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Austin Sarat
Robert Kermes
Haley Cambra
Adelyn Curran
Margaret Kiley
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SARAT ET AL. 10/10/17 5:46 PM
0091-416917/10704-0757
THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 107, No. 4
Copyright © 2017 by Austin Sarat et al. Printed in U.S.A.
757
THE RHETORIC OF ABOLITION:
CONTINUITY AND CHANGE IN THE
STRUGGLE AGAINST AMERICA’S DEATH
PENALTY, 1900–2010*
AUSTIN SARAT
ROBERT KERMES
HALEY CAMBRA
ADELYN CURRAN
MARGARET KILEY
KESHAV PANT
This article seeks to understand when, how, and where the framing of
arguments against capital punishment has changed. While others have
focused exclusively on the national level, we studied the framing of
abolitionist arguments in three American states: Connecticut, Kansas, and
Texas. Each is located in a different region of the country, and each has its
own distinctive death penalty history. We studied the framing of arguments
against the death penalty from 1900 to 2010. Our study suggests that the
rhetorical reframing of the campaign against capital punishment that has
occurred at the national level has had deep resonance at the state level. Over
the course of the 20th century in Connecticut, Kansas, and Texas, the focus
on error and arbitrariness has assumed greater prominence among
abolitionists. In each state, this change began to take hold in the late 1960s
and 1970s and accelerated as the 20th century drew to its close. But, in each
state, older frames persisted. Older arguments continued to occur with
greater frequency than the new abolitionism.
TABLE OF CONTENTS
INTRODUCTION ..................................................................................... 758
I. TEXAS ................................................................................................... 763
II. CONNECTICUT ................................................................................... 768
III. KANSAS .............................................................................................. 775
CONCLUSION .......................................................................................... 779!
SARAT ET AL 10/10/17 5:46 PM
758 SARAT [Vol. 107
INTRODUCTION
Today the United States seems to be on the road to abolishing the death
penalty. Support for capital punishment, which for the last quarter of the 20th
century appeared firmly entrenched, is weakening.
1
Moreover, across the
U.S., the number of death sentences has dropped from a high of 315 in 1994
to forty-nine in 2015.
2
Mirroring this trend, the number of executions peaked
in 1999, and has been steadily declining over the past fifteen years, reaching
a twenty-four year low in 2015.
3
While thirty-one states still retain the death
penalty,
4
sixteen of those states and the federal government have not executed
anyone in the past five years.
5
There are, of course, many possible explanations for the changing
situation of capital punishment. Relatively low rates of violent crime and the
growth of life in prison without parole sentences are two such explanations.
6
However, if the American death penalty eventually does end, it will be in no
small part because abolitionists altered their political and legal arguments
and, in doing so, successfully reframed the death penalty debate.
7
Communications scholar Robert Entman broadly defines the term
“framing” as “any effort to influence public opinion through the formulation
of messages.”
8
Issues of political import in a democracy are almost always
being framed “as various political entrepreneurs [attempt] as best they can to
affect the debate given changes in the stream of information coming in from
* We are grateful for the indispensable help provided by Amherst College’s Missy Roser.
1
Richard C. Dieter, Changing Views on the Death Penalty in the United States,
DEATH PENALTY INFO. CTR., 1, 11–15 (Oct. 7, 2007), http://deathpenaltyinfo.org/files/pdf/
Beijing07.pdf.
2
Death Sentences By Year: 1976–2015, DEATH PENALTY INFO. CTR., https://
deathpenaltyinfo.org/death-sentences-year-1977-present (last visited June 8, 2017); Facts
about the Death Penalty, DEATH PENALTY INFO. CTR., http://www.deathpenaltyinfo.org/
documents/FactSheet.pdf (last visited Mar. 20, 2016);
3
Facts about the Death Penalty, supra note 2.
4
States With and Without the Death Penalty, DEATH PENALTY INFO. CTR., http://
www.deathpenaltyinfo.org/states-and-without-death-penalty (last visited Mar. 20, 2016).
5
Jurisdictions With No Recent Executions, DEATH PENALTY INFO. CTR., https://
deathpenaltyinfo.org/jurisdictions-no-recent-executions (last visited June 8, 2017).
6
The Sentencing Project, Fact Sheet: Trends in U.S. Corrections, THE SENTENCING
PROJECT, 1, 8, http://sentencingproject.org/wp-content/uploads/2016/01/Trends-in-US-
Corrections.pdf (last visited Mar. 6, 2017).
7
Suzanna De Boef et al., Strategic Framing and Cognitive Response to the Death
Penalty, 1, 1, http://www.unc.edu/~fbaum/articles/Strategic_Framing.pdf (last visited Mar. 6,
2017).
8
BRIAN F. SCHAFFNER & PATRICK J. SELLERS, WINNING WITH WORDS: THE ORIGINS
AND IMPACT OF POLITICAL FRAMING ix (2010).
SARAT ET AL. 10/10/17 5:46 PM
2017] RHETORIC OF ABOLITION 759
forces beyond their control.”
9
The framing of complex issues involves social,
cultural, and political elements. In this way, debates surrounding the death
penalty resemble other hot button issues in the United States.
The importance of framing in political contests is illustrated by the
struggle for gay and lesbian rights. Teresa Godwin Phelps notes that an
“unprecedented shift in the rhetoric used about gays and lesbians—the names
they are called, the kinds of images and metaphors that describe them, the
stories about them” paved the way for the Supreme Court’s recognition of
gay marriage in Obergefell v. Hodges.
10
A large reason for the change, Phelps
argues, was “the strategic rhetorical choices made by gay activists and
advocates.”
11
In the past half century, the framing of the death penalty debate has
shifted and evolved dramatically. Perhaps the most important factor in this
evolution has been wrongful convictions in death penalty cases. Since 1973
more than 150 people have been exonerated from death row.
12
Abolitionists
have used the phenomenon of wrongful conviction to change the story about
capital punishment and the public’s understanding of what is at stake when
the state kills.
13
Professor Frank Baumgartner of the University of North Carolina at
Chapel Hill and his colleagues examined this change in anti-death penalty
rhetoric.
14
Focusing exclusively on the last part of the 20th century, they
traced the emergence of what they called the “innocence frame” which
“diverts attention away from theoretical and philosophical issues of morality
to focus simply on the possibility of errors in the criminal justice system.”
15
Furthermore, Baumgartner et al. noted the way in which “the process of
‘framing,’ defining an issue along a particular dimension (e.g., fairness and
innocence) to the exclusion of alternate dimensions (e.g., morality,
constitutionality, or cost)” completely shifted the grounds of debate.
16
They
9
FRANK R. BAUMGARTNER ET AL., THE DECLINE OF THE DEATH PENALTY AND THE
DISCOVERY OF INNOCENCE 14 (2008).
10
Teresa Godwin Phelps, The Evolving Rhetoric of Gay Rights Advocacy, in
RHETORICAL PROCESSES AND LEGAL JUDGMENTS: HOW LANGUAGE AND ARGUMENTS SHAPE
STRUGGLES FOR RIGHTS AND POWER 82 (Austin Sarat ed., Cambridge U. Press 2016).
11
Id.
12
159 as of May, 2017. The Innocence List, DEATH PENALTY INFO. CTR., (May 11,
2017), https://deathpenaltyinfo.org/innocence-list-those-freed-death-row.
13
James D. Unnever & Francis T. Cullen, Executing the Innocent and Support for
Capital Punishment: Implications for Public Policy, 4 CRIMINOLOGY AND PUB. POL’Y 3, 26
(2005).
14
BAUMGARTNER ET AL., supra note 9, at 52.
