases to the general public. See Kenneth B. Noble, As Executions Increase, Appeals Go to the Public, N.Y. Times, Dec. 2, 1995, at A1; see also John C. Freed, Convict Appealing Death Sentence Turns to the Internet for Aid, N.Y. Times, May 7, 1995, § 1, at 25. Public opinion is also important in the death penalty context because Supreme Court jurisprudence looks to public opinion as a relevant factor in determining what constitutes "cruel and unusual" punishment. See, e.g., Penry v. Lynaugh, 492 U.S. 302, 334 (1989) (examining whether states have prohibited execution of mentally retarded persons as indication of whether it violates Eighth Amendment's "evolving standards of decency" (internal quotations omitted)); Gregg v. Georgia, 428 U.S. 153, 179-80 (1976) (looking to 35 states that enacted post-Furman death penalty statutes as indication that death penalty does not violate Eighth Amendment); Furman v. Georgia, 408 U.S. 238, 242 (1972) (stating that what constitutes cruel and unusual punishment "is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened" (internal quotations omitted)).
16. Hans Zeisel & Alex M. Gallup, Death Penalty Sentiment in the United States, 5 J. Quantitative Criminology 285, 287 (1989).
17. Id. at 294-95.
18. See Thorsten Sellin, The Death Penalty 63 (1959) ("[T]he death penalty, as we use it, exercises no influence on the extent or fluctuating rates of capital crime. It has failed as a deterrent."); Anne Cronin, Murder and the Death Penalty: A State-by-State Review, N.Y. Times, Dec. 4, 1994, § 4, at 3 (presenting state statistics on murder rates and death penalty that show no change in murder rates after imposition of death penalty); Tom Kuntz, Killings, Legal and Otherwise, Around the U.S., N.Y. Times, Dec. 4, 1994, § 4, at 3 (interpreting Cronin data, supra, and stating that these statistics "lend little support" to notion that death penalty deters murder). But see Isaac Ehrlich, The Deterrent Effect of Capital Punishment: A Question of Life and Death, Am. Econ. Rev., June 1975, at 397 (finding significant correlation between capital punishment and deterrence of homicide).
19. See Thorsten Sellin, The Death Penalty 63 (1959) ("[T]he death penalty, as we use it, exercises no influence on the extent or fluctuating rates of capital crime. It has failed as a deterrent."); Anne Cronin, Murder and the Death Penalty: A State-by-State Review, N.Y. Times, Dec. 4, 1994, § 4, at 3 (presenting state statistics on murder rates and death penalty that show no change in murder rates after imposition of death penalty); Tom Kuntz, Killings, Legal and Otherwise, Around the U.S., N.Y. Times, Dec. 4, 1994, § 4, at 3 (interpreting Cronin data, supra, and stating that these statistics "lend little support" to notion that death penalty deters murder). But see Isaac Ehrlich, The Deterrent Effect of Capital Punishment: A Question of Life and Death, Am. Econ. Rev., June 1975, at 397 (finding significant correlation between capital punishment and deterrence of homicide).
20. See Thorsten Sellin, The Death Penalty 63 (1959) ("[T]he death penalty, as we use it, exercises no influence on the extent or fluctuating rates of capital crime. It has failed as a deterrent."); Anne Cronin, Murder and the Death Penalty: A State-by-State Review, N.Y. Times, Dec. 4, 1994, § 4, at 3 (presenting state statistics on murder rates and death penalty that show no change in murder rates after imposition of death penalty); Tom Kuntz, Killings, Legal and Otherwise, Around the U.S., N.Y. Times, Dec. 4, 1994, § 4, at 3 (interpreting Cronin data, supra, and stating that these statistics "lend little support" to notion that death penalty deters murder). But see Isaac Ehrlich, The Deterrent Effect of Capital Punishment: A Question of Life and Death, Am. Econ. Rev., June 1975, at 397 (finding significant correlation between capital punishment and deterrence of homicide).
21. See Thorsten Sellin, The Death Penalty 63 (1959) ("[T]he death penalty, as we use it, exercises no influence on the extent or fluctuating rates of capital crime. It has failed as a deterrent."); Anne Cronin, Murder and the Death Penalty: A State-by-State Review, N.Y. Times, Dec. 4, 1994, § 4, at 3 (presenting state statistics on murder rates and death penalty that show no change in murder rates after imposition of death penalty); Tom Kuntz, Killings, Legal and Otherwise, Around the U.S., N.Y. Times, Dec. 4, 1994, § 4, at 3 (interpreting Cronin data, supra, and stating that these statistics "lend little support" to notion that death penalty deters murder). But see Isaac Ehrlich, The Deterrent Effect of Capital Punishment: A Question of Life and Death, Am. Econ. Rev., June 1975, at 397 (finding significant correlation between capital punishment and deterrence of homicide).
22. Zeisel & Gallup, supra note 6, at 290, 295 (finding that majority of people would still support death penalty even if it did not deter murder); see also William J. Bowers et al., A New Look at Public Opinion on Capital Punishment: What Citizens and Legislators Prefer, 22 Am. J. Crim. L. 77, 83 (1994) (noting that abstract death penalty support appears to be "impervious to logical inconsistencies or empirical evidence"). Professor Anthony Amsterdam suggests that the deterrence argument is better understood as a "rationale" for the death penalty rather than as a "reason." Interview with Anthony G. Amsterdam, Judge Edward Weinfeld Professor of Law, New York University, in New York, N.Y. (Mar. 17, 1995).
