The Death Penalty in American Cinema: Criminality and Retribution in Hollywood Film 9780755694105, 9781780763330

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List of Illustrations

1.1 Advertisement for a book written in 1697, A Modest Enquiry Into

the Nature of Witchcraft, and How Persons Guilty of that Crime may be Convicted: And the means used for their Discovery Discussed, both Negatively and Affirmatively, according to Scripture and Experience, by John Hale. (p. 2) 1.2 The lynching of Leo Frank, 1915. (p. 10) 1.3 Oscar Micheaux, whose films, radical for their time, protested

against American anti-black racism and hypocrisy. (p. 12) 1.4 Popular comedy star Roscoe ‘Fatty’ Arbuckle experienced two

mistrials for manslaughter. It was not until the third trial that a decision was reached and he was acquitted. (p. 21) 1.5 Angels with Dirty Faces (1938). (p. 34) 1.6 Jerry (Pat O’Brien) grows up to become a priest, devoting himself

to reforming the neighbourhood kids in order to secure a better future for them; Rocky (James Cagney) grows up to be a gangster. (p. 35) 1.7 The Postman Always Rings Twice (1946), starring John Garfield

and Lana Turner. (p. 42) 1.8 In Cold Blood (1967). (p. 59) 1.9 Slovik’s execution was a unique incident in US military history.

(p. 62)

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2.1 The electric chair, known as ‘Old Sparky’. (p. 98) 3.1 Renowned lawyer Samuel Leibowitz – a gangsters’ attorney in

more ordinary times – arrived from New York to defend the Scottsboro Boys. (p. 130) 3.2 ‘Smash the Scottsboro Lynch Verdict.’ Caricature by James S.

Allen from a local newspaper in Alabama, protesting the initial verdict of ‘guilty’ which ordered the execution of the Boys. Sold for 1 cent. (p. 131) 3.3 In 1932, the infant son of celebrated American pilot Charles

Lindbergh was kidnapped from his cradle in the spacious Lindbergh home. (p. 134) 3.4 A ‘souvenir’ postcard sold during the 1930s in general stores in

the South showing a lynched African American man. (p. 140) 3.5 To Kill a Mockingbird (1962). Lawyer Atticus Finch (Gregory Peck)

protects a black man accused of raping a white woman. (p. 144) 3.6 John Brown, one of the most important figures in the pre-Civil

War abolitionist movement. (p. 155) 4.1 A police photograph of Barbara Graham. (p. 186) 4.2 Mary, Queen of Scots. (p. 191) 4.3 British nurse Edith Cavell was shot dead by a German firing

squad on 12 October 1915. (p. 199) 4.4 Margaretha Geertruida Zelle MacLeod, better known as Mata

Hari, 1910. (p. 201) 4.5 The execution of Mata Hari, 15 October 1917. (p. 202) 4.6 Mata Hari (1931). Greta Garbo in the lead role elevates Hari to

iconic status. (p. 204)

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Dedicated to the memory of my grandmother, Mrs Ashraf ‘Ashi’ Barochian (1921–2006) A woman who challenged her own destiny

General Editor’s Foreword The death penalty is one of the defining differences between Europe and the United States. Banned in the European Union, the death penalty is still exercised in some, though not all, American states. It was and is a source of considerable controversy. In this wide-ranging, strongly argued and interdisciplinary study, Yvonne Kozlovsky-Golan delivers a pioneering examination of the role of American cinema in the death-penalty discourse. Her study is divided into four chapters. The first is an overview of the popularity of the subject in Hollywood films. Fascinatingly, she reveals a direct correlation between films about the death penalty and the trajectory of its application. Executions peaked in the period 1920–40 (with 167 a year in the 1930s), an era which saw a record number of films dealing with the death penalty. There was a decline in interest in the topic during the brief moratorium on executions in the 1970s, and a resumption of interest when the Supreme Court confirmed the legality of the death penalty. The second chapter traces the historical and legal contexts of the death penalty, with its roots in the tradition of frontier violence and the use of execution by an increasingly centralized system of law and government to control crime and violence. Chapter Three examines the cinematic treatment of various issues related to the death penalty: the problem of jury objectivity and access to adequate legal representation, the treatment of juveniles and the mentally ill, and discrimination against xi

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African Americans. The final chapter looks at the issue of gender and the subject of women on the scaffold from historical victims (Mary of Scotland, Marie Antoinette, Mata Hari) to modern ones (I Want to Live, Dance with a Stranger). As Yvonne Kozlovsky-Golan rightly says, the courtroom drama is a subject that is inherently dramatic and it has provided the framework for a succession of masterpieces that have explored the death penalty from every angle. One has only to think of Twelve Angry Men, Compulsion, Anatomy of a Murder, Paths of Glory and To Kill a Mocking Bird to appreciate that. This powerful and absorbing study does the same. Jeffrey Richards

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Acknowledgements I owe a debt of gratitude to many individuals who offered me their generous assistance in the writing of this book. Publication of the book was made possible thanks to the support of the University of Haifa Research Authority and the Israel Science Foundation (ISF), as well as the generous contribution from Mrs Barbara Sieratzki and her son, Dr Harry (Yehiel) Sieratzki. I am deeply grateful for all their help. I wish to extend special thanks to Philippa Brewster and Anna Coatman, Visual Culture Editors at I.B.Tauris, for their faith in my project and for their continued support during its completion. Above all, I wish to thank my partner, Nir, and my daughters, Tom and Bar, for their endless love and patience.

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Introduction The death penalty, whether in the extralegal form of lynching and massacre by bloodthirsty mobs taking the law into their hands, or in the official form of court rulings, legislation and executive decisions, reflects the great paradox of the American experience: at the heart of the undeniably liberal, pluralistic and diverse American nation gushes a vast fountain of lethal violence. Born of the sins of British colonialism, the capital-punishment system in America is host to contradictions rooted in the most difficult of questions: who may be killed, and under which political, racial or gendered circumstances? Should the courts treat the mentally and intellectually disabled as they do everybody else? How should they treat the temporarily insane? Above what threshold of age and intelligence may one be considered accountable for one’s actions? If all are equal before the law, according to which criteria should legislators and judges distinguish between minors and adults? What should be the minimum age for execution – 12, 15, 18? Should women guilty of serious crimes be executed? (In particular, should they be executed in light of the fact that so many of the homicides committed by women are acts of self-defence against violent partners and spouses?) Is lynching a widespread, commonly accepted form of punishment – or does it mark only certain geographical regions in the United States? Are prosecutors, judges and jurors typically colour-blind – or are they more likely to convict and sentence to death members of racial xv

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minorities? The execution of Troy Davis, an African American, in Georgia on 21 September 2011, despite the lack of compelling evidence; the acquittal of Casey Anthony, a white woman charged with the murder of her own daughter, because, as one of the jurors put it, she was ‘too pretty to stand trial’ – these cases, among many others, raise troubling questions about the death penalty’s equity. Other disturbing claims made by Anthony’s jurors – Juror #2 claimed she was at peace with her decision to acquit because ‘acquittal does not imply her innocence’; Juror #6 declared that for a five-figure sum he would grant interviews about what had happened ‘behind the scenes’ of the jury chamber – cast further doubt on the competence of those entrusted with such an important role. More fundamentally, should a punishment as severe as the death penalty be part of the punitive arsenal of a nation as democratic – and as religious – as the United States? Even a summary consideration of the history of the death penalty in the United States will reveal the unbearable tensions within American society and the cultural, religious and legal rifts that perpetually threaten its cohesion, define and redefine its identity, and at the same time play an integrative role within it. The many diverse facets of the death penalty are also, quite naturally, a prime source for the riveting, thrilling and shocking stories on which fiction films, documentaries and television features and series all thrive.1 It is no surprise, then, that so many film­makers, from the early twentieth century to the present, from Michael Curtiz in 20,000 Years in Sing Sing (1932) and Fritz Lang in Fury (1936) to Frank Darabont in The Green Mile (1999), have chosen to tell stories – real and fictional, critical and approving – involving the lethal penalty. A sense of ambivalence regarding the death penalty and the unequal relationship between death-row convicts and victims permeates audio-visual treatments of the subject. Cinematic reflections on the death penalty have, in turn, helped xvi

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shape real historical developments and public perceptions by bringing into sharper relief the legal, social and cultural tensions associated with capital punishment. The classic example in this regard is Errol Morris’ documentary The Thin Blue Line (1988), which by meticulously researching and re-enacting a real murder case exposed the absurdities and irrationalities permeating the American legal system, eventually leading to the release of a wrongfully convicted death-row prisoner. Morris’ approach can be contrasted with that of his mirror-image twin, Werner Herzog, whose recent Into the Abyss (2011) forgoes the attempt to re-enact reality by limiting its purview to the traces and residues of the crime. Without taking a decisive view of the case, Herzog’s film leaves it to viewers to grapple with open questions about the past and the present and to choose with whom to align themselves – with the convicted murderer on death row, or with the murder victims and their families. These films and others like them thus call for a detailed study of the death penalty’s on-screen representations, which can in turn be instructive of the penalty’s history and of the social and cultural conflicts it has both stirred and reflected over the generations. Numerous films have been made over the years based on acclaimed books, both fictional and historical, and many directors have relied on famed authors for their scripts. Yet such encounters between an original literary world and its tangible cinematic adaptation have not always proved successful. Films on legal themes have proved rather easier to make: trial protocols describing with dry accuracy the court proceedings, witnesses’ testimonies, verdicts and sentences – all of these can fruitfully be mined for film plots and scripts. Stanley Kramer’s Inherit the Wind (1960) is a distinctive example of this process, much of the film’s script having been taken almost word for word from the protocols of the trial on which it is based; only the frame narrative, which serves as mere background for the trial itself, is fictionalized. xvii

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The same applies to films about death row. Every American prison in which executions take place keeps a detailed execution protocol. The setting and the narrative framework are thus given in advance; all the director has to do is draft a legal narrative on the basis of such material – to sketch within the pre-existing framework some particular plot about justice and injustice, crime and punishment, life and death. Another strategy available to filmmakers is to mine the period’s newspapers and journalistic literature for scripts and stories. Perhaps the most notable instance of this approach has been Richard Brooks’ 1967 film In Cold Blood, based on Truman Capote’s famed ‘truecrime’ novel of the same name. In other cases, journalists themselves have become active participants in the stories they have covered, contributing to the interest such stories have held for filmmakers. An instance of this kind of involvement is found in the case of the so-called ‘Scottsboro Boys’, in which nine black boys were falsely charged with the rape of two white girls on a train. The sensational legal event, in which the mobs screaming for the defendants’ blood were callously spurred on by a bloodthirsty press, has been the basis of two notable films, one narrative, one documentary. Another historical instance was the 1932 trial of one Bruno Hauptmann, charged with the abduction and murder of the infant son of the iconic pilot Charles Lindbergh. Films on legal themes, the death penalty included, have naturally reflected the spirit of their times and the historical vicissitudes of their enveloping cultures. At the same time, such films have helped shape the cultural and historical consciousness of their audiences, ever straddling the lines between myth and history. One example of this mutual influence is found in the story of Margaretha Geertruida Zelle MacLeod, better known as Mata Hari, who was executed in France in October 1917 for alleged espionage for the Germans during World War I. Capital-punishment historian xviii

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Mark Grossman strikingly relates the story of her execution: like all those about to be executed in those days, she drank the portion of rum allotted to her. Refusing to cover her face, she smiled in the morning sun. Among the officers and soldiers watching the execution and among the members of the firing squad itself were several of her former lovers.2 Unlike most executed men, however, Mata Hari would go on to become a legend, the subject of numerous films by French, American, Soviet and Italian filmmakers, in which, depending on the individual film’s geographical and historical circumstances, she was variously depicted as an artist, a spy, a temptress or a whore, leaving unsettled the historical question of her true identity. Another cinematic endeavour to bring history to life and to influence the viewers both emotionally and cognitively is found in John Singleton’s 1997 film Rosewood, which depicts a historical event, the 1923 massacre in Rosewood, Florida. The title card at the end of the film describes the events of the massacre as follows: In 1993, 70 years after the massacre, the Florida House of Representatives granted reparations to the Rosewood families. […] The success of the case was due largely to the sworn testimony of several survivors, who were children at the time of the massacre, and to the deposition of one white citizen who testified on behalf of the victims. The official death toll of the Rosewood massacre, according to the state of Florida, is eight: two whites and six blacks. The survivors, a handful of whom are still alive today, place the number anywhere between 40 and 150, nearly all of them African American.

Singleton’s film commemorated the story of the town’s black population, embedding it in public consciousness more firmly than any controversial work of academic historiography could be expected to do. xix

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Two further historical cases have affected Americans’ selfperceptions and worldviews by revealing how their country’s relentless drive towards progress and technological superiority has compelled it to put its own citizens to death for indefensible reasons and in inhumane ways. In May 1889, William Kemmler, a 29-year-old vegetable peddler from Buffalo, New York, was sentenced to death for killing his common-law wife after an alcohol-soaked argument. Unique historical circumstances turned this rather mundane case into a momentous event, as Kemmler’s death sentence occasioned a titanic struggle between two celebrated inventors, Thomas Alva Edison and George Westinghouse, over the use of the just-invented electric chair. In a turn of events almost too fantastic to seem true, Edison, the famed inventor of the light bulb and an opponent of the death penalty, supported using a model of the electric chair utilizing the Westinghouse-developed alternating current. Westinghouse, on his part, was compelled to come to Kemmler’s legal defence in order to thwart the lethal use of his invention. This true story may have been stranger than fiction – but its all-too-real protagonist died a painful death on that emblem of modern progress, the electric chair. Another unusual case was the January 1945 execution of Eddie Slovik, a private in the US Army, for desertion during World War II. After a brief court martial, Slovik was taken to the execution post in six inches of snow, whereupon an officer read the charges and the sentence in the name of ‘the will of the American people’. Four clergymen representing the official religions of the US Army held a joint prayer, after which 12 privates armed with M1 rifles shot Slovik dead. Embarrassed by its hasty and shameful decision, the military kept the affair secret for many years. It was not until 1974 that a television drama about Slovik’s life and death revealed the tragedy to the American public for the very first time. xx

introduction

The present book aims to study the history of filmic representations of the death penalty in the United States. A proper understanding of the issue calls for an interdisciplinary approach combining several fields which may seem disparate but are in fact almost symbiotically connected – namely, the legal, social, religious and other cultural dimensions of the death penalty in America, alongside the history of its cinematic and other audio-visual representations. Chapter 1, ‘Law, Fiction and Death’, first aims to shed light on the attractiveness for filmmakers of legal issues in general and the death penalty in particular. It then goes on to survey the history of legal films from the silent era to the present, discussing central films in the legal genre and situating them within main currents in the history of cinema. Among other subjects, it discusses how Hollywood studios and filmmakers have coped with censorship, both external and internal, from the Motion Picture Production Code (known as the ‘Hays Code’) through McCarthyism to the present, and how American filmmakers’ treatment of legal stories and their protagonists have changed over the years, from the dawn of cinema, through the golden age of legal films in the 1950s, to the rise of television, documentary film and independent cinema from the 1960s to the present. Chapter 2, ‘The Death Penalty in the United States’, is historical in nature, surveying the social, religious and constitutional background to the phenomenon of capital punishment and focusing in particular on the bitter social rifts that gave rise to the death penalty and on the religious and constitutional texts which have shaped the debates about it and given form to its on-screen representations. Chapter 3, ‘A Cinematic Window to Problems Concerning the Death Penalty’, unites the death penalty’s legal history with its cinematic representations, examining several central issues concerning the realities of capital punishment, such as the racial xxi

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biases permeating American legal procedures, the quandaries of the juror-selection process, the courts’ treatment of juveniles and of the mentally challenged, and the inadequate legal representation available to poorer defendants. The chapter offers a critical perspective on the ways filmmakers have chosen to address these fateful legal issues, examining the political, legal and technological processes which have shaped the American practice of capital punishment to date. One of the major conundrums brought on by capital punishment is that of the treatment of women. This is the subject of Chapter 4, ‘Death Becomes Them: Women on the Gallows’. The chapter first focuses on several real female execution victims – from royalty through secret agents to common criminals – analysing their complex treatment in American films. It ends with a discussion of two representative fictional protagonists, both female execution victims, created by filmmakers to address the controversial practice of capital punishment in the United States.

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The fruit of my experience has this bitter aftertaste: that I do not now believe that any one of the hundreds of executions I carried out has in any way acted as a deterrent against future murder. […] I have come to the conclusion that executions solve nothing, and are only an antiquated relic of a primitive desire for revenge which takes the easy way and hands over the responsibility for revenge to other people. Albert Pierrepoint, former UK Chief Executioner

INTRODUCTION: CRIMINALITY AND RETRIBUTION IN HOLLYWOOD FILM The death penalty is perhaps the ultimate legal drama.1 Not only does it channel some of the central aspects of the ‘American experience’ (more on which later), it also gives expression to momentous philosophical questions of life and death. The social and philosophical drama of the death penalty is also a wellspring of fascinating personal stories, which Hollywood cinema has expertly exploited over the years to tell audience-pulling tales of human interest. Legal film genres, in particular the courtroom drama, have appealed to American filmmakers for three main reasons. First, 1

Figure 1.1 Advertisement for a book written in 1697, A Modest Enquiry Into the Nature of Witchcraft, by John Hale.

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the courtroom drama, which takes places within a structured, selfcontained space whose main features have hardly changed over the years, allows filmmakers to present historical parables with a contemporarily relevant moral. An example is Nicholas Hytner’s The Crucible (1996), adapted from Arthur Miller’s 1953 play. The original play recounted the infamous seventeenth-century Salem witch trials, turning the historical episode into a parable for McCarthy’s anti-communist witch-hunt against Hollywood figures in the 1950s. The film, in turn, makes use of the same story to criticize recent Republican presidents Ronald Reagan and George Bush senior and their supporters for their abandonment of the Great Society, advocacy of materialistic individualism and eagerness to sacrifice the underprivileged on the altar of ruthless capitalism, as well as to commend the common citizen’s resilience in the face of government callousness. Second, the realistic dimension of the courtroom drama allows it to raise to public awareness legal and moral issues, making the genre attractive to filmmakers who wish to influence public discourse. The history of Hollywood cinema provides many examples of studio owners and filmmakers involving themselves in social and political issues in order to stir public opinion. Of studios, early 1940s Warner Brothers is the chief example, of individuals, Charlie Chaplin, who, both as an actor–director and as an independent studio owner, found in filmmaking not only a source of joy but also a moral duty: to convey the experience of the common man caught between the hammer of politicians and the anvil of capitalists. The third source of the genre’s appeal is its low cost. A courtroom drama with a good plot can be staged entirely within the confines of the courtroom, with no need for expensive sets, stunts or special effects: the drama is self-generated and self-sustaining. Real courtroom stories and the general structure of the legal process have thus provided an efficient narrative framework for 3

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Hollywood cinema. The influence has been mutual, however: cinematic representations of the legal process have not only reacted to the law but also shaped it, at the very least in the minds of film audiences.2 In other words, cinematic representations of the legal system have greatly influenced perceptions of the law: consider, for example, European viewers’ acquaintance with the American legal system, their sense, born of ubiquitous cinematic and televised representations, that that system is a natural feature of their world, despite their lack of firsthand experience with its real-life workings. Films dealing with criminal justice tend to present two kinds of justice as constantly in tension with one another – one kind encoded in formal law, the other rooted in values which legal procedure and the letter of the law often fail to realize in full. Films have tended to give expression to justice of the second kind, the one the legal system may try to approximate but often fails to attain. Three types of protagonist serve such cinematic attempts to bridge what is and what ought to be.3 The first, the righteous hero, often takes the shape of a lawyer fighting the legal establishment to bring justice to light. An important historical figure here is Clarence Darrow, the so-called ‘Attorney for the Damned’, whose staunch defence of clients in the 1920s made him a model figure both in real life and in decades of film, especially in such courtroom dramas as Richard Fleischer’s Compulsion (1959) and Stanley Kramer’s Inherit the Wind (1960). Our first type of protagonist is also featured in Otto Preminger’s The Court-Martial of Billy Mitchell (1955), starring Gary Cooper and Rod Steiger and based on a true story. Widely regarded as the father of the US Air Force, William (Billy) Mitchell was a US Army general and a decorated World War I hero who, after retiring from regular service, became a staunch advocate of military air power. Known as a person strongly committed to his beliefs, Mitchell spent much of 4

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his service in the military courts, fighting for his right to denounce failures that had cost human lives and attempting to improve the military by forming a new and modern air force.4 Without a powerful air force, he claimed, the United States would be vulnerable to air strikes by hostile powers – for example Japan, who might attack in Pearl Harbor! However, at the time (1925), many found his claims absurd. For his efforts, US President Calvin Coolidge accused Mitchell of disobedience and insubordination, court-martialling him and suspending him from service for five years. The truth of Mitchell’s warnings was revealed in 1941, following the Japanese attack on Pearl Harbor that precipitated the United States’ entry into World War II. To salute and to commemorate the commander who had sacrificed his career for the sake of his pilots, the US Air Force named after him the new B-25 bombers that were sent to fly over Tokyo during the war. Our second type of protagonist, the accused, is usually an indicted defendant struggling to prove his or her innocence – for example the protagonist of Alan J. Pakula’s Presumed Innocent (1990), who is wrongly accused of murdering his female colleague, only to prove his innocence after a flurry of surprising plot twists. To the third category of protagonists belong wise, honest individuals – often judges, parents or members of the clergy – who try to offer the right solution to tough legal conundrums. Protective parental figures of this type appear in Robert Mulligan’s To Kill a Mockingbird (1962), in which lawyer Atticus Finch (portrayed by Gregory Peck) protects a black man accused of raping a white woman from an angry mob; in Fielder Cook’s television feature Judge Horton and the Scottsboro Boys (1976), in which a sensible, committed judge bravely decides to retry a group of black boys amid waves of hatred; and in Tim Robbins’ Dead Man Walking (1995), in which a nun’s faith motivates a convicted murderer to make peace with his execution by lethal injection. 5

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Legal films, not least ones dealing with the death penalty, have enjoyed great popularity since the dawn of cinema. The extreme situations presented in such films, the great tension between victims and perpetrators, the enveloping sense of death, give such filmic representations their special allure. In the early days of cinema, when cinematic narrative was narrower in scope, films dealing with the death penalty tended to focus on the executed convict. As cinematic means of expression became more sophisticated, such films expanded their perspective to include victims as well as perpetrators. The medium’s tendency to focus on the perpetrator’s point of view has nevertheless persisted.5 Even when the victims are presented, the perpetrators’ criminal intensity often makes audiences identify with them rather than with the former. Furthermore, in murder narratives in particular, the victims’ significance tends to be very limited. Once the victims have been killed and therefore, from the audience’s point of view, can no longer be helped, viewers’ compassion shifts to the perpetrators – who themselves become victims (albeit of a different kind) once they, too, are threatened by the horror of death. As criminal killing is replaced with legally sanctioned, state-administered killing, the viewers’ emotions are finally drawn to victims of the latter kind of violence.6 Once films had begun to treat the death penalty from the convict’s perspective, one might have expected the repertoire of viewer emotions to include a thirst for revenge, quenchable by the culprit’s punishment. Yet filmic representations of death-sentence convicts tend to frustrate rather than satisfy such desires. Those sentenced to die are often portrayed sympathetically – at least in their better moments, when they become soberly aware of the severity of their transgressions and behave accordingly. According to Christian Metz, viewers often experience a psychological process of gradually shifting identification – sometimes 6

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identifying with the victim, sometimes with the convict – which helps them disentangle the emotional imbroglio in which they find themselves and allows them to enjoy the film.7 As laypersons in legal matters, viewers may find it difficult to adopt an exacting attitude towards the condemned convict; they may find it easier to rationalize their predicament and view the convict as an ordinary person awaiting death. At the same time, they may feel guilty for ignoring the victim. Since the victim is dead, however, and is therefore absent from the screen, sympathy for him or her is limited. And once viewers have renounced responsibility for the victim’s life, they can do the same with respect to the convict. In the audience’s mind, the convict is merely an actor – a star, more often than not – who will not die with the character. Viewers are thus able to watch the film with a sense of relief and even pleasure. According to Metz’s theory of identification, viewers shift between different objects of identification while watching the film. They tend to identify with the victim at first, but once the victim dies, they begin to identify with the convicted perpetrator, embracing the doubts planted by the filmmaker concerning the latter’s guilt. According to a more comprehensive version of the theory, viewers simply identify with the film itself, with the message encoded in the images flickering before their eyes and eliciting in them unconscious memories. Since the unconscious itself is laden with historical and political content, the cinematic image engages in the political act of galvanizing the unconscious. Cinema, says Laura Mulvey, powerfully stimulates the social patterns already ingrained in us.8 Hence the great allure of representations of the death penalty: they conjure the social, cultural and religious tensions lurking in the unconscious of American viewers, as well as the primal themes of life and death ingrained in the minds of viewers in general.