15
Id. at 9.
16
Id. at 4.
SARAT ET AL 10/10/17 5:46 PM
760 SARAT [Vol. 107
argued that the innocence frame came to dominate public discussion of the
death penalty beginning in the mid-1990s.
17
Building on Baumgartner’s work, Professor Austin Sarat of Amherst
College argues that abolitionist rhetoric has so radically shifted that we are
living in an era of what he calls “the new abolitionism,” an era in which
moral, philosophical, and pragmatic opposition to the death penalty has been,
he claims, displaced in importance by rhetoric that highlights problems in the
processes of guilt determination and sentencing.
18
“The campaign to abolish
capital punishment,” Sarat observes:
no longer takes the form of a frontal assault on the morality or constitutionality of state
killing. Instead, arguments against the death penalty occur in the name of constitutional
rights other than the Eighth Amendment, in particular due process and equal protection.
Abolitionists today argue against the death penalty claiming that it has not been, and
cannot be, administered in a manner that is compatible with our legal system’s
fundamental commitments to fair and equal treatment.
19
Sarat’s argument underscores dramatic changes in the framing of abolitionist
arguments against the death penalty.
A change of the kind that Sarat describes can also be seen in
jurisprudential opposition to capital punishment over the past forty years.
20
The opinions of Supreme Court Justices William Brennan, Bryon White,
Harry Blackmun, and Stephen Breyer, in high profile death penalty cases
dating back to Furman v. Georgia in 1972, capture the evolution of anti-death
penalty rhetoric.
21
While Justice William Douglas’s opinion in Furman gave voice to
elements of what emerged later as the new abolitionism, Justice Brennan’s
Furman opinion drew heavily on a moral or philosophical interpretation of
the Eighth Amendment.
22
Justice Brennan noted that the argument about the
death penalty is, at its core, a battle that has “been waged on moral
grounds.”
23
“The country,” he suggested, “has debated whether a society for
17
Id. at 9.
18
Austin Sarat, Recapturing the Spirit of Furman: The American Bar Association and
the New Abolitionist Politics, 61 L. & CONTEMP. PROBS. 5, 9–10 (1998).
19
Id. at 9.
20
See, e.g., Glossip v. Gross, 135 S. Ct. 2726, 2755–77 (2015) (Breyer, J., dissenting);
Callins v. Collins, 510 U.S. 1141, 1157 (1994) (Blackmun, J., dissenting); Furman v. Georgia,
408 U.S. 238, 258–306 (1972) (Brennan, J., concurring); Furman, 408 U.S. at 310–14 (1972)
(White, J., concurring).
21
See, e.g., Glossip, 135 S. Ct. at 2755–77 (Breyer, J., dissenting); Callins, 510 U.S.
at 1157 (Blackmun, J., dissenting); Furman, 408 U.S. at 258–306 (Brennan, J., concurring);
Furman, 408 U.S. at 310–14 (White, J., concurring).
22
Furman, 408 U.S. at 296.
23
Id.
SARAT ET AL. 10/10/17 5:46 PM
2017] RHETORIC OF ABOLITION 761
which the dignity of the individual is the supreme value can, without a
fundamental inconsistency, follow the practice of deliberately putting some
of its members to death.”
24
In Justice Brennan’s view, capital punishment is
cruel and unusual, and thus unconstitutional because “the deliberate
extinguishment of human life by the State is uniquely degrading to human
dignity.”
25
Justice White joined Justice Brennan in voting to strike down the death
penalty, but he did so more on pragmatic than on moral grounds.
26
For Justice
White, the problem with capital punishment was that it was “so seldom
imposed” that it ceased to be “a credible deterrent or measurably to contribute
to any other end of punishment in the criminal justice system.”
27
The death
penalty amounted to the purposeless infliction of pain.
28
As Justice White put
it:
I accept the effectiveness of punishment generally and need not reject the death penalty
as a more effective deterrent than a lesser punishment. But common sense and
experience tell us that seldom-enforced laws become ineffective measures for
controlling human conduct and that the death penalty, unless imposed with sufficient
frequency, will make little contribution to deterring those crimes for which it may be
exacted.
29
More than two decades after Furman, Justice Blackmun turned his
attention from the philosophical, moral, and pragmatic problems with capital
punishment to procedural problems with what he labeled as “the machinery
of death.”
30
In his 1994 dissent in Callins v. Collins, Justice Blackmun argued
that:
no combination of procedural rules or substantive regulations ever can save the death
penalty from its inherent constitutional deficiencies . . . . The problem is that the
inevitability of factual, legal, and moral error gives us a system that we know must
wrongly kill some defendants, a system that fails to deliver the fair, consistent, and
reliable sentences of death required by the Constitution.
31
Although Justice Blackmun mentioned the “moral error” of the death
penalty, he focused, to a much greater degree than either Justices Brennan or
White, on defects in its administration, and he gave voice to a new abolitionist
24
Id.
25
Id. at 291.
26
Id. at 310–12.
27
Id. at 311.
28
Id. at 312.
29
Id.
30
Callins v. Collins, 510 U.S. 1141, 1145 (1994) (Blackmun, J., dissenting).
31
Id. at 1145–46.
SARAT ET AL 10/10/17 5:46 PM
762 SARAT [Vol. 107
perspective.
32
That perspective informed Justice Breyer’s dissenting opinion in
Glossip v. Gross, a 2015 case in which the Supreme Court approved the use
of midazolam as a lethal injection drug.
33
Justice Breyer offered a wide-
ranging account of possible constitutional problems with America’s death
penalty.
34
Justice Breyer cited three main defects: “(1) serious unreliability,
(2) arbitrariness in application, and (3) unconscionably long delays that
undermine the death penalty’s penological purpose.”
35
All three of Justice
Breyer’s reasons for opposing capital punishment highlighted faults in the
administration of the death penalty.
The salience of new abolitionist rhetoric was also seen in the American
Bar Association’s (ABA) resolution in 1997 calling for a moratorium on
capital punishment.
36
The ABA resolution said that the death penalty as
“currently administered” was not compatible with central values in our
Constitution.
37
Like Justices Blackmun and Breyer, the ABA embraced the
new abolitionism, eschewing a direct address to state violence and relying
instead on an indirect, though nonetheless devastating critique.
38
“This effort,
while speaking to some of the most pressing issues facing today’s capital
punishment system, recaptures the spirit of Furman.”
39
The ABA example
suggests the relevance and usefulness of new abolitionist rationales in forums
other than the Supreme Court.
40
Our research seeks to understand when, how, and where the framing of
arguments against capital punishment changed. We focus on politics and
popular culture rather than jurisprudence and law. While others have focused
exclusively on the national level, we studied the framing of abolitionist
arguments in three American states: Connecticut, Kansas, and Texas.
41
Each
32
Id.
33
See generally 135 S. Ct. 2726 (2015).
34
Id. at 2756.
35
Id.
36
AMERICAN BAR ASSOCIATION, DEATH PENALTY MORATORIUM RESOLUTION!(1 99 7),
http://www.americanbar.org/groups/committees/death_penalty_representation/resources/dp-
policy/moratorium-1997.html (last visited Mar. 6, 2017).
37
Id.
38
Sarat, supra note 18, at 27.
39
Id.
40
Id. at 9.
41
In each state, we examined newspaper coverage of capital punishment, drawing on
newspapers that have been digitized, with minimal gaps, back to 1900. Furthermore, each state
had additional digitized records available on NewspaperArchives allowing articles found in
the more prominent newspapers in each state to be supplemented by articles from regional
newspapers. Every newspaper article was searched using a consistent system designed to
SARAT ET AL. 10/10/17 5:46 PM
2017] RHETORIC OF ABOLITION 763
is located in a different region of the country, and each has its own distinctive
death penalty history.
