Boxing...great opportunity for the sports bettor

The following is a cut & paste of a post I published at a sports gambling website on the upcoming De La Hoya-Mayweather fight. Since the fight is finally just a week away...here's a reprise:




This one ties up a bit of bankroll for 4 months, but I can't believe the line will stay this friendly. Mayweather-De La Hoya in May...the most likely outcome is Mayweather by decision, and it's getting +126 (Pinny). That's close to a 45% chance...should be more like 65%, and I can't imagine that at fight time you'll be getting as much as even money. What are the alternatives?1) Mayweather by stoppage. In the last 3 years, Mayweather has stopped 3 of his 6 opponents. Those were the badly outmatched Henry Bruseles, Sharmba Mitchell (who has been knocked out in 3 of his last 5 fights), and the once-great Arturo Gatti who had finally seen a war or two too many and has been stopped 4 times. In Mayweather's fights against quality opposition (Zab Judah, DeMarcus Corley, and Carlos Baldomir), Mayweather takes no chances and wins easy decisions. De La Hoya has lost 4 fights, but only one of those went short of the distance, and that was to Bernard Hopkins, a much bigger natural fighter than Mayweather, and one who fights much more aggressively. No reason to think that De La Hoya wouldn't make the final bell.2) De La Hoya wins. More likely than his getting stopped, but still unlikely. De La Hoya's popularity is probably what's keeping the Mayweather-by-decision price high...for now. Mayweather is at the very top of the fight game. He heads just about everyone's pound-for-pound list, and hasn't come close to losing a fight in several years, since he beat top 140-pounder Jose Luis Castillo (for the second time) by "only" 2, 2, and 3 points. In contrast, De La Hoya, who is 4 years older than Mayweather, has lost 4 fights now. Admittedly, they were all to top fighters (Hopkins, Trinidad, and Mosely (twice)). But that's what Mayweather is - THE top fighter in the game today. He is also "just" a boxer, while Oscar is now a businessman, with his "Golden Boy Promotions." Even if Oscar keeps his promise to train harder for this fight than he ever has before (which he probably will), there's no reason to think that he will be the one, at 34 years old, to break Mayweather's unbeaten streak. This ain't Hagler-Leonard; Mayweather's style scores points. Mayweather is faster and better at defense.I think an accurate price for this would be somewhere between-150 and -200. I don't think it will go that low, partly because of De La Hoya's popularity, but I also don't think, as the fight moves to the forefront of the schedule, that you'll be getting +125, either. It probably drops to about -120, which will still be an overlay...but take the +125 while it's there.YTD: 1-0; +250If you want to take a flyer, the draw is +1621 at Pinnacle. Some of De La Hoya's recent fights have been close decisions (close & unanimous, split, and majority), and his popularity may swing a couple of close rounds his way. I expect Mayweather will win too many rounds clearly for this to swing, but at better than 16-1, for a fight between two good fighters that will probably go the distance and in which the lesser fighter is the more popular, it might be worth an action bet.




Current (April 28) postscript: I'd say the odds on a Mayweather decision are more like 75% (not the 65% I originally posted). The odds have dropped (at least at www.bodog.com, one of the last online books that's American-friendly) to even money, but that's still quite an overlay. If a Mayweather decision is a 75% result, then your expected value at even money is 1/2 of all money wagered. (If you're unused to calculating expected value, it's pretty straightforward. On the assumption that Mayweather by decision is a 75% outcome, then if you bet $25 on that result 4 times, you'd win 3. So 3 times, you'd win $25 (total: +$75), and once you'd lose $25. So you'd have $100 wagered ($25 four times), and you'd be up $50 ($75-$25). An expected value of 50 cents back for every dollar wagered is huge...this is a fight you should really bet. My prediction: 116-113, Mayweather. That's 7 rounds to 4, 1 round even, assuming no 10-8 rounds, which is a very good assumption. That also assumes that the judges will be friendly to De La Hoya based on reputation and marketability; look for most ringsiders to have a card more like 117-112 (8 rounds to 3, 1 even).

Those racist filmmakers

So, here's an excerpt from a letter to the editors of Kitchen Sink (a cool perodical published out of Oakland):

"It was extremely validating to read that somebody else was bothered by the ignorant "all Asians look alike" attitude displayed by the casting decisions for Memoirs of a Geisha..."
(Volume 4, Issue 3, page 8)

The letter was in reference to an article (which I didn't read) by Sam Hurwitt, and pertained (I presume) to the casting of Chinese actresses (e.g. Ziyi Zhang and Li Gong) to portray Japanese characters (e.g. Chiyo/Sayuri and Hatsumomo, respectively). Naturally, I felt compelled to rant, and naturally (that is to say, "as those of you who know me would certainly expect"), my response is, "What a crock."

It's IGNORANT to cast Chinese actors to play Japanese characters? Why? What a bunch of politically-correct-21st-century-find-racism-everywhere nonsense. Was it "ignorant" to cast Mel Gibson, who is Australian, to portray Prince Hamlet, who was Danish? For that matter, how about William Wallace, who was from Scotland? What's the inference? All white people look alike? Couldn't they find a Danish or Scottish actor? How about Bruce Willis, born in Germany, as John McClane, a gentleman with an Irish-sounding name in Die Hard. In that movie, McClane fought AGAINST a possible German (Hans Gruber) played by an Englishman (Alan Rickman). Oh, the horror!! Let's not forget one of my favorite westerns, The Good, The Bad, and The Ugly, featuring New York Jew Eli Wallach as the almost-certainly-not-Jewish "Tuco." Wallach made qiute a career of portraying Mexicans and native Americans, in fact.

In fact, it would be more "ignorant" (not to mention insulting) to refuse to cast talented Chinese actresses as anything other than Chinese characters. Of all of seemingly infinite examples of political correctness gone completely moronic, this one was certainly in my top 10 of the year.

Gotta sign off now; I have to watch Jude Law, the Brit, in Cold Mountain, the movie for which he was nominated as Best Actor for portraying an American. The nerve!! As an American, I'm deeply offended. I guess "they" think all us white guys look alike.


Afterthought: Is it racist to think that Gong Li looks "closer" to Japanese than Nicole Kidman?!

Sports -- Boxing

It's almost the 25th anniversary of the month I read a boxing article the title of which really stuck in my craw. That title was "Rocky Marciano Was Better Than Joe Louis!" (Boxing Today; July 1982). Now, July 1982 was the month I turned 14, but I was an avid and knowledgeable boxing historian even in my early teens. The article really suprised me on two counts. First of all, at the risk of telegraphing the direction of this particular diatribe, the writer was flat-out wrong. Full-of-crap wrong. Marciano was most assuredly NOT better than Joe Louis. The second surprising thing, and this was actually, if anything, MORE surprising than the writer's ultimate conclusion, was that the article was written as if he was correcting a widely-held, though mistaken, belief. I thought at the time, and subsequent conversations with casual boxing fans over the years have confirmed, that Marciano was generally regarded as the better fighter.

The support for Marciano is easy to understand on a superficial level; Marciano was, as many people know, the only heavyweight champion to go through his entire career having won every fight. A perfect 49-0 with 43 knockouts. It's an impressive record. Louis had an impressive record, too: 69-3 with 55 knockouts. But anything other than a zero in that loss column just sort of seems to pale in comparison. Given that the won-loss record does favor Marciano, though, we can try to peek behind the curtain and see if there's anything more to it than the numbers.

The original article asserted that in addition to his three losses, Louis almost lost several other fights, but Marciano had only one near-loss. The article also asserted, separately, that just about any knockdown was close to a knockout. This "observation" was a self-serving attempt to pile on points for Marciano; Louis was known for suffering "flash" knockdowns (a flash knockdown is when a fighter loses his feet but is not hurt. He gets up (or has the ability to get up) in a flash. It's a legitimate knockdown, but it doesn't signify that the boxer is genuinely in trouble. In a "typical" (as opposed to flash) knockdown, the boxer has actually been hurt, to some extent, and his opponent has a legitimate opportunity to follow up the knockdown with an attack that can lead to an early victory, by knockout or technical knockout). Louis was susceptible to flash knockdowns, and Marciano wasn't; if you count all of the knockdowns suffered by each fighter as "near-losses," then, you have more evidence to support a "Marciano-was-better" position. People who know boxing, however, know that not all knockdowns are created equal, and some knockdowns (including the vast majority of the ones Louis suffered) are virtually meaningless from the standpoint of providing evidence of a "near-loss".

One also can't help but wonder which fight the obviously biased writer was counting as Marciano's only near loss. It's hard to entertain with a straight face the assertion that there was only one. In a 1950 fight with Roland La Starza, one judge scored the bout for Marciano, 5-4 (1 even round), one judge scored the bout for La Starza by the same margin, and the referee, Jack Watson, scored the bout 5-5 in rounds, but awarded it to Marciano on the supplementary points system in effect at the time in New York. Presumably, THAT has to constitute a near-loss. Against Jersey Joe Walcott, Marciano was hopelessly trailing on all scorecards through 12 rounds (4-7, 5-7, and 4-8), but came up with a one-punch knockout in the 13th. Archie Moore knocked down Marciano for a 2-count (yes, a "flash"knockdown, but remember the writer's assertion... knockdowns are near-knockouts). A fight against Ezzard Charles was almost stopped in Charles's favor due to Marciano's nose being horrible split and bleeding (the stoppage would have been a technical knockout victory for Charles; the referee let the fight continue, and Marciano later won by knockout). Marciano also had close decision victories. The only point I'm making at this point is this - you have to REALLY have an axe to grind to assert that Marciano had only one "near-loss". Now, don't get me wrong; Louis also had his own near-losses. Most notably, he had a very Marciano/Walcott-like performance of his own, trailing Billy Conn on points after 12 rounds, then scoring a knockout in the 13th.

I believe that the greatest credit that can be given Marciano is not that he went through his career undefeated, but rather that he knew when to quit, and had the discipline to stick to his guns. THAT is easier said than done, in any sport. It's hard to walk away at the top of your game, especially when you've spent a couple of decades doing something. Marciano retired just a few weeks after his 32nd birthday. Marciano also died in a plane crash at a relatively young age. Another story I've heard is that it was the plane crash that ended his career, or stopped him from making a comeback and ruining his perfect record. Let's clear that one up right now; that plane crash happened almost FOURTEEN years later, when Marciano was about to turn forty-six years old. So no...he retired, and he stayed retired, completely volitionally.

Louis, in constrast, fought until he was thirty-seven. Don't kid yourself; those five+ years are huge in sports, particularly in boxing (spare me the George Foreman comments; the 1973 Foreman would have destroyed the 1993 version). Marciano had one fight beyond his thirty-second birthday. Louis had fourteen, including two of his three losses, and a couple of his ugliest wins (such as a friendly decision over Jersey Joe Walcott, in a fight in which Louis was knocked down twice). Ironically (in the Alannis Morrisette sense of the word), Louis won the heavyweight title by knocking out "Cinderella Man" Jim Braddock shortly after HIS (Braddock's) thirty-second birthday. Braddock fought once more, then retired.