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SILENT FILM: THE DEATH PENALTY AS A SOCIAL PROBLEM AND AS POPULAR ENTERTAINMENT The silent-film medium was well suited to representing the death penalty. The conventions of the genre were familiar to viewers, and the execution ritual required few explanations, except intertitles describing the convict’s crime. Newspaper reports of real-life trials – especially ones involving capital punishment – were regular fodder for screen adaptations, whose images of unnatural death both terrified and titillated viewers craving a glimpse of that ultimate chamber of terror, the gallows. The enormous public interest helped such films avoid censorship, despite the great detail in which executions were shown. The irreversible death penalty, where errors of judgement can give rise to irredeemable remorse, was a ready source of powerful emotional drama. Denouement could come in various forms: the ‘last-minute rescue’ of an innocent sent to the gallows by malice or mistake, the execution of the true culprit or the belated revelation of the truth only after an innocent had been killed. This main theme was often complemented by ancillary themes from American life – racism, religion, economic struggle, political strife, and the like. Cinematic treatments of the death penalty were thus interwoven with reflections of the major problems of American society. One of the most prolific filmmakers of the silent-film era was Hal Reid, a socially aware producer–director whose films often dealt with poverty, crime and prison life, in particular with wrongful imprisonments and executions. One event that deeply affected Reid was the so-called Leo Frank affair, in which Frank, a Brooklyn-born Jewish man, manager of a pencil factory in Atlanta, Georgia, was charged with the brutal rape and murder of a female employee.9 The girl’s body was discovered in April 1913, during a period of racial tension, and the ‘Yankee Jew’ who ‘came to rape and kill our 8

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daughters’ became the main suspect. Though no real basis for the allegations was presented during the trial, public opinion pushed for conviction, and Frank was sentenced to death. Convinced that the evidence for Frank’s guilt was inconclusive, Georgia Governor John Marshall Slaton soon commuted his punishment to life imprisonment. In August 1915, however, a mob of angry citizens incited by the local Ku Klux Klan forced Frank out of jail and lynched him by hanging. Three months prior to Frank’s lynching the police had identified the real culprit – Jim Conley, a black janitor at the pencil factory, who confessed to the crime and even recreated the crime scene. The prosecution, however, was not willing to admit its error. The prosecutor in Frank’s case, Hugh Dorsey, claimed during the Conley trial that Conley was merely Frank’s accomplice; Frank, he claimed, was the true culprit.10 Two witnesses provided by Frank’s lawyers testified that Conley had confessed to them (though thinking he was merely bragging they failed to report him immediately), but in the absence of further evidence Conley was acquitted. He spent the next few years wandering throughout Georgia, burgling and pimping. By 1919, he was indicted 31 times. Though his pact with Frank’s prosecutors initially helped him gain light sentences or avoid punishment altogether, he spent much of the 1920s and 1930s behind bars for burglary and armed robbery. Conley was last seen in October 1941, drunk and destitute. His whereabouts thereafter remain unknown: he is assumed to be buried in one of the local towns.11 Not until 11 March 1986 did the state of Georgia decide to exonerate Frank, declaring Conley the culprit.12 The Leo Frank affair stirred outrage in the United States, exposing the country’s double standards. The Ku Klux Klan was enjoying great popularity at the time, bolstered considerably by D.W. Griffith’s The Birth of a Nation of 1915 (originally titled The Clansman). Based on a novel by the infamous racist preacher Thomas Dixon, the film 9

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aggrandized the Klan, presenting it as an organization capable of restoring order. Now, however, for the first time in the twentieth century, the Klan lynched, openly and with widespread public support, a white man (albeit a Jew).13 The controversy roused by Frank’s brutal murder owed much, no doubt, not only to his religion but also to the ‘outrageous’ fact of his whiteness. No less than two Hal Reid films released in 1915 expressed vehement opposition to the death penalty: Thou Shalt Not Kill, made in

Figure 1.2 The lynching of Leo Frank, 1915. 10

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1913 but released two years later, and Leo M. Frank (Showing Life in Jail) and Governor Slaton, filmed during the original event. The 1913 drama was deliberately shocking, its harsh elements designed to provoke opposition to the death penalty. The opening scene shows a mother defending herself and her son from an abusive husband, threatening to kill him if he beats her again. After the husband dies in a hunting accident, the boy, remembering his mother’s words, innocently repeats them to the investigators. The mother is convicted of murder and sentenced to death. She is pregnant, however, and to avoid killing the unborn child the court decides to defer the execution until after the delivery – during which time the truth fortunately comes to light and the mother is saved. Reid’s other film, Leo M. Frank, provoked torrents of responses from supporters and opponents alike, though many were from those doubting Frank’s guilt. Portraying as it did the lynching of a white Southern prison inmate by other white men, the film was promptly censored for ‘offending the public’ (as was another 1915 film about the Frank affair, Jewish director George Roland’s The Frank Case). The censorship case reached the US Supreme Court, which claimed that since the legal matters presented in the film were outside its purview, it could not decide whether censorship was warranted in this case. Since, however, film was deemed at the time a branch of commerce rather than an art form, the Court decided that the picture was subject to the duty not to offend the public’s sensibilities. It thus legitimized the censoring of the film. Films dealing with Frank’s racist killing were ‘spontaneously’ censored in most states – itself a racist decision which would not have been made had the victim been black. The double standards which had led Frank’s judges to sentence him to die despite the many doubts about his guilt probably also guided the censors, whose wish was to silence representations of the legal system as racist and of the ‘decent’ Southern public as vile. 11

Figure 1.3 Oscar Micheaux, whose films, radical for their time, protested against American anti-black racism and hypocrisy.

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Not yielding to pressure, Reid continued to make uncompromising films on the subject. A film he directed in 1917 addressed the Frank affair once again, though this time allegorically, through the story of a Kentucky judge’s son who is charged with the murder of a deputy sheriff and executed, only to have the real murderer confess soon after the execution.14 In 1920 Reid embarked on a one-off collaboration with black filmmaker Oscar Micheaux, whose films, radical for their time, protested against American anti-black racism and hypocrisy. In film, Micheaux had found a medium capable of vividly rendering human anxiety in the face of violence and murder, and thus a suitable medium for his own anti-racist message. Micheaux’s and Reid’s joint film, Within Our Gates, tells the story of a black Southern prison inmate lynched by white racists. The Frank tragedy was certainly an inspiration for the film’s fictional narrative. The lynching was presented in such grisly detail that Paramount founder Adolph Zukor would later call it in his memoir the most gruesome film he had ever seen.15 Since both the victim and the filmmaker were black, however, censors found no reason to suppress the film’s horrifying segments, save its mention of the lynch mob’s whiteness. The following year, Micheaux wrote and directed yet another film based on the Frank affair, The Gunsaulus Mystery, which supported Conley’s testimony against Frank.16 (The black Conley, recall, had testified against Frank, only to emerge as the true culprit after Frank’s death.) Based on the trial protocol’s account of the events (Micheaux claimed to have been present at the trial, though no evidence supports this claim), the plot conveniently omits the doubtraising evidence that had persuaded Governor Slaton to commute Frank’s sentence. Micheaux’s version soon won the support of black journalists and of members of Atlanta’s black community, who were exasperated with the disparity between the outrages sparked by the lynching of a white man and the indifference towards the 13

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murder of scores of black people.17 In their eyes, as in Micheaux’s, the white Frank was guilty; blaming the black Conley after Frank’s death was the real outrage. Lynching continued to haunt Micheaux for years to come. The third part of his lynching trilogy, 1935’s Murder in Harlem (better known as Lem Hawkins’ Confession), was again based on the Leo Frank affair, this time revealing the full extent of the director’s bitterness. The film’s white antagonist is an evil, domineering employer who sexually harasses his female workers while blaming these actions on his black subordinates. Interestingly, Micheaux avoided portraying the character as Jewish, possibly to avoid conflict with the Jewish heads of the American film industry, but perhaps also in order not to offend his own Jewish collaborators, such as director of photography Franklin Schiffman and regular producer Alfred Sack. Since, moreover, audiences were no longer familiar with the 20-year-old story, noting the character’s Jewish identity could divert attention from what truly interested Micheaux – a black man falsely charged with rape and murder and executed without a fair trial. Having identified the film’s historical basis, the Georgia State Council at Atlanta used its commercial licensing powers to order the director to censor any segments based on the Leo Frank affair, which happened to constitute most of the film: Micheaux had no choice but to cut the film by half.18 He could at least find comfort in the Council’s consistency: ten years earlier, it had banned another of his films, Body and Soul (1925), for its portrayal of a rapacious black preacher exploiting and raping a female member of his flock. Not one to give up, however, Micheaux continued to screen uncensored versions of his films at black-only churches and events. Micheaux’s unrelenting 20-year-long efforts to vindicate Conley and to condemn Frank make one wonder about his motives. The 1910s were a dark time for black people in America. Among the decade’s many horrific events, to mention just one example, was the 14

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1916 murder of Jesse Washington, a mentally challenged black youth tortured to death by burning and dismemberment for the pleasure of white onlookers, for no reason but his skin colour. Postcards with a newspaper photo of Washington’s charred body were sold and displayed over the fireplace of many white households.19 And Washington was not the only victim of his kind: numerous black people were brutalized by run-of-the-mill white racists, many of whom were not members of any racist organization. None of these events, however, and none of the other horrific manifestations of anti-black racism in the following decade – from the Jim Crow implementation of everyday racial inequality to the 1925 Rosewood massacre – were mentioned in Micheaux’s films. The widely known fact of Conley’s guilt (not to mention his other crimes) further casts doubt on Micheaux’s motivations. Was he wilfully blind to the facts? Had the circumstances of Frank’s trial and its aftermath affected him so dramatically that he came to see in Conley a representative of America’s persecuted black population? Did he find in the Frank and Conley affair a unique opportunity to urge a discussion of racism through the mass medium of film? Clear answers elude us. Were Micheaux’s actions motivated by some background of Jewish animosity towards black Americans? Not necessarily. Black–Jewish relationships have had their vicissitudes, but during much of the twentieth century American Jews were on the front lines of the struggle against anti-black discrimination and racism. American Jews became enthusiastic and active members of the civil-rights movement early in the century, and traditionally supported the Democratic Party, which represented minorities as well as the poor. Black–Jewish cooperation peaked in 1955–68, the years of Martin Luther King’s charismatic leadership of the black community. Some of King’s erstwhile ideological allies, including Malcolm X and other leaders of the African American Nation of Islam, opposed such cooperation, however. Founded in 1930 by Wallace Muhammad 15

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and his disciple Elijah Muhammad, the Nation of Islam began as a religious movement focusing on the education of black children. Over the years, however, it became a religious–political movement aiming to fight the oppression of black people. It targeted white people, but especially Jews, whom it blamed for involvement in the slave trade and for ‘sucking the blood’ of America’s black population via their positions as bankers and financiers. Black–Jewish relationships reached their nadir in 1978 as Louis Farrakhan became leader of the Nation of Islam, bringing a new intensity to such anti-Jewish accusations. There is no evidence linking Micheaux to the Nation of Islam in the 1930s, neither as member nor as co-religionist. It is more likely that in his efforts to condemn the actions of white Americans, Micheaux simply found it more convenient to attack the Jewish minority than to take on the Protestant majority. Perhaps he thought that doing so might help appease censorship boards and other state agencies, which were likely to harbour little sympathy for Jews in general and for the Jewish-dominated film industry in particular. As the above examples demonstrate, films about capital punishment and lynching presented viewers not only with rousing dramas but also with a Rashomon-like array of perspectives and a panoply of social and cultural issues far exceeding narrow legal concerns. One such film was James Kirkwood’s The Gangsters of New York (1914), which, by portraying a felon’s sister dying of heart failure as her brother is led to the electric chair, highlighted the effects of capital punishment on convicts’ families. (The film is noteworthy if only for its unusual promotional tactics: a mock electric chair was placed at theatre entrances, with prison-garbed actors urging passers-by to enter and watch the film.) Another film dealing with the sacrifice of innocent lives is Walter Edwards’ The City of Darkness (1914),20 in which a judge, a supporter of capital punishment and the issuer of several death sentences, finds himself in the implausible position 16

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of adjudicating at his own brother’s trial, finding him guilty and sentencing him to die. After finding, however, that his brother was falsely accused to avenge the killing of a convict that he himself had previously sentenced to die, our judge tries to prevent the execution. Time is pressing, however, and he cannot rescind the sentence: his only choice is to shut down the entire city’s electricity supply in order to put the electric chair out of action. The darkening of an entire city to save one life thus symbolizes society’s responsibility for the individual and the price it must pay for securing justice for all. The race to save the life of an innocent convict would become a regular feature in films dealing with the death penalty. Griffith used it in his 1914 film The Mother and the Law, which he later integrated into his 1916 epic Intolerance. To atone for the devastating influence of The Birth of a Nation – the hit film, which President Woodrow Wilson commended for ‘writing history with lightning’, incited white violence across the South and helped revitalize the Ku Klux Klan21 – the guilt-ridden Griffith decided to make a film about human intolerance through the ages, a work opposed both to racism and to capital punishment. The result, Intolerance, consists of four episodes alternating in short segments of a few minutes each. Three are historical, while the fourth, the linchpin of the film as a whole, is set in the present. This episode is based on the true story of Charles Stielow, a young man sentenced to die who obstinately claimed to be innocent. He was almost executed four times, narrowly avoiding the electric chair as his successive appeals were accepted in various courts. Stielow’s story ended well: the real culprit confessed, and Stielow’s name was cleared. For Griffith, Stielow’s story embodied Intolerance’s main theme – the pernicious effects of human intolerance and its lethal impact on innocent lives. To prepare for filming, Griffith hired the chief warden of San Quentin Prison to advise him as an execution expert. He also toured the infamous facility, studying in detail every step of its hanging 17

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procedure. Since the film was based on a true story, Griffith worried that viewers might find it hard to identify with the real-life protagonist, a gangster and a repeat offender. To win their sympathy, Griffith used paraphrases from the Leo Frank trial. Griffith initially titled the film The Mother and the Law, after his earlier feature, but eventually settled on the new title Intolerance. Parts of the earlier film, in which a mother is shown rocking her son’s cradle, were inserted as segues between the historical scenes: the mother, serving as narrator, was now telling her son about the tragic toll taken by human intolerance through the ages. To make the film even more germane to contemporary social life and to spur public discussion, Griffith called prison, both in interviews and in the film’s intertitles, ‘the house of intolerance’, claiming that the incarcerated protagonist ‘was intolerated away for a term’. Though later recognized as a milestone in film history, Intolerance initially met with critical disapproval. Contemporary critics attacked Griffith’s chosen film genre – a legal suspense drama with a happy ending (the convict’s life is saved) in which justice is meted out retroactively (thanks to the real culprit’s confession) – damning it as ‘almost a melodrama’. Nevertheless, as film historian Richard Schickel reminds us, Griffith’s recognition of the immense visual and cinematic power of legal procedures and execution rituals involved a remarkable degree of insight: the ritual details are so lively and vivid that we feel certain we were really there, experiencing the event for ourselves.22 Also released in 1916 was Lois Weber’s The People vs. John Doe, which a contemporary review called ‘the most effective propaganda film ever made against the death penalty’.23 The main target of the film’s harsh criticism was the use of circumstantial evidence: in the film, an innocent defendant pleads guilty as a result of the strong, yet false circumstantial evidence against him. The film’s pseudodocumentary style was designed to persuade Pennsylvania legislators to abolish the death penalty and reform legal procedures in the state. 18

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Not all films from the 1910s dealing with the death penalty adopted this critical stance. Some invoked instead the ancient biblical principle that ‘each person shall be put to death only for his own crime’ (Deuteronomy 24:16) – a principle which, in its novel cinematic form, supposedly catered to American moral sensibilities. Such was The Girl and the Crisis (1917), written and directed by William Mong, in which a state governor deliberates whether to execute his predecessor’s murderer. He eventually decides against the execution, knowing that this may cost him the governorship. He commutes the death sentence to lifetime imprisonment, but this fails to quench the voters’ thirst for revenge. Mong himself, it seems, was well aware that the decision not to execute would disappoint not only the fictional voters within the film but also the real viewers in the theatre – that not only the governor, but he himself, as filmmaker, was expected to ‘do the right thing’. His narrative solution, then, is to exempt himself as well as the governor from the role of judge: the convict’s life is taken not by the authorities but by a stroke, as if by divine intervention. Though no human agent is responsible for his death, the viewers’ punitive desires are satisfied.24 Among the contemporary critics of the death penalty was screenwriter and short-story author Mabel Heikes, the daughter of an eminent judge. In one of the films made from her scripts, Colin Campbell’s Who Shall Take My Life? (1917),25 an innocent man convicted of the murder of a prostitute on the basis of circumstantial evidence is sentenced to die. As his dead body is carried out of the execution chamber, the warden learns that the supposed murder victim is alive and well and still working as a prostitute. The film was screened to members of the budding civil-rights movement (which benefitted much from its impact), in private homes and at social events. Among the many who attended the screenings were journalists from the New York Dramatic Mirror,26 as well as ‘Attorney for the Damned’ Clarence Darrow, who would go on to defend 19

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murderers Nathan Freudenthal Leopold and Richard Albert Loeb, saving them from capital punishment in favour of life imprisonment. As these and other works show, the silent films of the 1910s dealt regularly with the social ills of American life and tried to bring them to public awareness. It appears, however, that the viewing public, still puzzled by the new medium, was not quite ready to separate legal reality from fiction, as the following peculiar case will show. In September 1921, popular comedy star Roscoe ‘Fatty’ Arbuckle celebrated Labor Day in a San Francisco hotel with a wild gang of guests. Among them were 26-year-old starlet Virginia Rappe and her friend Maude Delmont, who, inebriated to the point of unconsciousness, stayed overnight in Arbuckle’s hotel suite. A doctor was called in after Rappe complained of intermittent pain and fever, and she stayed at the hotel for two more days – after which Arbuckle found her dead body in the bathroom next to her room. Arbuckle was charged with manslaughter. The key witness, Delmont, testified that the heavyset comedian raped Rappe, suffocating her under his weight. The morning papers quickly published the allegations, and news of the affair spread far and wide. Already on the night of Rappe’s death, however, District Attorney Matthew Brady declared the allegations false. The coroner in charge of the investigation reported no signs of violence or sexual intercourse, while the physician who had attended to Rappe before her death attested to her wild past, which included five abortions, various sexually transmitted diseases, drug use and a penchant for public drunkenness and stripping. Pregnant at the time of her death, Rappe had asked him to find her a doctor who would help her to ‘get rid of this thing’. Another piece of evidence was a telegram from Delmont to two friends laying out her plan to blackmail Arbuckle.27 By this point, however, the media fanfare and the public’s fascination with the fallen Hollywood star had caused the affair to spiral 20

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Figure 1.4 Popular comedy star Roscoe ‘Fatty’ Arbuckle experienced two mistrials for manslaughter. It was not until the third trial that a decision was reached and he was acquitted.

out of control. Brady decided to charge Arbuckle with manslaughter without calling Delmont to testify even once, while the media continued to incite the moralistic American public. Various religious groups, women’s organizations and community leaders had for some 21

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time charged that Hollywood was the Devil’s stronghold, that its prominent figures were ravaging the souls of innocent Americans. To them, Arbuckle was manna from heaven, conclusive proof of the truth of their accusations. Mayors throughout the country as well as the governors of Pennsylvania, Kansas and Missouri banned all screenings of Arbuckle’s films. Christian groups, both Protestant and Catholic, and other moralistic organizations in Chicago, Boston, Texas and New York soon followed suit. The damage to Hollywood studios was in the vicinity of $100 million. As Arbuckle’s trial began, studio heads Samuel Goldwyn, Lewis Selznick and Adolph Zukor invited former Postmaster General William Hays to serve as film censor ‘on behalf of the public’ for an annual salary of $100,000. In a special caption announcing the well-publicized appointment and presented before each film screening, Hays pledged to protect America’s moral decency.28 From the studios’ own perspective, however, Hays’ role was largely pre-emptive: to censor the films already in the initial stages of production, in order to persuade individual state censor boards not to ban the films outright and to reduce the financial impact of the boards’ cuts and edits. By all expectations, Arbuckle was facing a death sentence. After 44 hours of deliberations, however, the jury was unable to reach a decision. One juror, Helen Hubbard, declared she was so certain of Arbuckle’s guilt she did not intend to consider any of the evidence presented in court. Though married to a businessman who had provided services to District Attorney Brady’s office, she was not disqualified as a juror. In the absence of a unanimous decision, as required when the prosecution requests the death penalty, the judge had no choice but to declare a hung jury and to announce a new trial. The events of the second trial replicated, however, those of the first: the jurors again disagreed, with nine voting to convict, three to acquit. It was not until the third trial that a decision was reached and Arbuckle was acquitted.29 The damage he incurred 22

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was immense, however. Having lost both his family and his career, he was reduced to working under aliases as a Las Vegas club manager. In June 1933, just as the film industry was readying itself to offer him a second chance, he died of a stroke at the age of 41. Hollywood’s studios were hit hard as well, having to appease the religiously incited public with the self-imposed Hays Code (which would remain in effect until the late 1960s). The American public, incapable of telling fact from fiction, was after Arbuckle’s blood as well as Hollywood’s. The character of the American public and its leaders, as emerging from their responses to the Arbuckle trial, was described rather well by the unnamed police judge involved in the investigation: I do not find any evidence that Mr Arbuckle either committed or attempted to commit rape. The court has been presented with the merest outline. […] But we are not trying Roscoe Arbuckle alone; we are not trying the screen celebrity who has given joy and pleasure to the entire world; we are actually […] trying ourselves. We are trying our present-day morals, our present-day social conditions, and our present-day looseness of thought and lack of social balance. The issue here is really and truly larger than the guilt or innocence of this poor, unfortunate man; the issue is universal and grows out of conditions which are a matter of comment and notoriety and apprehension to every true lover and protector of our American institutions.30

CENSORSHIP AND MANIPULATION: THE DIFFICULT YEARS The era of the Hollywood sound film was ushered in by Al Jolson’s performance in The Jazz Singer, directed by Alan Crosland in 1927. The addition of sound changed cinema beyond recognition, 23

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providing filmmakers with a new and powerful means of expression, while giving those weary of the glamorous medium’s sweeping power yet another reason for concern. Sound films, or ‘talkies’, drew massive audiences to movie theatres in the late 1920s. For some, this only stressed the need for greater oversight of their contents, primarily in the form of censorship.31 Scripts, some thought, needed to be supervised closely: lewd innuendo, provocative wordplay, anti-religious sentiment, and so on, were thought to justify censorship. The ‘talkies’ enraged religious leaders who claimed to be concerned with the well-being of children. One of these, the influential Jesuit priest Daniel Lord, wrote: ‘Silent smut had been bad; vocal smut cries to the censors for vengeance.’ Catholic leaders decided to act. In the 1920s Catholics constituted majorities in Boston, New York and Chicago; their leaders, who considered themselves the last cultural line of defence within a chaotic, undisciplined society, could thus claim to speak in the name of the urban majority. A key figure in the Catholic campaign to subject the film industry to stringent moral norms was Cardinal George W. Mundelein of Chicago, who recruited both Daniel Lord and Martin Quigley, the Catholic publisher of a motion-picture journal, asking them to formulate a ‘code’ of on-screen moral rectitude. The Code, on which Hollywood’s Motion Picture Production Code would later be based, was written with the input of other Catholic leaders, including Joseph Breen, a 40-year-old public-relations man from Philadelphia. ‘If these standards are applied,’ Quigley pronounced, ‘it will stop the sewage at its source.’ Based on the principle that motion pictures should not ‘lower’ filmgoers’ moral standards, the Code imposed clear-cut restrictions on on-screen language and behaviour, especially in relation to film audiences’ two favourite subjects, sex and crime. The aforementioned William Hays, who in 1922 had become the first president of the Motion Picture Producers and Distributors of 24

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America, was chosen to represent the film industry to politicians and other public figures who wished to restrain the perceived moral laxity of motion pictures. In 1929, as Quigley and Lord were presenting Hays with their newly written Code, the Wall Street stock market crashed. The economic repercussions soon reached Hollywood, forcing studios to hawk their assets in order to keep producing films. To survive, Hollywood urgently needed firmer financial backing. One solution came from a rather unexpected source: the Production Code, Hays suggested, could bolster Hollywood’s finances by helping studios avoid the costly rewrites demanded by censorship boards and, of course, by helping them avoid censorship itself. Hollywood’s film moguls agreed. Hays himself addressed the filmviewing public in newsreels, assuring audiences that the Code presented filmmakers with ‘stringent standards’ based on ‘good taste’ and on communal values of respect for all religions and peoples. It was not until 1934, however, that the film industry officially adopted the Code. As early as 1931 the aforementioned Joseph Breen, now a Hays employee, was sent to Hollywood to win support for the Code. He soon realized how difficult the task would be: Hollywood’s financial backers were not eager to cooperate. Writing to a friend, Breen denounced them as a ‘rotten bunch of villains’ caring for nothing but financial gain. Hays, he said, lacked ‘guts’ and was above all ‘a politician, a compromiser’. The studios and Hays himself were satisfied as long as the films were not criticized on moral grounds. But Breen wanted more: he wished the films to disseminate a moral message, Catholic in spirit. In the early 1930s Breen still lacked the power to impose the Code in full, especially since violent films were huge box-office successes at the time. By 1932, however, in a time of worsening economic conditions, the studios were eager to produce Code-approved films that could meet the needs of different types of viewers and would have the additional advantage of being cheap to produce. Films of that sort 25