42
Moreover, we extended the time period for the analysis of the rhetoric
of abolition beyond the period previously studied by Baumgartner et al. and
Sarat. We studied the framing of arguments against the death penalty from
1900 to 2010. In this analysis, we ask whether the development of the “new
abolitionism” at the state level tracked national developments and whether it
evolved in similar or different ways in three different death penalty
jurisdictions.
43
We begin with Texas, the long-time capital of America’s death-belt.
44
I. TEXAS
Texas has a long and storied death penalty history.
45
Throughout most
of that history, executions were carried out in the locality in which the crime
was committed or the criminal was captured.
46
Records dating back to before
the founding of the Republic of Texas reveal that from 1819 until 1923 there
were 394 legal executions in Texas, 390 by hanging and 4 by firing squad.
47
Of course, like all southern states during this period, there were also frequent
extrajudicial lynchings, forms of private revenge for which records were not
consistently kept.
48
In May 1922, an outbreak of lynchings in central Texas led state
capture any article that contained, in the body or in the title, the words “capital punishment”
or “death penalty” in addition to, when possible, the words “abolition,” “abolish,” or
“abolitionism.” Lastly, in the course of our analysis, we drew upon legislative debates to
contextualize and better understand the rhetoric found in the press.
42
See State Information, DEATH PENALTY INFO. CTR.,
http://www.deathpenaltyinfo.org/state-information (last visited Mar. 6, 2017).
43
Our research initially identified twenty-four unique arguments against the death
penalty, which we eventually collapsed into three categories: (1) new abolitionism, (2) old
abolitionism, and (3) pragmatic. New abolitionist arguments criticize capital punishment for
failing in terms of equal protection and due process. In contrast, old abolitionist arguments
focus on the alleged immorality of the death penalty, draw on philosophical or religious
sources, and invite one to sympathize with the perpetrator of a crime rather than simply
opposing state killing on procedural grounds. Pragmatic arguments include arguments relating
the costs associated with capital punishment, potential alternatives to capital punishment, and
the ability of capital punishment to deter crime.
44
See generally Casey Tolan, Texas Is No Longer America’s Death Penalty Capital,
VICE (Dec. 15, 2016), https://www.vice.com/en_us/article/texas-is-no-longer-americas-death-
penalty-capital.
45
JAMES W. MARQUART ET AL., THE ROPE, THE CHAIR, AND THE NEEDLE: CAPITAL
PUNISHMENT IN TEXAS, 1923–1990 ix (1994).
46
Id. at 12.
47
Id.
48
Id. at 5.
SARAT ET AL 10/10/17 5:46 PM
764 SARAT [Vol. 107
officials to consider policy changes to curb that unsanctioned violence.
49
The
state decided to centralize all executions in the Huntsville prison and to adopt
the electric chair in 1924.
50
Officials hoped that by removing the
responsibility for executions from local authorities, and using a more
advanced mode of execution, they could professionalize and further
legitimize state killing.
51
Texas’s use of capital punishment continued unabated until 1964 when
the state halted executions.
52
In 1982, six years after the Court’s reinstatement
of capital punishment in Gregg v. Georgia, the first person was put to death
under Texas’s updated sentencing statute.
53
Despite its slow post-Gregg start,
the state quickly accelerated its use of the death penalty. By 1992, Texas led
the nation with twelve executions since 1976.
54
Looking back over the course of the last century reveals that the framing
of anti-death penalty arguments in Texas has exhibited elements of both
continuity and change. At the start of the 20th century, almost 67% of
abolitionist arguments were made in philosophical, moral, and religious
terms.
55
By the century’s end, only about 40% of abolitionist arguments were
framed in that way.
56
Arguments about the high cost and/or lack of deterrence associated with
capital punishment have remained a relatively constant feature of criticism of
capital punishment in Texas.
57
At the start of the 20th century, about 25% of
49
Id. at 13.
50
Id.
51
Id. at ix.
52
Id. at 107.
53
Id. at 130.
54
Number of Executions by State and Region Since 1976, DEATH PENALTY INFO. CTR.,
https://deathpenaltyinfo.org/number-executions-state-and-region-1976 (last visited Jun. 11,
2017).
55
Our analysis was conducted on several of the major Texas newspapers in the 20th
Century, including: DALLAS MORNING NEWS, GALVESTON DAILY NEWS, SAN ANTONIO
EXPRESS AND NEWS, AMARILLO GLOBE TIMES, BAYTOWN SUN, ABELINE REPORTER NEWS, and
BROWNSVILLE HERALD. This number was calculated by averaging the proportion of old
abolitionist arguments in each decade between 1900 and 1940.
Note for all future statements of proportionality: in order to account for varying
quantities of data over the decades, we averaged the proportions of the individual decades,
rather than deriving the percentage from the total number of arguments made during the forty-
year period. In this way, we give equal weight to each decade.
56
This number was calculated by averaging the proportion of old abolitionist
arguments in each decade between 1970 and 2010.
57
Pragmatic arguments, those about cost and deterrence, have moved from 23% in
the first four decades of the 20th Century to 20% between 1970 and 2010.
SARAT ET AL. 10/10/17 5:46 PM
2017] RHETORIC OF ABOLITION 765
abolitionist arguments raised issues involving cost and/or deterrence.
58
A
similar proportion did so at the start of this century.
59
In contrast, arguments focused on the arbitrariness of the death penalty
system, which are arguments that are consistent with the new abolitionism,
have markedly increased in prominence since the 1960s.
60
Those focused
specifically on the death penalty’s unreliability (the innocence frame) have
shown a similar increase from the 1980s to the present.
61
In the early decades
of the 20th century, slightly more than 10% of abolitionist arguments in
Texas criticized the death penalty’s administration.
62
By the end of the
century, arguments about defects in the death penalty’s administration more
than tripled in frequency from what was seen at the start of the last century.
63
In Texas, new abolitionism emerged much earlier than one would
surmise from Baumgartner et al.’s analysis.
64
In addition, though by the end
of the 20th century new abolitionist rhetoric provided an important new tool
in the struggle against the death penalty in that state, in terms of sheer
frequency, abolitionists continued to rely more on moral, religious, and
pragmatic arguments than on arguments about innocence and arbitrariness.
65
Typical of the kind of moral and religious arguments found in Texas
during the period of our study is one that appeared in February 1924 in the
Canton Herald. When “life is taken,” this early 20th century opponent of the
death penalty said, “it is in direct refutation of one emphatic command which
says ‘thou shalt not kill.’”
66
Here, the language of command is deployed to
criticize state killing. Here, citizens of Texas were called to attend to four
words comprising the biblical enunciation “thou shalt not kill.”
The vast majority of these moral and religious arguments against state
58
This number was calculated by averaging the proportion of pragmatic arguments in
each decade between 1900 and 1940.
59
This number was calculated by averaging the proportion of pragmatic arguments in
each decade between 1970 and 2010.
60
Of twenty-two total arguments made specifically referencing the “arbitrary” nature
of the death penalty in our sample, nineteen were made after 1960.
61
Of fifty-eight total arguments made specifically referencing executing the innocent
in our sample, thirty-seven were made after 1980.
62
This number was calculated by averaging the proportion of new abolitionist
arguments in each decade between 1900 and 1940.
63
Between 1970 and 2010, new abolitionist arguments were on average 39% of all
arguments made against the death penalty. This number was calculated by averaging the
proportion of new abolitionist arguments in each decade between 1970 and 2010.