23. Charles G. Lord et al., Biased Assimilation and Attitude Polarization: The Effects of Prior Theories on Subsequently Considered Evidence, 37 J. Personality & Soc. Psychol. 2098, 2101-07 (1979). This principle also applies to death penalty opponents: evidence on deterrence is selectively incorporated, and mixed evidence can actually result in a cementing of the opposition. Id.
24. Zeisel & Gallup, supra note 6, at 295 ("Arguments over . . . basic value positions have little power to change minds [in the death penalty context]. Whoever has attempted it knows how frustrating it is. Moral positions are seldom changed by persuasion; they are changed, as a rule, only by the more complex and mysterious process of conversion.").
25. See Bowers et al., supra note 9, at 104 (presenting results of author's study that shows that majorities in New York (73%) and Nebraska (64%) favor life without parole plus restitution to death penalty); id. at 91 (reporting that majorities in Arkansas (62%), Georgia (51%), Indiana (62%), Kansas (66%), and Massachusetts (67%) favor life without parole plus restitution to death penalty); Craig Haney et al., Enlightened by a Humane Justice: Public Opinion and the Death Penalty in California 117 (1993) (unpublished manuscript, on file with the New York University Law Review) (reporting that 67% of Californians surveyed favor life without parole plus restitution).
26. In polls in New York State, New York City, and Nebraska, majorities (ranging from 56% to 70%) of those who had said they "strongly" favored the death penalty later said they preferred life without parole plus restitution as an alternative. Bowers et al., supra note 9, at 107-08. Similarly, a poll of Californians showed that half of those who had originally been "strongly in favor" of the death penalty switched their position when presented with such an alternative. Haney et al., supra note 12, at 120. Two-thirds of those self-described as "strongly Republican" and "conservative" also reversed their support for the death penalty when presented with this alternative. Id.
27. See Bowers et al., supra note 9, at 120-21.
28. See id. at 81 (noting that some evidence indicates that death penalty support is "shallow and shaky"); see also Haney et al., supra note 12, at 157 ("[A]ny portrayal of the public's attitude about the death penalty as monolithic and unidimensional is highly misleading. The picture that emerges from our California data reveals an attitude structure that is highly unstable and volatile . . . .").
29. These questions also arise in individual capital cases before individual jurors. Since, in most states, all capital jurors must express a willingness to vote for the death penalty in at least some instances, see Haney et al., supra note 12, at 151 (stating that, as far as authors are aware, all states use death-qualified sentencers in capital cases), the lawyer in a death penalty case is confronted with two critical questions: What is it about the death penalty that makes this juror willing to vote for a death sentence? And what tools will be effective in persuading her that the death penalty is inappropriate in this instance? 17 True-life stories about the death penalty are prevalent in our culture. See Bird Man of Alcatraz (Norma Prods. 1962); Breaker Morant (South Australian Film Corp. 1979) (Australian); Dead Man Walking (PolyGram Film Prods. 1995); The Executioner's Song (Lawrence Schiller 1983); In Cold Blood (Pax Enters. 1967); In the Name of the Father (Universal City Studios 1993); I Want to Live! (United Artists 1958); Let Him Have It (Film Trustees Ltd. 1991) (English); Murder in the First (Warner Bros. 1994); Paths of Glory (Harris-Kubrick Pictures 1957); The Thin Blue Line (Miramax Films 1988); see also Wendy Lesser, Pictures at an Execution 2 (1993) ("[T]here is something new . . . in our increasing tendency . . . to convert real-world murder into made-up stories . . . ."); cf. Stephanie B. Goldberg, Walking the Last Mile, on Film, N.Y. Times, Dec. 24, 1995, § 2, at 9 (discussing films about death penalty, informed in part by conversations with author of this Note).
30. These questions also arise in individual capital cases before individual jurors. Since, in most states, all capital jurors must express a willingness to vote for the death penalty in at least some instances, see Haney et al., supra note 12, at 151 (stating that, as far as authors are aware, all states use death-qualified sentencers in capital cases), the lawyer in a death penalty case is confronted with two critical questions: What is it about the death penalty that makes this juror willing to vote for a death sentence? And what tools will be effective in persuading her that the death penalty is inappropriate in this instance? 17 True-life stories about the death penalty are prevalent in our culture. See Bird Man of Alcatraz (Norma Prods. 1962); Breaker Morant (South Australian Film Corp. 1979) (Australian); Dead Man Walking (PolyGram Film Prods. 1995); The Executioner's Song (Lawrence Schiller 1983); In Cold Blood (Pax Enters. 1967); In the Name of the Father (Universal City Studios 1993); I Want to Live! (United Artists 1958); Let Him Have It (Film Trustees Ltd. 1991) (English); Murder in the First (Warner Bros. 1994); Paths of Glory (Harris-Kubrick Pictures 1957); The Thin Blue Line (Miramax Films 1988); see also Wendy Lesser, Pictures at an Execution 2 (1993) ("[T]here is something new . . . in our increasing tendency . . . to convert real-world murder into made-up stories . . . ."); cf. Stephanie B. Goldberg, Walking the Last Mile, on Film, N.Y. Times, Dec. 24, 1995, § 2, at 9 (discussing films about death penalty, informed in part by conversations with author of this Note).
31. Robert M. Cover, Nomos and Narrative, 97 Harv. L. Rev. 4, 4 (1983).
32. Louis O. Mink, Narrative Form as a Cognitive Instrument, in The Writing of History: Literary Form and Historical Understanding 129, 131 (Robert H. Canary & Henry Kozicki eds., 1978); see also id. at 132 ("[Narrative is] a primary and irreducible form of human comprehension . . . .").
