Earlier in October, US Attorney General Robert Barr gave the greenlight for the execution of Lisa Montgomery. Though she was convicted of a very serious (capital) crime—she had killed a mother and her in utero child—she had suffered years of violent sexual and physical abuse from her father and, later, her partner, leaving her with suspected brain damage. If her execution goes ahead, she will be the first woman to be executed under the federal death penalty in 67 years. Montgomery joins a list of abhorrent ‘firsts in a while’ over the last four years, under a presidency that not only resumed executions at the federal level, but quickened their pace with alarming results. Earlier this summer, the US put to death its first federal inmate in seventeen years after an 11th-hour petition to the Supreme Court was defeated 5–4. By mid-September, the US had executed its sixth.
So what, then, lies behind the sudden resumption of federal executions? The answer is, of course, the looming election. There is nothing unusual about this practice of employing the death penalty shortly before a government has to face the polls. It is an unfortunate and intrinsic reality of the human sacrifice principle that governments can use executions, the most extreme form of judicial punishment, to demonstrate a commitment to ‘law and order’, what is often referred to as popular punitivism. Popular punitivism, like all forms of social control, exist within the wider, performative, theatre of power in politics. These executions often capture the American public imagination, occurring in the context of saturated, round-the-clock graphic news coverage of criminality, eagerly vilifying the criminal ‘other’.
In the wake of a spring, summer and now autumn of national protest against increasingly militarised neighbourhood policing and statutory protection of abusive police officers, Trump has been quick to present himself as the ‘law and order president’.
This practice of harnessing the death penalty to perpetuate an image of law and order has a long history in America. At the time, liberal-minded commentators were quick to point out that at no point in his presidency did Obama come out against the capital punishment. His tentative lead in some swing states is an important factor in explaining this, from a man whose tenure as a Chicago lawyer and later professor of law might suggest otherwise.
Beyond the Presidency, the bizarre insitution of electing judges within states means that death sentences become part of the judiciary’s apparatus to secure tenure. In 2015 Reuters reported on ‘the election effect’, showing conclusively the disparity between judges on capital decisions. Over 15 years and in 37 states, analysing more than 2100 cases comprising defendants of all backgrounds, elected judges were less than half as likely to grant appeals in death penalty cases or commute sentences to life imprisonment.
Far more brazenly, in January of 1992, Arkansas executed an intellectually disabled black man named Ricky Ray Rector. Rector had slain a man in a bar after an altercation, shot a police officer trying to mediate with him, and then blew out half of his brain in an attempt to end his life there and then. This de facto lobotomy made it almost impossible for Rector to support his defence, something that in itself should have ruled out the penalty of death, even if he had been judged fit to stand trial. Unfortunately for Rector, the trial took place almost a decade before Atkins v Virginia which provided categorical exemption from the death for people with intellectual disabilities. He probably would have been deemed to be insufficiently culpable for a capital conviction and sent to prison for life. This was not to be. The then-governor of Arkansas, Bill Clinton, running a tight campaign against incumbent Bush Sr, intervened and signed the death warrant for Rector. For no other reason did Rector die that January than because Clinton was having a tough time in the polls in Ohio, a swing state with historic cultural leanings toward evangelism, conservaitve social morality, and perhaps in 1992 a disdain for cosmopolitan metropolitan America. By November the polls had flipped, and Clinton secured the electoral college nominations from Ohio, defying the polls at the beginning of the year, and winning the state with a population of 11 million by a margin of 90,000 votes. Rector infamously left his last-meal pecan pie dessert in his cell when he was led away. The guard asking him if he was not going to eat it, he is recorded as having replied that he was ‘saving it for later’. To the Clintonites, the murder of a man so deeply lobotomised was worth the votes.
To most observers in Britain, and indeed those who would broadly identify as ‘liberals’, the opinion poll execution is a particularly grotesque facet of the human sacrifice principle. It embodies our fears of communitarianism—as the death penalty is disproportionately applied to minorities—and our fears of what society might want of us if we are deemed to be the excluded ‘other’. It appeals to the ugliest sides of humanity, but more importantly, to the same exclusionary and isolationist manias that gave us the Salem Witch Trials. Politicians and their officeholders within the state knowingly take the unfounded fear of the ‘other’, mark them for death, and then performatively murder them to demonstrate their noble committment to law and order. And, despite decades of empirical studies that have failed to demonstrate that the death penalty provides an observable deterrence effect over and above what can be achieved by a prison sentence, in America, politicians still publicize their executions as a stark reminder of their powers over the individual lest they step out of line. This is the macabre double effect of executions in democracies.
It has often been commented, by Beccaria, Sydney Steele, and most recently by Pope Francis, that the death penalty is one of the ultimate degradations of human life. The opinion poll execution is even more so. If a society gives up the assurance of the right to life by divesting to the state the power to execute, it is even more shocking when the state selectively uses that power to maintain the trust of the people.