But it makes little sense to judge a boxer (or any athlete) by how bad he was at the end of his career. Tex Cobb (who impelled Howard Cosell to retire from boxing by getting beaten up so badly by Larry Holmes) won his last nine fights; surely, we don't have to rank him ahead of Muhammad Ali simply because Ali lost three of his final four. No, it makes much more sense to judge boxers by their results during their prime years, with two major criteria -- how good they were during their peak years, and how long their peaks lasted.

In the late 40's, Marciano had a couple of wins over quality opponents (Roland LaStarza and Carmine Vingo), but he was still clearly nowhere near "The Rock" of legend. He was still a 9-5 underdog in mid-1951 against Rex Layne (Marciano was almost twenty-eight at the time; in contrast, Louis was a favorite against the reigning heavyweight champion at age twenty-three). Going into the Layne fight, Marciano had fought four times in 1951. The combined record of his opponents in their six fights before taking on Marciano was 4-20. This is not the stuff of greatness. Marciano knocked out Layne in the sixth round, though, and shortly thereafter, he had a marked increase in general quality of opposition. So let's say Marciano's peak started with the Layne fight. From then on, Marciano was 14-0, 13 by knockout. This included wins against former world heavyweight champions Louis and Ezzard Charles (twice) and reigning champion Walcott (whom he also defeated in a rematch). There was also a win against light-heavyweight champion Archie Moore.

Let's look a little more closely at those wins against name opponents. Louis, as noted, was thirty-seven years old. Charles was thirty-two and thirty-three. Walcott was thirty-eight and thirty-nine (and WINNING the first fight through twelve of fifteen rounds, remmeber). Moore, though famous for his longevity, was thirty-nine and had made his reputation as a light-heavyweight (175 pounds or fewer). Marciano also defended against LaStarza (a very good boxer, though not a household name), knocking him out in the 11th after taking a slim lead on points through 10 rounds. So, ok, 14-0...fair enough. But the question is always "Whom did he beat?" (It's usually "Who did he beat?" We like grammar, though.) In Marciano's case, another way to look at it is, 2-0, 1 by knockout, against top-quality heavyweights under the age of 35 (Ezzard Charles, twice), and a peak that lasted about four years.

In 1935, Louis fought some hopeless bums. Four of them, like Marciano's just-before-his-peak opponents. Losers of 21 of their previous 24 fights. He then fought Primo Carnera, however, starting a run in which four of seven opponents were former heavyweight champions. It's fair to start considering Louis's peak with the Carnera fight, and we'll continue through the second Walcott fight (though he was obviously well past his prime), his final successful title defense. Curiously, each of those fights took place on a June 25 -- 1935 and 1948, giving us a thirteen (!!) year peak to consider. Louis's record during this period was 39-1, 34 by knockout. One of the fights that was not a knockout was a disqualification win over Buddy Baer, whose manager entered the ring after Baer had been knocked down three times in the 6th round and refused to leave, prompting the disqualification. Barring this extremely unusual outcome, Baer surely would have been stopped, bringing Louis up to 35 knockouts in 39 wins (in a rematch, Baer was knocked down three times and knocked out in the first round).

Louis's opponents included former heavyweight champion Carnera (28 years old), former heavyweight champion Max Baer (26 years old, and up to that point, the only person besides Louis who had managed to knock Carnera out), former heavyweight champion Max Schmeling (who won the fight, handing Louis his only in-his-prime loss, via 12th round knockout), former heavyweight champion Jack Sharkey (33 years old, a 3rd round career-ending knockout), reigning heavyweight champion Jimmy Braddock (32 years old), Schmeling again (32 years old, a devastating first round knockout), and future heavyweight champion Jersey Joe Walcott (twice, when Walcott was 33 and 34 years old). The first of the Walcott fights was a disputed decision that most felt should have gone the other way; the second was an 11th round knockout. So, if you're keeping score, against former, reigning, and future heavyweight champions under the age of 35, Louis was 7-1 with 6 knockouts (two in the first round).

Louis also defeated quality heavyweights who never won the championship (as Marciano had defeated Layne and LaStarza), most notably Paolino Uzcudun (though Uzcudun was 36 at the time) (I'm not making Uzcudun up, by the way; he was 50-16-3 at the time of the Louis fight and had a win over Max Baer and a draw with Schmeling to his credit) and Tommy Farr (23 years old and already with a win over Max Baer; in his next bout, Farr would lose a razor-close split decision to the recently dethroned Jimmy Braddock).

Since Marciano gets to count the Archie Moore win as a quality win, despite the fact that Moore was almost 40 years old and a natural light-heavyweight, let's look at Louis's record against quality light-heavyweights who stepped up in weight class (a periodic phenomenon that usually ends badly for the naturally lighter boxer). Louis had wins over light heavyweight champions (at one time or another) John Henry Lewis (24 years old at the time) and Billy Conn (twice, when Conn was 23 and 28 years old). That's another 3-0 for Louis, all by knockout, against world champions who were in their 20's each time.

Two of Louis's three losses, the losses really being the only thing that superficially make him look worse than Marciano, can be directly attributed to the fact that Marciano knew when to quit, and Louis didn't. To be fair, actually, Louis had financial troubles with the IRS that forced him to keep fighting long after he probably would have retired. Marciano has one undeniable advantage in their primes: He never lost, while Louis did. Once. Louis, after winning the title, defended the title against the only man to beat him, just two years after their first fight, and knocked him out in two minutes, showing that he had improved upon the weakness that Schmeling had noticed -- Louis's tendency to drop his left hand after throwing a jab. With that weakness shorn up, Louis went undefeated for more than a decade (14+ years). Marciano's entire professional career lasted 8 1/2 years. Marciano fought ONE world champion under the age of 35. Louis fought eight, and knocked them all out. Louis was 6'2" tall and weighed around 200-205 pounds. Marciano was 5'10", weighed in the high 180's, and was extremely easy to hit. He made up for it with fierce determination and a huge punch, but it's a lot easier to be fierce against has-beens and never-weres.

I don't mean to sound as if Marciano wasn't a great fighter. He was a great fighter. If you look closely at those 49 wins, though, it's pretty clear that he was helped by being in the right place at the right time (well after Louis's prime, and before Ali's...a time during which there was a dearth of great heavyweights). Sometimes, great competitors come along at the same time and have epic battles with each other (Borg & Connors; Bird & Magic; Ali, Frazier & Foreman). Sometimes, all-time greats don't have other all-time greats against whom to measure themselves (Anatoly Karpov, chess champion for more than a decade, but who happened to come along after Fischer and before Kasparov). Joe Frazier, prior to his first retirement, was 32-4 with 27 knockouts. If you take out the Ali and Foreman fights, he was 31-0 with 27 knockouts. Sounds a bit like Marciano's record, don't it? And Frazier was 5'11 1/2" and 205-210 pounds -- bigger than Marciano, and with a similar style. What's the real difference between Frazier and Marciano? Marciano didn't have to contend with a peak Ali and a peak Foreman.

Rocky Marciano and Joe Louis were two of the all-time great heavyweights. But put them in the same ring ten times in their mid-late 20's, and Louis wins eight of them.

Politics -- Alternative Feminisms

This is another seminar paper. Same caveat regarding the footnotes - I don't use endnotes (unless required to). This makes it easy to follow the notes when they're on separate pages, but a pain in the neck to do it when they're cut and pasted online. Too bad; I'm lazy. So, it's... Page 1...Footnotes for Page 1. Page 2...Footnotes for Page 2. Etc.





INTRODUCTION

In the introduction to the chapter on feminism in their anthology on literary theory1, Julie Rivkin and Michael Ryan illustrate the inherent tension between utilizing the commonality (strength in numbers), while maintaining the uniqueness, of groups that have similar though not identical goals/beliefs. As Rivkin and Ryan put it: “If the student of literature in the early 1970s was moved to ask why is there not a feminist criticism, the student of literary theory in the late 1990s might well be moved to shift the emphasis and ask but why is there not a feminist criticism?”
There is a variety of possible definitions for “feminism” (which in and of itself is a problem), but for the purposes of this paper, I will go with “[t]he doctrine – and the political movement based on it – that women should have the same economic, social, and political rights as men.”2 The tension arises from the fact that different people have different ideas about both what constitutes equality and what the preferred means of bringing equality about are. Related questions include: 1) How much emphasis should be placed on consensus, and how much on coalition? And 2) How much support/credibility/respect should be given to group X’s vision of feminism by group Y, whose vision is conflicting? There is sometimes an uneasy alliance, at best, between competing views. I will use the term “mainstream feminism” to refer to the views or versions of feminism most embraced in the academic community and most brought-to-


1. JULIE RIVKIN & MICHAEL RYAN, Introduction: “Feminist Paradigms”, in LITERARY THEORY: AN ANTHOLOGY 527, 527 (1998).
2. THE AMERICAN HERITAGE NEW DICTIONARY OF CULTURAL LITERACY (3d ed. 2005).






mind in the lay community by the term “feminism.” The general consensus about what “feminism” is, in other words.
Perhaps the feminist group most excluded from the mainstream is the libertarian feminist group. Two anecdotes may serve to illustrate the point. First, I would refer to the (virtually identical) response I received from several different people upon telling
them that I was writing a paper on libertarian feminism. Essentially, the majority (albeit not unanimous) response was something like, “Isn’t that an oxymoron?” As we shall see, it is not; libertarian feminism has a long history, and the principles of libertarianism are entirely consistent with achieving the goals of feminism.
The second illustration of libertarianism’s tenuous membership in the feminist community is the well-accepted, interrelationship between feminism and critical race studies. For instance, at the UCLA School of Law, papers written in the “Feminist Legal Theory” or “Feminist Legal Philosophy” seminar may satisfy the writing requirement for the Critical Race Studies concentration.3 Conversely, a fair amount of time during the Feminist Legal Theory course I took was spent on matters of intersectionality (the synergistic effects of being in multiply-discriminated-against groups; in this case, race, gender, and occasionally sexual orientation) and race in general. This observation is not intended to be normative, but descriptive; it seems clear that the mutual relevance of critical race studies and feminism is generally accepted, and the disciplines appeal to many of the same people.4 This observation relates to libertarian feminism in that

3. http://www.law.ucla.edu/home/index.asp?page=1086
4. The Feminist Legal Theory course incorporated the emphasis on race theory in response to strong student demand.






libertarianism appears to be firmly at odds with critical race studies, a discipline whose
scholars have “rejected individual rights and formal equality.”5 It is somewhat curious that mainstream feminism has largely rejected libertarian feminism, which has as its sole emphasis combating oppression against women, while embracing the feminism/race theory hybrid which, though it is uniquely capable of addressing concerns specific to minority women, may nevertheless undermine purely feminist concerns when they conflict with racial ones.6

HISTORY AND THEORY

As it turns out, however, although one might take entire college courses in feminist theory or listen to dozens of sound bites from mainstream feminist spokespeople without ever suspecting a plausible feminism/libertarian connection, libertarian feminism has a long and rich history on more than one continent. Joan Kennedy Taylor’s definitive book7 emphasizes this “surprise factor”: In a book that devotes roughly 45% of its pages
to history, and another 45% to policy issues, the only chapter that fits neither category is