33. See Roland Barthes, Image - Music - Text 79 (Stephen Heath trans., 1977): The narratives of the world are numberless. Narrative is first and foremost a prodigious variety of genres . . . . [U]nder this almost infinite diversity of forms, narrative is present in every age, in every place, in every society; it begins with the very history of mankind and there nowhere is nor has been a people without narrative.
34. See Victor Turner, Social Dramas and Stories About Them, in On Narrative 137, 146 (W.J.T. Mitchell ed., 1981) ("[A] social drama first manifests itself as the breach of a norm, the infraction of a rule of morality, law, custom, or etiquette . . . ."); see also Jerome Bruner, The Narrative Construction of Reality, 18 Critical Inquiry 1, 11 (1991) ("[N]ot every sequence of events recounted constitutes a narrative . . . . [T]o be worth telling, a tale must be about how an implicit canonical script has been breached, violated, or deviated from . . . .").
35. See Turner, supra note 21, at 146-47 (noting that after breach "a mounting crisis follows, a momentous juncture or turning point in the relations between components of a social field").
36. See id. at 147 ("The final phase consists either in the reintegration of the disturbed social group . . . or the social recognition of irreparable breach between the contesting parties . . . ."). As Annette Kuhn states: In the classic narrative, events in the story are organized around a basic structure . . . . At the beginning of the story, an event may take place which disrupts a pre-existing equilibrium in the fictional world. It is then the task of the narrative to resolve that disruption and set up a new equilibrium. The classic narrative may thus be regarded as a process whereby problems are solved so that order may be restored to the world of the fiction. Annette Kuhn, History of Narrative Codes, in The Cinema Book 208, 212 (Pam Cook ed., 1985) (citation omitted).
37. David I. Kertzer, Ritual, Politics, and Power 4 (1988) (quoting Peter L. Berger, Secret Canopy 22 (1969)).
38. David I. Kertzer, Ritual, Politics, and Power 4 (1988) (quoting Peter L. Berger, Secret Canopy 22 (1969)).
39. Lévi-Strauss, in a study of childbirth in several Latin American cultures, noted the way in which a shaman's mythology provides a cure to the pain of childbirth: The shaman provides the sick woman with a language, by means of which unexpressed, and otherwise inexpressible, psychic states can be immediately expressed. . . . [T]he transition to this verbal expression [makes] it possible to undergo in an ordered and intelligible form a real experience that would otherwise be chaotic and inexpressible . . . . Claude Lévi-Strauss, Structural Anthropology 198 (Claire Jacobson & Brooke G. Schoepf trans., 1963); see also Kertzer, supra note 24, at 4 ("Through symbols we confront the experiential chaos that envelops us and create order."); id. at 8 ("[R]itual is an analytical category that helps us deal with the chaos of human experience and put it into a coherent framework.").
40. Paul S. Berman, Note, Rats, Pigs, and Statues on Trial: The Creation of Cultural Narratives in the Prosecution of Animals and Inanimate Objects, 69 N.Y.U. L. Rev. 288, 318 (1994).
41. Lévi-Strauss, supra note 25, at 197.
42. W. Lance Bennett & Martha S. Feldman, Reconstructing Reality in the Courtroom: Justice and Judgment in American Culture 4 (1981).
43. Id. at 3; see also Nancy Pennington & Reid Hastie, The Story Model for Juror Decision Making, in Inside the Juror 192, 192 (Reid Hastie ed., 1993) (asserting that "a central cognitive process in juror decision making is story construction" and providing empirical support for the theory); Daniel Goleman, Study Finds Jurors Often Hear Evidence with a Closed Mind, N.Y. Times, Nov. 29, 1994, at C1, C12 ("[Research] findings underscore the fact that a trial boils down to two versions of a story - the prosecution's and the defense's . . . .").
44. Id. at 3; see also Nancy Pennington & Reid Hastie, The Story Model for Juror Decision Making, in Inside the Juror 192, 192 (Reid Hastie ed., 1993) (asserting that "a central cognitive process in juror decision making is story construction" and providing empirical support for the theory); Daniel Goleman, Study Finds Jurors Often Hear Evidence with a Closed Mind, N.Y. Times, Nov. 29, 1994, at C1, C12 ("[Research] findings underscore the fact that a trial boils down to two versions of a story - the prosecution's and the defense's . . . .").
45. See supra notes 9-11 and accompanying text.
46. See supra notes 12-15 and accompanying text.
47. See generally Anthony G. Amsterdam & Randy Hertz, An Analysis of Closing Arguments to a Jury, 37 N.Y.L. Sch. L. Rev. 55 (1992) (using narrative theory to analyze defense lawyer's closing arguments to jury).
48. See Pennington & Hastie, supra note 29, at 193, 210-13, 217 (concluding that narrative determines, rather than justifies, jurors' decisions).
49. In Cold Blood, supra note 17.
50. The Executioner's Song, supra note 17.
51. Because these narratives tell a story that supports the death penalty, they will be referred to as "pro-death penalty narratives." This is not to imply, however, that they were made to support the death penalty or that they represent pro-death penalty propaganda.
52. In Cold Blood, supra note 17.
53. The Executioner's Song, supra note 17.
54. 408 U.S. 238, 239-40 (1972) (holding that death penalty, as then administered in United States, violated Eighth Amendment's prohibition against cruel and unusual punishment).
