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!