5. From a UCLA School of Law mass E-mail promoting Critical Race Studies coursework. Amusingly, a revised and much more mainstream-sounding E-mail, making no mention of “rejecting individual rights,” went out less than four hours later.
6. See, e.g.,
7. JOAN KENNEDY TAYLOR, RECLAIMING THE MAINSTREAM: INDIVIDUALIST FEMINISM REDISCOVERED (Prometheus Books 1992). Recommended by Sharon Presley, National Coordinator of the Association of Libertarian Feminists, for which I am particularly grateful.








first – “So You Think You’re Not a Feminist?”8
Taylor wastes no time in clearly and succinctly staking out the counter-intuitive position in a single paragraph that should be required reading, at least as acknowledgement that such counter-positions exist, in any mainstream-oriented course on feminism:
I am a believer in individualism and individual rights; in entrepreneurship and free enterprise; in civil liberties and minimal government. And I am a feminist. Does that surprise anyone? I am convinced that there are many people who would basically agree with me if they didn’t have a soundbite image of what feminism entails.9

Although I strongly agree with Taylor’s position, I do not find problematic the fact that it is not advocated in mainstream feminist academia; I do, however, find problematic that it is not acknowledged as a position advocated by at least a fair minority of rigorously intellectual academics and prolific writers.
Who is this fair minority, where did they come from, and how long have they been around? Taylor10, as well Dr. Stephen Davies11, look back over 200 years, to Mary Wollstonecraft and some of her contemporaries. While Wollstonecraft’s Vindication of the Rights of Woman is generally taken to represent the beginnings of feminism as a whole, Dr. Davies points out that Wollstonecraft, like Mary Hays (author of Appeal to The Men of Great Britain on Behalf of Women (1799)), “defined the oppression of women in individual terms, as the denial of self realisation (sic) and self ownership to

8. Id. at 9.
9. Id. at 10.
10. Id. at 30.
11. DR. STEPHEN DAVIES, Libertarian Feminism in Britain, 1860-1910, Libertarian Alliance Pamphlet No. 7 (Libertarian Alliance/British Association of Libertarian Feminists joint publication, 1987).







individual women,” in contrast to radical feminists “who define female oppression in collective terms as the oppression of women as a group through patriarchy,” and socialist feminists, who see oppression as “an inevitable part of the system of capitalism.”12
Early feminists were largely united on some issues, and thus those issues are not academically interesting or useful with respect to a particular examination of libertarian feminism. For example, early feminists, regardless of how one might classify them, supported women’s suffrage, equal employment opportunities, and equal educational opportunities (though perhaps a distinction could be made with respect to the “more libertarian” efforts by groups such as the Society for Promoting the Employment of Women, which engaged in proactive self-help activities such as job training, and activists such as Emily Davies and Emily and Maria Shirreff, who again vigorously embraced a self-help model and are credited with creating institutions such as Girton College and the Womens’ (sic) Educational Union).13
There are, however, other beliefs more relevant to the isolation and examination of libertarianism. For example, laws deemed married women unable to hold property (husband and wife were legally one person). Nineteenth century feminists’ attempts to establish property rights for women “arose out of their libertarian view of individual rights as necessarily dependent upon the existence of property rights.”14 Early libertarian feminists took the espoused beliefs of liberal philosophers (in the historical context, “liberal” is being used in its classic sense; that is to say, akin to liberalism as



12. Id.
13. Id.
14. Id.








opposed to today’s collectivist connotation), and applied them more consistently.15
Meanwhile, in the United States, a group of similarly-minded individualists was also developing along similar philosophical lines. Their ideas were first expressed in book form by Margaret Fuller, who in 1845 wrote Woman in the Nineteenth Century. Fuller noted that women were “placed at a legal and social disadvantage and usually not educated to develop [their] true talents,” a position that appears to state the obvious; however, her claim that their “interests were identical with [men’s],” and that men “could never read his true proportions” while women “remained in any wise shorn” of hers, seems decades ahead of its time.16 This observation would appear to echo the thoughts of renowned classical liberal philosopher John Stuart Mill, who argued that inhibiting the freedom of women indirectly harmed the freedom of men to engage in optimal social and intellectual interaction.17 The only problem with this reading is that it can hardly be said of Fuller that she echoes Mill, when she predated his On The Subjection of Women by 25 years!
Some women who never adopt the term “feminist” or think of themselves as feminists nonetheless may espouse values that lead others to consider them as such. Rand, in Taylor’s eyes,
“epitomized…the feminist idea. She never considered her ambitions limited by the fact that she was a woman; she was independent enough to leave the Soviet Union and come to the United States by herself after she left the university; she intended to become a writer in a language and a country that were foreign to her – and she became a best-selling author. Her heroines were independent , achieving women like herself – in many respects role models for feminists.”


15. Id.
16. Taylor, supra note 7, at 33.
17. Davies, supra note 11.
18. Taylor, supra note 7, at 23-24.








Interestingly, Taylor notes, Rand did not support Ronald Reagan as a presidential candidate despite numerous political agreements, such as free market capitalism and a strong opposition to communism, because in her view, anyone (like Reagan) “who didn’t understand a woman’s right to choose abortion didn’t understand individual rights.”19 Rand also warmly welcomed Betty Friedan’s The Feminist Mystique, seeing ideas “that women possessed a fundamentally different nature from men or that they should sacrifice themselves for the good of men, society or the state” as “simply variations of the fundamental evil of collectivism, socialism and irrationalism.”20
More recently, the libertarian/feminist nexus has been advanced by the Association of Libertarian Feminists, founded in 1973 at the home of its first National Coordinator, Tonie Nathan. Nathan was also the first woman in United States history to receive an electoral vote (beating Geraldine Ferraro by more than a decade) when Virginia elector Roger MacBride, pledged to Nixon, went renegade. The purpose of the Association of Libertarian Feminists is to: 1) encourage economically self-sufficient and psychologically independent; 2) publicize and promote realistic attitudes toward female competence, achievement, and potential; 3) oppose the abridgement of individual rights by any government on account of sex; 4) work toward changing sexist attitudes and behavior exhibited by individuals; and 5) provide a libertarian alternative to those aspects of the women’s movement that tend to discourage independence and individuality.21 This year, the Association of Libertarian Feminists co-sponsored a conference entitled

19. Id. at 24
20. Davies, supra note 11 n.14.
21. http://www.alf.org/index.shtml







“Autonomy in The Family.” The conference emphasized encouraging critical thinking and self-esteem among young people, and egalitarian marriage.
This very brief historical overview is obviously not intended to provide a comprehensive look at the libertarian feminist movement, but rather to briefly demonstrate that there is a long history of intertwined libertarian and feminist thought. Furthermore, those principles or policies are, in fact, clearly “feminist” in nature.

SELECTED DIRECT COMPARISONS BETWEEN FEMINISMS

The exclusion of libertarian feminism from mainstream feminist discourse is ironic, because, due to their natures, mainstream feminism needs libertarian feminism for reasons that are not reciprocal. By its nature, libertarian feminism is centered on a moral recognition of the fundamental nature of individual rights. For this reason, a course on libertarian feminism has no particular need to invoke collectivist feminist principles as a basis for comparison; ultimately, libertarian feminism is not utilitarian. It may be that enacting specific policies based on libertarian feminism would have utilitarian benefits, but that would be ancillary to their essential justification – the respect for basic individual freedom. In this sense, libertarian feminism is more “principled” in the literal sense – there is a principle at work for the libertarian feminist that is more important than the weighing of pros and cons.
The reverse, however, cannot be true. Mainstream collectivist feminism is, at its essence, a utilitarian ideal. Mainstream feminists have no competing ideal other than, hopefully, to find the philosophy/doctrines/policies that most effectively secure the same economic, political, and social rights as men. I make this distinction as a purely descriptive one; my only point in doing so is to suggest that given this goal, mainstream feminism at its core should require inquiry into competing feminist views for the purpose of ascertaining whether one view might in fact be superior. They do not have luxury of saying, as a libertarian feminist might, “I don’t care if your way leads to more desirable outcomes; I’m operating on a principle that is more important than the end result.” I do not actually suggest that libertarian feminists take this view; rather, I strongly suspect that they believe that the doctrines and policies that are consistent with their philosophies, by and large, are actually the ones that lead to the preferred end results.
The only plausible response, from the perspective of an advocate of mainstream feminism, to the position that mainstream feminism’s nature demands comparison with other views is the response, “Yes, of course, and we have looked at these individualist perspectives and found that they are not at good at producing the outcomes we desire.” That response is a fair one; however, particularly in the legal theory field, as news situations and problems arise, the comparison needs to be reexamined periodically. The horizon constantly changes, and models that are preferable with respect to one set of problems are not necessarily preferable with respect to another. Furthermore, in the realm of academia, although career professors may have at one time made the comparisons and drawn the conclusions in favor of mainstream feminism, they teach constantly-changing groups of students. These students need to make the same comparisons and draw their own conclusions, not be given a solely collectivist model with the unspoken message that it embodies all that feminism is or may be.
A further justification for the inclusion of libertarian feminism in the discourse of feminism generally is that, at least in the eyes of the free market capitalist feminists22, competition is a good thing. A unilateral view of any subject, particularly one that is advanced by academic discourse, runs a risk common in instances of “preaching to the choir” – that a well-received message will not be subject to the full, appropriate degree of intellectual scrutiny. Let us move out of the abstract and into the concrete…
In the Feminist Legal Theory course I took, the following chart was presented:

RACE AND GENDER INTERACTIVE EFFECTS ON SOCIOECONOMIC STATUS

Economic Status ($)
Educational Status (yrs)
White Males
16,467
12.7
Black Males
9,448
12.2
White Females
6,949
12.6
Black Females
6,164
12.2

Income figures are 1984 median incomes for those fifteen years or older. Educational attainment is for 1984, median years of school completed.
Source: U.S. Department of Commerce, Bureau of the Census, Statistical Abstract of the United States, 1987 (Washington, D.C.: Government Printing Office, 1987).23



A cursory explanation of the data is in order. First, as explained by the author of the article for which the chart was reproduced: “Table 1 presents the varied and conditional influence of race and gender and, presumably, of racism and sexism on

22. That’s a joke.
23. King, supra note 6.









socioeconomic and educational status…While gender is more critical in understanding black women’s income ranking, race is more important in explaining their level of educational attainment.”24
Toril Moi wrote that Simone de Beauvoir helped her “to remember that the aim of feminism is to abolish itself.”25 I did not believe that when I read it, and I still don’t particularly believe it. The reason for that is related to the explanation of what should be a relatively simple 2-variable statistical analysis. More on that shortly.
King’s major point is well taken – with respect to some issues, race may be a more useful predictor than sex in predicting the status of black women (in this case, race is more closely correlated with education than sex is; that is to say, black women are more similar to black men than to white women in terms of education), and with respect to other issues, sex may be the more useful prediction (in this case, income; black women are more similar to white women than to black men with respect to income).
Correlation studies essentially do one thing – they show you whether two variables are related to each other. They also tell you to what extent the variables are related, but that’s about it. They do not, however, tell you that one variable is causing another. Generally, some form of controlled experiment needs to be done to successfully demonstrate causation. From the limited information obtained in a study of correlation, there are simply too many other possibilities than to assert that A caused B. It could be that B caused A; it could be that a third variable, C, which we don’t have any information