55. 428 U.S. 153, 169 (1976) (holding that death penalty "does not invariably violate the Constitution"); id. at 188-207 (approving Georgia's post-Furman death penalty statute and providing blueprint for other states seeking to impose death penalty).
56. In Cold Blood, supra note 17.
57. Id. The disruption of order is further demonstrated later in the same conversation. The reporter asks the police investigator, "How'd [the murderers] enter the house? A key? Force a window?" "Probably just walked in," says the inspector. The reporter is surprised: "Don't people around here lock doors?" "They will tonight," answers the inspector. Id.
58. Id.
59. Id.
60. Id.
61. Id.
62. Id.
63. Id.
64. See supra text accompanying note 46.
65. In Cold Blood, supra note 17; see also Genesis 9:6 (King James).
66. See In Cold Blood, supra note 17.
67. See The Executioner's Song, supra note 17.
68. Id.
69. Id.
70. Id.
71. Id.
72. See supra text accompanying note 51.
73. See supra text accompanying note 54.
74. The Executioner's Song, supra note 17.
75. Id.
76. Wendy Lesser has noted that real-life murder is often turned into art-about-murder, which "tends to be art about the search for structure and meaning in an apparently random existence." Lesser, supra note 17, at 18. According to Lesser, we try to view real-life murder as narrative in an attempt to "remove some of the terrifying randomness from it." Id. at 190.
77. See, e.g., Adam Walinsky, The Crisis of Public Order, Atlantic Monthly, July 1995, at 39, 44 (stating that "our greatest fear is of violence from a nameless, faceless stranger"); id. at 46 (noting that "chances of getting . . . away with the murder of a stranger are greater than 80 percent"); see also Cable News Network News: Crime Changes Lives of Victims -Perhaps to the Worse (CNN television broadcast, Dec. 27, 1993) (stating that "[t]he fear of random violence in the United States has become a fact of life," and quoting Professor Robert Trojanowicz of Michigan State University as saying that "[r]andom violence is on the rise"). There were 3.5 million reported incidents of "stranger-on-stranger" violence in 1993. Stephen Braun & Judy Pasternak, A Nation with Terror on Its Mind, L.A. Times, Feb. 13, 1994, at A1, A16.
78. See, e.g., Adam Walinsky, The Crisis of Public Order, Atlantic Monthly, July 1995, at 39, 44 (stating that "our greatest fear is of violence from a nameless, faceless stranger"); id. at 46 (noting that "chances of getting . . . away with the murder of a stranger are greater than 80 percent"); see also Cable News Network News: Crime Changes Lives of Victims - Perhaps to the Worse (CNN television broadcast, Dec. 27, 1993) (stating that "[t]he fear of random violence in the United States has become a fact of life," and quoting Professor Robert Trojanowicz of Michigan State University as saying that "[r]andom violence is on the rise"). There were 3.5 million reported incidents of "stranger-on-stranger" violence in 1993. Stephen Braun & Judy Pasternak, A Nation with Terror on Its Mind, L.A. Times, Feb. 13, 1994, at A1, A16.
79. See, e.g., Senator Bill Bradley, Address at the National Press Club Luncheon (May 11, 1994), available in LEXIS, News Library, CURNWS File ("The Charles Starkweather or Charles Manson used to come on once a decade, [but] now it seems like a Jeffrey Dalmer pops up some place every year.").
80. See, e.g., If You Can, Stay Step Ahead of Car-Jackers, Chicago Sun-Times, Feb. 24, 1993. Auto Section, at 6A ("In a stretch of 21 days in Detroit 205 cars were car-jacked. One thief alone took 35 cars . . . . Car-jacking quickly spread to every city. And alarm grew as, inevitably, some people were killed.").
81. See, e.g., American Gangs, Economist, Dec. 17, 1994, at 21 ("In the cities [gangs are] a source of unremitting fear. Gangs, of course, have always caused trouble. But in the past decade trouble has given way to chaos, as gang violence has become ever more common, vicious and random."); see also id. at 22 ("In Chicago . . . the police blame [gang-related] slayings for virtually the entire increase in murders over the past five years.").
82. See, e.g., Rich Connell, The Hidden Devastation of Crack, L.A. Times, Dec. 18, 1994, at A1, A19 (quoting Los Angeles County Sheriff Sherman Block's observation that emergence of crack cocaine has led to "much more bizarre behavior and random violence . . . [a] change in the nature of crime").
83. Tamar Lewin, Who Decides Who Will Die? Even Within States, It Varies, N.Y. Times, Feb. 23, 1995, at A1, B6 (quoting law professor and death penalty expert David Baldus as saying "[p]eople identify more with the victim when it's a total stranger, because . . . random killing is what people have the most horror of").
84. See This Week with David Brinkley (ABC television broadcast, Dec. 12, 1993) (reporting that after gunman killed seven people in Palatine, Illinois, town mayor stated that "[i]f a terrible tragedy like that can happen in Palatine, it can happen anywhere in the world"); id. ("Is anyone safe?"). These are the same sentiments expressed by the waitress in In Cold Blood. See supra text accompanying note 45.
85. See, e.g., Tina Rosenberg, The Deadliest D.A., N.Y. Times, July 16, 1995, § 6 (Magazine), at 20, 23 (stating that for District Attorney of Philadelphia County, death penalty "doesn't offer society control over crime - she doesn't believe it's a deterrent - but instead gives the feeling of control demanded by a city in decay").