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were to comply with religiously informed moral and family values while providing enjoyment, entertainment and even social criticism. Films dealing with legal themes met these criteria perfectly. Interestingly, in that period of burgeoning censorship efforts, representations of executions, whether in the legal form of capital punishment or in the extralegal one of lynching, were not deemed problematic. Whether explicitly or implicitly presented, they were not subjected to the same stringent restrictions imposed on representations of gangsterism and crime. In fact, between 1920 and 1940 filmgoers were exposed to an unprecedented number of films dealing with the death penalty. Films depicting executions were deemed to reflect America’s extant social and cultural values. Unlike sexual activity and profanity, which both Catholic and evangelical codes of chastity and purity denounced harshly, executions were considered a time-honoured aspect of America’s legal and social culture. At the height of Hollywood censorship, on-screen representations of the death penalty were thus considered legitimate and squarely within the cultural consensus. An early film contending with censorship restrictions (which had yet to reach their 1933 apex) was State’s Attorney (1931), directed by George Archainbaud (today mostly known as a director of Westerns) and produced by RKO Studios. Everything the censors targeted was emblematized in this film by the lead character of Tom Cardigan – a wild, sinning outlaw and a former crime-gang member who decides to mend his ways and becomes a refined, cultivated, ambitious attorney. Cardigan was portrayed by John Barrymore, a multifaceted actor capable of nimbly transitioning from the character of the criminal to that of the future state attorney. This Janus-faced performance characterized not only the actor, however, but also the script, juggling as it did the legitimate and the prohibited – for example via euphemisms which viewers could interpret behind the censors’ backs. 26

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In the film, Cardigan acquires a reputation as a brilliant and successful prosecutor and is touted as a future state attorney. One of the film’s most interesting scenes shows him cross-examining a female defendant charged with murdering her husband and facing the death penalty: Cardigan wins a conviction, of course, and the woman is executed.32 A little later in the film, an old client, the owner of an illegal gambling club, asks Cardigan to defend one of the girls ‘renting an apartment’ from him who has been arrested for ‘knocking on a window’. The sanitized language barely conceals a grimmer reality: the ‘renter’ is of course a prostitute renting a room and sharing her profits with the owner, while ‘window-knocking’ is a euphemism for the solicitation of clients. ‘Go figure,’ says the club owner, ‘a girl arrested for knocking on a window, my window.’ ‘One of your windows?’ Cardigan smirks, feigning ignorance. ‘It is not the woman that worries me,’ the club owner replies. ‘She’s a dime a dozen. But if word gets out, what will happen to all my other apartments?’ It should be clear to the viewers that the subject of this laid-back, seemingly respectable conversation is nothing less than large-scale activity within the illegal sex industry. Cardigan defends the woman, then takes her in and lives in sin with her. To get such obvious promiscuity past the censors, the sinning girl is presented ambiguously: the ‘window-knocker’ may simply be a poor girl taken in by Cardigan as a gesture of Christian compassion and pity. After some time Cardigan closes his private practice and joins the state attorney’s office to become a public prosecutor. Aspiring to the position of state attorney, he dates the boss’ daughter in order to win his favours. Cardigan’s past begins to haunt him, however, when a gangster he plans to prosecute threatens to uncover his delinquent past if the prosecution goes ahead. Cardigan is about to give up, but his girlfriend implores him to be true to himself. In a surprising move close to the end of the film Cardigan confesses his past to the judge and the jury, making himself ineligible for the 27

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position he so coveted. As he emerges from the courtroom, his girl waits for him with an admiring gaze. From the censors’ perspective, the film’s message to viewers is that the virtuous prosper. ‘But do they?’ viewers may ask themselves as they see the happy – but unmarried – couple leave. Like other movies from the same period, State’s Attorney tries to have its cake and eat it – to deliver to audiences an alluring plot sprinkled with crime, sex and death, while at the same time boasting a moralistic veneer of respectability suitable for the whole family. Two other screen versions, both titled Criminal Lawyer (the first directed in 1937 by Christy Cabanne, the second in 1951 by Seymour Friedman), were based on this ambivalent story of an attorney with a checkered past. Another attempt to wink at audiences behind the censors’ backs is found in W.S. Van Dyke’s Manhattan Melodrama (1934), the story of two foster brothers, a lawyer and a gangster, whose diverging paths lead them to direct confrontation. Having lost their respective parents in a steamboat accident, the two, Jim Wade (William Powell) and Edward ‘Blackie’ Gallagher (Clark Gable), are adopted by a childless survivor of the same tragedy. (Blackie’s family was Catholic, Jim’s Protestant, while the adopting father is Jewish.) As they grow up, Jim becomes a successful attorney who aspires to the New York governorship, while Blackie, a hedonistic and compulsive gambler, joins the criminal underworld. Blackie nevertheless remains deeply loyal to his brother, and upon finding, as the elections approach, that competing politicians plan to blackmail Jim on his account, he decides to intervene. Things go awry, however, and he kills one of the blackmailers without noticing that there are witnesses. Jim himself turns out to be the district attorney in charge of the case. At first he finds insufficient evidence to send Blackie to the electric chair; but after new evidence surfaces the court finds Blackie guilty. Jim, who has meanwhile become the state’s governor, now finds 28

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himself in the unenviable position of having to decide whether or not to pardon his brother. His wife, who had been Blackie’s girl in their youth, pleads with him to spare Blackie’s life, telling him it was for his sake that Blackie killed. Jim goes to prison to tell his brother he had decided to pardon him, but Blackie refuses: he is determined to pay the price. After a fiery speech in which he convinces his brother of the justice of the American legal system, he goes to his death with his eyes wide open. The following day, Jim announces his resignation as governor and makes public his brother’s act of self-sacrifice. On the face of it, justice has been served and the desirable result has been achieved, precisely as required by the censors. But here, again, the film seems to talk out of both sides of its mouth, ridiculing the moralism it appears to support. Jim is presented as an insipid person, self-righteously clinging to the letter of the law and discomfiting the viewers. Moreover, when Blackie insists that he must be killed his words are uttered defiantly, as if he were trying to test his brother and see how far his commitment to the law would take him. The ‘enlightened’ brother’s actions seem patently unjust: other options could have been considered besides the death penalty, such as life imprisonment. The viewers’ natural sense of justice must find the outcome revolting; we are led to identify with the wayward brother who, after all, did what he did in order to help his sibling. Such sentiments, however, were not allowed explicit expression at the time the film was made. To circumvent censorship restrictions, filmmakers had to resort to subtler means. The film’s real view seems to be represented, then, by Jim’s wife: as she leaves Jim after the latter has sentenced his brother to death, she claims: ‘This is not the Jim I knew.’ Such nuances must have been missed by the film’s censors, who saw in the ending nothing but the consummation of justice. (Worth noting here is another film by director Van Dyke, Marie Antoinette [1938], which again ridicules 29

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capital punishment carried out in the name of social justice and ideological devotion.33) Yet another film on our subject is John Ford’s Young Mr Lincoln (1939), an emblematic work in that subgenre of legal films whose protagonists are heroic lawyers – in this case, attorney and future US president Abraham Lincoln. Ford’s film portrays the law and its representatives, attorneys and judges, as respectable pillars of American society, and Henry Fonda in the role of the young Lincoln as an awe-inspiring, all-American figure. (Fonda’s Lincoln anticipates Gregory Peck’s starring role in Robert Mulligan’s To Kill a Mockingbird as Atticus Finch, the legendary justice-seeking lawyer who, in a famous scene, physically shelters his client from a lynch mob.) In director Fritz Lang’s films we find a different perspective on the legal-film genre. A German of Jewish origin, Lang escaped his country soon after the Nazis’ rise to power, leaving behind him years of fruitful filmmaking, the products of which had already become the stuff of legend. Though he was warmly welcomed in the US film industry by his fellow German and German–Jewish émigrés, Lang’s American films never soared to the glorious heights of his earlier German work. His encounter with the land of freedom and opportunity was difficult. His awkward English, strict working methods and uncompromising meticulousness in the filming of each shot and each scene all led to conflicts with studio heads adamant about producing films quickly. The bitterness born of these frustrating experiences is no doubt reflected in Lang’s films of the period, not least in his first Hollywood film, Fury (1936), whose treatment of the relations between truth, justice and manipulation fly in the face of contemporary Hollywood conventions.34 The film features Spencer Tracy in the role of Joe Wilson, a man wrongly charged with abduction and murder (and thus punishable by death according to US law). In the film’s most harrowing scene, an angry mob tries 30

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to lynch him in his jail cell and, when this fails, burns down the jailhouse. Wilson’s frightened face and flame-engulfed body can be seen through his cell window as both his terrified fiancée and the ecstatic crowd look on. The fire disfigures his body, but he survives, unbeknownst to anyone, and escapes under cover of the dark. From that moment on, Wilson’s primary goal, which he pursues obsessively, is to bring to trial those responsible for his injury and to have them charged with murder – his own. Meticulously planning his moves, he manages to find a newsreel documenting the attempted lynching and makes sure that it is shown in court. The cinematic device Lang uses at this point – a film (the newsreel) within a film, whereby a representation of the fictive past is shown simultaneously to the filmgoers outside the film and to the characters within it – was highly innovative at the time. The innovation was not only artistic but legal: showing a film as a piece of courtroom evidence was not a conventional legal practice at the time (though it would later be used extensively by the prosecution at Nuremberg, where films of the liberated Nazi camps often replaced the firsthand testimonies of soldiers and survivors).35 Thanks to the newsreel shown in court, 12 members of the lynch mob are convicted of murder and sentenced to die. Finding life without his fiancée intolerable, however, Wilson publicly reveals his true identity soon after the sentencing, which leads of course to an annulment of the death sentence. The fact that by revealing his identity he let the lynch mob members off the hook gives Wilson no rest. He is deeply embittered by what he sees as the legal system’s failure to mete out justice to the perpetrators. He is thus triply wronged: first by his initial wrongful indictment, second by his near lynching and third by his failure to bring the culprits to justice. Fury’s most distressing scene is no doubt the one in which the frantic mob storms the jailhouse in a frenzy of self-righteousness. Film scholar Lotte Eisner has stressed the parallels between the lynch 31

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mob huddled around the jailhouse demanding the prisoner’s blood and the Nazi terror that had forced Lang to leave his country.36 Self-righteous moralism finds expression in two other 1930s trial films, both characterized by religious–puritanical overtones. The first of these, Wesley Ruggles’ Are These Our Children? (1931), tells the story of a bright boy living with his grandmother after his father disappeared (a typical occurrence during the Great Depression) and his mother died. Consequently, the burden of providing for his grandmother and brothers rests entirely on the boy’s slim shoulders. He is shown at first as an upright kid and an outstanding student who looks forward to a future as a lawyer. But in the absence of a sufficiently supportive family and a father figure to guide him, he soon lapses and becomes the leader of a small-time gang. One wild night, without much premeditation, the gang robs an acquaintance of the boy’s grandmother, a tobacco-store owner, and ends up murdering him when the robbery goes awry. The gang is caught, yet our arrogant protagonist remains unshaken: trusting his intellectual powers and his knowledge of the law, he decides to defend himself and his friends in court (knowing full well that incompetent defence might cost him his life). His chosen strategy is to plead not guilty and invent an alibi for the entire gang. His self-confidence in the courtroom is astounding and victory seems inevitable. What causes his downfall, however, is a sin not mentioned in the law: envy. Competition over a girl induces one gang member to testify against him, and the jury finds him guilty. His grandmother implores the court to spare his life – her grandson, she pleads, had to grow up on his own, raising his own younger brother; if he did not ‘grow up straight’, that is only because he had no roots. But her pleas ultimately fail as the boy is sentenced to die by hanging. Against a background of newspaper headlines we then see a gallery of representative authority figures commenting on the affair. A preacher fervently decries the ‘dark 32

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tragedy’ that has befallen ‘this brilliant mind’, admonishing that the young boy is ‘a product of our culture’; a police officer’s booming voice intones: ‘There are many more like him!’ The boy’s fate is thus sealed – sentenced by the courts in the name of the state, by the media in the name of the public, by the preacher in the name of religion and morals, by the police officer in the name of social order. On the eve of the execution, in what is the film’s emotional climax, the boy’s grandmother, younger brother and girlfriend pay him a farewell visit. The boy gives his brother a symbolic farewell present – ten cents borrowed from a prison guard – urging him to save for his studies. But even more important are the words they exchange, in what looks and sounds like a Catholic confession, the two boys opposite each other on either side of the narrow prison bars. Repenting his crime and justifying the punishment, the boy beseeches his brother to draw from what he had done the obvious conclusion, namely that crime doesn’t pay. The final scene ends with a hymn to God, which the boy reads on his knees. The light from outside – the light of providence – which has heretofore shone on him, disappears, and he is left alone. To the common viewer, the film’s moral should be clear: the wicked suffer, and all crime is punished. A different tenet of moralism, the view that human nature is evil and corrupt, is highlighted in Michael Curtiz’s Angels with Dirty Faces (1938). Critical scrutiny of the film, particularly its ending, reveals, however, a formal structure which subverts the film’s censorshipappeasing contents. The story is that of a rivalry between two boyhood friends, former members of the same gang of street kids. One, Jerry (portrayed by Pat O’Brien), grows up to become a priest, devoting himself to reforming the neighbourhood kids in order to secure a better future for them. The other, Rocky (portrayed by James Cagney), grows up to be a gangster, the neighbourhood menace, 33

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Figure 1.5 Angels with Dirty Faces (1938).

with nothing but contempt for what he sees as his former friend’s sanctimoniousness. The struggle between the two eventually flows into the halls of justice, the courtroom serving here as a supreme parent of sorts, a representative of primeval justice, whose role in the film, as supposedly in reality, is to educate and to reprimand the young. Rocky is charged with murder, convicted and sentenced to die. His refusal to apologize or repent during the trial makes him a neighbourhood hero: the local kids admire his courage and especially his open mockery of the justice system. Jerry’s attempts to show them the evil of Rocky’s ways (and to engage them in sports and other age-appropriate activities) ultimately fail: it seems nothing can stop them from adoring the anti-establishment delinquent. In his despair Jerry turns to Rocky himself, begging him to stop stirring the youngsters’ admiration lest they, too, end up on death row, only to be met with Rocky’s scornful response. On the eve of Rocky’s execution the two meet again, the priest gazing at Rocky with a silent, pleading look. Rocky acts tough, spitting at the prison guards as they lead him to the electric chair. At this 34

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point, however, viewers may well begin to suspect that Rocky is not all that he pretends to be. The execution scene is staged implicitly: all we see is a darkened room, with two rows of seats for the witnesses and a curtain, behind which – as we know but cannot see – is the electric chair. As Rocky and the guards cross the room towards the curtain, we see Rocky’s silhouette, whole and confident. Seconds later, however, it changes its shape: we now see Rocky’s hands clutching at the wall and hear him yelling he does not want to die. He is dragged to the electric chair and killed, though the viewers do not see the act itself: only the sound of electricity implies the execution. The gap between what is seen and what is imagined, created by this use of picture and sound, makes us wonder: did Rocky really die

Figure 1.6 Jerry (Pat O’Brien) grows up to become a priest, devoting himself to reforming the neighbourhood kids in order to secure a better future for them; Rocky (James Cagney) grows up to be a gangster. 35

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as a coward? As far as the censors were concerned, Rocky was supposed to die a cowardly death in order to set a thoroughly negative example and instil the film’s audience with dread. What the scene implies, however, is that Rocky only feigns this ultimate moment of cowardice in response to his former friend’s pleas. The priest seems to acknowledge this with a subtle smile, though, admittedly, his understanding of Rocky’s actions remains open to interpretation: does his lifelong acquaintance with the gangster make him believe that the latter only feigned cowardice for the sake of the children? Or did he guess in advance that Rocky would be revealed as a coward in the moment of truth, an expectation that now turns out to have been true? At any rate, as Jerry returns to the neighbourhood he sees his little ‘angels’ sitting, lost and confused, huddled around a newspaper. The headline screams out ‘Coward!’ and the children are beside themselves. The priest walks over and tries to console them. A moment later he proposes a game of basketball, an offer they gladly accept. One genre treated more laxly by censors at the time was comedy, which afforded filmmakers the partial freedom to ridicule America’s moral and social codes without censure. Courtroom comedies were no exception. Two such films from the 1930s, Lowell Sherman’s Ladies of the Jury (1932) and Ben Holmes’ We’re on the Jury (1937), portray the action occurring within the confines of the courtroom as arid, petty and dogmatic; courts, they imply, ignore the common man and tend to find the guilty only where it is convenient to look. Equipped with the genre’s wit and elegance, both films address the jury problem, in particular the way juries tend to reach their decisions. Ignorant of proper legal procedures, the film’s jurors become detectives in order to find the truth and discover the true culprit. Heading their ‘investigation’ is an irksomely tedious female juror – a thoroughly unrealistic character, of course, since in those days women were ineligible for jury duty. It is precisely the character’s 36

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utterly fictional nature, however, that allows her to serve the script as well as she does: that it is this implausibly eccentric woman, rather than either the prosecution or the defence, who delivers truth to the court only serves to underscore the film’s scepticism about the alleged wisdom of the official legal system. Released around the same time was Christy Cabanne’s We Who Are About to Die (1937), whose very title (based on the Roman gladiators’ pre-combat declaration, ‘We who are about to die salute you, Caesar!’) expresses its subversive message. Common people, the film alleges, are in danger of being victimized by that modern-day emperor, the legal establishment, in its eagerness to quench the public’s thirst for blood. The film is based on the true story of a young man accidentally caught in the vicinity of a robbery and murder scene. The police consider him the main suspect and he is brought to court, where an angry mob incited by bloodthirsty newspaper headlines almost tears him to pieces. As the local elections for governor and district attorney draw near, the public and the local establishment press for conviction, and the man is sentenced to death. After 13 months on death row, however, he is saved from execution at the very last moment – first by his fellow death-row inmates who, certain of his innocence, stage a riot in order to delay the execution, and then by his girl, whose relentless efforts (aided by a private detective) finally lead to acquittal. The focus of Cabanne’s film, like that of Fury, is a public incited by the unholy combination of crooked politicians and the scandalhungry media. The public is portrayed as a reckless mob, eager to dispense with proper legal procedures in order to deprive suspects of any opportunity to prove their innocence. In the public’s eyes, as well in the media’s, having been caught is proof enough of one’s guilt. If anyone in the film is decent and sane, it is the protagonist’s fellow death-row inmates, who, despite occupying the lower rungs of society, are able to tell right from wrong and willing to risk what 37

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little remains of their lives in order to defend justice and fairness. This reversal of roles expresses the filmmaker’s revulsion at the politicization of the law and its exploitation by opportunists seeking private gain. Unlike Fury, however, We Who Are About to Die offers viewers a happy ending in the form of the protagonist’s last-minute rescue from the gallows. Two years later, with the onset of World War II, Hollywood – like Americans in general – opted for the cautious, ambivalent escapism typical of such turbulent eras. Ushering in 1940, for example, was the bright optimism of His Girl Friday, by one of Hollywood’s premier directors, Howard Hawks. Based on a comedic 1929 play by Ben Hecht and Charles MacArthur called The Front Page, the film deals not only with the gender tensions and romantic shenanigans typical of the screwball comedies of the 1930s and 1940s, but also – more pertinently for us – with the media’s impact on public opinion and court decisions. The film’s topic – the death penalty – is weighty, but the plot is comic in nature, focusing on a couple’s droll relationship. The two are a newspaper editor addicted to his work and his ex-wife, a successful senior reporter in the same newspaper. She wants to remarry and live a simpler life as a housewife and a mother, but the editor has other plans for her: he thwarts her attempted second marriage, wins her heart again and sends her to cover the scheduled hanging of a murderer. Though the alleged murderer has confessed, the combative reporter incessantly expresses her vehement opposition to the death penalty. While interviewing the convict she instructs him to plead temporary insanity (which could be the result of economic hardship). She then saves his life by helping him escape. She returns to the office bursting with adrenalin, only to find another exciting reporting job waiting for her instead of the honeymoon she was expecting to go on. Hawks’ comical treatment of the death penalty 38

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was deft enough to avoid censorship. But his breezy optimism quickly faded as the United States joined the war in 1941. From this point on, darkness descended on Hollywood films. The Gothic darkness of the era’s films offers a different cinematic perspective on American society. William Wellman’s The Ox-Bow Incident (1943), starring Henry Fonda, describes the lynching by vigilante ranchers of three innocent victims wrongly suspected of murder and cattle rustling. The story unfolds as follows: the rumour that a rancher has been murdered and his cattle stolen reaches the ears of his fellow ranchers. Furious and fearful, they arrange a posse to catch the offenders and avenge their friend. At a campsite in the nearby woods they find three individuals surrounded by a large herd of cattle. Though the three explain that the livestock were legally purchased, the ranchers are certain of their guilt. Then and there, without even a semblance of legal procedure, they hang the three side by side. Upon returning home, however, they discover the rumour of their friend’s death to have been false and realize they had killed the strangers for no good reason. The Ox-Bow Incident alludes to a much earlier German film, Robert Wiene’s The Cabinet of Dr Caligari (1920), which, in what now can be seen as a fictional portent of the historical evils to come, has its titular character leading a throng of disciples to a maelstrom of murder and crime in a remote small town. Wiene’s aim had been to show how easily a governmental void can be filled by a regime of rumour, murder and internal terror by respectable members of the community. Wellman’s later film was a box-office failure: the reflection it showed was one Americans preferred not to see. It disappeared quickly from the screens, Fonda nearly paying with his career for having appeared in the role of a heartless villain. In Double Indemnity, directed by Billy Wilder in 1944 and starring Barbara Stanwyck, two adulterous lovers plot to kill the woman’s affluent husband and inherit his fortune. The plot thickens when 39

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the victim’s insurance investigator starts digging for the truth. On the face of it, Wilder’s picture is not a legal film at all; it does deal, however, with the American impetus towards law and justice. The insurance investigator (portrayed by the excellent character actor Edward G. Robinson) takes on the role of both judge and jury: though the male perpetrator turns out to be his own assistant, he impartially brings the two killers to justice, whereupon they are sentenced to die. The final year of World War II saw the release of yet another tremendously bleak film, Scarlet Street (1945), directed by Hollywood’s arch-pessimist Fritz Lang. The newly discovered horrors of the war in Europe turned Lang’s film into an elegy for the death of the human spirit, for the way in which social decay can thrust even the most decent man to crime and evil. Implicit in its story of a respectable man sinking to the depths of immorality is Lang’s harsh criticism of his native Germany’s fall from respectable civility to inconceivable barbarity. Edward G. Robinson, again in the lead role, portrays Christopher Cross, a man whose miserable marriage stands in stark contrast to his successful career. One day he meets a young woman, Kitty, who soon becomes his lover. He embezzles some of the money he manages at work and rents an apartment in which he can finally satisfy his two passions – painting and enjoying the company of his new girl. Exploiting his talents, Kitty sells his paintings under her own name as if she were the artist; he lets her do this, since at home his hobby has always been met with nothing but derision and scorn. His paintings fetch good prices, earning Kitty a small fortune; yet she cheats on him with her old lover, a reckless young hoodlum named Johnny. When Cross discovers the affair she mocks him. In his distress he murders her, later managing to put the blame on Johnny. After a brief trial Johnny is sentenced to die. Riding the train on the eve of Johnny’s execution, Cross meets three journalists on their way to Sing Sing Prison to cover the event. They recognize 40

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and greet him, and the four strike up a conversation. ‘He got a fair trial,’ says Cross, but some of the others are not so certain. ‘What do you mean?’ Cross bursts out. ‘I suppose you fellows are going to say it was a miscarriage of justice?!’ ‘No,’ says one of the journalists, ‘nobody gets away with murder’; pointing to his own heart he goes on to say: ‘I figure we have a little courtroom right in here: judge, jury and executioner.’ This inner courtroom, he clarifies, is far worse than any real courtroom could ever be. Soon after, Cross’ conscience begins to torment him irredeemably. He leaves his home and wanders the streets carrying the cross of his guilt. He confesses his crime to anyone who might be willing to listen, but instead of being punished, as he wishes to be, he is only treated with pity. Kitty was murdered, Johnny died on the gallows – but Cross has died a spiritual death. As he staggers from street to street, homeless and destitute, he poses to us the question: which is the genuine death penalty – that meted out to the body, or that inflicted on the soul? The question of loyalty, to oneself and to others, is addressed in The Postman Always Rings Twice (1946), based on the novel by James M. Cain, starring John Garfield and Lana Turner and directed by Tay Garnett, whose other films include Seven Sinners (1940), starring Marlene Dietrich as a dangerous temptress, and Bataan (1943), a war film glorifying the virile bravery and the sacrificing spirit of American soldiers in the Philippines. In the world of The Postman Always Rings Twice, however, men are weary and gullible, women perilous and ensnaring. Lana Turner’s character bears a striking visual resemblance to that of ‘Rosie the Riveter’, the female wartime icon whose dark-blue work shirt, Stars and Stripes headscarf and powerfully out-thrust forearm (all under the slogan ‘We Can Do It!’) were ubiquitous in posters and other media in the United States during World War II. Rosie’s real-world counterparts were recruited to work in factories, replacing the enlisted men. As these newly independent women discovered, their household 41

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Figure 1.7 The Postman Always Rings Twice (1946), starring John Garfield and Lana Turner.

responsibilities did not preclude work outside the home. After the war ended and the men came back, however, such women were required to return to their old domestic environments, back to the children and the kitchen. The radical shift from independence to 42

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dependency, the swift return to the familiar social order, created considerable gender tensions, only to be exacerbated by the ‘baby boom’ that soon followed. With her platinum blonde hair and fashionable headscarf, Lana Turner’s turn in The Postman Always Rings Twice shows her at her most beautiful. She portrays Cora Smith, a postwar independent woman who betrays her overbearing husband in favour of a tough but gentle young man. The latter soon finds himself trapped in a whirlpool of crime and passion – not quite the fate appropriate for America’s returning war heroes. The story is told from his point of view as he confesses his crimes to a priest. The young and beautiful Cora Smith is married to a middle-aged man and works at the family diner. A young drifter who stops at the diner and ends up working there falls in love with her. In the midst of their passionate affair against the wild California landscape, the two plot to murder the woman’s husband. They eventually kill him, staging his death as a drunk-driving accident. Though the police suspect the two, only Cora is indicted, the prosecution citing the considerable inheritance and insurance sums as her motive. Cora is acquitted, however, thanks to a brilliant manoeuvre by her lawyer. The prosecutor promises to keep an eye on the two lovers. They return to the diner, but their relationship soon cools off. Cora wants to leave the diner but wavers and decides to give Frank one more chance to change her mind. Driving back from a romantic ocean swim they kiss and promise to turn a new life; it is precisely then, however, that Frank loses control of the car. Cora dies immediately and Frank is charged with murder, inheritance cited again as the motive. The police soon find a note written by Cora in which she announces her plan to leave Frank and recounts their terrible deed. His guilt now clear, Frank is sentenced to die in the San Quentin gas chamber with no chance of pardon. In his final confession to the priest he sums up the workings of fate: 43

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It’s like you’re expecting a letter […] and you hang around the front door for fear you might not hear [the postman] ring. You never realize that he always rings twice. Well, he rang twice for Cora, and now he’s ringing twice for me […] Cora paid for [her husband’s] life with hers. And now I’m going to. Father, would you send up a prayer for me and Cora?