24. Id.
25. TORIL MOI, Simone de Beauvoir: The Making of an Intellectual Woman 213 (Oxford: Blackwell, 1994).









about, caused both A and B. And so on. In this case, for instance, King’s blithe supposition that the cited data “presumably” show the influence “of racism and sexism” is almost entirely unsupported. The best one could say about her assertion and the data is that they are not inconsistent, but that’s a far cry from presuming racism and sexism in an academic paper. It could be, for instance, that black women are more likely than white women to become pregnant as teenagers, and thus drop out of school, thus explaining the gap in educational achievement as easily as racism would. That King feels entirely comfortable essentially making up an explanation for the data and dropping into an article that appeared not only in an academic journal, but later in more than ten anthologies26 is, partly, what leads me to distrust Moi’s assertion. I have observed too much of a desire to minimize gains and exaggerate (or ascribe where perhaps none exist) injustices27 to believe that, for the most part, the mainstream of the feminist movement has any desire to abolish itself. There is a largely unchallenged emphasis on finding and maximizing examples of discrimination that would not so easily exist in an environment also largely populated by those feminists who emphasize a model of self-help and capability rather than one of victimhood.
When the data were discussed in class, two noteworthy things happened. The first was that the professor noted (quite correctly) that it appeared from the data that black

26. http://www.dartmouth.edu/~socy/faculty/king.html
27. A disclaimer is in order here, since I will be shortly taking a critical look at data analysis. My assertion is nothing more than one person’s anecdotal evidence. Anecdotal evidence seems to find a friendlier audience in matters of feminist theory than in many other disciplines, so any reader is welcome to ascribe to it whatever measure of relevance he or she believes is appropriate. The key is, I am not trying to mask my anecdote as scientific proof of anything. Although it is only an anecdotal conclusion, I will share a few of the great many things I have read or heard that have led me to it.









women suffered less from sexism than white women do, with respect to income. In other
words, controlling for race, we see that black women earn about 2/3 as much as their
male counterparts, while white women earn less than half of their male counterparts.
That observation seems quite non-controversial, but that’s when it got interesting.
First, the professor followed up the comment about black women’s suffering less from sexism than white women (remember, the comment was that it appeared to be so) by pointing out that we do not know from the data whether the difference could be ascribed to the number of hours worked. For example, it could be that black women seem to be closer to equality with men because they work 50% more hours than white women do. This observation, too, is entirely consistent with the information given, but it in turn leads to two points. First, notice that the professor did not point out the logical corollary to this point – if the number of hours worked have not been controlled-for, then the data is also meaningless from the standpoint of showing that women are worse off than men. That is to say, maybe white men earn 74% more than white women only because they work 74% more hours. If we don’t have any information about whether the data are controlled for number of hours worked, that has as much of an implication for the reported differences between men and women as it does for the reported differences between white women and black women. That disclaimer, however, was never raised, and apparently unnoticed by any of the other students, although when it came to the racially-related distinction between white women and black women, it was mentioned twice.
The dynamic at work here is not difficult to understand. With apologies to Johnny Mercer and Harold Arlen, you’ve got to…accentuate the negative…eliminate the positive. The course, as it turned out, was for all intents and purposes as concerned with racial matters as with sex-based ones. Thus, evidence suggesting sexism (the data reflecting the income disparities between men and women) should be unchallenged; evidence minimizing racism, however (the data reflecting that, as compared with white women, black women do more than 54% better as measured against their respective male counterparts) must be de-emphasized.
The second interesting thing that happened during the discussion of the King data was that one student in the class refused to accept the professor’s observation that black women appeared to suffer the effects of sexism less than white women. You may recall that I noted this comment seemed non-controversial. The student in question was one of the most vocal, an older student who was one of the more vocal proponents of finding and decrying evidence of racism, sexism, and sexual-orientation-ism at all opportunities. More interestingly, she holds a graduate degree in a major which I am 99% sure is a behavioral science that requires coursework in behavioral statistics. The professor’s point was not remotely mathematically challenging, and, in fact, it could be explained to someone who knew almost nothing at all about math. There are only two variable – race and sex. The idea is to eliminate one of them so that we can compare apples to apples. When you compare apples to apples, you see that black men earn about half again as much as black women, while white men earn more than double what white women earn. In an amazing case of what we in the legal business call “willful blindness,” the fairly clear observation that in this one tiny respect, it’s not so bad to be black ended a couple of minutes later with agreement-to-disagree.
One common tool some mainstream feminists use to silence the contrary opinions of libertarian feminists is to simply co-opt the term “feminist” altogether and simply attempt to exclude those with a libertarian slant. One notable icon who made apt use of this rhetorical tool was Andrea Dworkin. For instance, Dworkin wrote, “One pro-pornography “feminist” published an article in which she said I was anti-abortion, this in the face of decades of work for abortion rights and membership in many pro-choice groups.”28 As pornography has nothing to do with Dworkin’s support of abortion rights, it is clearly raised in an effort to undermine her enemy’s credibility; the same can be said of enclosing the word “feminist” in quotes. The implication is clear: Here is a detractor who calls herself a feminist, but how can she be a “real” feminist, anyway, when she’s pro-pornography? No wonder Joan Kennedy Taylor noted, in response to the public comments of numerous feminists in the wake of the Senate Judiciary Committee investigation on the allegations by Anita Hill against Clarence Thomas, that “[y]ou would have no hint that the issue of banning pornography has been a subject of deep division within the feminist community.”29
Again, with respect to another individual with whose beliefs Dworkin disagreed, she wrote, “Havelock Ellis, considered a feminist by scholars in the male tradition…”30 (emphasis added). This one is particularly nice. Ellis is not really a feminist; he’s just considered a feminist. Furthermore, he’s just considered a feminist by scholars in the

28. ANDREA DWORKIN, Biological Superiority: The World’s Most Dangerous and Deadly Idea, in LETTERS FROM A WAR ZONE (1993).
29. Taylor, supra note 7, at 9.
30. ANDREA DWORKIN, PORNOGRAPHY: MEN POSSESSING WOMEN 55 (Plume 1991) (1979).









male tradition (presumably the tradition least able to ascertain just who should be
considered a feminist). These types of bush-league credibility attacks should not have a place in any academic forum. If a point you disagree with is weak; refute it. If it is strong, explain to the satisfaction of your reader/listener why yours is better. Responding to people whose views differ from yours with, “Well, you’re not really a feminist” is a cheap tactic, but one more likely to succeed (Dworkin’s status is legendary in mainstream feminist circles) the more homogenous the audience is – possibly to the benefit of the speaker, but almost never to the benefit of the discipline.
Pornography is an interesting and useful topic around which to frame a comparison of mainstream and libertarian feminism, because it offers both points of agreement and points of disagreement, both between the two philosophies and within each. With regard to the latter, for instance, one could be a libertarian feminist who is very much opposed to pornography but nonetheless does not feel that the government has any right to coercively oppose it; on the other hand, one could feel that there is nothing at all wrong with pornography.31 It would be ironic in the worst way if, after railing against mainstream feminism’s somewhat egocentric view of itself as “the” feminism, I then suggested that there were only one libertarian feminism. For the purposes of this comparison, I will rely heavily on Joan Kennedy Taylor’s view for two reasons: 1) She is acknowledged as a leading voice in the libertarian feminist movement, and 2) Her views

31. See, e.g., http://www.anniesprinkle.org/html/about/voices.html for views from one of the influential voices in the sex-positive feminism movement. While Andrea Dworkin doubtless would have been either amused or disgusted (or some combination thereof) by the notion of Annie Sprinkle as a feminist, Sprinkle, unlike Dworkin is at least willing to recognize that “there are many different kinds of feminists,” including those members of Women Against Porn whose views are diametrically opposed to her own.








on the topic are fairly moderate.
The mainstream feminist community is fairly unilaterally anti-pornography. This opposition can different forms, primarily dependent upon how much government coercion one is willing to bring to bear in the anti-pornography movement, from very much (strict criminal penalties) to some (civil liability) to almost none (education and boycott efforts aimed at citizen awareness and action. It is important, however, to distinguish between publicly espoused positions and actions. For example, the Meese Commision (formed at the behest of then-president Ronald Reagan to reexamine pornography more than a decade after a similar commission had “found no provable connection between pornography and criminal action and so had recommended that most laws against pornography be repealed”32) disclaimed “any interest in censorship,”33 but “suggested that the Racketeer Influenced Corrupt Organization (RICO) Act be used against suspected pornographers,”34 a distinction that prompted Taylor to write, “If this is not censorship, it looks like a duck and walks like a duck.”35 At least one example of RICO in action is worth mentioning: In United States v. Pryba,36 RICO forfeiture laws were used to seize “all shares of stock” in defendants’ corporations, as well as “corporate assets” and “certain real estate and motor vehicles,”37 effectively shutting down businesses that earned $2,000,000 in annual sales.38 The “justification” for

32. Taylor, supra note 7, at 210.
33. Id. at 212.
34. Id.
35. Id.
36. United States v. Pryba, 900 F.2d 748 (4th Cir. 1990).
37. Id. at 752.
38. Id. at 753.











the seizure was “the sale and rental of…$105.30 of material found to be obscene.”39 That’s one hell of a duck.
The libertarian feminist position is that the use of individual calls to action, boycotts, and the like is entirely appropriate. It is, after all, an expression of the libertarian fundamental values as property rights and freedom of association. Former editor of Reason Marty Zupan noted rhetorically that would be hypocritical to suggest that it was “virtuous” for grocery stores to pull non-union produce from their shelves in response to consumer pressure, but “un-American” for convenience stores to stop carrying Playboy and Penthouse in response to pressure from different consumers.40
While agreeing in principle with such non-coercive means, Taylor cautions against possible consequences. One of these concerns the lengths to which some anti-pornography political bedfellows will carry their efforts; for instance, “as part of the antipornography boycott the National Federation for Decency picketed a store in Tampa to get it to remove copies of National Lampoon and Mad” for promoting “rebellion against parental authority.”41 Another potential economic reality of boycotts is that they may hurt the small magazine distributor or retailer, which may have ripple effects reflected by the variety of magazines they are able to stock, while leaving huge publications relatively unharmed. Whether or not there is a causal link, it was around the time of the post-Meese-Commission hullabaloo that Playboy and Penthouse, with