86. See 56 Executions This Year Are Most Since 1957, supra note 2, at 28 (quoting Richard Dieter of Death Penalty Information Center as saying "[t]here seems to be an impatience, a call for finality"); see also Mitchell, supra note 2, at A18 (reporting that statute restricting habeas corpus will "drastically accelerate executions by shaving years off appeals in most capital cases"). This impatience and anger also comes from Supreme Court Justices. During oral arguments in McFarland v. Scott, 114 S. Ct. 2568 (1994), Justice Scalia castigated the defendant's lawyer for seeking a stay of execution five days before the scheduled execution date: "I just want you to know that I am not happy with [your office's] performance . . . in the cases that come before me." Linda Greenhouse, Court Confronting Results of Limiting Death Row Appeals, N.Y. Times, Mar. 30, 1994, at A1, B7. And when the lawyer for the state of Texas in McFarland acknowledged that it can sometimes take years for Texas courts to process death penalty appeals, Justice Scalia again struck out from the bench: "If you want us to get serious, you should get serious yourselves . . . ." Id.
87. See supra text accompanying note 27.
88. See supra note 8.
89. Lesser, supra note 17, at 45 (quoting Robert Weisburg's interview for documentary Appealing Death).
90. I Want to Live!, supra note 17.
91. The Thin Blue Line, supra note 17.
92. I Want to Live!, supra note 17.
93. See id.
94. See id.
95. Lesser, supra note 17, at 16. It is no surprise that an anti-death penalty narrative would focus on the "waiting" to be executed. According to one death penalty expert: "'The thirty seconds or sixty seconds or two minutes [of the execution] is almost no part of the death penalty . . . . The death penalty is the process of waiting for years and then measured by the calendar and then finally by the clock.'" Id. at 141 (quoting death penalty lawyer David Bruck). The relentless waiting is also central to Dead Man Walking, the story of a Catholic nun who befriends and counsels a death-row inmate, in which time drags until the moment of execution. See Dead Man Walking, supra note 17; see also Helen Prejean, Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States 84-95 (1993). The relentlessness of this waiting starkly contrasts with In Cold Blood, where a narrator speeds up the wait by informing the viewer that "Perry and Dick waited [on death row for] five years." In Cold Blood, supra note 17.
96. See I Want to Live!, supra note 17.
97. See also Let Him Have It, supra note 17 (English film in which innocent man who functions at fourth-grade level is executed in final scene).
98. The Thin Blue Line, supra note 17.
99. See supra notes 42-50, 53-55 and accompanying text.
100. The Thin Blue Line, supra note 17.
101. See supra text accompanying notes 46, 48-49.
102. The Thin Blue Line, supra note 17.
103. See id.
104. See supra text accompanying notes 51, 57-60.
105. The Thin Blue Line, supra note 17.
106. Id.
107. See id.
108. Id.
109. During the documentary, the viewer is told that the Supreme Court reversed Randall Adams's death sentence. The prosecution decided not to retry him, and as a result, Adams was to serve a life sentence. Adams's appellate lawyer speculates that the reason the prosecutor did not retry Adams was because the evidence was so weak. Id. Adams was later released. Lisa Belkin, Dallas Will Not Retry Man in Killing of Officer, N.Y. Times, Mar. 24, 1989, at A11.
110. Hugo Bedau and Michael Radelet have documented 350 cases in the twentieth century where innocent defendants were "convicted of capital or potentially capital crimes." Hugo A. Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 Stan. L. Rev. 21, 23 (1987). Bedau and Radelet found that "in virtually every year in this century, in some jurisdiction or other, at least one person has been under death sentence who was later proved to be innocent." Id. at 38. Twenty-three of these innocent defendants were executed. Id. at 36. In January 1995, Texas executed Jesse Dewayne Jacobs, who very well may have been innocent. According to a New York Times editorial, "Texas has just executed a man with full knowledge that he was not guilty of the crime for which he was put to death." Murder by Texas, N.Y. Times, Jan. 5, 1995, at A26.
111. See Alex Kozinski & Sean Gallagher, For an Honest Death Penalty, N.Y. Times, Mar. 8, 1995, at A21 ("Wrongfully convicted defendants are rare; wrongfully convicted capital defendants are even rarer."); Haney et al., supra note 12, at 112 ("[C]oncerns about the execution of innocent persons is unlikely to have had much impact on attitudes toward the death penalty." (citations omitted)); see also Sam H. Verhovek, When Justice Shows Its Darker Side, N.Y. Times, Jan. 8, 1995, § 4, at 6 (quoting death penalty supporters who state that even if innocent people are sometimes executed, benefits of death penalty still outweigh costs).
112. See Alex Kozinski & Sean Gallagher, For an Honest Death Penalty, N.Y. Times, Mar. 8, 1995, at A21 ("Wrongfully convicted defendants are rare; wrongfully convicted capital defendants are even rarer."); Haney et al., supra note 12, at 112 ("[C]oncerns about the execution of innocent persons is unlikely to have had much impact on attitudes toward the death penalty." (citations omitted)); see also Sam H. Verhovek, When Justice Shows Its Darker Side, N.Y. Times, Jan. 8, 1995, § 4, at 6 (quoting death penalty supporters who state that even if innocent people are sometimes executed, benefits of death penalty still outweigh costs).
113. See Gregg v. Georgia, 428 U.S. 153, 158 (1976).
114. Interview with Anthony G. Amsterdam, Judge Edward Weinfeld Professor of Law, New York University, in New York, N.Y. (Aug. 30, 1994).