It is an historic reality that as long as executions exist, they will be used for political ends. In autocratic states, this usually takes the form of using executions as a form of social control, as any imprisoned activist in the Saudi Kingdom will tell you. An autocratic state’s monopoly on violence is more visible, and the state dignifies its violence with the language of protection and security. In democracies, this political use of the death penalty relies on a morbid celebration within the populace for the executions of those considered to have irrevocably breached social norms by committing such egregious offences. The end is ultimately the same, even if the means are a little different, and involve due process: the can rely on an execution of a human being to buttress its power. In both cases, the tremendous act of violence involved in executing an individual is used as a tool to either appease the people or to further subjugate them.
But it is crucial to state that this act of violence is part of what creates that appeal. People who support executions and actively vote for their chosen ‘law and order’ candidate are not inherently more predisposed towards violence. In Britain, there may well be a sizable minority who long for a return to executions for murderers, rapists, or child molesters, but they are still a minority. When Wilson’s Labour government abolished the death penalty permanently in 1969, some 60% of the British people supported executions. By 2020, the figure is thought to be well below 40%. Is Britain comparatively without law and order? Are democracies across the world plunged into lawlessness, gripped by popular fears of the state’s inability to handle crime and punishment? No.
What might we take away from this? In answer, the opinion poll execution is a form of state-produced popular demand for extreme violence as a form of social control. The death penalty in democracies brutalizes those individuals who are executed, and it brutalizes the society that demands it. In summa it demeans us all.
Why might it be especially demeaning to all Americans?
As we know, the death penalty is applied unequally. Decades of research from academics and organisations such as Amnesty International, the Death Penalty Information Center and the America Civil Liberties Union shows this beyond dispute. In the context of the opinion poll execution, the abhorrence of an inequitable death penalty is only elevated. Put bluntly: disproportionately, southern states execute Black or Hispanic prisoners, typically from an impoverished background, to win votes from a demographic that is disproportionately white and rather more privileged than those who are incarcerated under sentence of death. Furthermore, those who kill white victims are much more likely than those who kill African Americans to be sentenced to death. If this reality were not appalling enough, I urge you to look at Politico’s latest findings on black voter suppression in southern states, particularly in Georgia and Florida – two prolific executing states.
But this was always known. The death penalty in America is a vestige of a more widespread and more visible apparatus of racist social control. Even the most basic historical accounts—by Zinn, Malwyn-Jones or Michelle Alexander—demonstrate that ‘Jim Crow’ is far more than voter tests and property qualifications, and the death penalty is crucial to its modern incarnation.
The rhetoric of capital sentences in America leaves no room for any doubt. A far cry away from the promised virtues of impartiality, and an unemotional recognotion of society as the victim of crime, judges and politicians frequently justify the continuation of executions with the language of ‘victims families’ and ‘closure’. The opinion poll execution really begins with the morbid gawking of the victim’s family and a handful of journalists, sitting on the right side of a one-way mirror as they sit for some fifteen minutes and watch a living being be strapped into a gurney and poisoned (or gassed, if in Minnesota) until they become ‘unliving’. The opinion poll execution is then continued immediately with a statement from the prison warden, the governor’s office, and the deluge of media reports recounting the dead man’s inhuman sins—all broadcast live into millions of television sets for Americans to consume in their living rooms.
Returning now to Lisa Montgomery. Though she is neither Black nor a man, in her case we are confronted with another iteration of the opinion poll execution. Trump’s open incitements of violence in the last six months are genuinely historic in the contexts of post-segregation presidencies. It is no secret that he will exacerbate an already-divided society to carve out his own communities of voters and assign to them the labels of orderly and civil, and then present himself as the ‘law and order’ President. But amongst these very public issues, this essay draws attention to another one of his great disservices in manipulating ugly social forces; the opinion poll execution. More widely in America, the capital punishment system is slowly diminishing. Gradually, some states are abolishing the death penalty, while others use it with less frequency. Stays of execution and commutations are increasing, partly owing to the excellent, often indigent, defence organisations that expose the weakness of the prosecution case, including often of DNA evidence and the many due process errors in both pre-trial and trial procedings, and partly owing to the humanitarian interventions of by governors in granting clemency.
In this context, six federal executions in one summer is a shocking statistic, and it demonstrates the haste of Trump’s attempts to assert his position as the defender of social order. The 17-year hiatus in federal executions prior to 2020 reflect an ambivalence in the federal US state to put people to death. While states gradually embrace abolition, and federal courts remain in (quite literally years of) battles over the illegality of the lethal injection drug, the federal system was in an awkward position that was best settled, by successive Democrat and Republic presidents, with a position of non-execution of federal death sentences. This summer has clearly reversed this progress at the political heart of the world’s 6th largest executing nation.
Let’s not forget that on election day.