39. Id.
40. MARTY ZUPAN, “Civil Libertarians Cry Wolf,” REASON, July 1986, 15.
41. Taylor, supra note 7, at 218.











reduced retail outlets for their magazines, expanded into the adult video business.42 Perhaps the most interesting takeaway point from the examination of a libertarian feminist perspective on pornography is that, in the same possibly-surprising way we find that some feminists are in favor of pornography, we also learn that some libertarian feminists are opposed to it, and quite willing and able to propose and critically analyze means to combat it, provided those means do not violate fundamental individualist rights.
Prostitution is another topic which merits use as a backdrop for a mainstream feminist/libertarian feminist comparison. A mainstream (albeit racially-loaded and exceedingly vitriolic) article on the topic was printed in the Hastings Women’s Law Journal and authored by Vednita Carter and Evelina Giobbe.43 The article, however, while clearly anti-libertarian, in many places makes points that would be fitting in a libertarian feminist journal, if only the authors drew the correct conclusions from their points and examples. As with pornography, there is clearly a great deal of room for common ground between the mainstream feminist position and the libertarian one. I have two major problems with the article, both of which center only on its conclusions and emphases.
Carter and Giobbe devote a great deal of space to describing the conditions that impel many women to become prostitutes and the dangers that they face upon entering into prostitution. As one would expect, these factors are in many cases horrific, such as childhood sexual abuse, poverty, and battery.44 The problem is that their paper “wags the

42. Id.
43. Vednita Carter & Evelina Giobbe, Duet: Prostitution, Racism and Feminist Discourse, 10 HASTINGS WOMEN’S L.J. 37 1999.
44. Id. at 43-44.












dog,” attacking those feminists who believe that legalization would be helpful to those women who have resorted to prostitution. If prostitution is a terrible institution (and surely many libertarian feminists would agree that it is), that fact is best used as evidence in an attack on sexual abuse or poverty. It is logical to claim that poverty and sexual abuse are evil partly because they impel women who would not otherwise do so to turn to prostitution; it is not logical to claim that prostitution is evil because people who experience adverse conditions turn to it.
Using a causal link between these factors and prostitution to advocate for stricter criminal penalties for sexual abuse or battery, or economic policies that would alleviate poverty, would undoubtedly reveal commonality between Carter & Giobbe and libertarian feminists.45 Battery and sexual abuse, for instance, are obvious and clear violations of a fundamental libertarian principle – bodily autonomy. Carter and Giobbe, however, spent most of their energy not attacking the involuntary (on their part) atrocities that put prostitutes in horrible positions, but rather the first autonomous decision – to engage in prostitution and hopefully earn some money and eventually improve their circumstances – they decide to make.
The second problem with the Carter/Giobbe piece is that it is not at all intellectually rigorous in distinguishing between problems associated with prostitution




45. It may very well be that they would not agree on what those economic policies would be, and if they did find common ground concerning the pragmatic question, it would still have to get by the libertarian feminists’ principle of respecting individual rights. However, there is nothing inherently contradictory about the possibility.










per se and problems associated specifically with the illegality of prostitution. Again, an
examination of this sort would likely have revealed some common ground with the libertarian feminist position. For example, the authors cite the statistic that “[o]ver half (52%) of prostituted women seeking services from the WHISPER program in 1995 had been psychically assaulted by a john and 40% by a pimp.”46 “These [physical attacks, robberies, and verbal abuse] are the commonplace insults to injury that are directed at prostitutes simply because they are prostitutes.”47 But are they really? Isn’t it at least possible that prostitutes face such astonishing rates of abuse not “simply because they are prostitutes,” but rather primarily because the government has proscribed their chosen occupation? It is not at all inconsistent with a libertarian feminist position to oppose assault, but where Carter and Giobbe stop the analysis at “prostitutes get beaten…prostitution is bad,” any libertarian feminist worth his or her weight in gold would ask, “If prostitutes weren’t inherently criminals, would those who assault them feel as free to do so?” and “Would prostitutes be more apt to seek help from law enforcement officials if it did not mean identifying themselves as criminals?” and “Would police officers protect the rights of prostitutes more vigorously if they were not marginalized by criminalization?”
The violence-associated-with-legality inquiry is not novel; the prohibition on the sale of alcohol gave rise to the first major crime wave of the last century. Now that it is
legal to sell alcohol, liquor store owners and whiskey distributors do not gun each other
down in the streets…but drug dealers do.

46. Carter & Giobbe, supra note 43, at 47 n49.
47. Id. at 47.








CONCLUSION


Libertarian feminism has a long and rich tradition. Its advocates believe as strongly as mainstream feminists in the fundamentally equal rights and value that women and men have. While they may disagree strongly with mainstream feminists on some policy issues, they share clear and strong areas of agreement even with respect to such intuitively divisive areas as pornography (boycott and public awareness) and prostitution (condemnation of those who would invade individual bodily autonomy). Despite their long history and commitment to women’s rights, however, libertarian feminists are likely to be excluded from the mainstream feminist community and its discourse, to the extent that university students and the lay public alike may not even know of their existence. This exclusion disserves both those students and the discipline of feminism itself. A Lexis search for “libertarian” within three words of “femin!” over the ten years reveals dozens of law review articles on such diverse topics as same-sex parental rights, reproductive rights, and tax policy. The arguments are out there, just waiting to be brought into the main discourse.
One comment I heard on more than one occasion from students in my Feminist Legal Theory course, from young women who strongly believed in “[t]he doctrine – and the political movement based on it – that women should have the same economic, social, and political rights as men.” (see page 1) was something like, “I really don’t even know if I’m a feminist.” This comment was generally followed by a disclaimer that the student was not a Marxist, or didn’t believe in affirmative action, or thought that it was OK to be a stay-at-home mom, if one wanted to. If I could say one thing to all of these students, and, doubtless, the thousands just like them nationwide, it’s this – Yes. You are ALL feminists. It’s a damn shame you don’t know it, but don’t let anyone tell you different.
Since I’ve spent a fair amount of time blasting Andrea Dworkin, both in this paper and elsewhere, I’d like to conclude with a quotation from her: “[W]omen are human to precisely the degree and quality that [men] are.”48 I agree unreservedly, and I doubt one could find a libertarian feminist able to say it better.




48. ANDREA DWORKIN, I Want a Twenty-Four-Hour Truce in Which There is No Rape, in LETTERS FROM A WAR ZONE (1993).

Social - Don Imus situation

"What do you think about the Don Imus thing?" is really at least 3 different questions.

1. Were his comments outrageous enough that you would want him off the air? Not really. I tend not to get overly bent out of shape over public statements, but I can certainly understand people who take the other side of this one. 2. Do you think it's reasonable that he was, in fact, fired, and that people brought concerted pressure to bear to get him fired? Absolutely. That's economic free speech and freedom of association. First of all, despite my answer to #1, if I owned a business and I had an employee refer to ANYONE as "nappy-headed hos" and he was overheard by FIVE people, let alone a national audience, I'd have fired him. Above and beyond that, the economic pressure tactic is one of the great things about a free society. He's not thrown in jail. He's not thrown off the air by a coercive government. He just ****es people off. And when he ****es enough people off, those people say, "Hey, you can advertise wherever you want, but if you advertise on this jackball's station, we're not going to buy your product." And then the advertisers say, "Hey, you can have whoever you want on your station, but if you have this guy on, we're not going to buy that spot." So you get a nice chain of people pretty much doing what they want, but having to live with the consequences. That's how it should be. 3. Do Al Sharpton and Jesse Jackson have any business calling out someone for offensive, racist speech? Legally, sure...they get to exercise their free speech, too. But as a matter of principle? C'mon. What a pair of opportunistic, racist hypocrites.

Politics: Capital Punishment

This is a paper I wrote for a law school class called "Law and Popular Culture." The focus on the class is how movies and TV reflect law, and vice versa. It is cut & pasted directly, so excuse the pagination and footnotes. The footnotes are for the immediately preceding page; I've left gaps between the text and the footnotes and vice versa. So it's: Page 1...footnotes to Page 1...Page 2... footnotes to Page 2...etc. You'll get used to it.


More Narrowly (and Accurately) Defining the Death Penalty Debate: A Lesson for Film-Makers


I. INTRODUCTION

This paper will explore beliefs about capital punishment and its treatment in selected recent films, specifically The Chamber, The Life of David Gale, Monster’s Ball, Dead Man Walking, and Monster. In addition to a discussion of these films, reference will be made to an informal survey taken of UCLA Law students (“The Survey”) in late April-early May, 2006. Although the nature of the survey was an informal one, and “proving” anything with it would far exceed its scope, reference to its results will be used along with an analysis of the films to explore the extent to which they are consistent, if at all, with a fundamental belief I hold concerning the death penalty, to wit: The central question in capital punishment arguments is whether or not unnecessary killing is ever morally permissible (what I call the “It’s just wrong” argument).

II. THE FILMS

The five films I’ve chosen feature different characters, all of whom are, sooner or later, put to death. The characters also appear to demonstrate a wide array of moral culpability, though one of the five (Monster’s Ball) lends itself to more speculation, as it is by far the least “about” its murder convict, Lawrence Musgrove. When Monster’s Ball opens, Musgrove is already on death row. We never learn any details about his crime(s), and we learn almost nothing about him throughout the movie. In a scene in which prison guards prepare for the execution, we learn that Musgrove has exhausted his appeals;

there isn’t even have the suspense of a possible eleventh-hour stay of execution.1
When his son asks why he won’t get to see him again, Musgrove says only, “Because I’m a bad man.” We do see him treat his guards and family politely and apologize to his wife; however, we are left with the clear impression that he is in fact guilty of his crime. We see no signs of either remorse or defiance at his execution. When asked if he has any last words, Musgrove says only, “Push the button.”
Despite any explicit commentary on the moral culpability of Musgrove, we are left with no doubt that Monster’s Ball is a decidedly anti-death penalty movie. Indeed, it is listed as “recommended viewing” by the group “Citizens United for Alternatives to the Death Penalty,” as also are The Life of David Gale and Dead Man Walking.2 The taste director Marc Forster leaves us with is implicit, though strong. Musgrove’s death leaves a wake of destruction, misery, and disgust in its path. Young prison guard Sonny Grotowski leaves the chain of guards walking Musgrove to his execution and vomits in the hallway.
Sonny’s father Hank, also a prison guard, beats Sonny up for “fucking up that man’s last walk,” then the next morning, tries to throw Sonny out of his house, a move that backfires when Sonny instead commits suicide in the Grotowski’s living room. Hank then quits his job; the Musgrove execution will be his last. Austin Sarat has commented on what he considers an anti-death penalty cinematic technique at play here –





1. Such suspense exists in Dead Man Walking, The Chamber and The Life of David Gale, but is absent in Monster, presumably because, as it was well known to be about the life of executed murderer Aileen Wuornos, it would be fairly pointless. In Monster’s Ball, the movie is “about” the relationship between a guard and Musgrove’s widow, post-execution, so it doesn’t waste energy making us wonder if there might, in fact, NOT be an execution.
2. http://www.cuadp.org/video.html.





the transformation of an “intermediary.”3
This observation seems both accurate and applicable to Monster’s Ball; As most viewers have little direct experience with capital punishment, the tendency, at least during the suspension of our disbelief, is to assign a fair amount of credibility to those “objective” characters (the guards, in this case, who have particular stake in the execution; they are not, that is to say, attorneys for the accused or the state, relatives of the victim, political appointees, etc.). If those characters have a decidedly negative reaction to the system, the fairly clear implication is that we should, also.
Furthermore, in Monster’s Ball, we have three generations of Grotowskis who have been prison guards; Hank’s father, Buck, is a retired guard. He calls Hank’s resignation a “mistake,” and tells Hank that he should have remained at his job. Buck is an avowed racist and clearly the most repugnant member of the family. Sonny, in contrast, seems to be a nice young man, who has black friends in the neighborhood. The Musgrove execution is clearly his first. Hank is in the middle both chronologically and morally; he is not above uttering racial epithets, and he fires a shotgun into the air to ensure that Sonny’s young black friends stay off his property, though that is apparently for the peace of mind of his aging father. He also befriends and later becomes the lover of Musgrove’s widow.
The movie thus draws a continuum of morality that matches perfectly with how opposed each of the Grotowskis is to the system—Sonny, the most likeable, who gets ill at his first execution and kills himself the next day; Buck, the least likeable, who clearly




