In Furman v. Georgia (1972) the us Supreme Court said the death penalty was arbitrary and capricious as practised by the states.footnote＊ Four years later in Gregg v. Georgia the Court permitted the resumption of the death penalty if the individual states re-wrote their death penalty legislation to remove earlier objections. Since then, the Supreme Court has increasingly expanded the sanction of death. In Ford v. Wainwright (1986) it agreed it was unconstitutional to execute the insane but it failed to provide the states with criteria of insanity. In Thompson v. Oklahoma (1988) it permitted the execution of sixteen-year-olds. In Penry v. Lynaugh (1989) it permitted the execution of mentally retarded people. As the law of capital punishment expanded, the Court increasingly abandoned reason. Moreover it rendered its decisions in tones ranging from the neurotic hauteur of Chief Justice Rehnquist to the lurid snarl of Justice Scalia. In McCleskey v. Kemp (1987) it announced that racial disparities in American justice are inevitable and that their removal from law would lead to too much justice. In Keeney v. Tamayo-Reyer (1992) in
Political science has been inadequate to the task of explaining this sudden degeneration of legal reason in the midst of a complex revival of capital punishment within the American polity, nor has it approached, much less adequately analysed, the death penalty within the context of the other productions of death, such as plague, famine, work, and war.
At the beginning of 1994, 2,802 people were on death row in America: 44 were women, 1,102 were African-American, 33 were sentenced as juveniles. Since 1976 two hundred and twenty-nine capital sentences have been executed.footnote1 Capital punishment has entered into the private chambers of sovereignty: President Clinton directly owes his election to the execution of a retarded man, Ricky Ray Rector, whose execution provided Clinton with the ‘high noon’ of his campaign, to quote James Carville, his Louisiana election manager. Capital punishment has run through the streets in class war: the Los Angeles insurrection of May 1992 may be seen as a vendetta of class war conducted through the judicial system that began with the beating of Rodney King and was ignited by the resumption of the death penalty in California by the gassing of Richard Alton Harris the week before the riots began, concluding with the electrocution of Roger Keith Coleman in Virginia the week after the riots died. The subsequent trials (the Williams–Denney case) have reiterated the vendetta in a minor key: tick-tack, tick-tack. Clinton’s Crime Bill has provisions for an indefinite number of new Federal death penalty offences—the number ranges from fifty-seven to seventy. The Federal execution chamber, with a death row capacity of one hundred and twenty, is due to open for business by the end of the year at the us Penitentiary in Terre Haute, Indiana.
In the last year two novels were published about the death penalty which escape the dull tick-tack of retribution, written by different African-American men. Albert French’s Billy (New York 1993) is the story of a ten-year-old boy from Mississippi who accidentally stabbed a teenage girl to death. After a near lynching, he was tried, found guilty, and suffered the death penalty (‘Ah donts’ wants ta be electrics’). Some of the themes of the book—it is set in 1937—may be familiar: Southern justice, the brutal sheriff, the terror of the night riders, the impotence of the white liberal.
Ernest J. Gaines is a novelist born on a plantation across the Mississippi river from Angola in Point Coupee. His most recent novel is called A Lesson Before Dying (New York 1994). It tells the story of an African-American condemned man in Louisiana waiting to be executed. His attorney had tried to save him by saying to the white jury, ‘Why, I would just as soon put a hog in the electric chair as this,’ a beastly designation that the despairing condemned man, Jefferson, accepts. Set during an earlier generation when Gruesome Gertie, the name of the electric chair, was trucked around the state to the local court-houses, it proves that the dramaturgy of execution was intended to shame the community and to terrorize children. Led by Miss Emma (‘I don’t want them to kill no hog’) and Tante Lou who goad the local schoolteacher to prison visits, the community suffers through the subsequent drama of waiting by bringing sustenance to Jefferson and by recollecting him to himself. The terror failed. The condemned and the community restore their dignity, the latter by stopping work on the day of electrocution and the former by walking upright himself to the chair. Instead of shame and terror, the electrocution brings about a moment of wordless solidarity.
The novels stress the reactions of the African-American community to the execution of one from its midst. In both cases that reaction is led and guided by the female relatives of those who suffered capital punishment. They show two, apparently opposite, ways of meeting death. The novels raise themes unexplored in law. First, to abolish the death penalty one works with those who refuse to accept it, like Billy. Second, the execution of the penalty may fail in the production of terror and instead it may produce a moment of community integration, albeit in antagonism to the executioners. Gaines and French are wise to the politics of abolition; hence they situate their suggestions in the past, for there is no political science without history. Abolition is led by African-Americans, as is clear by looking at the racial composition of consensual executions. Of the 229 executions since 1976, twenty-nine, or 12 per cent, have been consensual. Only two have been of African-Americans, twenty-four were white.footnote2
Since the resumption of the death penalty in 1984, Louisiana’s Death Row, according to the Loyola Death Penalty Resource Center, has never produced a ‘volunteer’, an inmate who has so despaired of life that he actively tries to hasten the legal and political process that ends in his death. In other words, no hogs. That this is so, is attributed to the spiritual work of a Catholic nun, Sister Helen Prejean (pronounced pray-shawn, which is