The film-noir cycle of the 1940s did not pass Charlie Chaplin by, finding its fullest expression in the director’s 1947 black comedy Monsieur Verdoux (the idea for which was given to Chaplin by Orson Welles, who initially offered to direct as well). The film’s titular protagonist can barely make ends meet in post-World War I France. To support his family he takes up residence in various towns, marrying and then murdering 14 affluent women in order to inherit their wealth. Finally caught, he claims stoically in his trial that his many marriages were nothing but business transactions – and amateur ones at that, when compared to the vast fortunes made by arms manufacturers and other wartime profiteers. ‘One murder makes a villain,’ he claims, ‘millions, a hero.’ Verdoux is convicted and sentenced to be guillotined. Monsieur Verdoux was not Chaplin’s first work to protest against the way in which both war and modern mechanization marginalize the common man: the same message had been expressed in such films as Shoulder Arms (1918), Modern Times (1936) and The Great Dictator (1940). At the time of Monsieur Verdoux’s release, Chaplin was mired in US Senate investigations regarding his alleged involvement and membership in communist organizations. A pungent manifesto against the hypocrisy of bellicose Western society, the film was coolly received and soon disappeared from movie screens. Its sophistication cost Chaplin dearly: it was his first commercial and critical failure. Another film pondering our humanity and commitment to one another is Alfred Hitchcock’s Rope (1948), the story of two civilized 44

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individuals wilfully committing a heinous crime. The film is a noir telling of the Leopold and Loeb affair, a real-life case in which two well-to-do youths murdered a 14-year-old boy to prove themselves as ‘supermen’ capable of the perfect crime. (Other versions of this story have followed, including, most recently, Barbet Schroeder’s Murder by Numbers [2002].) Hitchcock’s version is dark and bleak, as if announcing the death of America’s values. Leopold and Loeb’s real-life attorney, the renowned Clarence Darrow, is not represented in Hitchcock’s film. Rope does include, however, the character of a revered and influential teacher (portrayed by James Stewart), an intellectual who considers himself responsible for the boys’ fates, only to discover that they have distorted his principles and committed murder. The boys’ punishment is not shown or described but only implied by the editing of the film’s final scene – a fade into black signifying the end. Ending the decade on a slightly more optimistic note was George Cukor’s Adam’s Rib (1949), starring Hollywood’s beloved on-screen duo, Spencer Tracy and Katharine Hepburn, as a married lawyer couple. (Though Tracy and Hepburn were not married to each other in real life, their very close romantic and professional relationship lasted many years.) The two lawyers find themselves on opposite sides of a domestic-violence court case, with Hepburn defending a woman accused of murdering her husband and Tracy representing the prosecution. Their verbal courtroom scuffles are not only comic marvels (in spite of the threat of death hanging over the defendant’s head) but also a mirror reflecting the values and realities of post-World War II American society. As men began returning home from the war, America’s new-found openness to women’s participation in the workforce was quickly declining. Like other women of the period, Hepburn’s female lawyer must thus fight to defend her precarious standing in a hitherto male-dominated field. The courtroom tussling staged by Cukor was clearly meant to inform 45

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viewers that America’s double standards concerning married women were still in effect. The film’s ending is a harbinger of American women’s fate in the following decade: though impressively adroit on her own, the female attorney is at a loss as soon as her husband enters the picture. He is well aware of her weaknesses and exploits them to win the case. As comical as their verbal skirmishes may be, they always end in male victory. For the male attorney, his female rival is first and foremost a spouse and a homemaker. Despite her initial opposition, she eventually yields to his wishes, as a woman made of Adam’s rib supposedly should. A distinctive legal-film genre gradually emerged, then, during the 1940s. Cynical and highly stylized, the films made during this period have been dubbed ‘law noir’ (after film noir) by legal-film scholar Norman Rosenberg.

THE GOLDEN AGE OF LEGAL CINEMA Two types of protagonist dominated the trial films of the 1950s: lawyers and defendants. Most of the trial films made during this period presented these courtroom figures as cultural icons engaged in a battle between good and evil. With so many of the films now based on real stories, the implicit acidic criticism of the 1940s was no longer needed. Often couched in mythic terms such as ‘patricide’ or ‘the perfect murder’, crime in these films was often presented as the arena for cataclysmic confrontations between right and wrong – one in which perseverance and devotion to the all-American values of truth and justice eventually enabled the truth to shine forth in the courtroom. To derive meaningful social statements from the legal content, the era’s filmmakers developed new cinematic means of expression: close-ups on the face of a nervous witness, dramatic outbursts in the 46

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courtroom punctuated by the poundings of the judge’s hammer, and so forth. Whereas the darker, noir-like legal films of the 1940s were mostly filmed on studio soundstages and tended to be more lavishly produced, the American films of the 1950s seem to have absorbed the influence of Italian realism: shots became more natural; extravagant clothes were no longer needed in the courtroom as they had been in the 1930s and 1940s; actors began speaking directly to the camera – and, in effect, to the viewers – as space for movement became more constrained; camera work became more restrained, ‘decent’, ‘respectable’, almost like the reality it wished to portray.37 Yet the reality in question was not at all simple. In 1950, during President Harry Truman’s Democratic administration, a Republican senator from Wisconsin named Joseph McCarthy erupted into the centre of media attention when he claimed to have the names of 205 US government employees with communist ties. Though McCarthy never made the list public (and whether one existed is still unknown), a special Senate committee was set up to investigate the individuals allegedly on it. Garnering many followers and sympathizers, McCarthy presented himself as an ordinary Midwesterner waging a battle against a cabal of unpatriotic, bleeding-heart communist intellectuals eager to divulge national secrets to the Soviet enemy. With ‘atom spies’ Ethel and Julius Rosenberg on trial that year, and with the Iron Curtain firmly in place in postwar Europe, McCarthy felt no need to disclose his full list: Americans, he figured, could easily be persuaded of the need to circle the wagons. Exploiting the American public’s rampant anti-communist anxiety, McCarthy proceeded to summon individuals for Senate interrogations.38 Those interrogated belonged to America’s intellectual and artistic elites: journalists, university professors (some of them Nobel Prize winners), artists and entertainers, including Hollywood personalities. The latter were accused not only of communism, but 47

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also of disseminating their views via their cinematic work. Those subjected to the committee’s interrogations suffered great humiliation. Some, like Charlie Chaplin, were forced to leave the United States. Others were fired from their Hollywood jobs or could only work pseudonymously.39 The McCarthy witch-hunt caused much damage to America’s reputation from without and to its social ambience and cohesiveness from within. Bound by the shackles of censorship since the early 1930s, Hollywood was now driven to sheer self-destruction by the requirement to cast out its suspected members – screenwriters, actors, musicians, and the like. The genuine threat to Hollywood lasted well after McCarthy’s death in 1957 – at the very least until 1960 – and its effects were easily discernible in the era’s films. McCarthy’s persecutions made 1955 one of the most difficult years in the history of American cinema. America’s humiliating treatment of its own film artists provoked the confrontational ire of director Otto Preminger, who chose to use an event from the past to comment on the tribulations of the present. His 1955 The Court-Martial of Billy Mitchell focuses on one man’s battle against an entire system mired in self-righteousness. Rod Steiger’s performance as the vicious, arrogant, physically intimidating military prosecutor in the Mitchell trial must have reminded viewers of McCarthy himself. In his rude courtroom attacks, Steiger’s character tries to portray Mitchell as a publicity-hungry egotist. Mitchell, by contrast, talks about the common good: the United States must plan its military future, he insists – and that future lies in aerial defence, in powerful planes that can carry heavy bombs and drop them with accuracy. The court decides against him, however, and its decision wins the imprimatur of President Coolidge. It is no coincidence that Preminger chose to make reference to Coolidge, a president known for his weakness and dearth of accomplishment. President Eisenhower – the man in the Oval Office at the time the film was 48

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made, and himself a World War II hero – gave the anti-Hollywood witch-hunt his silent approval via his decision not to intervene in McCarthy’s activity. It was not until McCarthy extended his persecutions to the administration and the military, searching for covert communists among the ranks of prominent state officials and even members of the president’s own entourage, that the military authorities decided not to cooperate. Instead of sending witnesses to the Senate committee hearings, the military sent its head legal counsel, turning McCarthy from questioner to the subject of questioning. McCarthy himself was soon left by the wayside, but with many film artists fired and out of work throughout the following decade, his suffocating hand marks were to remain on Hollywood’s neck for years to come.40 Taking place in the killing fields of France during World War I, Stanley Kubrick’s Paths of Glory (1957) shares with Preminger’s film both a military setting and a historical focus. Paths of Glory tells the story of a French regiment charged with the impossible task of taking a German-held hill. The soldiers’ predictable failure is seen as a sign of cowardice by the French general overseeing the attack, who orders the French artillery to barrage his own men in order to spur them on. When this ‘friendly fire’ only exacerbates the mission’s failure, the regiment’s commanding officer, Colonel Dax (Kirk Douglas), begins to investigate the matter. Meanwhile, the furious general announces his plan to execute 100 of the regiment’s soldiers as punishment for their alleged cowardice. In an attempt to protect the men, Dax agrees to compromise on the execution of ‘only’ three men. The three are selected by the regimental sergeant, who happens to have personal issues with several of them. Dax himself serves as the defence attorney in the court martial. As the trial proceeds, Dax finally learns about the general’s clearly illegal order to bombard his own men. He takes this astounding piece of news – which clears his soldiers of any 49

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blemish of cowardice – to a higher-ranking general. The latter refuses to punish the offending general, however, insisting that an officer must sometimes shed his own soldiers’ blood in order to teach them self-sacrifice. Following a quick court martial, the three soldiers are executed by a firing squad drawn from their own regiment. After the execution, the higher-ranking general invites both Dax and the offending general to a fine meal in an extravagant chateau, far from the dirt and filth of the trenches. Raising a glass of fine wine, he exclaims: ‘I have never seen an affair of this sort handled any better.’ The offending general concurs, saying: ‘The men died wonderfully!’ Paths of Glory was to become a central film in the antiwar discourse of the post-Korean and pre-Vietnam War era. The story of three innocent soldiers punished through no fault of their own served to demonstrate the difference between the lot of common men and that of society’s decision makers. The story of the price paid by the soldiers and their commanding officer, the saint in hell who tries to save them in vain, has come to be regarded as a cinematic masterpiece. The same year’s 12 Angry Men (1957), directed by Sidney Lumet, focuses on the claustrophobic jury chamber in which 12 jurors are gathered to decide the fate of a youth accused of patricide (a crime punishable by death). The jurors are supposed to represent the American population as a whole: descendants of longtime immigrants, WASPs, a recent immigrant, minorities, members of various social classes, and so on. Lumet’s main target, however, seems to be the American criminal-trial system, especially the jury system, which the film criticizes for the unconscionable ease with which it allows a group of individuals to sentence a fellow human being to life or death. The jurors are presented as rash and careless: one wants to reach a unanimous decision quickly in order to get to a basketball game on time; another is willing to sentence the defendant to death 50

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because he is a foreign immigrant and thus, in the juror’s mind, clearly guilty. As the plot thickens, however, we are made to convert from near certainty of the defendant’s guilt to genuine doubt, all thanks to the efforts of one obstinate and sceptical juror, portrayed by Henry Fonda. (Fonda’s character is a direct descendant of his earlier career-defining role as the titular protagonist of John Ford’s Young Mr Lincoln.) Presenting the jury – and the film audience – with some unsettling facts, the Fonda character persuades the other jurors that there is room for doubt concerning the boy’s guilt. In addition to this startling development, the film shows us how the jurors’ situation – their seclusion in a warm, humid, cramped room – taxes their patience and brings out the best and the worst in them. Their behaviour towards one another is supposed to encapsulate America’s social structure and dynamics. Though strangers at first, the unrelenting exchanges between them gradually turn them into a homogeneous group in which consensus is possible. The Fonda character, clearly a WASP, serves here as an objective leader, a man of law and order, the social glue that unites the others and leads the story to its happy denouement. Following heated debates, the jurors unanimously decide to acquit the boy. This, the film tells us, is how justice is done: through doubt, hard thinking and meticulous scrutiny. This is America, and its hero is a white man, clad in a white suit, portrayed by legendary actor Henry Fonda. Another film from the same period which raises questions about the adequacy of human judgement in the criminal-trial system is Billy Wilder’s Witness for the Prosecution (1957), based on a short story by Agatha Christie and starring Marlene Dietrich and Charles Laughton, which describes the tortuous pursuit of justice through unconventional paths. Witness for the Prosecution shares much with Otto Preminger’s 1950 film Anatomy of a Murder, starring James Stewart, Lee Remick and Ben Gazzara. Both films feature a World War II veteran charged 51

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with murder and facing the death penalty. Both try to shatter the war-hero myth by exposing the veteran as a villain in court. And in both films the defendant is eventually acquitted, at least formally. Wilder’s film was more successful, however, not only because its British setting and acting may have given it a special flavour beloved by Americans, but also – and perhaps more importantly – because it allowed natural justice to be done where the formal justice of the courts had failed. Also worth noting is the fact that, while Stewart’s portrayal of the defence lawyer gave Preminger’s film a degree of respectability, Anatomy of a Murder was considered highly provocative at the time, not least because by presenting torn female underwear as one of the defence’s exhibits, it violated a long-standing taboo concerning the on-screen representation of rape trials. Another cluster of films from the same period comprises George Stevens’ A Place in the Sun (1951), Richard Fleischer’s Compulsion (1959) and Robert Wise’s I Want to Live! (1958). Common to all three films is the focus on the defendant rather than the lawyer. Both I Want to Live!, starring Susan Hayward, and A Place in the Sun, starring Elizabeth Taylor and Montgomery Clift, raise thorny questions about the legal system’s adequacy, its ability to bring justice to light and its criteria for telling good from evil. Based on Theodore Dreiser’s 1925 novel An American Tragedy, A Place in the Sun – unlike the other aforementioned films – expresses both the longing for the American dream of hard work followed by material success, and the realization that desperate efforts to achieve that same dream may lead to violence and crime. Throughout much of the film, viewers are made to sympathize with a murderer and his aspirations. A poor young man named George Eastman (Clift) works hard for a living. He meets a young woman, Alice (Shelley Winters), whom he plans to marry. But George is soon invited to a party thrown by a wealthy relative, Angela Vickers (Taylor), and the two fall in love. To unite with his new-found dream girl, George 52

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decides to leave his fiancée. She, however, is not one to give up: she announces she is pregnant with their child and insists that he stay with her. In his desperation, George takes her on an afternoon boat trip, whereupon he drowns her in a lake. Until this point, the film’s presentation of the story encourages us, the viewers, to identify with George’s emotions and actions: we share his hopes and his infatuation with Angela, as well as his negative feelings towards his fiancée and his fear of remaining poor. True, the murder does fill us with empathy for its victim, Alice – though as soon as we see her replacement, the rich, beautiful, all-American Angela, we ourselves are tempted to commit the sin of thinking that the murder was justified. The court decides otherwise, however: George is soon caught and sentenced to die. We are thus faced with a double tragedy: the loss of the American dream that had been within George’s reach, and the loss of the ‘proper’ American way, in which hard work is not replaced with the short cut of heinous crime. The film does offer us a way to resolve our conflicted feelings, however – to reconcile our desire to have the protagonist enjoy wealth and success, on the one hand, with our commitment to the basic value system according to which he should be punished, on the other. At the end of the film, the death penalty is shown as a transient episode, whereas the love between the two youths is shown to be eternal. The convict goes to his death with his girl’s love, and is thus cleansed to some extent in the viewers’ eyes. A somewhat different film is Ralph Thomas’ A Tale of Two Cities (1958), adapted from the novel by Charles Dickens. The story’s interesting cinematic history includes several adaptations, prominent among which is Frank Lloyd’s 1917 silent version, a huge boxoffice smash in its time. From the 1910s to the 1980s, the book was adapted for the screen nearly once a decade, with only the 1940s and the 1970s lacking their own versions. The realism of 1940s Hollywood films – whose real-life stories (whether in the guise of the 53

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screwball comedy or the war film) were derived from contemporary American experiences – left little room for the emotionally and cognitively distant nineteenth-century story. And the moratorium on capital punishment in the United States between 1972 and 1976 (following a series of Supreme Court decisions) led to the almost complete disappearance of contemporary films dealing with A Tale of Two Cities’ central theme of the death penalty. The film, like the book, takes place during the French Revolution. A French aristocrat living in England and married to an English beauty is arrested during a visit to his homeland. Charged with his father’s atrocious treatment of the serfs before the Revolution, he is summarily convicted and sentenced to die. Meanwhile, his family in England hires a law firm for his legal defence. One of the firm’s junior advocates – who, it so happens, bears a remarkable physical resemblance to the imprisoned aristocrat – soon falls in love with the aristocrat’s wife, Lucy. Touched by Lucy’s misery and prepared to die for her, he decides to go to France and trade places with her beloved husband. On the tumbrel leading him to the guillotine he meets a young seamstress who offers him her heart: the two go to their deaths savouring their new-found union. Long considered Americans’ favourite Dickens novel (ahead even of Oliver Twist), A Tale of Two Cities has reflected to its American audiences their love of freedom, stressing the ideological ties between the birth of their own nation and the French Revolution. It reflects both the American pursuit of justice and the American perception of death, which assumes that beyond this life there is a better world. The young lawyer’s noble death – his self-sacrificial attempt to save an innocent person, to protest against the follies of arbitrary human judgement and, not least, to protect his loved ones – sets a religious and cultural example to which every common American either consciously or unconsciously aspires.

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…AND JUSTICE FOR ALL: LEGAL CINEMA SINCE THE 1960S Motion-picture culture bifurcated into two major avenues in the 1960s: film and television. While the former was busy preserving its traditions, sprinkling them with the occasional innovation, the latter was thriving. Television’s chief assets were its ability to renew its content frequently and the seemingly limitless diversity of its subject matter, which regularly touched on all aspects of American life. Production costs were relatively low, and successes could be replicated in countless variations. The film industry, by contrast, traditionally focused on large-scale productions and was more limited thematically, with each film usually tackling a single theme. In time, the two sister media grew farther apart, with the younger sibling gradually emerging as the leader. Themes hitherto only featured in films, such as law and order, began to surface in television drama. Legal themes offered the young medium fascinating plots and low production costs. All that was needed was some legal topic or event such as murder or rape, a regular cast with stars in lawyer roles, guest stars as victims or villains, and regular cast members as judges, investigators, and so forth. The dramas could be produced easily and inexpensively. Each episode was a stand-alone affair, with no need for continuity across episodes. Different writers and actors could thus be used for each episode, and each episode could treat a different topical theme. This way, each show could develop its own loyal audience, which would follow the episodes from one week to the next. The 1960s also witnessed the emergence of new character types on the silver and the small screens. Until that period, film and television excluded women, black people and others who diverged from the patterns set by the white Christian protagonist. But the times were changing: the bloody Korean War, the decade-long plunge 55

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into the Vietnamese mire, the hippie counterculture, the feminist movement – all these and the challenges they posed to the American nation were impossible to ignore. New characters infiltrated the screens: women of all stripes – white, black and Hispanic; married, divorced and happily single – appeared as jurors, top lawyers, district attorneys, judges and police officers. Black men appeared in television series in key roles, as police detectives and so forth. In 1961, a year after Inherit the Wind, Stanley Kramer directed yet another legal film, Judgment at Nuremberg, which was to shape the discourse of the Holocaust in American cinema. Rather than focus on the victims, however, the film aimed to highlight America’s victory and moral superiority over Germany and Japan. The end of World War II was marked not only with American military victory but also with the setting up of international tribunals to try the defeated countries’ leaders for war crimes. In the Nuremberg trials in Europe as well as the Tokyo trials in Japan, the prosecution sought to execute those found guilty. Surprisingly, these historic trials faded from public consciousness and discourse rather quickly, for various reasons. First, the United States, which had taken pains to create new codes and procedures of international law and was in the process of becoming a ‘global policeman’, quite naturally did not want those codes to apply to its own activity and thus made efforts to suppress their public visibility. Second, it was feared that excessive preoccupation with punishment and the resultant humiliation for the defeated nations might interfere with American efforts to rehabilitate postwar Germany and Japan. Third, the Cold War between the United States and the Soviet Union stymied all collaboration between the two superpowers, in particular joint attempts to set up legal procedures with judges from both countries. American cinema collaborated with attempts to sideline the issue, ignoring the historic trials for many years. Kramer was thus exceptional in deciding it was time to address the subject, though even 56

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he took care to present it with caution, choosing to focus on a fairly marginal aspect of the trials – the so-called Judges’ Trial in which German judges were tried for their role in the Nazi regime – as a parable for the events at Nuremberg (the film’s more inclusive title is therefore somewhat misleading). Moreover, in the Judges’ Trial, unlike the more central trials at Nuremberg, the tribunal included no Soviet judges. In fact, the film’s real subject was not the trials themselves but the reactions of the residents of Nuremberg who, as representatives of the German people as a whole, were expected to repent for their sins. Despite featuring Hollywood’s best – Spencer Tracy, Marlene Dietrich and Burt Lancaster, among others – and going on to win two Academy Awards, the film was not met with critical enthusiasm. The originally German Dietrich, here in the role of a Wehrmacht officer’s widow, had been a well-known opponent of the Nazis during the war. Audiences still fondly remembered her well-publicized wartime visits to the Allied troops in Germany and Italy, whom she entertained with such songs as her English-language version of ‘Lily Marlene’. Also well known was her affair with Jean Gabin, the French actor who had put his film career on hold during the war to join the French Resistance. After the war, Dietrich publicly denounced her sister Elizabeth and her brother-in-law who had managed a movie theatre in Bergen-Belsen to entertain the concentration camp’s guards. Postwar audiences found it strange and difficult, then, to see her in the role of a woman denying her and, by implication, her fellow Germans’, knowledge of German atrocities, a woman so opposed to everything Dietrich represented in real life. Rumours from the set reported her own emotional difficulties in playing a character she found so offensive. More generally, Kramer’s film observed its characters as private decision makers, not as cogs in a larger social mechanism. The characters taking the stand as well as the judge assessing their guilt 57

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are portrayed as private individuals filled with doubts, anxieties and fears. In casting its characters in such light, the film faithfully expressed how American foreign-policy makers wished to portray postwar Germany – without culprits and without execution victims. It was not until 2000 that the Nuremberg trials came to be represented more fully on-screen, in the television miniseries Nuremberg, directed by Yves Simoneau. The miniseries depicts the legal action against members of the Nazi leadership, chief among them Herman Goering, which yielded 12 death sentences (only ten of which were carried through). The Tokyo trials – the American-administered legal action against Japan’s leadership – were never depicted in any American film, however, despite the existence of several documentaries on the trials made by the American military for archival purposes. The ethical dimensions of the death penalty were addressed in two other dramas from the same period (both of which will be discussed later in more detail), To Kill a Mockingbird and Richard Brooks’ In Cold Blood (1967). The latter is based on Truman Capote’s ‘true-crime’ novel on the murder of four members of an all-American family, in which the moral questions initially guiding the author soon give way to compassion and even affection for one of the killers. The film, like the novel, raises many questions about what motivated the murder and focuses on the living – in particular the murderers – rather than the dead. Capote’s own career deteriorated badly after the novel was published, especially after he chose to invest most of his assets in an elaborate tombstone in memory of the murderer for whom he had so much affection (it may be worth noting that Brooks’ film does not shy away from the subject of the killer’s sexual orientation, which presumably contributed to Capote’s feelings). The spectre of World War II continued to hover over Hollywood during the 1960s. One of the best known of the period’s war films, 58

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Figure 1.8 In Cold Blood (1967).