64
See generally BAUMGARTNER ET AL., supra note 9.
65
In the last four decades of the sample, on average 39% of arguments were new
abolitionist, while 61% were old abolitionist and pragmatic combined.
66
Capital Punishment, CANTON HERALD, Feb. 15, 1924, at 6.
SARAT ET AL 10/10/17 5:46 PM
766 SARAT [Vol. 107
killing, not surprisingly, are Christian. Yet, these arguments are polarizing
because they create a dichotomy between right and wrong. Thus, they call on
the death penalty’s supporters to admit the error of their ways by suggesting
that they are sinners or are on the wrong side of a stark moral divide.
67
Thus, in 1956, columnist Harry McCormick published an article in the
Dallas Morning News in which he wrote
As one who has witnessed 27 executions, most of them in Texas, [this writer] could
never see it [as] other than a form of legalized murder on the part of the state. Of course,
in a democratic society the state is you and I. . . . An execution is a deliberate act in
which every Texan participates.
68
Equating the death penalty with murder and its supporters with
murderers, long a mainstay of traditional moral arguments against capital
punishment, hardly seems a way to change hearts and minds. These
arguments suggest that the death penalty is an insidious and corrupting force,
a cancer that must be removed.
As we noted above, in contrast to the relative decline in the frequency
of moral and religious arguments against the Texas death penalty, the number
of pragmatic arguments remained steady.
69
During this period, arguments
focused on the death penalty’s failure as a deterrent were the most popular of
these pragmatic arguments.
70
Over the course of the century, those making deterrence arguments
invariably cited statistics purporting to show that the death penalty did not,
in fact, deter. For instance, in 1924, Texas State Representative T.K. Irwin
remarked that he knew “from a study of the statistics in eight states in the
union which have done away with capital punishment that major crimes have
decreased in every one of them, and not one has returned to it.”
71
Another
deterrence argument, from sixty years later, uses a similar line of reasoning:
A recent Associated Press poll found an overwhelming majority—84 percent––of
Americans approve of the death penalty. Many view it as a deterrent to violent crime.
Most available statistics don’t bear out their view. Murder rates in death penalty states,
such as Illinois and New Hampshire, differ little from non-death penalty states of
similar populations and characteristics, such as Michigan and Vermont. In some
instances, a decrease in homicides has followed abolition of the penalty. . . . And it is
possible that the actual effect of a death sentence may be to incite rather than deter
67
Id.
68
Harry McCormick, Is Electric Chair Crime Deterrent?, DALLAS MORNING NEWS,
Nov. 18, 1956.
69
See supra note 57.
70
Out of 152 total pragmatic arguments made in our Texas sample, 100 were
arguments about deterrence.
71
Author of Electrocution Bill Now Opposed to Capital Punishment, GRAND PRAIRIE
TEXAN, Feb. 15, 1924, at 1.
SARAT ET AL. 10/10/17 5:46 PM
2017] RHETORIC OF ABOLITION 767
violence.
72
Coinciding with Texas’s de facto moratorium,
73
abolitionist rhetoric
underwent a perceptible change with an increase in new abolitionist framing
of anti-death penalty arguments. 78% of all new abolitionist arguments made
between 1900 and 2010 were made after 1964.
74
The most common of these
arguments highlighted the death penalty’s systemic bias and arbitrariness as
well as the dangers of executing an innocent person.
75
We identified arguments pertaining to five dimensions of arbitrariness
in death sentences: race, geographical location, socio-economic condition,
gender, and educational level. Although each has its own characteristics, new
abolitionists have incorporated some or all of these biases into more general
arguments pertaining to disproportionality. One example of such an argument
is found in an op-ed from the late 1960s:
According to numbers kept between 1930 and 1965, 17 southern states registered 1,659
black executions to 636 white; 1,100 of the Negroes were killed in only 7 of the
states. . . . Penologists agree that discrimination is a justifiable argument against capital
punishment since it is well known that some states have tailored capital punishment to
fit the black offender.
76
As important as arguments about arbitrariness have been to recent
efforts to end Texas’s death penalty, even more important have been
arguments about the unreliability of capital punishment and the risk of
executing the innocent. From the late 1980s to the present, increasing
attention to these problems has animated abolitionist rhetoric.
77
Typical is the
following claim:
An alarming number [of prisoners] are innocent of the crimes for which they were
convicted. For even one man to be killed in the name of justice for crimes that he had
nothing to do with is unacceptable. And for this to happen on a regular basis is a
preposterous travesty of justice.
78
Today, in Texas—as in the nation as a whole—the death penalty is in
72
Don Graff, Death Penalty Reinstatement Results in Grim Statistics, THE BAYTOWN
SUN, Mar. 24, 1985, at 4-A.
73
MARQUART ET AL., supra note 45, at 147–48.!
74
163 out of 208 new abolitionist arguments within our sample were made between
1965 and 2010.
75
Arguments about arbitrariness, bias towards certain groups, and innocence make up
113 out of the 163 (69%) new abolitionist arguments in our sample made between 1965 and
2010.
76
Tom Tiede, ‘I Have Never Seen a Person of Means Go to Chair,’ Says Former
Governor, THE VICTORIA ADVOC., Aug. 15, 1967, at 4.
77
Id.; see also supra note 61.
78
Dale Dimitri, The Death Penalty is Fatally Flawed, TEXAS CITY SUN, Aug. 15,
1999, at 4A.
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768 SARAT [Vol. 107
decline.
79
New death sentences in Texas have dropped nearly 80% since 1999
when they reached their peak of forty-eight. In 2015, juries condemned only
three new individuals to death. This marked the lowest number of new death
sentences since the U.S. Supreme Court upheld Texas’s revised death penalty
statute in 1976.
80
Furthermore, after reaching a high of forty executions in
2000, Texas executed only seven individuals in 2016.
81
Finally, there are 241
individuals on death row in Texas, the lowest that population has been since
the late 1980s.
82
It is, of course, not possible to determine how much of the changed
situation in Texas may be properly attributed to abolitionist arguments. What
we can state is that those arguments both resemble and depart from the
framing of anti-death penalty arguments at the national level. In Texas, as
elsewhere, during the last part of the 20th century, the new abolitionism
assumed greater prominence. Yet moral, religious, and pragmatic arguments
continued to play a major role in the movement to end the death penalty in
that state.
II. CONNECTICUT
Connecticut has, not surprisingly, a very different death penalty history
than Texas. Indeed in 2012, the Connecticut Legislature enacted Public Act
No. 12-5, prospectively abolishing the death penalty.
83
With the passage of
Public Act No. 12-5, Connecticut became the seventeenth state, and fifth state
in the preceding five years, to end capital punishment.
84
Furthermore,
Connecticut is one of only six states—the others being Illinois, Maryland,
New Jersey, New Mexico, and Nebraska—to have recently abolished the
death penalty through legislative action.
85
Before 2012, Connecticut was one of only two states in New England,
the other being New Hampshire, that retained the death penalty.
86
Moreover,
Connecticut is the only New England state to execute anyone during the 20th
79
Facts about the Death Penalty, supra note 2.
80
Id.
81
Number of Executions by State and Region Since 1976, supra note 54.
82
Facts about the Death Penalty, supra note 2.
83
Act Revising the Penalty for Capital Felonies, S.B. 280, Pub. Act. 12-5, 2012 Conn.
Gen. Assemb. (Conn. 2012), available at https://www.cga.ct.gov/2012/act/pa/pdf/2012PA-
00005-R00SB-00280-PA.pdf (last visited June 6, 2017).
84
Peter Applebome, Death Penalty Repeal Goes to Connecticut Governor, N.Y.