115. According to Stephen Bright: "[A] large part of the death row population is made up of people who are distinguished by neither their records nor the circumstances of their crimes, but by their abject poverty, debilitating mental impairments, minimal intelligence, and the poor legal representation they received." Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale L.J. 1835, 1840 (1994). Bright has documented numerous cases in which there is strong evidence that the competency of the defendant's lawyer was determinative as to whether the defendant received a sentence of life or death. See id. at 1837-41. Based on this evidence, Bright concluded that the death penalty is not assigned to defendants who have committed the worst crimes but to those who have the worst lawyers. See id. at 1836; see also Ronald Smothers, Court-Appointed Defense Offers the Poor a Lawyer, But the Cost May Be High, N.Y. Times, Feb. 14, 1994, at A12 (quoting Stephen Bright as saying he had found that "getting the death penalty was not so much the result of how bad the crime was or how bad the defendant was, but how bad the lawyer was"). A National Law Journal study of the death penalty in the South supports Bright's conclusions. Marcia Coyle et al., Fatal Defense: Trial and Error in the Nation's Death Belt, Nat'l L.J., June 11, 1990, at 30. In conducting its six-month, six-state study, the journal examined thousands of pages of trial transcripts, conducted in-depth interviews with attorneys who tried and lost capital cases, and talked with judges, prosecutors, and experts in capital law. Id. The study found that lawyers trying capital crimes often had no experience, expended little effort, and were further limited by unrealistic statutory fee caps: The decision as to who should live and who should die frequently is based less on what defendants did than on the skill employed in presenting to jurors the question of whether they should live or die. And simply put, that boils down to lawyers - defense lawyers - and the system that selects them, pays them and gives them what they need to mount a meaningful defense. Indigent defendants on trial for their lives are frequently represented by ill-trained, unprepared court-appointed lawyers so grossly underpaid they literally cannot afford to do the job they know needs to be done. Id. The study concluded that "in the southern tier of states known as the nation's Death Belt . . . fairness is more like the random flip of a coin than a delicate balancing of the scales of justice." Id.
116. According to Stephen Bright: "[A] large part of the death row population is made up of people who are distinguished by neither their records nor the circumstances of their crimes, but by their abject poverty, debilitating mental impairments, minimal intelligence, and the poor legal representation they received." Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale L.J. 1835, 1840 (1994). Bright has documented numerous cases in which there is strong evidence that the competency of the defendant's lawyer was determinative as to whether the defendant received a sentence of life or death. See id. at 1837-41. Based on this evidence, Bright concluded that the death penalty is not assigned to defendants who have committed the worst crimes but to those who have the worst lawyers. See id. at 1836; see also Ronald Smothers, Court-Appointed Defense Offers the Poor a Lawyer, But the Cost May Be High, N.Y. Times, Feb. 14, 1994, at A12 (quoting Stephen Bright as saying he had found that "getting the death penalty was not so much the result of how bad the crime was or how bad the defendant was, but how bad the lawyer was"). A National Law Journal study of the death penalty in the South supports Bright's conclusions. Marcia Coyle et al., Fatal Defense: Trial and Error in the Nation's Death Belt, Nat'l L.J., June 11, 1990, at 30. In conducting its six-month, six-state study, the journal examined thousands of pages of trial transcripts, conducted in-depth interviews with attorneys who tried and lost capital cases, and talked with judges, prosecutors, and experts in capital law. Id. The study found that lawyers trying capital crimes often had no experience, expended little effort, and were further limited by unrealistic statutory fee caps: The decision as to who should live and who should die frequently is based less on what defendants did than on the skill employed in presenting to jurors the question of whether they should live or die. And simply put, that boils down to lawyers - defense lawyers - and the system that selects them, pays them and gives them what they need to mount a meaningful defense. Indigent defendants on trial for their lives are frequently represented by ill-trained, unprepared court-appointed lawyers so grossly underpaid they literally cannot afford to do the job they know needs to be done. Id. The study concluded that "in the southern tier of states known as the nation's Death Belt . . . fairness is more like the random flip of a coin than a delicate balancing of the scales of justice." Id.
117. See I Want to Live!, supra note 17.
118. See Dead Man Walking, supra note 17 (lawyer at pardon hearing states that death-row inmate had been represented at trial by tax lawyer who had no trial experience).
119. See Paths of Glory, supra note 17.
120. Breaker Morant, supra note 17.
121. See Perry Mason: The Case of the Deadly Verdict (CBS television broadcast, Oct. 3, 1963).
122. Id.
123. Id.
124. See Bright, supra note 98, at 1841.
125. The Baldus study, the study of Georgia's capital sentencing scheme which the Supreme Court considered in McCleskey v. Kemp, 481 U.S. 279 (1987), concluded that the race of both the victim and the defendant are statistically significant factors in determining who receives a death sentence: [Baldus] found that the death penalty was assessed in 22% of the cases involving black defendants and white victims; 8% of the cases involving white defendants and white victims; 1% of the cases involving black defendants and black victims; and 3% of the cases involving white defendants and black victims. Id. at 286; see also Gregory D. Russell, The Death Penalty and Racial Bias 40-44 (1994) (noting that empirical data calls into question assumption that "death qualification" of death penalty juries does not introduce racial bias into process); Erik Eckholm, Studies Find Death Penalty Tied to Race of the Victims, N.Y. Times, Feb. 24, 1995, at B1, B4 (surveying studies which show correlation between race and imposition of death penalty).