Robert Aldrich’s The Dirty Dozen (1967), tells the story of 12 soldiers court-martialled and sentenced to death for such crimes as murder and rape. The convicts are soon given a second chance, however: by undergoing gruelling training and completing a dangerous mission deep behind enemy lines they will receive in return a full pardon. Part adventure film, part modern Western in both substance and style (many of the film’s stars, such as Lee Marvin and Charles Bronson, were popular Western stars), The Dirty Dozen focuses on the dozen’s transformation into a socially and militarily cohesive unit. Death haunts them throughout, however, as they are forced to choose between execution and risking their lives in war. The film’s success was replicated more than four decades later in Quentin Tarantino’s Inglourious Basterds (2009), which is thematically similar 59

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to its 1967 precursor with one important exception: rather than murderous criminals, the protagonists this time are Jewish–American soldiers charged with the task of spreading fear throughout the German forces and, more importantly, avenging their persecuted Jewish brethren. A real story from much earlier in the twentieth century and from a different part of the globe was the basis for an exceptional period drama in 1968. On 2 April 1911, the body of a 12-year-old Christian boy was found in Kiev. Though the Ukrainian police knew who the real murderer was, they arrested a Jew, Menahem Mendel Beilis, for allegedly killing the boy to use his blood in the Passover ritual. Beilis’ trial received much attention among Jews around the world, with many Jewish communities in Central Europe donating to his defence. These strenuous efforts won the support of some members of the Russian elite – even the Russian Orthodox Church refused to back the charges – leading to Beilis’ full acquittal two years later. The 1968 film based on Beilis’ trial, John Frankenheimer’s The Fixer, starring Alan Bates, had all the trappings of a legal drama. Not finding his place in Hollywood, the politically conscious Frankenheimer, whose earlier films include The Manchurian Candidate (1962) and Seven Days in May (1964), made The Fixer in Britain. The film drew a direct link between the persecution of the Jews in the 1910s and the Jewish Holocaust later in the century. Despite Bates’ excellent performance, however, and an impressive cast, which also included Dirk Bogarde of The Servant (1963) fame, the film was a failure both commercially and critically, with Frankenheimer failing to replicate his early critical success until the following decade’s French Connection II (1975). The Fixer was unique, however, in its ingenuous blending of film and television techniques, which anticipated the narrative and technical strategies of legal television series in the ensuing decades. Wedged between the stormy 1960s and the hedonistic 1980s, the 1970s saw the gales of both heroism and anti-establishment 60

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insurrection calm down. It was a decade of relative quietude and economic stability on the one hand and, on the other, of surging crime in New York City and America’s other urban centres. For cinema, it was a period of advancements in terms of electronic technologies, sound, colour and cinematography, developments that would go on to change the relation between camera and script. The intimate and symbolic environment of the courtroom drama or the prison film would soon be replaced by the massive sets and graphic violence of extravagantly produced action and horror movies, making audiences increasingly desensitized and in need of more intense and immediate stimulation. To meet these escalating demands, the film industry abandoned the intimate, innocuous confines of the courtroom in favour of car chases, police stakeouts, elaborate science-fiction sets and scenes of provocative sex, providing viewers with action extravaganzas never before seen on the silver screen. At the same time, television used its increasing reputation to produce a wave of legally themed series. Identifying the potential inherent in the low-cost but perennially interesting legal genre, television producers began to churn out numerous legally themed shows rife with suspense and dilemmas concerning law and order, including such popular series as Columbo (1968–78; 1989–2003), starring Peter Falk, Kojak (1973–8), starring Telly Savalas, and Quincy, M.E. (1976–83), starring Jack Klugman, the last of which inspired the more recent CSI: Crime Scene Investigation (2000–). This last show has relied extensively on advanced forensic technologies, especially DNA tests. Its unpredictable success has spawned the spin-off series CSI: New York and CSI: Miami. In the meantime, in the wake of the legal moratorium on capital punishment in the United States, American cinema of the 1970s relegated the death penalty to the sidelines. In Europe, by contrast, more specifically in Italy, two provocative films on the death penalty were made by the same director, Giuliano Montaldo, within a year 61

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Figure 1.9 Slovik’s execution was a unique incident in US military history.

of each other. The first, The Fifth Day of Peace (1970), addressed the execution of soldiers by their commanding officers during World War I. The second, Sacco e Vanzetti (1971), had obvious ties to the United States despite the Italian production: featuring American actors as well as the songs of 1960s protest singer Joan Baez, the film expressed scathing criticism of the American legal system, denouncing its 1927 execution of two Italian immigrants, the titular Sacco 62

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and Vanzetti. The pair’s real crime, the film clearly implies, was not the alleged offence of robbery and murder but their ostensible anarchist and communist views. American audiences showed little interest in the two films, and Sacco e Vanzetti was banned due to the director’s alleged communist sympathies and the film’s alleged damage to ‘America’s reputation’. Another affair from the past that was soon to resurface onscreen – the execution of US private Eddie Slovik for desertion during World War II – had precious little to add to America’s Hollywood-fuelled glorious reputation. If the Nuremberg trials were something to be proud of, Slovik’s trial and execution were a disgrace that the American military and the US administration wished to consign to oblivion; if the Nuremberg trials were a testament to the magnificence of the American justice system, the Slovik trial revealed its dark underbelly. While the Nuremberg trials were not shown on-screen in order to let the dust settle and allow Europe, and particularly Germany, to rehabilitate its tarnished reputation, the Eddie Slovik trial was not shown because of American shame. As early as the 1950s, military censors banned an attempted film adaptation of the Slovik story with Frank Sinatra in the titular role. Slovik’s story was finally adapted for television in 1974, in a feature based on W.B. Huie’s 1970 book The Execution of Private Slovik, directed by Lamont Johnson and starring Martin Sheen. Slovik’s execution was a unique incident in US military history. In the Soviet Union, by contrast, 13,500 soldiers accused of ‘treacherous conduct’ were executed during the Battle of Stalingrad alone, while Nazi Germany executed 30,000 of its own troops for treason, desertion, conscientious refusal and such forms of ‘immoral’ conduct as assisting or expressing solidarity with Jews, assisting prisoners of war, criticizing Hitler or associating with partisan fighters.41 Against this gruesome background, one might say that Slovik’s death was 63

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negligible. It was precisely the case’s exceptional nature, however, that made it so powerful. Slovik’s court martial was only the last stop in an all-too-short journey marked by adversity. As a young boy, Slovik was caught shoplifting from a candy store. At 17 he was caught for another petty misdemeanour and incarcerated in a reformatory institution for juvenile delinquents. In their assessments and testimonies, Slovik’s caretakers and warden portrayed him as a good-hearted, sensitive boy whose rehabilitation was a resounding success. Well liked by his instructors, Slovik seemed to face a safer future. Working at a plumbing store after his release, Slovik was promoted, got married, and lived a rather ordinary life until his recruitment to the military. All too familiar with strict authoritative systems, Slovik was loath to join the army and tried to evade the draft by any means possible. His request to remain with his wife due to her disability and financial insecurity was rejected, and he was soon recruited against his will. Though an inept soldier, Slovik was popular with his comrades, who considered him an amiable fellow and a true friend. After gruelling training, which Slovik passed just barely, his unit was sent to the European front. He participated in battle but soon began to manifest several combat-related anxieties and neuroses. During one battle he was separated from his unit and picked up by a Canadian rear unit, whose members again found him to be decent and goodnatured. On the day he was slated to return to his own unit, the anxious Slovik refused to go back to the front and asked to be reassigned. In his letter to the General Staff he described himself as a simple man and a good husband whom the war had made anxious and depressed; all he was asking, he wrote, was not to go back to the front and to be allowed to serve in a safer place. In doing so, Slovik took two facts into consideration: first, that his refusal all but guaranteed him a long prison sentence, a result he was willing to accept; second, that no American soldier had yet been executed 64

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for a similar transgression. (Although several US troops convicted of refusal or desertion had been sentenced to death, none of the sentences had been carried out.) To Slovik’s chagrin and surprise, however, the military prosecution was determined to make an example of him. Attrition combat and unrelenting German opposition were undermining military discipline among the Allied forces in Europe; to deter would-be deserters, Slovik was summarily convicted. After some hesitation, General Eisenhower, Supreme Allied Commander in Western Europe, personally signed Slovik’s death sentence. The impending execution was largely kept secret, however, a decision no doubt reinforced by the shame felt by Slovik’s fellow troops on the firing squad. In January 1945, in six inches of snow, Slovik was led to the execution post, where he was tied up and shot dead. He was buried anonymously alongside 39 other execution victims, in a mass grave on the edge of a military cemetery in France. Slovik was the last American soldier ever to be tried and executed for desertion. The embarrassment to the Pentagon and the US General Staff was so great that the trial protocols were not published, and the entire affair was kept under wraps. Only few in the military were given notice. No announcement was sent to the press, and even Slovik’s widow knew nothing of his execution until the mid 1950s. It took a curious journalist to uncover his story, not without much difficulty, and, as noted earlier, it was not until the 1970s that the story was first adapted to the screen. In the television drama, American decency is represented by Slovik’s judges, whose distressed faces betray torment and doubt – though eventually, after three rounds of voting, they decide to issue the death sentence. The drama recreates Slovik’s appeal to General Eisenhower, the plea’s rejection due to Slovik’s criminal record and, finally, the convict’s last march to his meaningless death as his fellow soldiers and the commanding officers silently apologize. A moment before he is taken before the firing squad, Slovik tells his 65

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guards: ‘They’re not shooting me for deserting the United States Army – thousands of guys have done that. They’re shooting me for bread and chewing gum I stole when I was 12 years old.’ The Execution of Private Slovik does not, however, take a clear position in favour of Slovik. The filmmakers’ evident wish to walk a fine line between decency and justice and between description and prescription is not very successful. Shown in a distant, sterile manner, the events fail to evoke much identification or compassion. The viewers emerge conflicted, morally torn between social and individual justice, individual prerogative and social responsibility, patronizing emotions and compassionate identification, pettiness and magnanimity, experiencing the same ambivalence that marked Slovik’s life and death. A trend characteristic of many post-1960s films was the blurring of the lines between lawmen and criminals. Sidney Lumet’s Serpico (1973) tells the true story of New York City policeman Frank Serpico (Al Pacino) who paid a heavy price for exposing his colleagues’ corruption. The critics lauded both Lumet and Pacino for their powerful portrayal of the tormented cop. Released around the time of the Watergate scandal, the film benefitted from the contemporary public’s fondness for courageous whistle-blowers battling corruption. Pacino, who had starred in Francis Ford Coppola’s The Godfather the previous year, would go on to play the lead role in Norman Jewison’s critically acclaimed …And Justice for All (1979), once again as a character walking the elusive line between law and crime, order and corruption. The character is Arthur Kirkland, a devoted and incorruptible lawyer whose lofty moral principles are put to the test when he is finds himself defending a corrupt judge charged with rape. The same judge, we soon find out, had taken advantage of technical mistakes on the defence’s part to send two of Kirkland’s clients to prison, leading to the suicide of one and the wrongful incarceration of the other. He now turns to Kirkland, 66

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insisting that the latter is the right person for the job because – ‘just like me’, says the judge cynically – he is a tenacious fighter for justice. Kirkland finds himself between the Devil and the deep blue sea: on the one hand, his first commitment as a defence attorney is to serve his clients and treat them as innocent unless otherwise proven. On the other, how can he defend a man he does not trust? His sense of professional duty eventually wins and he takes the case. During the trial, however, Kirkland finds out what an elusive, multifaceted concept justice is. His absolute convictions about how justice ought to be done soon evaporate as the trial ends in a plea bargain and the judge walks away unpunished. Whether the court has attained justice – let alone ‘justice for all’ – is in grave doubt. The lawyerly heroism of classic Hollywood, that idealized cinematic fantasy of days gone by, now clashes head on with the grey realities of a more disillusioned age, an era all too aware of the limits of law and order. This crossing of boundaries signalled the trajectory of legal cinema in the years to come. Rather than treat the legal system as a self-enclosed universe and focus on its inner workings – in particular on the doubts and vacillations of the heroic attorney singlehandedly protecting the rights of the disenfranchised – legal films now turned their gaze to the world outside the courtroom, treating legal action as the mere effect of the broader social world and its problems. One notable example of this development is Harold Becker’s The Onion Field (1979), based on a true event that took place in 1963. Two young policemen (Jon Savage and Ted Danson) stop a car for a traffic violation. Unbeknownst to them, the passengers are two felons (their leader portrayed by James Wood) on their way to a robbery. The criminals kidnap the policemen and take them to a distant onion field outside the city, where they torture both and kill one while the other escapes. Tormented by nightmares and pangs of conscience for not having saved his partner, the surviving policeman gives his testimony at the 67

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district attorney’s office, where, unexpectedly, he is met with cool suspicion by his colleagues and with outright hostility by the DA, who doubts his reliability and has no empathy for his traumatic experiences. All this stands in stark contrast to the system’s treatment of the killers when they are finally caught. Treated fairly, as the law requires, and inundating the system with stay requests and appeals, the two murderers can hardly hide their jeering smiles. After much torment, the surviving policeman leaves the force to become a gardener. Years go by before justice is done and the murderers are executed – though this is scant consolation to the surviving ex-cop whom the entire system had failed to support. Again, justice is presented as an elusive concept, cynically exploitable by prosecutors and defence attorneys alike. The most unsettling aspect of the story is that the representatives of the law themselves become victims of the bureaucracy they serve. The perennial view of the police as corrupt and skewed had often been shown on-screen; The Onion Field attacks this view from the perspective of the individual policeman who finds himself in the eye of the storm. One of the movie’s early scenes shows us how the two law-enforcers first met and got to know each other. Both, it turns out, had been graduate students – one in medical school, the other in agriculture – before they decided to join the force. Both left their studies for economic and personal reasons. They are intelligent, moral and committed to their families and work. The root of the problem, the film implies, lies not in them, but in a society that spawns criminals and allows them to exploit the law with revolting cynicism at the expense of decent citizens. The victims this time come from among the legal system itself – a system, the filmmakers seem to warn us, which cannot protect even its own people. In the 1980s, with the death penalty fully reinstated, capital punishment returned to the screens. The most important films on the subject, however, were made outside the United States. Breaker 68

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Morant (1980), directed by the Australian Bruce Beresford (who in his later Last Dance [1996], starring Sharon Stone, would address the phenomenon of women on death row in America), has as its setting the late-nineteenth-century Boer Wars between the British and the Dutch-speaking Boers in South Africa. The film tells the story of three Australian soldiers serving in the British army who are sentenced to die after false allegations are made against them. Though the speciousness of the charges is common knowledge, the prevailing social codes privilege the word of honour of the British officer accusing them over the lives of three lowly soldiers, certainly over the lives of Dominion soldiers from outside Britain proper. Their fates are thus sealed. The injustice, the folly, the disrespect for human life inherent in the case are expressed achingly in every moment of the film’s trial scenes. The events eventually take an absurd turn. Imprisoned in an isolated fortress until their execution, the three are released and armed when the Boer attack the fortress one day, only to be reincarcerated and executed by gunfire as soon as, thanks in no small part to their own efforts, the invaders retreat. The film was released to critical acclaim in the United States and Australia. In its Australian homeland, it induced a wave of nostalgic war films and television features that aimed to differentiate Australia, both nationally and culturally, from Great Britain. From the same period is the musical Pennies from Heaven (1981), directed by Herbert Ross and starring Steve Martin. Based on Dennis Potter’s 1978 BBC serial of the same name, the film reimagines the death penalty through the lens of its classic-musical reconstruction of 1930s England. The protagonist, an unhappily married travelling sheet-music salesman, falls in love with a teacher he meets on the road. Presenting himself as an avid art lover, he persuades her to join him, but a tragic series of events – all shown in song and dance – soon leads to his execution. While itself indebted to such precursors as Bob Fosse’s Cabaret (1972), Pennies from Heaven was 69

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no doubt an influence on two more recent musicals addressing the death penalty, Lars von Trier’s Dancer in the Dark (2000) and Rob Marshall’s Chicago (2002). The 1980s were characterized not only by cinema’s move away from hitherto central issues but also by new social trends. The flower children of the 1960s were now replaced by yuppie individualism. It was the dawn of the computer revolution, of the ‘global village’, of growing media cynicism and disillusionment about the past. Intelligent viewers demanded greater and greater stimulation. Legal themes, once a vehicle for polemical, topical issues and represented by heroic characters in the form of courageous lawmen, attorneys and prosecutors, were clearly in decline. In a bid for commercial and critical success, filmmakers began searching for new avenues to which legal narratives could be channelled. An individual struggling to overcome the justice system’s internal corruption is the subject of Peter Hyams’ 1983 suspense film The Star Chamber (though, admittedly, the legal theme forms the story’s backdrop rather than its core). Here, as in The Onion Field, the protagonist (Michael Douglas) acts from within the legal system but is brought down by a bureaucracy whose damage he cannot undo. This time, the character is that of a conscientious judge who prefers genuine justice to the sometimes unjust judicial process. Sick of criminals being released thanks to legal loopholes, he decides to take the law into his own hands. Convinced that the ends justify the means, he joins a group of like-minded judges. He soon runs afoul, however, of a group of judges dubbed ‘the star chamber’, who go on to persecute him. In his naivety, he initially believes that the judges’ aim is justice; he soon realizes, however, that they are solely guided by their conservative ideology. Offering us a peek into the closed world of judges, Hyams shows us those venerated figures, those pillars of the American social order, those supposed setters of moral example, as in fact the denizens of an anarchic Gomorrah, where 70

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the only saint is the young idealist judge who eventually comes to understand that he should not take the law into his own hands, that the limits set by legal and bureaucratic procedures should guide his actions after all. The trend of films about the miscarriage of justice and the attempt to reinstate order was carried on in William Hale’s 1988 television drama The Murder of Mary Phagan, based once again on the 1915 Leo Frank affair. This time, the feature stresses the role of the merciful governor and his wife, presented here as simple, decent folk who intuitively sense the wrongful nature of Frank’s trial. The governor is portrayed by Jack Lemmon, who is transformed here from the daring comic of Billy Wilder’s Some Like It Hot (1959) to a venerable figure, a governor on whose shoulders the honour of the entire legal system rests. Lemmon would complete this transformation by taking on roles in new television versions of 12 Angry Men (1997) and Inherit the Wind (1999), where he assumed the august mantle of such Hollywood greats as Spencer Tracy, Gregory Peck and Henry Fonda. Lemmon’s transformation from a specialist in lighthearted comic roles to a serious and respected dramatic actor, as well as his transition from film to television, signalled that the theme of law and order was no longer as central on the silver screen as it had been in the past and that the baton of the legal genre had been passed on to the small screen.42 Television shows such as Hill Street Blues (1981–7) tightened the visual ties between the police and the district attorney’s office and between the office and the field; white and black policemen began to appear side by side, and women started to appear in the roles of successful lawyers. The void left by the show’s termination was not to be filled until 1993, with the launching of the popular and critically acclaimed NYPD Blue, broadcast until 2005. The series Law and Order, launched in 1990, is widely considered to be the best legal series in American television history. Like several 71

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other successful productions, it is based on a televised documentary of the same name, directed in 1969 by Frederick Wiseman. The show’s immense success has spawned several spin-off series focusing on particular legal areas, including Law and Order: Special Victims Unit, Law and Order: Criminal Intent, Law and Order: Trial by Jury, and other similar variations. In the wake of feminist trends and the integration of women in district, federal and supreme courts, women have increasingly appeared in lead roles in legal films, portraying police detectives, tough cops, sharp lawyers, even chiefs of police. The male director’s touch is nevertheless often noticeable in such shows. Stereotypically female weaknesses are often shown as impediments to women’s professional functioning and judgement, as if the women suffer from some biological impairment. The phenomenon is readily apparent in Jagged Edge (1985), Suspect (1987) and The Accused (1988). In all three films, women’s success is measured by male behavioural standards, without which the female attorneys ostensibly lose their professional legitimacy. Similar attitudes are discernible in Brian Gibson’s The Juror (1996), in Martin Campbell’s Defenseless (1991), and in Rob Reiner’s A Few Good Men (1992). Sidney Lumet’s legal suspense film Guilty as Sin (1993) – another in a long line of Lumet films whose protagonists are uncompromising fighters for justice – belongs in this category as well. The film’s central character is an attorney (Rebecca De Mornay) determined to pursue justice after discovering that her client has been deceiving her. The trouble she gets herself into, however, is of a kind that none of Lumet’s male protagonists would find themselves in. Despite being made as late as the 1990s, the film does not avoid traditional gender roles and stereotypes, the character’s gender once again sealing her narrative fate. There is no doubt, however, that female characters have become more assertive and independent over the years – though as Joel 72

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Schumacher’s The Client (1994) bears out well, the development has been nothing if not complex. The Client tells the story of a female lawyer (Susan Sarandon) hired by a young boy caught between the mafia and the FBI. She is first shown as lacking in maternal instinct, then as having too much of it; she is semi-hysterical outside the courtroom, clear and razor-sharp within it. These discrepancies between her behaviours in different circumstances create a complex female character, with the 48-year-old Sarandon’s performance contravening many of the constraints usually imposed on female stars and characters. Her role in the movie is a particularly striking example of a powerful female capable of engaging the audience and inspiring its identification – though, admittedly, the film sometimes falls back on gender stereotypes by making it easier for us to identify with her as a mother figure than as a professional. This trend was reversed to some extent in the late 2000s, with the emergence of stronger female characters – police detectives, forensic scientists, and so forth – in such television series as the aforementioned CSI: Crime Scene Investigation. A different kind of female protagonist has emerged in the crime series The Closer (2005–12), starring Kyra Sedgwick as Deputy Chief Brenda Leigh Johnson, a Los Angeles police detective whose unconventional methods stand in stark contrast to the scientific rigour of the women in CSI. Here, for once, the protagonist’s femininity is an advantage – not only because her misleadingly fragile look is used to deceive the criminals under investigation, but also because of her sharp mind and incisive female intuition. Despite their differences, both The Closer and CSI have managed to sidestep the hurdles posed by the type of feminism that requires that women think and behave exactly as men do, and if the high ratings of both shows are anything to go by, their representations of female strength have been readily embraced by television audiences.