TIMES, Apr. 11, 2012, http://nyti.ms/1ynKmgU.
85
CNN Library, Death Penalty Fast Facts, CNN, (Jan. 29, 2017, 9:53 PM),
http://www.cnn.com/2013/07/19/us/death-penalty-fast-facts/. Nebraska reinstated capital
punishment as a result of a referendum in November 2016.
86
States With and Without the Death Penalty, supra note 4.
SARAT ET AL. 10/10/17 5:46 PM
2017] RHETORIC OF ABOLITION 769
century, putting to death Joseph Taborsky in 1960 and Michael Ross in
2005.
87
At the time of abolition, Connecticut had eleven inmates on death
row, far more than New Hampshire, which sentenced only one person to
death between 1994 and 2012.
88
Three years after the Connecticut legislature’s prospective abolition, the
state’s supreme court, in State v. Santiago, held that the death penalty in all
its forms violated the state’s constitution, thus preventing its application to
inmates then on death row.
89
These legislative and judicial acts were
motivated by contemporaneous societal and legal developments and, more
fundamentally, they reflected the shift in abolitionist rhetoric that took place
during the 20th century in America.
90
Over the past century, individuals from across the political spectrum in
Connecticut voiced grave concerns about the death penalty. They alleged that
capital punishment was a relic of a more barbaric age, that the penalty was
driven by revenge, that the risk of executing innocent people was too great,
that the delays that plague the system were too long, and that the money spent
on the death penalty could be used more effectively elsewhere.
91
These critics
have included judges, prosecutors, legislators, social justice advocates, and
the families of the murder victims.
92
From 1900 to 2010, the framing of abolitionist arguments in
Connecticut followed a pattern somewhat like Texas. While traditional
philosophical, moral, and religious arguments against the death penalty were
more prominent in Texas than in Connecticut at the start of the 20th century,
in the latter state as in the former they declined, but were not entirely
displaced by new abolitionist rhetoric.
93
At the start of the 20th century,
approximately half of abolitionist arguments found in our Connecticut
sample focused on questions of morality and religion.
94
By the end of the
century, this number dropped slightly to about 45%.
95
87
LAWRENCE B. GOODHEART, THE SOLEMN SENTENCE OF DEATH: CAPITAL
PUNISHMENT IN CONNECTICUT 2 (2011).
88
States With and Without the Death Penalty, supra note 4.
89
112 A.3d 1, 17 (Conn. 2015).
90
Id.
91
New Voices, DEATH PENALTY INFO. CTR., http://www.deathpenaltyinfo.org/new-
voices (last visited Feb. 21, 2016).
92
Id.
93
The average of the proportion of old abolitionist arguments from 1900 to 1940 was
50%, and from 1970 to 2010, it was 45%. The average of the proportion of new abolitionist
arguments from 1900 to 1940 was 20%, and from 1970 to 2010, it was 32%.
94
This number was calculated by averaging the proportion of old abolitionist
arguments in each decade between 1900 and 1940.
95
This number was calculated by averaging the proportion of old abolitionist
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770 SARAT [Vol. 107
The seeming persistence of moral and religious arguments derives from
a spike in old abolitionist arguments in 2005, the year of Michael Ross’s
execution.
96
The Ross execution interrupted a fifty-year-long moratorium on
state killing in Connecticut and invited what Lawrence Goodheart, the
preeminent scholar on Connecticut’s death penalty, termed, “a wave of
emotionalism.”
97
Indeed, 2005 is the only year from 2000 to 2010 in which
there were more old than new abolitionist arguments.
98
In the early decades of the 20th century, 24% of abolitionist arguments
criticized the death penalty’s administration.
99
By the end of the century,
arguments about defects in the death penalty’s administration increased to
32% of Connecticut’s anti-death penalty arguments.
100
This shift in the
framing of the case for abolition in Connecticut is not as dramatic as the
change in Texas, where new abolitionist arguments tripled in frequency.
However, it is significant enough to support Baumgartner et al. and Sarat’s
claims concerning the increased importance of new abolitionist rhetoric
during the second half of the 20th century.
The use of pragmatic arguments against capital punishment in
Connecticut was consistent with what we found in Texas. At the start of the
last century, about 30% of the abolitionist arguments in our sample raised
issues involving cost, life without parole, and deterrence.
101
These pragmatic
arguments declined in frequency to about 23% by the end of the century.
102
Furthermore, the deterrence argument again figured most prominently
throughout the 20th century, accounting for 16% of the total number of
arguments made against the death penalty in Connecticut.
103
For example, in a 1925 editorial published in the Bridgeport Telegram,
arguments in each decade between 1970 and 2010.
96
28% of all old abolitionist arguments documented in Connecticut from 1970 to
2010 occurred in 2005. The second highest rate of old abolitionist arguments in this period
was 13% in 1987. See generally Connecticut serial killer put to death, CNN.COM LAW CENTER
(May 13, 2005), http://www.cnn.com/2005/LAW/05/13/ross.execution.
97
GOODHEART, supra note 87, at 319.
98
In our sample, there were forty-seven documented old abolitionist arguments in
2005 and twenty-nine documented new abolitionist arguments.
99
This number was calculated by averaging the proportion of new abolitionist
arguments in each decade between 1900 and 1940.
100
This number was calculated by averaging the proportion of new abolitionist
arguments in each decade between 1970 and 2010.
101
This number was calculated by averaging the proportion of pragmatic abolitionist
arguments in each decade between 1900 and 1940.
102
This number was calculated by averaging the proportion of pragmatic abolitionist
arguments in each decade between 1970 and 2010.
103
This number was calculated by dividing the total number of arguments
documented by the total number deterrence specific arguments.
SARAT ET AL. 10/10/17 5:46 PM
2017] RHETORIC OF ABOLITION 771
Lewes Lawes, then the warden at Sing Sing Prison in New York, utilized one
such deterrence argument and advocated the replacement of capital
punishment with life imprisonment without parole. He wrote, “[i]t has been
so frequently said that capital punishment might deter if it were enforced.
The fact remains that until the characteristics of mankind change, it can never
be enforced.”
104
He continued by noting that the homicide rate in the United
States offered a “shameful contrast” to the rest of the civilized world.
105
Forty-six years later, in 1971, Representative Irving J. Stolberg of New
Haven used similar language to reject the argument of longtime death penalty
supporter Governor Thomas J. Meskill that capital punishment serves as a
deterrent to murder: “Capital punishment is not and has not been a deterrent
to crime,” Stolberg said, “[i]f anything, with well-publicized executions, the
murder rate increases rather than decreases.”
106
Typical of the kind of moral, philosophical, or religious rhetoric that
was used in Connecticut to oppose the death penalty during the period of our
study was the fiery commentary offered by Connecticut journalist George
Ross Wells in October 1935.
107
In that year, the Connecticut General
Assembly passed legislation that replaced hanging with electrocution as the
method of execution for those convicted of capital crimes.
108
In addition, the
state hired a professional executioner to run its electric chair.
109
Electrocution
was presented as a swifter, more humane form of execution.
110
However, some rejected this view and argued that the legislation simply
perpetuated what they called a barbaric system.
111
In his Hartford Courant
editorial, Wells wrote: “Replacing hanging with electrocution is squirting
perfume on a manure heap instead of clearing it away. We have simply
substituted one brutal savagery for another.”
112
“It is,” he continued, “as
savage as war and, with one as with the other, using scientific methods makes
it not in the least less savage.”
113
Twenty years after Wells’s argument, an article in the Hartford Courant
104
Lewis Lawes, Capital Punishment Should Be Abolished, BRIDGEPORT TELEGRAM,
Aug. 8, 1925, at 12.