3. Asimow, Michael and Mader, Shannon. Law and Popular Culture: A Course Book. Peter Lang Publishing. New York (2004). pg 170 (citing Sarat’s The Cultural Life of Capital Punishment: Responsibility and Representation in Dead Man Walking and Last Dance. Yale Journal of Law & Humanities 11:153).






loved being a corrections officer and a part of the system; and Hank, who is in-between his father and grandfather not only in kindness and age, but who also has worked a number of executions, and, contemporaneously with his becoming more likeable, quit his job. The moral lines are drawn – the death penalty is for unpleasant bigots, not for innocent progressives; driving the movie’s drama is the question of whether Hank will ultimately turn out to be more like his father or his son.
The Life of David Gale features a condemned prisoner who is innocent. The title character contacts a renowned reporter, Bitsey Bloom, just days before his execution, gives her many of the details of his life, and tries to convince her to find the “real” killer of his friend, fellow death penalty abolitionist Constance Harraway. What Bloom learns is that Harraway, who was dying of leukemia, actually committed suicide, but made it look like a murder. She learns this prior to Gale’s execution, but not soon enough to “save” him. It’s not until a few days later that she is mailed a videotape that lets her in on the movie’s ultimate secret – Gale intended all along to be a martyr for the anti-death penalty cause, giving the movement what Texas Governor Hardin was able to smugly deny the existence of in a televised debate with Gale – a demonstrably innocent person put to death by the state.
Facilitating Gale’s martyrdom is the fact that his wife has left him, taking their young son to Europe, where she cuts off all contact with Gale. The video that exonerates Gale shows Harraway’s suicide; the one that explains all to Bloom shows Gale walking up to his friend’s body and deliberately placing his thumbprint on the bag that suffocated her. The Gale-Hardin debate is interesting; Gale gets the best of Hardin, but has no response to Hardin’s offer to call a moratorium on capital punishment if Gale can give him the name of that one elusive innocent victim of the state’s system; when Gale, however, becomes that innocent “victim,” Hardin’s comment for the TV cameras is that they shouldn’t “throw out the baby with the bath water,” and discard a good system just because of one frame-up (the video that gets released only shows the suicide; it is presumed that Gale was being deliberately framed by the withholding of the video).
The anti-death penalty stance of The Life of David Gale is clear. The constitutional rights of the accused (jury trial, etc.) have failed to prevent the execution of an innocent man, on the basis of one half of a thumbprint. Furthermore, Gale is presented as articulate, intelligent, and passionate. His execution actually represents a victory over Hardin. Again, the movie’s sympathetic characters oppose the death penalty; the implication is that we should, also. Gale’s execution is the icing on the cake. It is also interesting that this movie, like Monster’s Ball, features suicide, both that of Harraway and, ultimately, of Gale. In Monster’s Ball, in addition to the suicide of Sonny, we learn that Buck’s wife committed suicide, as well.
Continuing with the suicide motif, we have The Chamber, a film adaptation of the John Grisham novel of the same name.4 In The Chamber, Adam Hall takes up his first death penalty case, trying to save the life of Sam Cayhall, who happens to be his grandfather. Cayhall’s son, Adam’s father, committed suicide, as did the father of two young boys who died as a result of a bomb that Cayhall planted. Cayhall’s motivations were racial; he is a white southern racist who, we learn in a flashback, killed a black man over a dispute that their sons had over a toy. The bomb was planted in the office of
Jewish civil rights attorney.




4. Grisham, John. 1995. The Chamber. New York: Dell.





Cayhall’s case is actually somewhat morally ambiguous, however. He impedes Hall from pursuing certain lines of defense. Hall learns that Cayhall was actually the accomplice of another man, Rollie Wedge, and was to some extent a patsy; he claims that he did not intend for the children to die, and we are supposed to believe him. The bomb was on a timer, set to go off at 8:00, a time when the attorney was regularly in his office. The bombs that Cayhall built, however, were on fuses, not timers. When discussing the bomb with Hall, Cayhall refers to a fuse, which the bomb in question did not have. In the Grisham book, Cayhall is taking the sole rap out of fear for the safety of his daughter; though that is not fleshed out in the movie, there is a scene where Wedge shows up at the prison claiming to be Cayhall’s brother, and trying to intimidate him into maintaining his silence.
In the Wedge-Cayhall confrontation, we learn that Cayhall believes that they shouldn’t have killed the boys, but Wedge is unrepentant, and in fact thinks that everything went perfectly (which may be unsurprising, since he himself is escaping punishment altogether). The Chamber has one scene where Hall claims that as an accomplice to Wedge, Cayhall would have received a 15-year sentence.
The anti-death penalty message in The Chamber, if it exists at all, is less forceful and less clear than in the other films I’ve chosen to include for consideration. While the technical aspects of felony-murder or vicarious liability are not known to the layman, or up for debate in the movie, Cayhall does not have the requisite mental state for intentional, premeditated murder. Cayhall’s intended act was blowing up the attorney’s office, as far as he knew, with nobody inside it. The fact that Wedge is “more” culpable than Cayhall is presumably included not only as a plot-driving device, but also to suggest that there’s something wrong with executing Cayhall while Wedge goes unpunished; however, it’s not clear how “anti-death penalty” the movie is merely because the audience wishes someone else were on death row.
There is also the default “anti-death penalty” cinematic device that I’ve identified earlier; the characters we are supposed to like oppose the death penalty. In The Chamber, that means Hall, who is young, idealistic, and passionate, and Nora Stark, the governor’s assistant who is ostensibly assigned to help Hall learn the truth about the bombing. In contrast is Governor McAllister, who hints to Hall that if he can find others responsible, he’ll have the political excuse he needs to grant clemency to Cayhall. The opportunistic, ambitious, political, and yes, generally somewhat sleazy death-penalty supporter is almost a given in these movies. When Hall does in fact find others responsible for the bombing, however, McAllister lets the execution go forward, but promises the public that he’ll find and hold responsible all other co-conspirators. McAllister tries to get information from Nora, and when she says (falsely) that she doesn’t know what he’s up to, suggests that she should be sleeping with him. Again, our choices are to identify with the likeable and well-intentioned death penalty opponents, or the sleazy death penalty advocate.
Perhaps somewhat interestingly, while working on The Chamber, Grisham changed his position on the death penalty, going from a stance in favor of it to one that seems to be opposed, and is at least ambiguous. Grisham, a Christian, has said now that he doesn’t believe that capital punishment is consistent with the teaching of Jesus, though he is conflicted by the inescapable sense he has following an execution that “justice has been done.”5 This ambiguity is consistent with my impression of the message underlying The Chamber – conflicted, but primarily opposed.
If you’re keeping score at home, we’re up to six suicides in three movies, further
substantiating the anti-death penalty “mood” of the movies; executions are paired with
negative situations that may or may not be related to the executions themselves , but which undoubtedly leave a bad taste in the viewer’s mouth. There is an implication that nothing can go right in or around a system which includes capital punishment; when a
movie like Monster’s Ball DOES have a (shakily) upbeat ending, it’s only because the protagonist has renounced the system.
Dead Man Walking features as its convict Matthew Poncelet, who, like Monter’s Ball’s Musgrove, is apparently unequivocally guilty of the crime he has been convicted of, intent and all. To an extent, even that isn’t true; Poncelet and an accomplice have committed a rape and murder of a couple on a “lover’s lane.” Each committed one murder and blamed the other for both; Poncelet, however, had a public defender, while his accomplice hired a private attorney and received a life sentence, thus pointing out yet another capital punishment flaw – the inequality in its application based on the financial status of the accused. Having said that, however, it is clear that Poncelet deliberately killed at least one of the victims in the case that resulted in his being sent to death row (in contrast to, say, The Chamber’s Sam Cayhall, who deliberately killed the man over the dispute their children had, but did not deliberately kill the children in the case for which he was executed.)




5. Wingfield, Mark. Grisham Reflects on Death Penalty, Faith’s Influence on Novel Writing. Baptist Standard. March 8, 2000. Available online at: http://www.baptiststandard.com/2000/3_8/pages/grisham.html.







Dead Man Walking also gives us yet another version of Sarat’s objective intermediary, in the form of Sister Helen Prejean, a nun who answers a letter of his and becomes first his pen-pal, then his spiritual advisor. The movie is based on Prejean’s book of the same name6. Prejean is a very outspoken capital punishment opponent, her beliefs having emerged from her contact with convicted murderer Patrick Sonnier, upon whom the character of Matthew Poncelet was based.7 Dead Man Walking’s objective intermediary, then, is not entirely a plot- or theme- advancing device, but an at least somewhat bona fide account of an actual transformative experience as a result of one person’s experiences with the capital punishment system. To the extent that this fact is known by viewers, the “objective intermediary” in Dead Man Walking has even more credibility than in other films.
Prejean’s genuine concern for the families of the victims, also, lends her character moral credibility. She is legitimately torn between compassion for them and for Poncelet, a balancing act not seen in the other movies I’ve chosen to focus on. In The Chamber, Adam Hall visits with the mother of the children killed in the bombing, but the visit is motivated by a desire to get her to request clemency for his grandfather. Prejean’s inner conflicts, however, should not leave any confusion as to the anti-death penalty stance of Dead Man Walking; it features three of Hollywood’s most outspoken liberal voices (Sean Penn as Poncelet, Susan Sarandon as Prejean, and director Tim Robbins) in a cast and crew that worked for reduced rates to ensure that the film would get made.8




6. Prejean, Helen. 1994. Dead Man Walking. New York: Vintage Books.
7. http://www.prejean.org/.
8. http://www.americancatholic.org/Messenger/Apr1996/feature1.asp.









Finally, Monster, like Dead Man Walking, is a film based on a true story about a convicted and executed murderer who was unquestionably guilty of the crime for which she was sentenced. In contrast to each of the other films, almost the entirety of Monster takes place before the capture of Aileen Wuornos. Following her arrest, we see a very brief court interlude, and a post-sentencing footnote scrolls up the screen, letting us know that she was indeed executed.
Also in contrast to the other films, because Monster takes place with its protagonist a free woman, we have no anti-death penalty objective intermediary with whom to identify. Writer/director Patty Jenkins, however, still imbues the film with a mood that is against capital punishment. Wuornos is presented as a character who in many ways never had a chance – a prostitute since age 13, who is bound and raped by the first john she kills, and is of questionable sanity. Later murders of men who are picked up by Wuornos are presented without the mitigating circumstances of self-defense, but her grip on sanity is presented as rapidly diminishing.
Wuornos’s real-life supporters latched onto the sanity issue, but Wuornos herself claimed, “Everything they said about me was so full of lying…I am totally sane. I didn’t do drugs.”9 Furthermore, in the film, Wuornos tells her lover, Selby Wall, that she killed him out of necessity, because of the bondage, physical beating, and rape; at Wuornos’s trial, however, Tyria Moore, upon whom the Selby Wall character is based, testified that while Wuornos told her of the killing, she made no mention of any assault.10





9. Blundell, Nigel, and Blackhall, Susan. 2004. The Visual Encyclopedia of Serial Killers. London: PRC Publishing Limited. pg. 435.
10. Blundell and Blackhall, (435).