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Historical Aspects of Culture, Society and Law ‘The American experience’ – that amalgam of the ways of life, cultural patterns and political structures characterizing American society from its inception to the present – is a rather paradoxical phenomenon. American society tends to be liberal, pluralistic and religiously, ethnically, culturally and racially diverse, yet it is also characterized by a great degree of conformism, challenges to which are often met with hostile, even violent responses. The cognitive dissonance produced by this tension, which is at the heart of the American experience, is aptly captured in Arnon Gutfeld’s observation that though ‘Americans are cognizant of the violent nature of their frontier story […] But the persistence of political violence in modern America, especially in the post-Civil War era, is not part of [their] consciousness and self-image.’1 It is against this background that we can discern the death penalty’s important role in the American experience. The death penalty sheds light on hidden social and cultural aspects of that experience, aspects obscured for fear they might tarnish Americans’ ethos and self-image. The death penalty, in other words, lies at the heart of the American paradox. 75

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The principles outlined in the 1776 Declaration of Independence and elaborated in the 1787 US Constitution – principles that have become so deeply rooted in American culture – have also shaped the American ideal embodied by the white male Protestant. This ideal has shaped the US legal system, political establishment and social fabric, as well as the norms governing its treatment of ‘others’, which are often permeated with prejudice, racism and discrimination. Americans’ self-image is exceedingly positive: many Americans view their country as the ‘land of opportunity’, as a strong and stable democracy, as a nation of great economic and cultural wealth. Yet this self-image does not always correspond to reality. A rather different portrait of the American nation can in fact be drawn, one in which poverty is no less prevalent than wealth, the right to vote is exercised by just half the population and the political system is mediocre and uninspired; one in which social Darwinism is the prevailing view and ruthless capitalism the predominant system; one in which acts of resistance by society’s lower classes are seen as threats to law and order (or at least to a white, bourgeois conception thereof) and are accordingly suppressed. Political violence towards minorities is thus the repressed aspect of the American ideal, and no phenomenon illustrates this more clearly than the death penalty. Some see in capital punishment no more than a legal penalty – the harshest in society’s penal code, to be sure, yet still no more than one legal instrument among many. Support for this view can be found, unexpectedly perhaps, in the biblical principle ‘an eye for an eye’, which, though often viewed as an ancient relic of vengeful barbarity, can in fact be understood as a fundamentally humanistic tenet. All human beings, it seems to imply, regardless of class, religion or colour, are equal before the law. This equality is both absolute and relative: all are punishable, and, furthermore, all are punishable in direct proportion to the damage suffered by the victim. The other’s eye is worth exactly as much as mine. 76

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Some legal historians claim, however, that to understand the death penalty we must understand its role within broader social and cultural systems that aim to preserve the status quo. In their view, the death penalty can assume multiple forms, not all of which are legal. ‘Spontaneous’ lynchings (furtively supported by the authorities, the press, and so on); lethal street violence against minorities; deadly violence by the police, the military or armed militias against political gatherings, demonstrators or strikers – all are only so many forms of capital punishment. The adoption of capital punishment in the United States has had two main causes: the unchecked growth of a set of social and cultural norms rooted in frontier life that reinforced economically, racially, religiously and ethnically motivated violence; and the concurrent emergence of a more centralized system of government and law enforcement, which used criminal penalties, including the death penalty, to handle crime and violence and to deter unwanted social behaviour. The United States has the dubious distinction of having the most violent history of labour relations in the West, much of which has consisted of confrontations between workers and corporations. Among the many episodes of this bloody history was the Ludlow Massacre of 1914, instigated by violent attempts to end a strike staged by 1,200 miners (largely of Greek origin) in Rockefellerowned mines in Colorado.2 The mine owners called upon the Colorado National Guard (a local militia in all but name) to break the strike, resulting in 20 deaths, mostly of the miners’ children and wives. Encouraged by the government’s non-interference and tacit support, armed National Guardsmen burned down the workers’ tent colony, largely populated by women and children. They also beat and shot to death the strike leader, union organizer Louis Tikas. The fact that striking was not a criminal act offered Tikas no protection: in his opponents’ view, his infringement of accepted 77

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labour conventions was enough to justify his informal ‘execution’.3 The press, following the lead of the political establishment, used its coverage and opinion pages to incite violence against the socially weak, contributing to an atmosphere of rage and hatred against both workers and the unemployed (‘vermin whose food ought to be poisoned’). The strike failed; social order (or its ‘mainstream’ semblance) was restored. Another significant episode in the history of American labour relations was the 1937 Ford workers’ unionization campaign, in which 40 workers were severely assaulted by a gang of thugs led by a local militiaman on the Ford payroll, a former boxer named Bennett.4 This dark relationship between the government and its citizens reflected the power relations between the upwardly mobile and the wealthy in the white population and, more specifically, the ongoing social integration of new immigrants into American society. This, then, is the American paradox: though ostensibly the land of freedom and opportunity, the United States is also the most violent country in the West. The relation between these two facets of the American experience is complementary rather than contradictory: a proudly democratic form of government goes hand in hand in this case with unparalleled state violence. The supremely violent death penalty, which has long perished in Europe’s progressive nations but is still alive and well in the United States, is one palpable instance of this phenomenon. Institutional violence and the preponderance of capital punishment in the United States are partly explained by various forms of discrimination. A constant feature of American society, social discrimination has victimized different groups in different generations, as successive waves of immigrants, unfamiliar with American social codes and cultural conventions, continuously changed the country’s demographics. Racial and religious differences only compounded 78

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the tensions, forming the perfect hothouse for interracial and interreligious confrontations. Irish immigrants, to pick just one example, paid an especially heavy price in the Mexican–American war of 1846–8. Forced to enlist and shipped west to the battlefields, the Irish conscripts were treated harshly, almost criminally – so harshly, in fact, that some Irish-American soldiers identified with their fellow Catholics on the Mexican side and not with their own Protestant commanding officers, in some cases even crossing lines to join the Mexican army’s St Patrick’s Battalion.5 Thirty of the Battalion’s soldiers were court-martialled and executed by the American military.6 By the early twentieth century, however, California’s longtime IrishAmerican residents sought to prove their patriotism by persecuting the more recent immigrants who had taken their place, the newly arrived Chinese whom they now deemed inferior. In the 1920s, the self-proclaimed ‘100-per cent Americans’ persecuted anarchist and communist Italian immigrants. This particular wave of violence reached its apex with the Sacco and Vanzetti affair, in which two Italian immigrants, a shoemaker and a fisherman, were falsely accused of robbery and murder for no reason other than their ethnic origin. The two were convicted and executed in the electric chair. In the 1950s, Senator Joseph McCarthy’s Catholic supporters were unified by their hatred of New England Protestants on the one hand and Hollywood Jews on the other. In the 1960s, African Americans’ indignation in the face of social injustice led to rioting in the ghettos. To address the existing injustices, the Lyndon Johnson administration launched its ambitious Great Society programme, whose generously funded projects aimed to allow members of the ‘other’ America – African Americans, the poor and other groups that for one reason or another had not integrated in mainstream society – to realize the American dream. The Great Society was largely a failure, however. It is no wonder, then, that in the aftermath 79

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of the Johnson administration new conservatism’s purchase on the American public was growing and the United States retrenched into conservative values. The immediate result was the election of Republican Richard Nixon as president in 1968. In the words of Eyal Naveh, Nixon appealed to ‘the average American who works for a living, is proud of his country and despises the deviants and fringe dwellers who betray their country and collaborate with its political and cultural enemies’.7 In 1972, towards the end of Nixon’s presidency, America was all set to embrace the ‘new conservatism’, one of whose boldest expressions was the reinstating of the death penalty in 1976 – a counter-reaction to the ‘bleeding-heart’ liberals who launched reform and liberation movements only to inflict economic damage on decent American taxpayers and to cause social harm in the form of rising crime rates. Violence has tended to erupt in the United States whenever Americans have felt threatened by radical economic, political or social turmoil, a tendency only exacerbated by xenophobia. An example of this recurring pattern was the US government’s decision to detain Japanese Americans in internment camps during World War II (though no similar steps were taken against Americans of German descent).8 American institutional violence has rested on the myth of prosperity and success fostered by the founding fathers. The idea of a wide-open frontier bristling with business opportunities stirred the imagination of millions of Americans. At the heart of the frontier ethos stood the self-made man, the lone individual shaping his own fate, exclusively responsible for his actions and way of life. From the perspective of this ethos, all intervention by the government, the Church or tradition was deplorable. Private property was consecrated, to be used by each individual as he or she saw fit.9 One consequence of this ethos was the phenomenon of ‘vigilante justice’, of individuals taking the law into their own hands (giving 80

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the western American frontier its famous moniker, ‘the Wild West’.) Cattle rustlers were often brought to ‘rough justice’ and hanged in public. Ranchers hired bands of professional ‘rangers’ – skilled gunfighters who elected their own leaders and guarded entire frontier regions – to protect their herds from theft. Ordered by their employers to shoot to kill, the ruthless and intrepid rangers initiated raids on outlaw gangs to restore law and order. Unlike sheriffs or militiamen, however, they did not have the government’s permission to use violence. Nevertheless, they were perceived as an integral part of America’s social fabric. Their actions were thought to be in accord with the American principle of radical individualism and with the right of private groups and individuals to bear arms in self-defence. Protestant Christianity has been – and remains – another dominant feature of American society. The early American colonists perceived themselves as a ‘chosen people’ whose ‘manifest destiny’ was to better society in the name of God. The spiritual–religious front formed as a result found expression in the US Constitution, whose aim was not only to provide a ‘stable framework of government within which American democracy could adjust itself to the changing times’, but also to offer an inclusive social ideal that could organically unite and sanctify America’s past, present and future.10 The legitimacy of America’s political institutions and values rested on the sanctity of this social ideal. Paradoxically, the same Americans who denounced the oppression, discrimination and lack of political representation in such tyrannical regimes as the Soviet Union tended to ignore the oppression and discrimination of various groups at home – Native Americans, Mexican Americans, so-called communists – who were perhaps considered part of the American people but certainly not of the ‘chosen people’. America’s black population, descendants of the African slaves, did not come to be recognized as ‘African Americans’ until late in American history; though their American citizenship 81

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was no longer denied after the Civil War, their membership in the ‘real’ America, that ‘revolutionary’ creator of the New World, continued to be in doubt (and remains so even after the inauguration of a first African American president in January 2009).11 This exclusion facilitated their cruel victimization by lynch mobs and rioters, their occupational, economic and educational discrimination, their ghettoization in poor neighbourhoods, and so forth. Thus, while the American nation saw itself as the leader of the free world, as the herald of peace and justice, ordinary Americans had no qualms about identifying certain groups – Native Americans, communists, black people, Jews, Catholics, anarchists – as representatives of evil fully deserving of harsh treatment. Nevertheless, America was a bastion of progress, a new world. Numerous innovations that would shape the world in years to come were made in the heart of this Promised Land. The fruits of American industry were used to promote peace and medicine, but also war and American international power. Progress became a double-edged sword, however, when the US government began to use technological innovation against its own people via such inventions as the electric chair, the gas chamber and the lethal injection. The same technological momentum that was a source of American power and pride – the same impressive inventiveness that yielded such inventions as the moving cinematic image – was used by certain elements within the United States to implement a conservative ideology, not least via new methods of execution. Lethal violence thus received a new socially organized form, seeping into the very heart of the American legal system. The American phenomenon of capital punishment aptly reflects this violent dimension. To understand the phenomenon in more depth, we ought to inspect it through the lens of social and cultural texts – for example film and television – that give it meaning and often present it as a social parable. 82

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An interesting example in this context is the Canadian television drama Harrison Bergeron (1995), directed by Bruce Pittman and based on a story by American author Kurt Vonnegut. Harrison Bergeron is a futuristic drama, realistic in style, which tries to imagine life in a mid-twenty-first-century America, focusing on the relationship between American citizens and their government. The futuristic United States presented in the film is a country in which the lives of Americans, and of human beings in general, have no value. The lowest common denominator dictates every person’s way of life, imposing on everyone a thoroughly average existence. In this futuristic anti-individualistic world, in the year 2054, the film’s titular protagonist, the young and rebellious Harrison Bergeron, violates the rules and tries to organize a rebellion. He nevertheless wins the favours of the ‘Centre’ (the central hub through which the ruling party controls the population) and is invited to work there. The main aim of the Centre’s activity is to ‘allow’ the average citizen to live an average life, in a setting that replicates the alleged innocence and patriotism of the supposedly idyllic 1950s. The citizens are controlled through electronic headbands that allow the Centre to observe their everyday lives through hidden surveillance cameras. At the Centre, the young Harrison becomes a news editor, a job that presents him with certain moral dilemmas. One of these has to do with the penalties imposed by the local committees (which, though manned by ‘average’ citizens, are of course controlled by the Centre). The chairwoman of a local committee decides to execute anyone charged with a parking violation, claiming that taking traffic offenders to court and jailing them is unnecessarily wasteful, and a drain on the public budget. The public ‘agrees’, and the Centre authorizes the new regulation. When Bergeron sarcastically opines that executing the entire population would be even more economical, the chairwoman responds: ‘I’d rather kill 200 innocent people to catch one guilty individual than spare the 200 and let the one go free.’ 83

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Harrison Bergeron takes place following a so-called ‘Second American Revolution’. It is a new age in which the old regime is overthrown and the American people set up a new, ‘revolutionary’ type of government. Their ruling methods are futuristic and dictatorial, and (as is the case with every revolution) the new regime mocks the achievements of its predecessor and aggrandizes its own accomplishments. In the story, Vonnegut shows us how pretensions to peace and a new world order become distorted when a government has unmitigated physical and psychological control over its citizens. The sort of society described in the story is not created ex nihilo, however, but is rather founded on America’s well-established, three-centuries-old social order. The consolidation of this order, based on old American values, exposes a compassionless society in which human life has no worth. The parable of the automatic execution of traffic offenders points to the slippery slope on which human life slides in American liberal democracy, as the floodgates safeguarding human dignity are broken by the institutionalization of the death penalty. In the original American Revolution of 1776, the story stresses, executions were not shown in public, whereas in this modern age, in which the public’s right to know is thought to outweigh everything else, executions are broadcast live to quench the public’s thirst for atrocities. Another film pertinent to our present topic is William Wiard’s Tom Horn (1980), released some 15 years before Pittman’s movie was broadcast. Though it is a Western describing the life of American settlers at the turn of the nineteenth century, the film’s real topic is not gunfighters but rather the complex relations between the individual and society. It presents the ideological basis for Vonnegut’s view that institutional violence is a deep-seated feature of American society. The film, starring Steve McQueen, tells the true story of Tom Horn, a government scout and an agent for the Pinkerton Detective Agency. Having reputedly killed 17 people on behalf of his employers, 84

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Horn has a glorious history of capturing bank robbers and other lawbreakers (including the legendary Native American warrior Geronimo). After retiring from his work at Pinkerton, Horn is hired to protect cattle herds from rustlers, a job he does with great success. Travelling west, he meets an affluent rancher who hires his services on behalf of the region’s ranchers, formally appointing him as marshal. His contract states he will be paid $600 for every cattle rustler he kills. Horn agrees and, once again, successfully protects the region and its residents. His success is his own downfall, however, as some of the local residents believe he should be dispensed with. A pretext is soon found as the 14-year-old son of a local rancher, a competitor of Horn’s employer, is shot dead under unclear circumstances. The local police chief gets Horn drunk, extracting from him fragments of sentences that supposedly tie him to the incidents. Envious of his employer’s success, the other ranchers do everything in their power to tarnish Horn’s reputation further. With their support, the police chief convinces the authorities of Horn’s guilt. Horn, himself a lawman, is thus indicted in the name of the law. Deprived of adequate legal representation, he is convicted, sentenced to die and executed as his employer and the representatives of the public give their feeble consent. The real Tom Horn was well aware of the fact that he was the victim of a social and legal system looking for a culprit in order to appease certain members of the local community. During the last month of his life he wrote his memoir and was photographed with the noose that was to be tied around his neck. Many of his contemporaries explicitly stated in their memoirs that Horn’s guilt was never conclusively established. 12 The execution of the fearless Horn would become a legend. His trial was a clear instance of a public system betraying its own people – especially (as crime historian Carl Sifakis reminds us) in light of Horn’s reputation as the ‘most callous hired gun the West 85

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ever saw’. While considered a curious anomaly, his execution was nevertheless met with approval by a society used to treating with ingratitude and hostility those who stray from its norms.13 His execution in the final scene of the film is supposed to challenge the institutional violence to which he fell victim. He scornfully looks at the judge, representing here the public, and mocks him. A moment before he dies, however, he astonishes his prison guard and executioner by speaking in a way that is strikingly at odds with the demonic nature attributed to him during the trial: in his last words, he turns to the executioner, congratulating him for his new marriage and asking him to take good care of his new family. 14 American attitudes towards the death penalty among both policy makers and the general public must be understood in relation to the two main ideological templates governing America’s public agenda: the religious and the constitutional. Despite its official separation of religion and government, the United States is a deeply religious country in which Protestants are a significant majority. American discourse about the death penalty (as about every other principled political issue) is therefore steeped in religious language whose terms serve opponents of the death penalty as often as they serve its supporters. The United States is also a constitutional nation, however. Its genetic code, so to speak, is embedded in the US Constitution, authored by the founding fathers in the late eighteenth century, as well as in the Constitution’s later amendments, which enshrine various human and civil rights. The history of the death penalty in the United States (and the history of its cinematic representations) cannot be understood, then, without a discussion of the penalty’s religious and constitutional background. Over the generations, certain biblical verses have played a major role in the American discourse about the death penalty, serving both sides of the debate. The first relevant verse worth noting is Genesis 9:6, where God says to Noah, ‘Whoever sheds human blood, 86

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by humans shall their blood be shed; for in the image of God has God made mankind.’ The sixth commandment, ‘Thou shalt not murder’ (Exodus 20:13), is of course another crucial verse. In Leviticus 24:17–21, God says the following to Moses: Anyone who takes the life of a human being is to be put to death. Anyone who takes the life of someone’s animal must make restitution – a life for a life. Anyone who injures their neighbour is to be injured in the same manner: fracture for fracture, an eye for an eye, a tooth for a tooth. The one who has inflicted the injury must suffer the same injury. Whoever kills an animal must make restitution, but whoever kills a human being is to be put to death.

Similar things are said in the New Testament, in Revelations 13:10: ‘He who leads into captivity shall go into captivity; he who kills with the sword must be killed with the sword.’ In the Sermon on the Mount (Matthew 5:38–9), however, Jesus famously says: You have heard that it was said, ‘An eye for an eye and a tooth for a tooth.’ But I tell you not to resist an evil person. But whoever slaps you on your right cheek, turn the other to him also.

The scriptural debate revolves, then, around the tension between the Hebrew Bible’s ‘an eye for an eye and a tooth for a tooth’ and the New Testament’s ‘turn the other cheek’. While the Hebrew Bible seems to command the killing of murderers, the teachings of Christ prescribe a more tolerant response even in such cases and in any event seem to oppose the death penalty. The commandment ‘Thou shalt not murder’ can obviously serve both sides of the debate since it categorically forbids murder, whether private or state-sanctioned. Yet another context for the debate is provided by scriptural 87

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claims about the status of state law. In Romans 13:1–4, Paul says, ‘Let every soul be subject to the governing authorities,’ implying that we must always obey state law, including laws stipulating the killing of criminals. Jesus’ words in Matthew 22:21 – ‘Render unto Caesar that which is Caesar’s, and unto God that which is God’s’ – seem to support this line of thinking. These, then, are some of the underpinnings of the religious debate concerning the death penalty. As already noted, however, the debate must also be understood in its constitutional context. In particular, the history of the death penalty in the United States must be understood in relation to the political and conceptual framework provided by the amendments to the US Constitution. Three amendments are especially pertinent here: the late-eighteenth-century Fifth and Eighth Amendments, and the Fourteenth Amendment from 1866. The Fifth Amendment states the following: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.

The Eighth Amendment adds: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

And the Fourteenth Amendment says: nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The three amendments are open, of course, to different and even conflicting interpretations, and as such can serve both opponents 88

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and supporters of the death penalty. The most pertinent among the three to our discussions is, as we shall soon see, the Eighth Amendment, regarding which the central question is whether the death penalty constitutes ‘cruel and unusual punishment’. American capital-punishment laws were fashioned in large part after British law. Among the laws brought to the New World by the early colonial settlers were regulations enumerating the conditions under which felons were to be sentenced to death. The first execution in the North American British colonies took place in Jamestown, Virginia, in 1608; the convict, Captain George Kendall, was charged with treason, more specifically with espionage for the Spanish. Over time, each colony developed its own legal system including capitalpunishment laws: Massachusetts, for example, did not adopt the death penalty until 1630, whereas the colony of New York adopted the ‘Duke’s Laws’ – a British code imposing the death penalty on such felonies as assaulting one’s parents and denying the divine truth – in 1665. Other colonies followed the lead of Great Britain’s death penalty laws in later years.15 Opposition to the death penalty in Europe led to its significant decline and eventual abolition on the Continent. Following Europe’s lead, many US states adopted more lenient penal codes with gradated capital-punishment laws. In 1834, Pennsylvania became the first state to stop public executions; new incarceration facilities with inner courtyards allowed the state to execute its convicts in relative privacy. In 1846, Michigan became the first state to abolish the death penalty (with the exception of capital punishment for treason); by the end of the nineteenth century it would be joined by Rhode Island and Wisconsin, alongside various countries around the world. In the antebellum South, slaves were the death penalty’s main victims. In 1838, in an effort to enhance the death penalty’s public appeal, several states began adopting gradated penal codes; from 89

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the Civil War onwards, such codes were thought to constitute a significant legal reform and were considered among the greatest achievements of the opposition to the death penalty. By 1963, the number of felonies carrying the death penalty was reduced and limited to especially serious crimes; the number of executions did not decline, however, peaking instead in the 1930s.16 Opposition to the death penalty seemed to have the upper hand during the Civil War, deriving much of its momentum from the anti-slavery abolitionist movement. But voices against the death penalty, so powerful during and immediately after the war, were soon silenced by the new social tensions of the Reconstruction era, as racial violence – from spontaneous lynchings to legal killings – was reaching new peaks. Violence against the recently liberated black slaves was part of the reactionary effort to revive the South’s political power. Most murders of black people were committed after the former slaves tried to exercise their newly won right to vote or attempted to organize in self-protection. The 1868 elections only made matters worse, prompting the murder of black court employees in Arkansas and of 1,081 black people in Louisiana.17 Around the same time, North Carolinian voters were incited to rise against ‘Negro domination’, despite the fact that only five of 165 state representatives – a grand total of 3 per cent – were black. The leader of the local Democratic Party urged every armed white man to go to the polls on election day and shoot any black person who dared to vote; his party won by a landslide. Several years later, in 1893, a mentally challenged black man named Henry Smith murdered a white girl in Paris, Texas. The predictable lynching was publicized in advance, and by the week’s end a crowd of 10,000 had gathered to watch Smith’s executioners thrust a hot iron brand down his throat, gouge his eyes out, and finally burn him at the stake. Six years later, on a summery Sunday morning, a crowd of 90

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thousands gathered in Pallemida, Georgia, to watch the execution, apparently without cause, of a black man whose fingers and ears had been severed and whose heart was to be sold to the highest bidder. Such lynchings undoubtedly served psychological needs of the vanquished South. They demonstrated that the African Americans were inferior and prompted the poor whites of the South to feel that they also possessed power. Those acts also ‘proved’ that […] the African American could be controlled and vanquished. The white-owned press contributed its share to the hysterical atmosphere by inciting the populace against some real, but mostly imagined, African American crimes […] Usually the white aggressors were not apprehended by the police which consistently persecuted African Americans who dared defend themselves.18

Such behaviour by lawless mobs shocked many Americans. To restore public order and promote a sense of normality and unification, the nation’s postwar state of emergency had to be ended. To restrain the unpunished purveyors of ‘rough justice’, legislators opted to make use of the ‘neutral’ and consensual apparatus of the law. The law was to be adjusted in such ways that would bridge the differences and enhance cooperation and reciprocity between the victorious North and the defeated South. To achieve these goals, several states passed laws specifying precise conditions for the imposition of the death penalty. The supporters of such laws took advantage of the temporary frailty of government agencies (which had yet to heal from the havoc wreaked by the war) to entrench such legislation in the legal system. After the Civil War, the United States completed its transition from a semi-agrarian to a mostly urban nation with advanced industrial and technological capacities. Progress, with its surfeit 91

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of innovations, reached not only every American home but also the nation’s prisons, which wasted no time taking advantage of the ultimate technological innovation: electricity.