105
Id.
106
George Gudauskas, Avcollie Amendment Fails of Passage, NAUGATUCK DAILY
NEWS, May 26, 1971, at 3.
107
George Ross Wells, Men and Manners, HARTFORD COURANT, Oct. 11, 1935, at 11.
108
GOODHEART, supra note 87, at 131.
109
Id. at 166.
110
Id.
111
Wells, supra note 107, at 11.
112
Id.
113
Id.
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772 SARAT [Vol. 107
entitled “Clergy of Three Faiths Criticize Defenders of Capital Punishment,”
catalogued opposition by the state’s religious leaders. Rabbi Abraham J.
Feldman pointed to “increasing humanitarianism” in expressing opposition
to Connecticut’s system of capital punishment.
114
He argued that “[w]e do
not have the right to take a life . . . . Capital punishment is one of the vestiges
of primitive savagery remaining with us.”
115
While this type of moralistic rhetoric decreased somewhat after the
1960s, it did not disappear. In 2005, Reverend Stephen J. Sidorak Jr.,
executive director of the Christian Conference of Connecticut, advocating
for the replacement of capital punishment with life imprisonment without
the possibility of parole, called for Connecticut to move beyond “archaic”
practices. He wrote: “At the very least, both the governor and the General
Assembly owe the people of this state a morally serious reconsideration of
whether or not Connecticut should return to the archaic and barbaric
practice of capital punishment.”
116
Like Texas, the framing of arguments against the death penalty in
Connecticut continued to rely on a traditional moralistic framing, though in
Connecticut overtly religious appeals played a much less prominent role.
Yet while new abolitionist language did not fully displace old abolitionist
rhetoric in Connecticut, it became more common toward the end of the
century.
In 1973, Connecticut modified its death penalty laws to meet the
standards articulated by the Supreme Court in Furman.
117
The revised statute
limited the number of capital crimes and, in various ways, raised the bar that
the state would have to clear to impose the death penalty.
118
Over the
succeeding decades, the Connecticut legislature further reviewed and revised
the state’s death penalty statute, rendering the task of executing a person on
death row more and more difficult.
119
At the same time, abolitionists focused
their criticism on the administration of the death penalty with greater
frequency. Arguments regarding regional disparity, racial disproportionality,
114
Roger Dove, Clergy of Three Faiths Criticize Defenders of Capital Punishment,
HARTFORD COURANT, Mar. 3, 1955, at 1.
115
Id. at 8.
116
Frances Grandy Taylor, A Stand Against Inhumanity, HARTFORD COURANT, Jan.
13, 2005, at A6.
117
See John Donohue, Capital Punishment in Connecticut, 1973-2007: A
Comprehensive Evaluation from 4686 Murders to One Execution, DEATH PENALTY INFO. CTR.
1, 58–62 (Oct. 15, 2001), http://www.deathpenaltyinfo.org/documents/DonohueCTStudy.pdf.
118
John Donohue, An Empirical Evaluation of the Connecticut Death Penalty System
Since 1973: Are There Unlawful Racial, Gender, and Geographic Disparities?, 11 J.
EMPIRICAL LEGAL STUD. 637, 642 (2014).
119
See Donohue, supra note 117, at 58–62.
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2017] RHETORIC OF ABOLITION 773
innocence, delay, and infrequent executions played an enlarged role in
Connecticut’s death penalty debate.
120
In the last quarter of the 20th century, in Connecticut as in Texas, the
prospect of executing the innocent emerged as a formidable argument against
the death penalty.
121
Rhetorical appeals to the “epistemological certainty of
DNA evidence” had a profound effect on abolitionist discourse.
122
The cold
rationality of science was added to emotionally charged narratives about the
rights and wrongs of capital punishment.
123
As Sarat puts it, “the issue of
innocence, more than any other factor, has changed the climate surrounding
state killing . . . .”
124
One example of this focus on innocence and error is provided by
Connecticut Senator John M. Lupton, who addressed the Senate’s Judiciary
Committee in 1967 and advocated the abolition of the death penalty in the
state:
The taking of life is the only irrevocable step that is permitted under our American
jurisprudence. All other actions under our marvelous constitutional law are, in one way
or another, subject to review and, if necessary, rectification. Human frailty and error
being what it is, let us pass this legislation and leave the irrevocable to the infallible.
125
Forty-five years later, in 2012, Representative Terry Backer similarly
argued: “As a government (we) have done things that haven’t quite worked
out the way we had hoped . . ., but we are always able to go back and fix
those things. Unfortunately, when we are wrong in these cases, there is no
way to put them back on track.”
126
The Connecticut legislature’s decision to prospectively abolish capital
punishment, although outside the time period of our study, is worth noting
here. In 2012, opinions in the Connecticut legislature were divided on the
120
New abolitionist arguments represented 32% of arguments in Connecticut from
1970-2010 compared to 24% from 1900-1940.
121
Arguments about arbitrariness, bias towards certain groups, and innocence make
up 113 out of the 163 (69%) new abolitionist arguments in our sample made between 1965
and 2010.
122
Simon A. Cole & Jay D. Aronson, Blinded by Science on the Road to Abolition?,
in THE ROAD TO ABOLITION? THE FUTURE OF CAPITAL PUNISHMENT IN THE UNITED STATES, 46,
52 (Charles J. Ogletree, Jr. & Austin Sarat eds., 2009).
123
Id. at 47.
124
Austin Sarat, Innocence, Error, and the “New Abolitionism”: A Commentary, 4
CRIMINOLOGY & PUB. POL’Y 45, 46 (2005).
125
Assembly Urged to Eliminate Death Penalty, HARTFORD COURANT, Feb. 22, 1967,
at 20.
126
Daniela Altimari, House Votes to Repeal Death Penalty, HARTFORD COURANT,
Apr. 12, 2012, http://articles.courant.com/2012-04-12/news/hc-death-penalty-house-vote-
0412-20120411_1_death-penalty-capital-punishment-repeal-bill.
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774 SARAT [Vol. 107
relevance of the innocence argument to its consideration of the death penalty.
The state had only executed two men in the last sixty-five years and the guilt
of both Ross and Taborsky was never in question.
127
As a result, during the
2012 debate in Connecticut’s House of Representatives, Representative John
Hetherington reminded his fellow legislators: “We have to remember that we
are looking at the death penalty as it exists in Connecticut, as it is applied
here.”
128
He asserted that, while a number of people across the United States
have been exonerated based upon post-conviction evidence, no one in
Connecticut, at least in modern times, has been executed and later proven
innocent.
129
Therefore, he insisted, “I don’t think that that argument is a very
strong one when you consider it in light of Connecticut’s experience and the
way the capital felony law is applied here.”
130
In addition to innocence, abolitionists have increasingly noted blatant
geographic inconsistencies in calling the state’s administration of death
penalty into question.
131
Karen Goodrow, a lawyer who represented Michael
Ross, commented that when she and her colleagues hear about a death
eligible case in Connecticut, their first question is always: “Where did it
happen?”
132
This is important, Goodrow explained, because the capital
sentencing rate in places like Waterbury (a large Connecticut city) has been
strikingly higher than in the rest of the state.
133
Around 33% of all death
eligible cases received death sentences in Waterbury, while only 2.6% of the
cases outside Waterbury received similar sentences.
134
State legislators and judges also took note of geographic disparities,
focusing on state to state differences. In the legislative debate over P.A. 12-
5 in 2012, Representative Mike Lawlor noted:
It’s worth keeping in mind that in this part of the country, New Jersey doesn’t have it.