126. The Baldus study, the study of Georgia's capital sentencing scheme which the Supreme Court considered in McCleskey v. Kemp, 481 U.S. 279 (1987), concluded that the race of both the victim and the defendant are statistically significant factors in determining who receives a death sentence: [Baldus] found that the death penalty was assessed in 22% of the cases involving black defendants and white victims; 8% of the cases involving white defendants and white victims; 1% of the cases involving black defendants and black victims; and 3% of the cases involving white defendants and black victims. Id. at 286; see also Gregory D. Russell, The Death Penalty and Racial Bias 40-44 (1994) (noting that empirical data calls into question assumption that "death qualification" of death penalty juries does not introduce racial bias into process); Erik Eckholm, Studies Find Death Penalty Tied to Race of the Victims, N.Y. Times, Feb. 24, 1995, at B1, B4 (surveying studies which show correlation between race and imposition of death penalty).
127. See The Executioner's Song, supra note 17 (white defendant); In Cold Blood, supra note 17 (white defendants); I Want to Live!, supra note 17 (white defendant); The Thin Blue Line, supra note 17 (same); see also Bird Man of Alcatraz, supra note 17 (same); Dead Man Walking, supra note 17 (same); Murder in the First, supra note 17 (same); Perry Mason: The Case of the Deadly Verdict, supra note 103 (same). But see Native Son (Int'l Film Forum 1988) (black defendant); see also Pete Earley, Circumstantial Evidence: Death, Life, and Justice in a Southern Town (1995) (telling true story about innocent black man sentenced to death).
128. Jim Henderson & Jack Taylor, Killers of Dallas Blacks Escape the Death Penalty, Dallas Times Herald, Nov. 17, 1985, § 1, at 1, 16.
129. 408 U.S. 238, 239-40 (1972).
130. 481 U.S. 279, 320 (1987) (Brennan, J., dissenting, joined by Marshall, J., and joined in part by Blackmun and Stevens, JJ.); id. at 345 (Blackmun, J., dissenting, joined by Marshall and Stevens, JJ., and joined in part by Brennan, J.); id. at 366 (Stevens, J., dissenting, joined by Blackmun, J.).
131. John C. Jeffries, Jr., A Change of Mind That Came Too Late, N.Y. Times, June 23, 1994, at A23 (quoting Justice Powell as stating that he has changed his mind about capital punishment, in part because of its arbitrariness).
132. See, e.g., Jurek v. Texas, 428 U.S. 262, 279 (1976) (Blackmun, J., concurring); Proffitt v. Florida, 428 U.S. 242, 261 (1976) (Blackmun, J., concurring); Gregg v. Georgia, 428 U.S. 153, 227 (1976) (Blackmun, J., concurring).
133. See Callins v. Collins, 114 S. Ct. 1127, 1130 (1994) (Blackmun, J., dissenting) ("From this day forward, I no longer shall tinker with the machinery of death."). The two opinions in Callins v. Collins demonstrate an interesting "battle of stories." Justice Blackmun opens his dissent to the denial of certiorari with a story of an execution: On February 23, 1994, at approximately 1:00 a.m., Bruce Edwin Callins will be executed by the State of Texas. Intravenous tubes attached to his arms will carry the instrument of death, a toxic fluid designed specifically for the purpose of killing human beings. The witnesses, standing a few feet away, will behold Callins, no longer a defendant, an appellant, or a petitioner, but a man, strapped to a gurney, and seconds away from extinction. Id. at 1128. Justice Scalia mocks Justice Blackmun's reliance on "'intellectual, moral, and personal' perceptions" and states that it is the text and tradition of the Constitution that must control. Id. at 1127 (Scalia, J., concurring). Nevertheless, Justice Scalia also tells a story: Justice BLACKMUN begins his statement by describing with poignancy the death of a convicted murderer by lethal injection. He chooses . . . one of the less brutal of the murders that regularly come before us - the murder of a man ripped by a bullet suddenly and unexpectedly, with no opportunity to prepare himself and his affairs, and left to bleed to death on the floor of a tavern. The death-by-injection which Justice BLACKMUN describes looks pretty desirable next to that. It looks even better next to some of the other cases currently before us which Justice BLACKMUN did not select as the vehicle for his announcement that the death penalty is always unconstitutional - for example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. How enviable a quiet death by lethal injection compared with that! Id. at 1128 (citation omitted).
134. Eckholm, supra note 107, at B1.
135. See supra text accompanying notes 41, 51-52, 60.
136. See The Executioner's Song, supra note 17 (portrayal of Gary Gilmore); In Cold Blood, supra note 17 (portrayal of Richard Hickock).
137. Let Him Have It, supra note 17.
138. See id.
139. In Let Him Have It, Derek's culpability depends on what he meant when he shouted "Let him have it": Was he inciting his friend to shoot the police officer, or imploring him to hand over his gun to the police? Id. Because the viewer "knows" Derek, she sees him as intending the latter, and therefore believes that Derek is innocent of the crime.
140. Murder in the First, supra note 17.
141. Id.
142. Amnesty Int'l & Death Penalty Focus, Shouldn't We Be Asking What Went Wrong? (on file with the New York University Law Review).
143. Bird Man of Alcatraz, supra note 17.
144. Id.
145. Id.
146. Id.
147. Francis X. Clines, Self-Esteem and Friendship in a Factory on Death Row, N.Y. Times, Jan. 12, 1994, at A1.
148. Id.
149. Id. at A14; see also Rick Bragg, Where Alabama Inmates Fade into Old Age, N.Y. Times, Nov. 1, 1995, at A1 ("Grant Cooper knows he lives in prison, but there are days when he cannot remember why. . . . Back [in 1954], before he needed help to go to the bathroom, Mr. Cooper was a dangerous man. Now he is 77, and since his stroke in 1993 he mostly just lies in his narrow bunk at the Hamilton Prison for the Aged and Infirm . . . .").