Progress and Creativity in the Service of Death Progress, that perennial American ideal, became a fervid obsession in the late-nineteenth-century United States. And to many, one symbol of progress, one advanced product in which to take pride, was that new American invention, the electric chair. The century’s last decade was thus blemished by the application of scientific knowledge to the science of killing.19 Our story begins, however, with the attempt of one large electricity company, Edison, to demolish the reliability of another large electric company, Westinghouse, by means of the legal battle concerning the electric chair. This historic clash between the two heroes of the hour, Thomas Alva Edison and George Westinghouse, may seem to have leaped from the pages of an ingenuously written fable. It is a true story, however, and a tragic one: its protagonist lost his life. Electricity was a mystery to most people in the 1880s and 1890s. Its use represented a new world of progress, and it was widely felt that if electricity could be used to improve life, it could also be used to improve death by killing painlessly. In 1880 the United States was on the verge of the electrical revolution. The incandescent light bulb, introduced by Edison the following year, was about to change the world. Edison himself was deemed an embodiment of the American dream, a symbol of the land of unlimited opportunity, a genius putting into practice the spirit of free enterprise. His laboratory was churning out useful inventions: his phonograph (later to develop into the modern 92

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record player) immortalized the voices of the dead, while his motion-picture camera, the Kinetograph, raised the dead to life. For Americans, as for the rest of the world, Edison was an alchemist of light and sound and an oracle of new technologies. The year 1882 saw Edison complete his most ambitious plan: to bring electricity to Manhattan and to flood Wall Street with light. The press was beside itself with excitement, and Edison’s fame spread far and wide. Having created a massive production and consumption market throughout America and Europe, his inventions sent a clear signal to other industrialists. Various organizations took an interest in the demand for electricity – among them Westinghouse, the Pittsburgh-based industrial empire headed by George Westinghouse, who in the course of his life founded 60 firms and employed in the region of 50,000 workers. Edison’s discovery had great appeal to Westinghouse: he learned its secrets and searched for ways to upgrade it from household to heavy industrial use. His engineers succeeded beyond all hope. Edison’s direct current (DC) electricity was weak, transmittable by cumbersomely thick copper wires over short distances only, which required power stations to be placed on every street corner. To remedy these shortcomings, Westinghouse’s laboratories developed the alternating current (AC), which, generated by specially devised transformers, was cheaper, more efficient and, moreover, powerful to the point of being lethal. Westinghouse’s system developed quickly; within two years, his products drove Edison’s out of the market. Loath to share his successes, Edison was enraged. He aimed to profit from each of his products, and self-supply of electricity to each household seemed to him a more profitable venture than large-scale commercial distribution. Customers voted with their feet, however, and it appeared that Westinghouse’s more useful invention would win the entire pot. But before Westinghouse could be declared the victor, Edison embarked on a rearguard battle to demonstrate the superior efficacy of direct 93

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current electricity. A peculiar event afforded him the opportunity to do so. For many years, the governors of the state of New York had searched for a new, more humane method of execution – a quick, painless procedure not involving physical mutilation. The state’s hitherto used method of execution – death by hanging – was not always successful: convicts sometimes failed to break their necks, many taking as long as half an hour to die on the gallows in terrible pain. Dropping the convict from a great height could cause immediate death (as required) but also decapitation, making the punishment ‘cruel and unusual’. The many emerging cases of swift death by accidental electrocution presented the possibility of replacing the existing execution methods with electricity. An inquiry commission was appointed to study execution methods from around the world and assess their medical and scientific qualities. Searching for a method that would distinguish the United States from other countries and indicate its technological superiority, the commission considered various alternatives. One – suffocation by a metal collar around the neck – was rejected because of its similarity to the Spanish Inquisition’s killing techniques. Another, death by firing squad, was declined because of the wish to avoid associating executions with firearms. Also rejected was the guillotine, deemed ‘too French’. Electricity provided an alternative to this assortment of methods. Since information about electricity was scarce, the commission sought counsel from the country’s leading expert, Thomas Edison. Edison, who opposed the death penalty and was averse to putting electricity to such harmful use, was reluctant to cooperate. Appearing before the commission could, however, offer him an opportunity to hamper Westinghouse’s commercial success, by spotlighting the great dangers of his opponent’s alternating current and by proving, once and for all, that his own direct current was safer. The public, Edison 94

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hoped, would identify Westinghouse with the death penalty and therefore shun his products. The decision was made in June 1888. Edison sent his chief engineer, Harold Brown, to appear before the commission. Brown’s expert recommendation to use Westinghouse’s lethal alternating current proved persuasive, swaying the commission to opt for death by electrocution as the modern method of execution. Edison, that renowned opponent of capital punishment, was then given the task of determining what dose of electricity was needed to kill a human being. Edison’s labs began working fervently: despite staunch opposition from animal-protection organizations, dozens of animals of different weights and sizes – rabbits, dogs, a cow, an orangutan – were electrocuted using the alternating current, though not very successfully at first. The cries of tormented animals pierced the laboratory walls, so much so that Edison instructed his employees to conduct the experiments at night after the industrial district was emptied of people. Nevertheless, he took care to publicize his achievements with much fanfare.20 In 1889, Edison’s engineers informed state authorities that they had cracked the method of killing by electrocution. They recommended using a chair to bind the prospective victims. And a victim was obtained soon enough: William Kemmler, a 29-year-old vegetable peddler from Buffalo, NY, had been sentenced to death in May 1889 for killing his partner after an alcohol-soaked argument. The state of New York had just passed a law regulating execution by electrocution, under the assumption that electrocution did not violate the Eighth Amendment to the US Constitution prohibiting the infliction of ‘cruel and unusual punishment’. On the contrary, death by electrocution was deemed faster and easier than the alternatives, and thus clearly not cruel.21 While the law did not specify the type of current generator to be used, Edison’s engineers, charged with the task of building the electric chair, opted for Westinghouse’s 95

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alternating current (which they had fraudulently obtained) in order to tarnish the latter’s reputation. Westinghouse, who admired Edison’s scientific accomplishments, was beside himself. He initially responded by publishing a series of learned articles that acknowledged the alternating current’s high voltage, comparing its dangers to those of immoderate drinking of whiskey. He insisted, however, that the alternating current’s potential contribution to humanity outweighed its risks, concluding that the United States must use it for good causes only. When this appeal to the public failed, Westinghouse turned to the courts. Donating to Kemmler’s defence the then vast sum of $100,000, he aimed to persuade the court to hang him rather than electrocute him. Kemmler’s lawyers scoffed at the purported technical evidence for the efficacy of electrocution. Experts from Edison’s laboratories, including Edison himself, were called to testify. In his testimony (sprawling over 1,400 pages!) Edison ardently insisted that quick electrocution was painless and should therefore be adopted as the modern method of execution. Though he failed to state, when cross-examined, how electrocution affected the body, his undisputed reputation as the ‘King of Electricity’ worked in his favour and persuaded the court to sentence Kemmler to death by electrocution.22 Kemmler died an agonizing death in front of 27 witnesses, most of them scientists and physicians. The electric current sent through his body was unaided by an electric conductor (such as water) to speed up the procedure. Stunned by the current, Kemmler lost consciousness yet remained alive. It was claimed that further discharges of powerful electric currents literally set him on fire, and that flames shot out of his mouth and his body went ablaze. Whereas the dreadful sight made District Attorney George Quimby faint, one of the chair’s builders, Dr Alfred Southwick, proclaimed: ‘We live in a higher civilization from this day on. This is the happiest day of my life.’ The following day’s edition of the World of New York (7 August 96

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1890) dubbed Kemmler ‘the first electrocuted man’. Edison, who blamed for the mishap the physicians overseeing the execution, halfheartedly acknowledged his own failure while in the same breath suggesting ways to improve the newfangled method of execution. The electrical revolution was already under way, however. The following year, another convict, Martin Loppy, was executed in a similarly shocking manner. Loppy’s death was determined no sooner than 36 minutes after the start of the procedure, not before his eyes shot out of their sockets and his hands first pierced and then melted into the flesh of his thighs. Such events, however, caused neither decision makers at New York’s Sing Sing Prison (where the first electric chair was placed) nor New York State officials to discard the electric chair. When it was first suggested in 1899 that a woman might be electrocuted, the electric option was carefully examined by order of Governor Theodore Roosevelt. The commission he appointed decided that Martha Place’s serious crime ‘deserves to be tried by the chair’, making her the first woman to be executed by electrocution.23 Kemmler’s 1890 execution had already demonstrated the method’s efficacy, and the Niagara Falls power station, built in 1895, further established the advantages of the alternating current and secured the use of the electric chair. It was not until a few years later, however, that the chair’s lethal efficacy was conclusively proven.24 Other states swiftly followed in New York’s footsteps and adopted the technique. Electrocution (along with older methods of execution, such as firing squads, gassing and hanging) was in use until 1972, when the US Supreme Court declared capital punishment unconstitutional. The electric chair was returned to use in early 1976, however, after the death penalty was reinstated. Since the 1990s, all US states have declared death by electrocution cruel and unusual (the last state to do so was Nebraska in 2008), replacing it with lethal injection alongside older execution technologies. 97

Figure 2.1 The electric chair, known as ‘Old Sparky’.

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In an irony of fate, electricity was not the only one of Edison’s inventions to be taken out of his hands. The film camera he developed, the Kinetograph, soon fell into the hands of the French Lumière brothers, who in 1895 modified it to create the cinémato­ graphe, their seminal version of the modern film camera. The profits they raked in were not shared by Edison, all of whose attempts to claim the invention as his own were in vain. And thus began film history as we know it.

A Living Penalty: How Much Longer? We have thus come to the early twentieth century – the century of grand ideologies and unprecedented national anxieties, a century in which the United States, like the rest of the world, had to cope with the rise of Bolshevism, the advent of anarchism and the colossal struggles between capitalism and communism and between fascism and democracy. In the United States, the era’s beginnings were marked by a combination of patriotism and xenophobia, as American conservatives took a purist approach to the demarcation of American identity and as racist organizations enjoyed new-found popularity. The US government, on its part, tried to cope with these sensitive circumstances by imposing new immigration quotas (among other restrictions on immigration) and by censoring the mass media – including the newly invented cinema, by then well on its way to the heart of American culture – in order to shield the American public from the new media’s allegedly negative influence. The year 1915 saw the release of D.W. Griffith’s monumental The Birth of a Nation, which in addition to expressing its director’s personal affection for his native South aimed to restore the South’s honour, which had been trampled since the Confederacy’s defeat in the Civil War. This he did by glorifying the men of the Ku Klux 99

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Klan, presenting them as the South’s guardians of social order. The reprehensibly racist aspects of Griffith’s film caused much sensation and controversy at the time. Yet the same racist content which was so harshly criticized by some was openly embraced by others, in particular by Americans looking for a vehicle to help them express their xenophobic distress in the wake of World War I and, later, their fear of the Red Revolution. Though Griffith tried to atone for the film by denouncing bigotry in his next work, the following year’s Intolerance (1916), such amends could not stifle the fire ignited by The Birth of a Nation – one of whose unfortunate results was the rebirth of the Klan movement, now headed by William Simmons. Several US states abolished the death penalty in the mid-nineteenth century; others joined them during the so-called ‘progressive era’ of the early 1900s.25 Between 1907 and 1917, six states abolished the death penalty and three limited it to treason and first-degree murder. But the reform was not to last. The echoes of the Great War in Europe soon reached the United States, causing much apprehension among the American public. Economic freedom and democracy seemed to be at risk. The fall of the Tsar and the rise of the Bolsheviks in Russia in 1917 distressed and frightened many Americans; the seeds of the ‘Red Scare’, which would soon blossom into full-blown panic, were planted here.26 Having lost its self-confidence, a threatened and alarmed America wished to retrench, to oust any foreigners who might weaken its national stability and morale, and to subdue any violations of law and order. As a direct consequence of this zeitgeist, five of the six states that had already abolished the death penalty reinstated it in the 1920s, once again sending convicts to the gallows and to the electric chair.27 It was around this time that the state of Nevada, acquainted with the electric chair’s use in New York and aware of its cruelty, began to seek a more humane way to execute its convicts. Its alternative, 100

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first put to use in 1924, was gassing by cyanide. The first gassing took place in a sealed prison cell where the convict was tied to a chair, with an automatic system administering two substances – solid cyanide and a liquid chemical – the combination of which filled the room with lethally poisonous gas. The first convict to be executed in this manner was Gee Jon, the son of Chinese immigrants. The initial execution attempt was woefully inept, however. The prisoner, who had been asleep when the system was turned on, suddenly woke up screaming and vomiting; meanwhile, the gas leaked out and was inhaled by some of the guards. Having learned the lesson, Nevada’s penal authorities soon decided to build a gas chamber specially fitted for executions.28 The number of executions peaked in the years from 1920 to 1940, an era that witnessed a long economic depression, a political and legal system paralysed by the communist scare, the emigration of hundreds of thousands of black people from the South into America’s Northern cities and the return of a million soldiers to the labour market – all of which stirred widespread confusion and social unrest. The proponents of capital punishment were now joined by many criminologists claiming that the death penalty was crucial to the country’s recuperation. The death penalty reached its all-time (and, to this day, still unmatched) apex during the 1930s, with an average of 167 executions per year.29 In the meantime, the United States was continuing to cope with the massive immigration wave of 1880–1921, which included many Eastern European Jews, often suspected of smuggling communist ideas into the country, impoverished Catholic Italians – some of them World War I conscription objectors – who were often suspected of anarchism, and refugees from famine-stricken Ireland whose Catholicism was frowned upon by America’s Protestant majority. To stabilize the country’s demographic structure, the new immigrationquota laws of 1921 capped the number of immigrants admitted into 101

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the United States at 3 per cent of each national group according to the 1910 census. The cap was set even lower three years later – to 2 per cent of each group according to the 1890 census – with the passing of the 1924 Johnson–Reed Act. The quota noose tightened still further in 1929, when new caps based of the 1920s distribution of ethnic groups in the population put an end to mass immigration to the United States. The era we have been describing was characterized by stormy ethnic relations. The newly arrived Jewish immigrants were forced to cope with unofficial yet socially ubiquitous anti-Semitic norms of exclusion from recreation facilities, workplaces, the military, and so on – norms that would remain in place well into the 1950s.30 Many of them sought to adapt to their new surroundings by quickly assimilating into the mainstream of American society. In their almost pathological attempts to adjust to American culture and to the American dream, many of them abandoned their distinguishing ethnic and religious marks, changing their Eastern European names to American-sounding ones (such as from Greenstein to Green).31 Hollywood’s Jews were no exception: the leaders of Hollywood’s rapidly developing film industry – most of them Jews of Eastern European origin – subjected themselves to a regime of cultural self-censorship which, for example, limited Hollywood films to non-ethnic, ‘all-American’ subject matter. They thus took part, unwittingly perhaps, in the creation of the American fantasy, that fanciful Hollywood version of the American dream.32 Other, less fortunate Jews – poor working-class immigrants unable to find their place in American society – followed their Irish and Italian counterparts in joining or forming new crime organizations; often enough, they ended up on the gallows. In 1920, two Italian immigrants, Nicola Sacco and Bartolomeo Vanzetti – both anarchists who had evaded conscription in Italy during World War I and immigrated to the United States 102

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illegally – were indicted for the murder of a paymaster and a security guard during a robbery in Massachusetts. The worldwide outrage caused by their trial did nothing to deflect the judge and the jury from their foregone decision to convict the two and sentence them to die. The hapless Sacco and Vanzetti were sent to the electric chair in 1927. Two seemingly disparate yet closely related events occurred in January 1920: the passing of the Volstead Act (also known as the National Prohibition Act), prohibiting the sale of alcohol, and the so-called Palmer Raids, led by US Attorney General A. Mitchell Palmer, in which 500 foreign citizens, many of them labour leaders and other left-wing activists, were deported from the United States for alleged anarchism. The relation between the events of the era and the history of the death penalty can be viewed from a slightly different perspective. According to Bryan Vila and Cynthia Morris, little attention was given to the death penalty in the tumultuous period between 1918 and 1959 – a fact that enabled proponents of the death penalty to act uninterruptedly. This era, as Vila and Morris remind us, witnessed immense demographic changes, an economic depression followed by a second world war and, eventually, full economic recuperation leading to unprecedented prosperity. As long as poverty, unemployment and massive warfare persisted, Vila and Morris maintain, Americans could hardly be bothered to attend to such relative trifles as the death penalty.33 The year 1954 found the American nation shaken by the precedent-setting Supreme Court decision of Brown v. Board of Education,34 in which the doctrine of state-sponsored segregation in public schools – in effect since the Court’s ruling in Plessy v. Ferguson (1896) more than half a century earlier – was declared unconstitutional.35 With the Brown ruling, the American legal system joined the worldwide upsurge of civil-rights struggles. 103

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Western public opinion in the 1950s adopted an increasingly negative view of harsh punishment, with many countries abolishing or imposing serious constraints on the death penalty. Similar developments were taking place in the United States, where the number of convicts executed throughout the nation dropped drastically from 1,289 in the 1940s to only 715 in the 1950s, and further to 191 between 1960 and 1976. In the United States, as in the rest of the world, the late 1960s were tumultuous years of protest and revolt. In 1965, a group of 600 left-wing Harvard students shocked America by overtaking the Wall Street branch of the Chase Manhattan Bank to protest against its investments in racist South Africa. A wave of protest against the war in Vietnam as well as against American capitalism and civil-rights violations soon followed. In the summer of 1968, as if to replicate the earlier events of May 1968 in Paris, student demonstrations outside the Democratic National Convention in Chicago were brutally suppressed by police batons and tear gas. Student unrest continued unabated in the late 1960s, at Berkeley, Columbia and other campuses across the nation, its echoes still reverberating well into the early part of the 1970s. Similar trends of social unrest have emerged more recently, in the late 2000s, with the onset of the US economic recession and in the wake of the wars in Iraq and Afghanistan (prior to President Barack Obama’s decision to withdraw US troops). Two US Supreme Court decisions made in 1968 imposed serious limits on the constitutionality of the death penalty.36 The turning point, however, came with the Supreme Court’s 1972 ruling in Furman v. Georgia, which declared the death penalty unconstitutional for violating the Eight Amendment’s prohibition of ‘cruel and unusual punishment’.37 The abolition of capital punishment was to be short-lived, however. Impelled by the Furman ruling, several US states soon began to rework their death-sentence procedures 104

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in order to circumvent the Court’s decision. Then, in 1976, two Supreme Court decisions made on the very same day paved the way for the reinstatement of the death penalty: while making capital punishment mandatory for certain types of convictions was again declared unconstitutional (Woodson v. North Carolina), the death penalty itself was not; laws allowing the death penalty were now deemed constitutional as long as the judge and the jury followed due process (Gregg v. Georgia).38 The Supreme Court’s new judicial position quickly bore fruit: capital punishment was soon reinstated in practice, beginning with the execution by firing squad of convict Gary Gilmore on 17 January 1977. To recap: while the decade between 1945 and 1955 was characterized by a process of normalization following World War II, and the one between 1950 and 1960 by the McCarthy witch-hunts, the era between the mid-1960s and the mid-1970s was a time of youth-dominated protest during which the American legal system was urged to reconsider the constitutionality of the death penalty, culminating in its temporary abolition. The death penalty can be seen, then, as a sort of seismograph reflecting the American experience in its full complexity. In 1977, the hitherto largely unknown Democrat Jimmy Carter was elected president. The four years of his presidency were characterized by dismal economic failure and a disastrous foreign policy that drove many countries away from the world’s largest democracy and into the arms of the Soviet bloc. It was against this background of deep frustration that conservative Republican Ronald Reagan was elected president in 1981. Reagan’s two terms in power ushered in the age of ‘new conservatism’. The forces of progress that had flourished in the 1960s and 1970s were stopped in their tracks by middle-class voters disappointed with the liberal policies of previous presidents and with their economic costs. The conservative opposition to abortion and affirmative action led to 105

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more stringent constraints on the authority of the Supreme Court and to the appointment of conservative Supreme Court justices. Having returned to the centre of the new conservative consensus, the death penalty once again flourished – as it does to this very day.39 One of the twentieth century’s greatest innovations was the relentlessly developing film (and later video) camera, which has allowed mass audiences to take an increasingly active part in the era’s momentous events. The events surrounding legendary football star O.J. Simpson provide an instructive example. Live broadcasting allowed massive television audiences to watch as the police pursued, captured and arrested Simpson for the murder of his ex-wife Nicole and her partner Ron Goldman. Simpson’s conviction could have led to a death sentence had the prosecution requested the harsh penalty. His trial, however, soon turned into a media circus, with coverage consisting largely of commentary by ‘experts’ who did their best to influence public opinion – which, on its part, was already skewed in Simpson’s favour due to the veteran football player’s vast popularity. To respond to public pressure and interest, the court allowed television networks to broadcast live from the trial, turning the proceedings into a unfolding courtroom drama in which the defendant was the ‘hero’ while the victims’ lost lives were all but forgotten. A group of average (and mostly black) citizens were selected to serve as jurors. The members of the jury – average tele­ vision viewers who had already ‘studied’ the case by following the electronic and print media – were ‘contaminated’ with the general public’s sympathy for the beloved O.J. The highly controversial trial thus ended in full acquittal. This was only another link in the long chain of fascinating yet troublesome connections between the law and its image – between crime and punishment on the one hand and their filmic representations on the other.

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3

A Cinematic Window to Problems Concerning the Death Penalty

Legal Controversy as a Cinematic Event Americans are tremendously proud of their Constitution and legal system. It is the US Constitution’s remarkable stability, they claim, its unique position as the most enduring legal document of its kind in the modern developed world, which gives America’s federal and local judicial systems their superior quality. Time and again in American history, however, attempts to interpret certain parts of the Constitution have turned that most venerated of documents into an exceedingly effective instrument of oppression against particular segments of the American population.1 The death penalty, unique in its finality and irreversibility, has stirred trenchant public debates over the years. Such debates tend to revolve around three questions: the question of deterrence, which has to do with the lethal penalty’s effectiveness as an instrument of crime prevention; the question of justice, which has to do with the discovery of new facts that might shed retroactive light on the innocence of an executed person; and the question of adequate representation, which has to do with the status and competence of the defence lawyers who represent underprivileged defendants. The question of deterrence has long occupied experts as well 107

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as the general public. The US government periodically examines data on the purported relation between the rate of crime and the frequency of executions. Such data provides, however, no conclusive support for the claim that the death penalty effectively deters violent crime. What the official statistical data collected so far does show, on the contrary, is that US states which have not reinstated capital punishment since 1976, when the Supreme Court declared the death penalty constitutional again, have experienced lower homicide rates than states in which capital punishment has been reinstated for murder.2 According to FBI data for 2000, for example, ten of the 12 states without capital punishment had homicide rates lower, and half the states with capital punishment had homicide rates higher, than the national average. States with capital punishment had homicide rates 48 to 101 per cent higher than states without capital punishment. Furthermore, according to the same data, increases or decreases in the homicide rate of a given state are uncorrelated to the presence or absence of capital punishment in that state. These findings have led many to conclude that fear of a death sentence does not deter potential murderers. Thus, according to criminologists from the State University of New York at Albany, the available data does not indicate that the death penalty has any deterrence effect. Prosecutors and other officials in states with the death penalty admit that the deterrence effect is difficult to establish, yet insist that other important considerations speak in its favour. Prisonerrehabilitation programmes are ineffective, they claim; death is the only just reward for the perpetrators of especially heinous crimes; society has a right to judge and punish its criminals; and the death penalty’s sheer finality can put a decisive end to the victim’s family’s ordeal. Surveys show that a majority of US citizens share this view. Unsurprisingly, the death penalty continues to be in place in states with a majority in favour of its retention.3 108

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Support for the death penalty cannot plausibly rely, then, on its effectiveness as a deterrent. Instead, it often seems to rely on three main pillars: the deeply American wish to restore social order, the need (which has deep religious roots) for vengeance and retribution, and the prevalent view that only the death penalty can absolutely guarantee the criminal’s removal from society.4 Conservative politicians in favour of the death penalty have repeatedly invoked the last of these considerations, claiming that liberals have turned the American penal system into a ‘revolving door’ that allows convicted criminals to go free after having served only a fraction of their sentences.5 Other factors have led, however, to a decline in the support for capital punishment. Mayor Rudolph Giuliani’s remarkable success in reducing crime rates in New York City since the mid-1990s without resorting to the death penalty has contributed to this trend, as has the steep drop in crime rates across the United States during this period. Americans’ enthusiasm for the death penalty has also been dampened by a rather unexpected development. In recent decades, advanced forensic methods based on DNA technologies have increasingly served to correct the errors of police detectives, prosecutors, jurors and other law-enforcement and justice officials.6 Relatively simple tests now enable forensic experts to determine conclusively whether a given suspect was present at the crime scene and perpetrated the alleged crime. From 1973 until the mid-1990s few US states took advantage of such testing technologies, however, due to their prohibitive costs. Their increased use since the 1990s has raised two new questions concerning the efficacy of the death penalty: first, what to do about exonerating evidence discovered after a person’s execution, and second, how to compensate and rehabilitate convicts who spend years, sometimes decades, on death row only to be acquitted and released thanks to DNA testing. An 109

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instance of the latter was Charles Fain’s acquittal in August 2001 after 18 years on death row. DNA tests cleared Fain of the heinous crime with which he was charged – the kidnapping, rape and murder of an elementary-school student. Fain’s disturbing case was only one of many in which rape suspects had been convicted and imprisoned prior to DNA testing, only to be acquitted as soon as such tests yielded contrary results. Cases of this sort finally persuaded the American legal establishment to treat DNA-test results as crucial evidence admissible in court. Most states with the death penalty are not eager to reopen old capital cases – mainly for cost-related reasons – even when the convict in question may well turn out to be innocent. When old cases are nevertheless reopened, this is usually thanks to the efforts of extralegal activists – journalists, students, academics, defence lawyers and other crusaders of their ilk. Needless to say, states with the death penalty are hardly fond of activists’ claims that such a punishment is indefensible in light of the numerous cases in which execution victims are posthumously exonerated.7 A conference on the execution of innocents – the first of its kind – was convened at Northwestern University in November 1998, generating much public interest. In attendance were 30 representatives of individuals convicted and sentenced to death on the basis of circumstantial evidence or erroneous identification with no biological evidence (such as DNA tests) connecting them to the crime scene. Among the documents presented was a 1996 US Justice Department report on legal DNA testing showing that since the introduction of biological testing for rape victims, the main suspects were acquitted in 25 per cent of all cases in which such testing had been used. The suspects in many such cases were exonerated thanks not only to novel scientific methods but also to the competence and initiative of inquisitive journalists and defence lawyers – advantages that, unfortunately, not all suspects enjoy. 110