New York doesn’t have it. Massachusetts doesn’t have it. Rhode Island doesn’t have it.
Vermont doesn’t have it. Maine doesn’t have it. New Hampshire, in theory, has it.
127
GOODHEART, supra note 87, at 227.
128
Hearing on S.B. 280 Before H.R., 2012 Conn. Gen. Assemb. (Conn. Apr. 11,
2012), https://www.cga.ct.gov/2012/trn/H/2012HTR00411-R00-TRN.htm (last visited June
6, 2017).
129
Id.
130
Id.
131
Lynne Tuohy, Trying to Halt ‘Ultimate Torture,’ HARTFORD COURANT, Oct. 24,
2004, http://articles.courant.com/2004-10-24/news/0410240811_1_death-penalty-penalty-
hearing-death-row.
132
Id.
133
Donohue, supra note 118, at 650.
134
Id.
SARAT ET AL. 10/10/17 5:46 PM
2017] RHETORIC OF ABOLITION 775
There’s nobody on death row. There’s not been a death penalty prosecution in recent
decades. And that leaves Connecticut.
135
Racial discrimination also has played an important role in the framing
of Connecticut’s death penalty debate. In 1973, an editorial in the Hartford
Courant claimed that the Connecticut death penalty was “applied randomly
at best and discriminatorily at worst. It violates equal protections of the laws
because it is imposed almost exclusively against racial minorities and the
poor.”
136
In 2009, Connecticut Representative Demetrios Giannaros pointed to
the racially discriminatory way in which capital punishment has been
administered in Connecticut: “There is evidence, clear evidence,” he said,
“that if the person who died is a white person, like me, the individual who
commits the crime is more likely to face the death penalty than if the person
who died was a black person or perhaps a Hispanic. This is a system that is
disgraceful when it comes to fairness.”
137
The deliberations and decisions of both Connecticut’s legislature and its
Supreme Court in 2012 and 2015, respectively, reflected the rhetorical shift
toward new abolitionism that altered that state’s death penalty debate.
138
As
in Texas, this rhetoric did not go uncontested, nor did it displace other ways
of framing the argument against capital punishment. Striking is how much
the pattern in Connecticut resembles Texas, where the new abolitionism
emerged as a late 20th century refinement in the arsenal of arguments
deployed against the death penalty.
III. KANSAS
The story of capital punishment in our third state, Kansas, reveals a
reluctant and halting embrace of the death penalty. The Kansas death penalty,
long a mainstay of its criminal justice system, was abolished in 1907 and
remained off the books until 1935.
139
Although reinstated in 1935, Kansas’s
first execution in the 20th century took place in 1944.
140
Also, after the
Furman moratorium was lifted in 1976, Kansas was slow to revive its death
penalty, not bringing it back until 1994.
141
While capital punishment remains
135
Hearing on S.B. 280 Before H.R., supra note 128.
136
An Official Act of Violence, HARTFORD COURANT, Apr. 18, 1973, at 2.
137
Conn. General Assemb., House Sess. Doc., May 13, 2009 (document on file with
the authors).
138
States With and Without the Death Penalty, supra note 4.
139
Kansas, DEATH PENALTY INFO. CTR., https://deathpenaltyinfo.org/kansas-1.
140
Id.
141
Id.
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776 SARAT [Vol. 107
legal in Kansas, no one has been executed there since 1965.
142
The broad outline of abolitionist arguments in Kansas is similar to what
we observed in Texas and Connecticut. In the first decades of the 20th
century, new abolitionist arguments represented only 13% of the arguments
against capital punishment found in the newspapers we examined.
143
In the
last years of our study, new abolitionism made up 32% of the arguments in
our sample.
144
The moral and religious framing of anti- death penalty
arguments, which is characteristic of what we called the old abolitionism, fell
from 59% in the first four decades to 43% in the last several years.
145
Finally,
pragmatic arguments against the death penalty (deterrence and cost)
remained relatively constant, declining slightly from 28% at the start of the
20th century to 25% at its end.
146
As in Texas, many of the old abolitionist
arguments made in Kansas have been religious. An example of this kind of
argument can be found in a letter to the editor published in the Lawrence
Daily Journal-World on November 18, 1961: “To believe that capital
punishment is the will of God not only circumvents the major impact of the
New Testament; it also makes us forget our responsibility to a penal system
in which the increasingly obvious need is rehabilitation, not just
punishment.”
147
For another religious objection to the death penalty, consider the
argument of Governor E.W. Hoch, published by The Sun on February 2,
1906:
[H]ow a Christian, one believing in the Bible, in immortality and in the preparedness
necessary in this world for bliss in the next, and of the awful conditions of the lost
throughout eternity, can believe in and consent to a theory that would plunge a human
soul into eternity and into that immortality unprepared is beyond my comprehension.
148
142
Id.
143
Our analysis was conducted on several of the larger newspapers in Kansas during
the 20th Century, including: THE WICHITA DAILY EAGLE, THE HUTCHINSON NEWS, THE
TOPEKA DAILY CAPITAL, THE EMPORIA GAZETTE, KANSAS CITY STAR, THE IOLA REGISTER,
THE SALINA JOURNAL, HAYS DAILY NEWS, LAWRENCE WORLD JOURNAL, GARDEN CITY
TELEGRAM, ARKANSAS CITY DAILY TRAVELER, and THE OTTAWA HERALD. This number was
calculated by averaging the proportions of new abolitionist arguments in each of the decades
between 1900 and 1940.
144
This number was calculated by averaging the proportions of new abolitionist
arguments in each of the decades between 1970 and 2010.
145
These numbers were calculated by average the proportions of old abolitionist
arguments in the each of the decades between 1900 and 1940, and 1970 and 2010, respectively.
146
These numbers were calculated by average the proportions of pragmatic arguments
in the each of the decades between 1900 and 1940, and 1970 and 2010, respectively.
147
Paul Davis, The Odom Case, LAWRENCE JOURNAL-WORLD, Nov. 18, 1961, at 4.
148
Capital Punishment, THE SUN (KS), Feb. 2, 1906, at 4.
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As noted above, pragmatic arguments against the death penalty have
remained relatively constant throughout the past 110 years in Kansas.
149
One
such argument is found in a February 1, 1901 edition of The Kansas Semi-
Capital:
There are a number of states which have abolished capital punishment and every
Governor of these states is on record testifying that the abolishment of the death penalty
has not resulted in an increase of capital crimes. The fact appears to be that the
punishment has little or nothing to do with this prevention of capital crimes, these
crimes being due to uncontrollable passion or depravity that the law cannot suppress.
150
Another example of a pragmatic argument against the death penalty is
found in a 1935 opinion piece published in The Hutchinson News:
If every murder were immediately identified, promptly captured, speedily tried,
invariably convicted and subjected to the sentence at once, the thought of hanging might
be more disturbing to the criminal mind than that of serving a life in prison. Distressing
statistics, however, show that not one murder in 100 in this country actually serves the
maximum sentence that might be imposed for his crime. With 100 to 1 odds against
experiencing it, no punishment however severe is going to seem very alarming to
potential criminals. It is the inevitability of punishment and not the style of it that checks
crime.
151
Perhaps the most famous case in Kansas’s death penalty history was the
1959 Clutter killings that inspired Truman Capote’s book, In Cold Blood.
152
Richard Eugene Hickock and Perry Edward Smith broke into the home of
Herb Clutter searching for money and slaughtered the entire family.
153
An
important figure in this saga was Harrison Smith, the defense lawyer for
Hickcok.