Arguably, the choice to make Wuornos the subject for a movie can also be seen as an anti-death penalty attempt at persuasion. There is more sympathy to female murderers, and the relatively little-mentioned gender bias in capital punishment is more pronounced than the racial basis. For instance, in the United States, women account for 13% of all murder arrests, but only1.9% of all death sentences handed down at trial, 1.3% of death row inmates at the time of one study by the Death Penalty Information Centre, and 0.6% of all executions between 1976 and 1999.11 To the extent that these figures represent some bias among prosecutors, judges, and jurors, with sentencing, charging, and recommendations discretion, presenting a convicted female murderer will similarly lead viewers to disfavor her sentence.
Some of Wuornos’s crimes, however, are presented very graphically and make her quite unsympathetic. In one scene, for example, a man who picks her up seems to not realize that she is a prostitute. Failing to pick up on her hints that she just wants to get to her kids and is trying to “make money any way [she] can,” he offers to let her stay with his wife and him, in their son’s unused bedroom. When she tries to get out of his car, her gun falls out of her purse, and she decides that she “can’t let [him] live” and orders him out of the car and shoots him in the back of the head, execution style. Scenes like this serve as a somewhat fair attempt by Jenkins not to portray Wuornos entirely as a victim, though for the most part, she is certainly presented (apparently accurately) as a victim of circumstance.
Each of the five films, then, appears to present an anti-death penalty stance, to one extent or another. The films do so in different ways, but the most apparent are mitigating






11. http://www.gendercide.org/case_imprisonment.html










the culpability of the killer via factors distinct from his or her actual guilt (Wuornos’s possible insanity, Poncelet’s inability to afford a better attorney), calling into question his actual guilt (The Life of David Gale, The Chamber (to the extent that Cayhall lacked the intent to kill)), presenting “neutral” characters who oppose either capital punishment generally or in the case presented (each film other than Monster), and making anti-death penalty characters more likeable than their pro-death penalty counterparts (Monster’s Ball, The Life of David Gale, and The Chamber). These are effective cinematic techniques in that they are relatively easy to accomplish, and predictably guide viewer’s responses in the direction they’re intended to.

III. THE SURVEY

The survey (attached as Appendix A) was fairly straightforward. First, respondents were asked whether they supported the death penalty in some cases. Respondents then answered different sets of questions, depending on their answer to the first question. Those who answered “yes” initially were asked to quantify their degree of concern to various anti-death penalty arguments, then to address more specifically their beliefs with respect to the “irreversible error” argument. Those who answered “no” initially were asked about the factors that informed their opinion, and also asked various hypothetical questions to try to ascertain whether there was, at least in principle, a framework within which they would support the death penalty.
Although the sample group was extremely limited (UCLA law students who chose to respond), because the survey was more concerned with the reasoning behind the positions, rather than the positions themselves, I was less concerned with potential bias. That is to say, I would have bet the farm that the sample group would be more likely to oppose the death penalty than a bona fide random sampling of Americans; however, I could see no intuitive rationale for expecting that considering only those who opposed the death penalty, the reasons for that opposition would be any different among the sample group than the population at large. The group that chose to respond consisted of 150 UCLA law students (and my 33 year old girlfriend, who is a payroll accountant in the film industry).
63.6% of respondents opposed the death penalty, while 36.4% supported it in at least some cases. Those who opposed the death penalty in all cases were given a list of five factors12, and asked to rank the factors that were relevant to their opposition to capital punishment, but to leave off of their lists any factors that were not relevant to their opposition. In addition to the list factors, they were given an opportunity to “write in” any relevant factor that did not appear on the list (although I used some discretion here; “religious reasons,” for instance, was counted as “moral opposition,” as I saw no relevant reason to distinguish moral reasons that were religious in origin from those that were secular.
Perhaps the most striking thing about the survey is the amazing array of purported reasons that the respondents had for their opposition to the death penalty. The 96 respondents who were opposed to capital punishment (“opponents”) gave a whopping 56 different prioritized combinations of reasons. No single combination received more than






12. Injustices in practical application, moral objection to unnecessary killing, irreversible error, relative expense, and “life in prison is more of a punishment.”











nine of 96 votes,13 and only three combinations received more than five votes.14 Only ten of the opponents (10.4%) listed fewer than three reasons for their opposition, and two thirds listed at least four reasons.
I made reference, however, to “purported” reasons, and this phraseology was deliberately chosen. Because the opponents were asked another series of questions, these hypothetical, ultimately driving at this: What factors, individually or in combination, would persuade you to favor the death penalty? 68.8% answered flat-out that there was NO combination of factors that could change their opposition, and a few others gave answers that essentially came down to the same thing, e.g. “No combination of factors, but I would be in favor of permitting it if the prisoner chose it,” or “no combination, but if the prison couldn’t otherwise be prevented from doing harm, though that would be impossible with life imprisonment and close supervision,” etc. Also, some opponents said they would consider it under certain circumstances (if there were no chance of irreversible error and no injustice in its application, for example), but still might not, or probably would not, favor it.
I contend that in effect, the actual “relevant factors” of roughly 70% of the opponents (conservatively; none of the examples at the end of the previous paragraph was counted in the 68.8%; those were all unequivocal “no combination of factors” responses) boils down to a “list” of not three, four, or five factors, but one: “It’s just wrong.” The possibility of irreversible error is a strong argument against the death








13. Nine votes: Moral objection, followed by irreversible error, followed by injustices in application.
14. Eight votes: Moral objection, followed by injustices, followed by irreversible error; six votes: moral objection, followed by injustices, followed by irreversible error, followed by relative expense.












penalty, and it’s certainly a frequent one, but for the most part, when they’re being honest, it’s not a relevant one among death penalty opponents. A whopping 94.8% of the opponents listed “irreversible error” as being relevant to their stance, yet fewer than 1/3 of them would support capital punishment even if they were 100% certain that no wrongfully convicted defendants would be put to death.
This disparity could, perhaps, have been alleviated had I asked respondents to list factors “dispositive,” rather than “relevant,” to their positions. The reason I did not choose to do so is that I wished to explore no only people’s beliefs about the death penalty, but their beliefs about their beliefs. “Dispositive” is too much of a precise legal term. Simply put, I did not wish to “tip off” anyone taking the survey, but rather wished to learn what beliefs they considered relevant to their position.
There may be room to quibble with my own definition of “relevant,” but I contend that a factor that is entirely incidental to one’s position, that even in a hypothetical best-case-scenario in the other direction would not change that position, cannot be a “relevant” factor. Sure, it can be NICE to throw out in a debate. It can be handy and persuasive when talking to someone who hasn’t made up his own mind yet, but if a given factor has nothing to do with one’s own position…if one’s opposition to the death penalty is unequivocal whether 100% of those executed are innocent or 100% are guilty, then it’s simply not accurate to call fear of irreversible error a “relevant” factor.
The truth behind the beliefs of this 70% is instead found in written addenda to the survey, in lines like, “I could never support the death penalty, because I don’t think the state should be in the business of murder,” and “It’s not just UNNECESSARY killing; I am morally opposed to ALL killing.” Before moving on to those who indicated support for the death penalty, however, I would like to clarify two points. First, I do not mean to suggest that “It’s just wrong” is a poor reason to oppose the death penalty. I actually believe it’s one of the BEST reasons. It’s not a reason that lends itself to effective argument, generally; there is a group of people who have that belief, and a group that doesn’t, and rarely shall the twain jump ship. That doesn’t make it a bad reason, though. What I am trying to show, instead, is that (probably BECAUSE “It’s just wrong,” whether it’s an accurate descriptor of the speaker’s belief system or not, is not an effective tool for argument) rather than own up to the one dispositive factor that fuels their opposition to the death penalty, capital punishment opponents instead put up a host of red herrings that are incidental to their actual belief system. Furthermore, I would argue that this disconnect, between the reason that is held and the reason that is advanced, makes most debates/discussions/arguments concerning the death penalty both pretextual and, for the most part, pointless.
The respondents who indicated that they support the death penalty in some cases (“proponents”) were asked a separate series of follow-up questions. The first of those questions was how concerned they were (“not at all,” “somewhat,” or “considerably, but not enough to oppose the death penalty”) by various factors (the possibility of executing an innocent person, the execution of a guilty person, and unfairness in the application of capital punishment, e.g. by race or wealth differences). All but two of the proponents indicated that they were “considerably” disturbed by the possibility of the execution of an innocent person; those two indicated that they were only “somewhat” disturbed. On the three-point scale (1 = “not at all”; 3 = “considerably”), “the possibility of executing an innocent person” scored an aggregate 2.96. Just over half of respondents indicated that they were “not at all” disturbed by the execution of a guilty murderer, a factor which averaged a 1.54 on the “disturbance scale.”
With respect to specific responses to the “irreversible error” argument, the most common (26.8%) was “It probably happens from time to time, but the benefits outweigh the costs,” closely followed (23.2%) by “With the number of allowable appeals, and the delays before it’s carried out, it’s extremely unlikely.” Only 12.5% were willing to call the possibility of irreversible error “extremely minimal.” One popular write-in response was something to the effect that because of the unacceptable risk of irreversible error, the death penalty should be reserved for cases with heightened evidence, such as multiple eyewitness testimony, or DNA evidence.
The final question was an entirely speculative one designed to determine just how real respondents thought the chance of irreversible error actually is. Exactly 50% put the number of innocent people executed in a typical 5-year period at “one to five,” while 29.6% said “more than five,” and 20.4% went with “less than one.” The responses to this portion of the survey, with respect to the types of questions I was most interested in, indicated first, that the proponents were extremely disturbed by the possibility of irreversible error, and second, that the vast majority of them believe that innocent people ARE being put to death. That is to say, their support of the death penalty despite considerable concern over irreversible error is not based on the notion that constitutional and scientific safeguards prevent irreversible error, but rather, they accept the execution of innocent people as a reasonable “cost of doing business.”