150. See supra text accompanying note 92.
151. Let Him Have It, supra note 17.
152. See I Want to Live!, supra note 17 (ending with reporter needing to write about the injustice).
153. See Bird Man of Alcatraz, supra note 17 (ending with voice-over telling that Robert Stroud has served 53 years in prison and that his request for parole is denied each year).
154. See Breaker Morant, supra note 17 (ending with execution of two scapegoats and with third defendant, sentenced to life in prison, needing to write about the injustice).
155. See In the Name of the Father, supra note 17 (ending with protagonist pledging to clear name of his father).
156. See Anthony G. Amsterdam, Telling Stories and Stories About Them, 1 Clinical L. Rev. 9, 17-20 (1994) (noting that Thurgood Marshall's argument in Brown v. Board of Education, 347 U.S. 483 (1954), "constitutes a half-finished tale that requires judicial action to conclude it").
157. This, of course, is intimately connected to choices about when the story begins and ends. See supra Part IV.B.1-2.
158. As Wendy Lesser has noted, stories in which an innocent person is condemned to death are "painful - not only because the injustice is extreme, but because the victim is close[ ] to ourselves in nature. He is relatively innocent and so are we; ergo this could happen to us." Lesser, supra note 17, at 87. This feeling is expressed for the viewer by Barbara Graham's friend in I Want to Live!, in which the innocent Graham is executed: "It could have been [me]," the friend declares. I Want to Live!, supra note 17.
159. An important characteristic of narrative is that it induces empathy. Seymour Chatman describes the "interest point of view" which exists in narrative: "We become identified with the fate of a character, and even if we don't see things or even think about them from his or her literal
160. An important characteristic of narrative is that it induces empathy. Seymour Chatman describes the "interest point of view" which exists in narrative: "We become identified with the fate of a character, and even if we don't see things or even think about them from his or her literal perspective, it still makes sense to say that we share the character's point of view." Seymour Chatman, What Novels Can Do That Films Can't (and Vice Versa), in On Narrative 117, 130 (W.J.T. Mitchell ed., 1980). Chatman notes that "[a] reader [or viewer] must obviously be able to participate imaginatively in a character's set of mind, even if that character is a nineteenth-century lecher." Id. at 135 n.4. While "interest point of view" exists in all narratives, Chatman adds that it is "particularly strong in film narratives." Id. at 136 n.4. Similarly, Jerome Bruner notes that narratives act as "magnets for empathy." Jerome Bruner, Actual Minds, Possible Worlds 20-21 (1986).
161. Charles G. Lord et al., Typicality Effects in Attitudes Toward Social Policies: A Concept-Mapping Approach, 66 J. Personality & Soc. Psychol. 658, 664-65 (1994).
162. Id. at 655; see also Craig Haney, Lessening the Impulse to Condemn to Death: Five Mitigation Heuristics (Feb. 1992) (unpublished manuscript, on file with the New York University Law Review) (arguing that sentencer is more likely to impose death penalty if defendant is viewed as deviant or foreign, not a person, and someone to be feared).
163. Interview with Anthony G. Amsterdam, supra note 97.
164. See Bird Man of Alcatraz, supra note 17; see also supra text accompanying notes 125-26.
165. Henry Weinstein & Alan Abrahamson, Death Penalty Unlikely for Simpson, Experts Say, L.A. Times, July 10, 1994, at A1, A29.
166. Haney et al., supra note 12, at 92.
167. See, e.g., In the Name of the Father, supra note 17 (portraying protagonist Gerry Conlon as son); cf. I Want to Live!, supra note 17 (portraying Barbara Graham as mother whose primary concern is welfare of her child). Not surprisingly, pro-death penalty narratives often do not encourage viewer identification with the murderer. For example, in The Executioner's Song, Gary Gilmore is portrayed as a killer from the very beginning. Before the viewer even meets Gilmore, she sees a bloody victim and hears the pained screams of the victim's family. The viewer quickly learns who is responsible for the pain - at the scene of the crime, one observer says, "Gary did it," and another man approaches a policeman and says, "It's possible my nephew Gary Gilmore had something to do with this." The Executioner's Song, supra note 17.
168. Cf. Amsterdam & Hertz, supra note 32, at 64-65 (analyzing defense lawyer's closing arguments to jury using narrative theory, and noting that lawyer makes jurors central characters of story).
169. In the Heat of the Night: A Trip Upstate (NBC television broadcast, Feb. 7, 1989).
170. Id.
171. Id.
172. Id.
173. Id.
174. Dead Man Walking, supra note 17.
175. In the autobiography on which the movie is based, Prejean calls her story an "eyewitness account of the death penalty." Prejean, supra note 79, at iii. She describes herself as an "ordinary person [who became] involved in extraordinary events." Id. at xiii.
176. Dead Man Walking, supra note 17; see also Prejean, supra note 79, at 3-22.
177. See Dead Man Walking, supra note 17; see also Prejean, supra note 79, at 38, 84.
178. See Dead Man Walking, supra note 17; see also Prejean, supra note 79, at 62 ("I'll acknowledge the evil Pat has done and make very clear that I in no way condone his terrible crime, but I'll try to show that he is not a monster but a human being like the rest of us . . . .").
179. See Dead Man Walking, supra note 17; see also Prejean, supra note 79, at 68-95.
180. Cry, the Beloved Country (British Lion Film Corp. Ltd. 1951).
181. Id.