154
Unable to defend his client directly, Smith attacked both the
efficacy and morality of the death penalty, saying it was “a miserable failure”
and that it “makes a murderer of the state.”
155
In Kansas, as in Texas and Connecticut, the third frame of abolitionist
argument, the new abolitionism, assumed greater prominence during the last
149
Pragmatic arguments declined from 28% at the start of the 20th Century to 25% at
the end.
150
Capital Punishment out of Date, KAN. SEMI-WEEKLY CAP., Feb. 1, 1901.
151
Death Penalty, THE HUTCHINSON NEWS, Mar. 9, 1935, at 4.
152
Richard Kreitner, November 15, 1959: The Clutter Family Is Murdered in
Holcomb, Kansas, Later the Subject of Truman Capote’s ‘In Cold Blood,’ THE NATION, NOV.
15, 2015, http://www.thenation.com/article/november-15-1959-the-clutter-family-is-
murdered-in-holcomb-texas-later-the-subject-of-truman-capotes-in-cold-blood/.
153
Clutter Family Murders, ROBINSON LIBRARY (Apr. 14, 2017),
http://www.robinsonlibrary.com/social/pathology/criminology/crimes/clutter.htm.
154
State Presses for Death Penalty for Two in Clutter Murder Case, HAYS DAILY
NEWS, Mar. 29, 1960, at 1.
155
Id.
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778 SARAT [Vol. 107
part of the 20th century.
156
The style of new abolitionist arguments evolved
as well. In the early decades of the 20th century, they were linked to moral
and/or religious sentiments and arguments about deterrence. An example of
this linkage can be found in an excerpt from a letter to the editor in The
Kansas City Star, printed on August 7, 1915: “[m]any a man sentenced to life
imprisonment has later been found innocent and freed. But what of your
innocent man convicted and hanged? Hell will have no better offering for the
murderer than for the executioner, and, in my opinion, the latter should have
the worse punishment.”
157
Another example of this hybrid argument is found in an article from The
Hutchinson News on April 26, 1921:
I think capital punishment is wrong. I do not think it ever keeps a man from committing
a crime. There is too great a chance for human judgment to err, and also too many
mistakes made in administration, to let me think that it is ever absolutely right for the
state to take the life of a citizen. I can understand why an individual kills, or why a mob
executes, because they are frenzied with excitement, but for the people of the State,
calmly and deliberately and without immediate provocation, to take the life of a man or
woman seems to me to be more than a mistake.
158
As new abolitionism became more prominent in the second half of the
century, arguments about systemic failure began to stand on their own.
Consider an excerpt from an April 4, 1960 comment in The Lawrence Daily
Journal-World:
Those actually put to death are most frequently the poor and the friendless. Of the 49
persons executed in the United States last year, 33 were Negroes. Some years ago a
congressional committee reported that “as it is now applied the death penalty is nothing
but an arbitrary discrimination against an occasional victim. It cannot even be said that
it is reserved as a weapon of retributive justice for the most atrocious criminals. For it
is not necessarily the most guilty who suffer it.” This pattern has not changed.
159
As in Texas and Connecticut, some new abolitionist arguments in
Kansas focus on innocence, others on discrimination.
160
In 1990, the murder
of a college student once again reignited the death penalty debate in
Kansas.
161
In this context, abolitionists held firmly to a framing of their
156
32% of arguments made in the decades between 1970 and 2010 were new
abolitionist, as opposed to 13% in the decades between 1900 and 1940.
157
Speaking the Public Mind, KAN. CITY STAR, Aug. 7, 1915.
158
Capital Punishment, HUTCHINSON NEWS, Apr. 26, 1921, at 4.
159
State Should Not Kill, LAWRENCE J.-WORLD, Apr. 4, 1960, at 4.
160
Fifty-one out of 229 arguments made within our sample were about executing the
innocent, while seventy-seven were about disproportionately executing certain groups.
161
Gene Smith, Murders Tell Stories of How System Failed, TOPEKA CAPITAL-
JOURNAL, Nov. 29, 1998, http://cjonline.com/stories/112998/kan_murderstories.shtml#.
V2rBfJMrL-Z.
SARAT ET AL. 10/10/17 5:46 PM
2017] RHETORIC OF ABOLITION 779
arguments that focused on defects in the administration of that state’s death
penalty. An example can be found in an opinion piece in The Salina Journal,
dated May 22, 1990:
For these reasons, the idea that only especially evil criminals are selected for execution
is a joke. The ones who lose are poor, mentally impaired, black – and had lawyers who
did not take the case seriously. The results are so unfair that half of all state death
sentences have been set aside in recent years during the long process of federal habeas
corpus.
162
In 1994, soon after Kansas reinstated capital punishment,
163
abolitionists
continued to criticize the death penalty’s arbitrary administration. For
example:
How many states have executed wealthy whites? There are notorious cases, you see
them on “Hard Copy” and “A Current Affair.” Premeditated murder for hire. They are
convicted, but they are never executed. Justice of the rope and the tree against poor
minorities continues today, and as finite human beings we have not, despite our good
intentions, found a way to keep it from happening. And if this state passes capital
punishment, it will continue as it has in the other 36. We will not, we will not, execute
wealthy whites.
164
Like Texas and Connecticut, the story of efforts to abolish the death
penalty in Kansas has elements of continuity and change. As in those two
states, new abolitionist framing of the case against capital punishment
became more prominent late in the 20th century. However, again it did not
fully displace other arguments. Here, as elsewhere, abolitionist efforts drew
on multiple sources in a shifting but layered array.
165
CONCLUSION
Our study suggests that the rhetorical reframing of the campaign against
capital punishment that has occurred at the national level has had deep
resonance at the state level. Over the course of the 20th century in Texas,
Connecticut, and Kansas, the focus on error and arbitrariness has assumed
greater prominence among abolitionists. In each state, this change began to
take hold in the late 1960s and 1970s and accelerated as the 20th century
drew to its close. But, our findings complicate the pictures presented by
Baumgartner et al. and Sarat since, in each state, older arguments persisted
and continued to occur with greater frequency than the new abolitionism.
162
America’s Rage to Kill Puzzles Our Foreign Friends, SALINA J., May 22, 1990, at
4.
163
Kansas, supra note 139.
164
Death Penalty Takes Big Step Final House OK Is Likely, THE WICHITA DAILY
EAGLE, Feb. 11, 1994, at 1A.
165
Id.
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780 SARAT [Vol. 107
Across the country change is afoot as the death penalty slowly but
steadily retreats.
166
Precisely how much of this change can be attributed to
innovations in the rhetorical strategies of abolitionists we cannot say. But we
can say that since the new abolitionism has come to prominence in places
like Texas, Connecticut, and Kansas, the debate has changed.
Abolitionists now argue against capital punishment because of the risk
of executing the innocent, the discriminatory way in which it is applied, or
the fact of its geographic arbitrariness.
167
Some concede that the death
penalty may, in some cases, be morally justified, or that, if it were used
enough, it might deter. Instead of creating a stark moral divide or suggesting
that support for the death penalty is irrational, abolitionists create common
ground with those who support the death penalty, even as they invite
supporters to see that, in day-to-day practice, capital punishment is
incompatible with widely shared constitutional commitments. Only time will
tell, of course, whether this rhetorical reframing will help lead the way to
capital punishment’s permanent demise.
166
See, e.g., Baxter Oliphant, Support for Death Penalty Lowest in More Than Four
Decades, PEW RES. CTR. (Sept. 29, 2016), http://www.pewresearch.org/fact-
tank/2016/09/29/support-for-death-penalty-lowest-in-more-than-four-decades//.
167
See supra notes 43, 62, 63, 154.