IV. PUTTING IT TOGETHER IN THEORY

To the extent that these findings are accurate, then, the next question is how they may relate to movies concerning the death penalty. With respect to the guilt or innocence of the person actually facing the death penalty, I contend that they suggest that “innocent convict” is NOT a particularly useful device, at least to the extent that the filmmaker’s goal is win support to the anti-death penalty cause; furthermore, it isn’t a particularly good device, either.
It isn’t particularly useful, because focusing on “irreversible error” seems to presuppose one of two things: Either the death penalty proponent doesn’t believe innocent people are actually put to death, or he/she is insufficiently horrified by the prospect. The survey findings, however, seem to suggest that neither is the case. The typical proponent is willing to concede that innocent convicts ARE, albeit rarely, put to death. Further, the proponent seems to be as concerned about the prospect as the opponent (2.96 on the 3-point scale, and remember, “irreversible error” isn’t even a dispositive factor for the opponent, anyway).
The innocent convict is not a particularly “good” device because it’s too simplistic. Nobody is going to take a position in favor of executing an innocent person; the result is, a film that is potentially loaded with character-driven conflict and moral weight instead is plot-driven and completely begs the relevant moral question, which is not whether it’s morally permissible to execute innocent defendants, but rather actual murderers.
My argument assumes, to some extent, that some degree of moral persuasion is possible. If not, then it doesn’t really matter in what respect a filmmaker misses the mark; the mark can’t be hit, anyway. Most students and scholars of popular culture, however, will concede that our emotional experiences, at least when guided by a skillful writer, director, or actor, can play a part in shaping or refining our worldviews.15
If there is a useful means of moral persuasion, then, what is it, and who is the target audience? As noted, the target audience is not the people who aren’t disturbed at the thought of executing an innocent person; that target audience doesn’t exist. It’s also not the people who don’t believe that innocent people are ever executed. First, as the survey reveals, that’s a small number, even among the proponents. Secondly, that’s a factual question, and even after a particularly moving film presentation, the rational mind is more likely to “overwrite” the experience later. If there is a means of persuasion, then, it must be not factual, but philosophical, and it must come down to the moral proposition that the vast majority of the opponents share – that “unnecessary” killing, in and of itself, is morally impermissible, and that it is the execution of the guilty, not the innocent, that must serve as the basis for meaningful discussion.
But at WHOM, exactly, should this “moral persuasion” be aimed? Once again, the survey suggests a possible answer: One half of the proponents admitted that actual execution of an admittedly guilty murderer was either “somewhat” or “considerably” disturbing to them. It is apparently not, perhaps counter-intuitively, the case that all death penalty advocates blithely disregard the opponents’ major premise – that there is not only the obvious problem with executing the innocent defendant who may fall









15. See, e.g., Asimow & Mader at 13.









between the cracks of justice, but there is also, similarly, a problem with executing the admittedly guilty murderer.
Obviously, the death penalty proponent is not persuaded by this argument (or he’d be an opponent), but he at least accepts the notion that there is something troubling about it. His disagreement on this issue, at least, is not one of kind, but one of degree; that is, the opponent and fully half of the proponents do not fundamentally disagree that the execution of a murderer is troubling. They disagree, rather, as to whether it’s troubling enough to oppose capital punishment. That is the “morally interesting” question; the question on which there is some room for movement, and the question which, if answered differently, would not be a red herring, but a dispositive fundamental belief.

V. PUTTING IT TOGETHER IN PRACTICE

Back to the films in question. While it is purely subjective, some attempt must be made to quantify their “moral interestingness” on the terms I have outlined. The two that I suggest rank highest are Monster and Dead Man Walking. In both films, we see unequivocally that the crimes for which the condemned is executed have, in fact, been intentionally committed. Furthermore, both films have the ultimate in credibility – they were based upon actual murderers who were subsequently put to death. A close third is Monster’s Ball, which implies, but does not depict, the same thing. Monster’s Ball would be fairly closely followed by The Chamber, in which, as noted, Cayhall is portrayed as an accomplice who did not intend to kill the victims of his bombing (though the fact that we see him intentionally kill someone else strongly restores his culpability. Still, the fact that he lacked the intent to kill in the murder for which he was convicted, and that the “real killer” is walking free, seems to reduce his moral culpability. Finally, in a very distant fifth is The Life of David Gale, in which our convicted murderer is, in fact, innocent. While the relative “moral interestingness” rankings of the first four are open for discussion, clearly, The Life of David Gale is completely inconsistent with my notion of what should constitute the “correct” moral argument.
The final question is, how have the various movies been received, by critics, by their peers, and by the public? On the website “Rotten Tomatoes,”16 critical movie reviews are compiled and averaged, as are “elite” ratings, by certain prestigious reviewers. Also, a percentage is kept for each movie as to how “fresh” a movie is (if a movie has four positive reviews and a negative one, it’s “freshness rating” is 80%). Among the five films I’ve chosen to discuss, Dead Man Walking leads the way with an average rating of 8.1 on a 10-point scale, and a freshness rating of 91%. Among the “cream” reviewers, it’s 7.8 and 89%. It is followed closely by Monster’s Ball (7.3 among both groups; 84% freshness rating from all critics; 83% among the elite) and Monster (7.1, 81% among all critics; 7.3, 89% among the elite). In a distant fourth is The Chamber (4.5 & 14%; 4.8 & 0%), followed by The Life of David Gale (4.1 & 19%; 4.1 & 15%).
At the Internet Movie Database,17 ratings from the public at large are solicited and compiled. Dead Man Walking leads the way again, with a 7.6 average (10-point scale)







16. www.rottentomatoes.com
17. www.imdb.com












followed by Monster (7.4), Monster’s Ball & The Life of David Gale (7.2 apiece), and The Chamber (5.6). Finally, Dead Man Walking resulted in Academy Award nominations for Sean Penn and Robbins, and a Best Actress award for Susan Sarandon. Charlize Theron was named Best Actress for her portrayal of Aileen Wuornos in Monster. Finally, Monster’s Ball resulted in a Best Actress award for Halle Berry and a nomination for writers Milo Addica and Will Rokos. Neither The Chamber nor The Life of David Gale received an Academy Award nomination.
The Chamber and The Life of David Gale certainly had the talent to compete. The Chamber starred former Best Actor winner Gene Hackman, and also featured household name Chris O’Donnell as Adam Hall. The Life of David Gale had former Best Actor and Best Supporting Actor Kevin Spacey in the title role, backed up by Kate Winslet and Laura Linney, among others. As stated earlier, however, it is beyond the scope of this paper to suggest that anything is “proven.” Rather, my goal was to advance a theory, and examine whether some empirical data supported it or was inconsistent with it. I believe that it is fair to say, based on the criteria that I have advanced, that critically and among the public at large, there is a correlation between my “moral interestingness” and the degree to which a film about the death penalty is well received. The most popular and critically acclaimed recent death penalty movies have involved actual murderers known to be guilty, followed by fictitious murderers whose guilt is not disputed, followed last of all by the innocent or “less culpable” (again, here, we’re going back to The Chamber’s Sam Cayhall, who has committed the act for which he faces execution, but whose mens rea level is called seriously into question) convict.
It is fair to say that my suggestions are open to at least two glaring criticisms. First, I have framed “The Chamber” in a light that is favorable to my thesis. Sam Cayhall is, clearly, a despicable character, and he unquestionably was in on the planting of the bomb. He is an avowed racist, participated in a number of bombings, and committed at least one murder for which he never stood trial. Having said all of that, however, the movie DOES make a point of presenting his “I never meant to kill those boys” speech, and also shows that his knowledge of bomb-making (fuses, not the timer that was specifically rigged to ensure that the attorney would be in his office when it went off) was too limited for him to have built the one that killed the boys. The movie is in a gray area somewhere between Dead Man Walking and The Life of David Gale, and I freely admit that my construction of it is in a light that is favorable to my presentation.
The other criticism that can be made is my selection of films in the first place. As an example, The Green Mile, which features an innocent prisoner on death row, could have been included, and was very well received. It’s around 8.1 on imdb.com. The Green Mile has a supernatural element at its core, however, and for that reason, I did not think it was suitable for a comparison with movies that are more realistic in their presentations.






CONCLUSION

The survey that was taken as preparation for this paper confirmed, or was consistent with, my belief about the “It’s just wrong” argument – that ultimately, for most people who do not believe in capital punishment, there is no factor or group of factors that would change their mind; specifically, even in a hypothetical world free from the possibility of irreversible error, they would still opposed the death penalty. To the extent that filmmakers would like to persuade viewers to oppose the death penalty, and it seems that most contemporary films about the death penalty fall into this category, they are missing the point when they focus on innocent or not-wholly-culpable convicts. There is room to reach a segment of death penalty proponents, specifically the 50% or so who are more than “slightly” disturbed at the execution of even an admittedly guilty murderer. However, the attempt to persuade that segment must be done “honestly,” on the terms that define the real, ultimate question the answer to which most definitively separates the two camps: Is all unnecessary killing wrong, or can it sometimes be justified? Films that restrict their attempts at persuasion to this question, without resorting to the contrived plot device of the wrongly convicted innocent, will enjoy more critical success, more public acclaim, and ultimately will have the only legitimate chance to bring some death penalty opponents to the other side of the debate.




APPENDIX: THE SURVEY

I. The Big Q.

1. Do you support capital punishment in some cases?

If not, please skip ahead to the questions under III.

II. Those who favor the death penalty:

To what extent does any of the following disturb you (1 = Not at all. 2 = Somewhat. 3 = Considerably, but not enough to oppose the death penalty)

A. The possibility of executing an innocent person.
B. The killing of an actual murderer.
C. Any unfairness in the application of capital punishment (e.g. racism, wealth discrepancies, etc.)
D. If any other factors bother you at least “somewhat,” please list those factors and the degree (2 or 3) to which they bother you.

Which of the following best describes your response to the possibility of executing an innocent person:

It’s probably never or almost never happened.
With scientific advances and the safeguard of jury trials, the chance is extremely minimal.
With the number of allowable appeals, and the delays before it’s carried out, it’s extremely unlikely.
It probably happens from time to time, but the benefits of capital punishment outweigh the costs.
If none of the above accurately captures your reaction, please write a brief sentence that does.

3. If you had to guess, how many innocent people are executed in a typical 5-year period in the United States:
A. Less than one.
B. One to five.
C. More than five.

4. Thanks! You’re done!




III. Those who oppose the death penalty

1. Below is a list of common arguments against the death penalty. Please put the various factors in order of strongest to weakest with respect to your personal reasons for opposing the death penalty. If you find a given factor completely irrelevant to your opposition, leave it off of your list. Example: “A-D-C”

A. Injustices (e.g. race, poverty, gender) in the practical application of capital punishment.
B. A moral objection to unnecessary killing.
C. The possibility of irreversible error.
D. The relative expense of capital punishment.
E. Life in prison is more of a punishment.
F. If a factor that is not listed is important to your opposition, please use the letter F to represent it, and specify (you may add additional letters if appropriate).

HYPOTHETICAL QUESTIONS
For the purposes of questions 2-5, please accept the hypothetical circumstances proposed, despite the fact that they could not (2-3) or do not (4) exist in the real world.


2. If it were 100% guaranteed that no innocent person would ever be put to death, would that persuade you to favor the death penalty?
3. If it were 100% guaranteed that there would be no race-, gender-, or poverty based inequality in its application, would that persuade you to favor the death penalty?
4. If capital punishment were less expensive than life imprisonment, would that persuade you to favor the death penalty?
5. If you answered “No” to questions 2-4, is there some combination of factors that would persuade you to favor the death penalty? If so, please list all factors that would need to exist before you would change your belief.

6. Thanks! You’re done!