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Opponents of capital punishment in the United States have proposed a solution to the problem. According to their proposal, the beyond-a-reasonable-doubt standard should continue to govern the conviction of murder suspects though not their sentencing. In case of even minimal doubt, or in case there is a chance, however slim, that future evidence may lead to acquittal, the death penalty should be replaced with life imprisonment. This way, only convicts whose guilt is absolutely beyond doubt would be executed; all others would be able to carry on trying to prove their innocence from behind bars. As of the time of writing of these lines, American courts, including the Supreme Court, continue to operate under the pressure of conservative politicians, proponents of the death penalty, who wish to limit the appeal rights of death-row convicts. American legislators have hardly been pushing for liberal change, either. In 1996, amid the Clinton administration’s attempts to reform antiterrorism and capital-punishment laws, the US Congress voted in favour of limiting the number of federal appeals based on habeas corpus writs, restricting the total time devoted to such appeals and cutting funding to legal-assistance centres in 20 states. Most significantly, perhaps, was the proposal to return much of the authority over capital cases to the individual US states, which, unfortunately, have not always demonstrated an ability or willingness to wield such authority responsibly on the basis of solid evidence. This problem has been at its worst in Texas, which – especially since George W. Bush’s term as governor at the end of the last millennium – has earned the dubious reputation of being the most execution-happy of all US states. One third of all executions in the United States since 1976 have taken place in Texas. From the moment one is charged with homicide there, one is confronted with a system that seems far less eager to discern the facts than to send the suspect as soon as possible to the execution chamber at Huntsville.8 Like several other US states, Texas has no statewide 111

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public defence system. Instead, all responsibility for funding and assigning defence lawyers for poor defendants is relegated to the state’s various counties and districts – a practice which is especially burdensome for smaller communities. In capital cases the judge is responsible for appointing the defence lawyer, a particularly problematic convention for two main reasons: firstly, Texan judges are elected officials who often try to impress voters by saving time and money in the judicial process, and secondly, as we shall soon see, their selection of defence lawyers is not always impartial.9 One of the most disquieting problems afflicting the American justice system is the inept public defence provided to underprivileged defendants. The 1981 murder trial of black suspect Gary Graham is a classic example. Taking advantage of the public defender’s patent incompetence, the prosecution suppressed the testimonies of witnesses who could testify in Graham’s favour and prevented them from being brought to court. Instead, the prosecution produced a witness who claimed to have fleetingly seen – from her car window, 30 feet away – a black man committing the murder. Graham was convicted of homicide. Having determined that Graham was denied a fair opportunity to defend himself, the Texas Supreme Court sent his case to an appeals committee. The committee’s members did not bother showing up, however, preferring to fax their decisions to the chairperson instead. Deprived of adequate representation and proper legal assistance from the state, Graham was executed in 2000.10 Another defendant, Calvin Burdine, was assigned a defence attorney who repeatedly fell asleep during his client’s 1984 trial, earning the dubious moniker ‘the sleeping lawyer’. Burdine was awarded a new trial in 2001 after having shown that his lawyer frequently slept during the original trial sessions: ‘A defendant’s right to effective representation is violated when the representing counsel is unconscious during significant parts of the defendant’s trial,’ the 112

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Texas Supreme Court ruled in its five-to-four majority decision in favour of Burdine’s appeal. In his retrial Burdine was acquitted. Worse, perhaps, than negligence of the type exemplified in the Burdine case is the fact that the district and county courts responsible for providing defendants with legal counsel occasionally assign non-criminal attorneys (such as tax lawyers) to defendants in capital cases. Public defenders from the lower rungs of the professional ladder often prove incapable of handling complex cases. Facing them are adroit prosecutors adept at demolishing the defence and winning over the jurors.11 Defendants in capital cases, many of them poor and from underprivileged backgrounds, often have no choice but to rely on such defence lawyers. The latter, on their part, are poorly compensated for their services, often lacking the funds to hire external private investigators and other employees to help them build the case for the defence. One instance of this predicament was the case of Napoleon Beazley.12 In 1992, a 17-year-old Beazley and two friends ran into Mr and Mrs John Luttig while trying to steal the couple’s car. In the ensuing skirmish Beazley shot the husband twice in the head at close range. His investigators could not determine with certainty whether the killing was motivated by panic or by anger and vindictiveness. Charged with murder, Beazley was convicted and sentenced to die, his execution scheduled for 15 August 2001. The case drew global attention, however, due both to the defendant’s young age at the time of the crime and to his associates’ unstable testimonies (as the trial proceeded, the two disavowed their earlier claim that prior to the killing Beazley had expressed his desire to see someone die). But the case’s high public profile was also due to the victim’s identity: John Luttig was the father of a federal judge, J. Michael Luttig, and a prominent conservative backer of the George W. Bush administration. After moving his offices to the town in which 113

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Beazley’s trial was to be conducted, Judge Luttig (so the trial protocol revealed) counselled the prosecution, going as far as assisting in the selection of jurors.13 When the defendant appealed to the US Supreme Court, no less than three judges recused themselves because of their personal ties with Judge Luttig, leaving only six judges to decide in the case. A new attorney appointed to Beazley appealed the severe sentence, citing the defendant’s young age, social background and skin colour. (Interestingly, even the district attorney claimed the sentence was overly harsh, especially given Beazley’s lack of a prior criminal record.) To execute Beazley, his attorney claimed, would only be to exacerbate the tragedy by adding one more killing to the toll of brutal deaths. By making these claims, the attorney was no doubt relying on the local prominence of both families, the victim’s and the perpetrator’s: whereas Luttig was an eminent member of the local community and church, Beazley’s father was the first black member of the local town council, and Napoleon himself was president of his class, a promising member of his school’s football team and a popular boy at school.14 Though Beazley did not deny his involvement in the murder, he found it difficult to describe clearly what had happened. What little could be reconstructed from his jumbled testimony was as follows: to prove his mettle to his friends Beazley felt he needed to show them he was capable of a daring prank. He did not intend to kill. One thing led to another, however, and Beazley found himself accused of murder. Conforming to a typical adolescent profile, Beazley’s testimony was very similar in both nature and details to the testimonies of other juveniles charged with murder. Beazley’s appeal was unsuccessful, however, and he was executed. The unique, almost cinematically extreme nature of Beazley’s case drew much public and media attention to the sentencing of juveniles to death. Beazley, opponents of the death penalty claimed, 114

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was practically doomed to die. He was a black boy, the son of immigrants, who murdered the socially prominent father of an eminent white judge. Furthermore, his seemingly inexperienced attorney handled his case negligently, failing, for example, to alert the jurors to Beazley’s young age at the time of the crime. Had only one of these unfortunate features been absent it is quite likely that Beazley would not have been executed. Films rarely show us incompetent defence lawyers, and on the rare occasions on which they do, the attorneys in question differ in at least one important respect from the ones involved in reallife capital cases. Filmic representations of capital cases often focus either on the events leading up to the trial – usually by inserting flashbacks between the courtroom scenes – or on post-sentencing attempts to overturn a death sentence. The flawed attorneys portrayed on-screen are thus often of a different sort from the ones we find in reality. Their flaws are usually the result of personal history – a family tragedy, a resounding professional failure from the past that haunts their conscience, and so forth – not of the systemic failures of the profession itself. Unable to restore himself to his old position, the agonized lawyer typically abandons his work and tries to drink himself to oblivion. The plot’s turning point typically arrives when a new character – an enthusiastic young lawyer, an old friend, a representative of some humanitarian organization – requests the attorney’s help. After much hesitation, the self-doubting attorney decides to take up the case. He ends up winning, of course, thanks to his rekindled intelligence, resourcefulness and conscientiousness. Such, for example, is the defence attorney in Barry Levinson’s Sleepers (1996), whose protagonists, four New York youths, foolishly decide to steal hot dogs from a street-corner vendor one hot summer day. The prank quickly goes awry, however, ending in the vendor’s death. The four young friends are sent to a juvenile delinquency facility where they are sexually and psychologically abused by their 115

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sadistic guards and carers, mentally scarring them for life. As the years go by two of the friends turn to genuine crime, spending much of their time behind bars, their hatred for society filling them with vengefulness. The remaining two become fledgling professionals – one a journalist, the other a public attorney. One day the two felons accidentally run into the cruel guard responsible for their abuse. They murder him and soon get caught. Unable to hire a lawyer, they are assigned a once competent but currently failing public defender beset by personal problems. Meanwhile, the prosecution team enlists their old friend, the public attorney, of whose shared past with the defendants none of the other prosecutors is aware. Pretending to help the prosecution, he leaks to the fourth friend, the journalist, news that might help the defence. Unaware of the unexpected help, the failing defence attorney (Dustin Hoffman) proceeds with the support of the defendants’ neighbourhood friends, including a local priest who assists in the fabrication of a false alibi for the defendants. The two defendants are eventually acquitted, and the circle is closed: the four childhood friends have paid for their youthful mistake; two of them have avenged the subsequent suffering of the four; and now, after years of anguish and distress, they can finally have peace of mind. A film expressing a similar idea is Tim Robbins’ Dead Man Walking (1995), which tells the story of a young man, Matthew Poncelet, who along with a friend rapes a young woman and murders her and her lover. The friend, who can afford a good lawyer, manages to avoid the death penalty. The poorer Poncelet is not so lucky: the inept public defender assigned to him by the state fails to reduce his sentence to life imprisonment. A nun (who would eventually persuade Poncelet to confess to his crime and accept his fate) hires an experienced lawyer to help him with his appeal.15 The lawyer’s opening speech in the appeal hearings puts Poncelet’s predicament in a nutshell: 116

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Ladies and gentlemen, let’s be honest. You’re not gonna find many rich people on death row. Matthew Poncelet is here today because he’s poor. Didn’t have money so he had to take what the state gave him. He got a tax lawyer who’d never tried a capital case before. An amateur. The jury selection took four hours. The trial lasted five days. The lawyer raised one objection the entire trial. Now, if Matthew had himself some money, well, he could’ve hired a team of crackerjack lawyers and they would have hired top-notch investigators, a ballistics expert, a psychologist to compile profiles of desirable jurors. And you can be sure Matthew Poncelet wouldn’t be sitting here today before you asking for his life.

Dead Man Walking faithfully depicts the predictable deaths of the poverty-stricken individuals who turn to crime and are deprived of adequate legal representation. The fame and reputation of the film’s creative team – acclaimed director Tim Robbins, stars Susan Sarandon and Sean Penn – helped push the topic of capital punishment to the forefront of public discourse, though only for a short while and without triggering real political or legal change. Dead Man Walking did encourage, however, the proliferation of interdisciplinary academic studies on the topic in such fields as film and history, film and law, and so on. Two other American films produced in the 1990s, Last Dance (1996) and The Green Mile (1999), contributed to this trend. The titles of all three films are derived from death-row jargon: ‘dead man walking’ was the announcement blaring through the prison public-address system each time a deathrow convict walks to the execution chamber; a convict’s ‘last dance’ is the last thing he or she does before the execution; and the ‘green mile’ is the green line marked on the floor of the prison hallways leading from death row to the execution chamber – the last mile a death-row convict would ever walk during his or her life. In all three films, the problem is not that the executed convicts 117

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are innocent – on the contrary, all are clearly guilty – but rather their lack of access to adequate legal representation. All three have become basic texts in university courses on on-screen representations of criminal justice and capital punishment. The most renowned academic study in this area is probably When the State Kills: Capital Punishment and the American Condition by Austin Sarat, an Emory University professor. While many studies pre-dating Sarat’s had dealt with film and law in general, Sarat was the first to address more specifically the connections between capital punishment, the effect of films on legal themes on the American legal system and the ways in which such films reflect American society.16 Not all films on the death penalty are fictional; some are based on fascinating historical cases. No less than two have been based on the unusual case of Caryl Chessman, convicted of murder in 1948 and executed in 1960.17 Chessman was a thief and a burglar, a petty criminal who had stolen for a living but had never been suspected of any violent crime until January 1948, when he was identified as the ‘Red Light Bandit’ (named after his ruse of waving a red police flashlight to stop cars in order to rob and rape their female passengers).18 Chessman was soon charged with the abduction and rape of several women. Though he was facing the death penalty under the Federal Kidnapping Act (the so-called ‘Little Lindbergh’ law, adopted after the abduction and murder of Charles Lindbergh’s young son), the destitute Chessman was assigned an incompetent public defender. Predictably, his trial soon ended with a death sentence. Chessman appealed, and, realizing his life had been in the wrong hands, decided to represent himself in court – a courageous and risky decision considering his lack of legal training. His judges openly resented what they took to be his arrogance and repeatedly made light of the evidence he provided and of his general line of defence. During his lengthy legal battle Chessman studied law and authored several autobiographical and semi-fictional books: Cell 2455, Death 118

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Row (1954), Trial by Ordeal (1955), The Face of Justice (1957) and The Kid Was a Killer (1960). Written secretly on brown wrappers under the unsuspecting noses of his death-row guards, Chessman’s writings soon reached the public and garnered much interest. Readers enraged by the conviction’s flimsy evidential basis – intellectuals, academics and even former first lady Eleanor Roosevelt – tried to intervene in Chessman’s favour. All such attempts were in vain, however. Chessman’s successive appeals were rejected by the courts. At the last moment, after new evidence in favour of Chessman’s innocence nearly persuaded the governor of California, Pat Brown, to pardon him, Chessman was given a 60-day stay of execution to establish his innocence. State Supreme Court Judge Goodman, then in charge of the Chessman case, found the new evidence substantial and sufficient to annul Chessman’s execution. Technical delays prevented him, however, from contacting the prison authorities in time: his order to cancel the execution reached the prison three minutes after Chessman had been taken into the gas chamber. A focus of public interest during his life, Chessman became a public hero after his death, a Don Quixote battling giants he could not defeat. His story inspired writers and artists both within and outside the United States and was the subject of numerous articles and books, most prominently Mille Soleils (A Thousand Suns) by the renowned French author Dominique Lapierre. Chessman was a ferocious eccentric who did not miss an opportunity to attack the religious and legal establishments he so deeply hated. As a prisoner, he was involved in endless brawls with the other convicts. Chessman was a product of his era, however, an instance of the spirit of rebellion that was coming to the fore in his time. The year 1955 saw the release of Fred Sears’ Cell 2455, Death Row, a narrative film based on Chessman’s writings. Made while Chessman was still alive and embroiled in his legal battle, the film’s ending is deliberately vague, leaving it open to interpretation whether 119

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Chessman’s character is eventually executed or not. After his appeal hearings but before the final verdict, Chessman is taken back to his prison cell. As the door closes behind him, the camera, located over the guard’s shoulder, moves away from the cell and into a long dark hallway running through the prison; a gate opens, then a second and a third, until finally the camera emerges into the prison yard, at which point the light gets brighter but the screen fades to black. The film sounds a clear warning regarding the execution of innocents, their inadequate legal representation and the dangers posed by a rigid and uncaring legal system. A television drama about the case was made long after Chessman’s 1960 execution and the subsequent republication of his books. Directed by Buzz Kulik and starring Alan Alda in the role of Chessman, Kill Me If You Can (1977) presents the full story of Chessman’s legal ordeal: the flawed police line-up, the inept defence lawyer, the ambitious prosecutor, Chessman’s risky decision to represent himself in court, and so on. In particular, the film highlights the fascinating intellectual confrontation between the formally educated judges and the naturally intelligent young defendant trying to find his way around the law in order to escape death. Chessman’s initial attempts to battle the legal establishment are rather successful. A psychologist he hires shows that Chessman does not fit the usual profile of a rapist and a murderer. This finding reaches the authorities at the very last moment, removing Chessman from the gas chamber for the first time. Chessman’s trial continues: now he must prove his innocence regarding the remaining charges of robbery. But Chessman’s undeniable ingenuity ultimately falls short. He is finally doomed by the sheer inequality between his meagre resources and those of the powerful legal establishment. Evidence casting doubt on his guilt is ignored by the unsympathetic judge who refuses to engage Chessman in a professional legal dialogue 120

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and flouts the requirement to write daily courtroom protocols. Chessman’s repeated demands for a protocol are ignored. His appeal to the California Supreme Court is somewhat helpful, but the case is eventually returned to the previous court with the same antagonistic judge. In his later appeal, Chessman summons the unsympathetic judge to the witness stand, exposing the fact that the judge and the prosecutor are relatives, that the journalist enlisted by the judge to attest to the illegible protocol’s legibility was the judge’s friend, and that the judge allowed his own prejudice against the defendant to taint his guidance of the jury. Though the judge admits he prevented the writing of a daily protocol, he denies any of his actions were motivated by antagonism for the defendant. The court accepts the judge’s answer at face value and summarily rejects Chessman’s appeal. Two weeks before his execution Chessman refuses to ask for pardon. A week later he holds a press conference in which he expresses his view of capital punishment: the death penalty, he claims, does not prevent crime; its sole function, he says with bitter sarcasm, is to contribute to the swift turnover of the prison population. One week later, a mere nine hours before his execution, it is publicized that the woman who filed the original complaint against Chessman and has been hospitalized in a mental-health facility had been diagnosed with schizophrenia long before she allegedly came across Chessman. According to the physician who examined her, her claims regarding Chessman have not been substantiated. Chessman is released from the gas chamber for the second time. Chessman wins a second stay of execution, this time for 60 days. He is now assisted by a defence lawyer, who does her best to commute the sentence, but to no avail. The gas chamber preparations are described in detail. Chessman is brought once again to the place of execution. After further deliberation, the appeals judge decides to 121

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change his prior decision, but his secretary dials the wrong number, the news arrives too late, and Chessman finally dies. Alan Alda, who was widely acclaimed at the time for his starring turn as Hawkeye in the hugely successful television sitcom M*A*S*H (1972–83), nevertheless failed in his portrayal of Chessman. Not only were the two physically dissimilar (with the exception of their similar height), but the violent traits of the real Chessman, which contributed to his fearsome character as well as his charm, were almost completely absent from Alda’s character. The typical mannerisms of television acting dominated Alda’s work. Alda’s Chessman was a spoiled, arrogant, condescending character, with whom television viewers in the late 1970s, the dawn of the ‘new conservatism’, could hardly be expected to identify. The era’s television viewers were inundated with realistic television dramas based on the political events of the day (such as the 1972 Watergate scandal, the end of US military involvement in Vietnam in 1973 and the mid-1970s oil crisis and the resultant economic recession). A personal story, even one as fascinating as Chessman’s, could be expected to draw their interest only if the character were both charismatic and sympathetic, capable of stirring both admiration and compassion. It was a challenge Alda failed to meet. Chessman’s story was soon to be forgotten. American democracy venerates the public’s right to elect its representatives. As a result, many high-ranking officials in sensitive legal and judicial positions – judges, prosecutors, and such like – are publicly elected rather than appointed. The US Constitution is thus often interpreted by judges guided by their voters’ political agendas, values and principles. Naturally, this affects policies and rulings concerning the death penalty, which are all too often shaped by economic considerations (execution is cheaper than life imprisonment), racist and discriminatory views, and other legally and morally questionable concerns.19 122

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State’s Attorney (1931), a caustic film by director George Archainbaud, exposes with unmitigated acerbity the naked realities of a state attorney’s bid for the state governorship – his rise from district to state attorney, his ruthless and corrupt election campaign, his attempt to attain a record number of convictions and executions in order to prove his efficacy to voters, and his eventual climb to the governorship over the bodies of his victims. Errol Morris’ The Thin Blue Line (1988) goes even further in exposing the deficiencies of the American justice system. A master of documentary filmmaking, Morris employed in this film the innovative technique of using actors and sets to reconstruct the real events. No less important than the film’s stylistic achievements, however, were the facts it exposed. The Thin Blue Line is a horrifying reminder of the ordinary American’s chances of ending up on death row: one need only find oneself in the wrong place (in this case, a Northerner in a Southern town), unemployed or otherwise socially marginalized, and embroiled the wrong kind of conflict. The film tells the story of Randall Adams, a Northerner travelling with his brother to a Southern town in search of work. On the way there they pick up a hitch-hiker, a young local man who (unbeknownst to them) happens to be a convicted felon. That same evening a local policeman is murdered. The prosecution and the local police go out of their way to find the killer. Though no real evidence points in Adams’ direction, he is soon arrested. A testimony by the hitch-hiker soon implicates him, however, and a police psychiatrist takes only 15 minutes to pronounce him a dangerous psychopath. Though all the real evidence points to the young hitch-hiker, neither the local sheriff nor the prosecution or even the judge wish to indict the local man, ‘one of our own boys’. Randall is thus indicted, convicted and sentenced to die. Morris’ intervention in the Randall case begins with certain doubts he has about Randall’s investigation and trial. In time, it 123

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becomes clear that several of the people involved had their reasons to convict Randall and to ignore the local felon, who in the meantime commits another murder. The film ends with Randall’s acquittal and the local felon’s arrest (though for his second murder rather than the first). In a chilling segment towards the end of the film, Morris interviews the local felon who admits he killed the policeman. ‘He,’ the young man says, referring to Adams, ‘was just in the wrong place in the wrong time.’ Adams, on his part, spent several more years in prison before his final release, due to the prosecution’s insistence on various legal technicalities. The Thin Blue Line was widely acclaimed, drawing much public attention to the afflictions of the American legal system. Unlike most other documentaries, its message was not limited to the art houses: a veritable hit, it was shown in commercial theatres and multiplexes. Its discussion of the ease with which jurors, judges and prosecutors obsessed with convictions can ruin the lives of innocents finally managed to raise the subject to public awareness. Morris was interviewed by leading journalists and appeared on popular television shows. His film has been studied on university courses and made possible serious debates in the US Congress on such matters as how to treat and prevent juvenile delinquency, how to handle evidence provided by the prosecution and, most importantly, how to mitigate the defendants’ utter dependence on the decisions of jurors who all too often exhibit ignorance and put their unqualified trust in the prosecution. In December 2000, Columbia University law professor James Liebman published the results of an extensive study on 4,578 deathpenalty appeals to the Supreme Court over a period of 20 years.20 The study was widely covered by the broadcast and print media and inspired several films on the death penalty. Liebman’s findings were startling. More than two thirds all death sentences, Liebman found, were overturned by the Supreme Court. 124

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Of those, 75 per cent were replaced by lighter punishments as a result of retrials, plea bargains or court orders. Seven per cent of all appeals ended in full acquittal. Eighteen per cent led to a retrial and to a second death sentence, though some of these sentences were also subsequently overturned in the wake of further appeals. The vast majority of cases ending in a death sentence were beset by such serious errors that new legal procedures had to be initiated. Liebman’s conclusions were unambiguous: the American capital-punishment system, he wrote, was ‘broken’ due to its surfeit of errors. Crucial mistakes, he claimed, pervaded thousands of cases in nearly all US states. Liebman’s conclusions had special resonance in the period immediately after the election of President George W. Bush, whom some have called ‘the Texas Butcher’ due to his notoriously conservative position on capital punishment and the proliferation of executions in Texas during his term as the state’s governor.21 Liebman’s study relied (among other sources) on reports from various states, most prominently from Texas. Reports by the State Bar of Texas and the state’s legal-assistance programme harshly criticized the Texan approach to capital punishment, describing the legal system as ‘embarrassing’. One of the reports’ main conclusions was that the state’s penal system was in urgent need of reform. Among the problems indicated were inappropriate conduct on the part of the prosecution, racial prejudice by jurors, prosecutors and judges, fabrications by ‘expert’ witnesses, the assignment of inept public defenders to poor defendants and overly quick and superficial appeal procedures. In 79 per cent of the 103 appeals examined, the judge did not even hold a hearing. Many public defence lawyers failed to do as little as to prompt further investigations in search of new evidence. Statistical data published since 1973 has lent support to these reports and others like them. From 1973 to 2000, 87 death-row inmates – one in every seven – were released after being exonerated 125

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by new evidence. The number of such belated acquittals grew over the years. Every year between 1973 and 1993, 2.5 per cent of all death-row inmates whose cases had been reopened were released. In the six following years, from 1993 to 1999, the average annual percentage nearly doubled, rising to 4.6 per cent. In the first three months of 2000 alone, three death-row inmates were acquitted and released. The number of convicts executed declined further in the ensuing years, from 300 in 1998 to 143 in 2003.22 The obvious question to ask in light of this data is how many innocents would have been killed if not for the availability of retrials and new evidence. The film world has been quick to react to these developments. Marc Forster’s Monster’s Ball (2001), for which Halle Berry was awarded the Academy Award for Best Actress (a first for an African American woman), raised numerous human and ethical questions concerning the death penalty. In the film, a black prisoner who has spent 11 years on death row is about to be executed after all attempts to commute his sentence to life imprisonment have failed. The prisoner’s wife (Berry) and their overweight son live in abject poverty, constantly at risk of being evicted from their home. Most of the prison guards treat the prisoner fairly and do their best to help him die in peace. Overseeing the execution, however, is a strict and racist death-row warden named Hank (Billy Bob Thornton). Assisting him is his son, whom Hank considers ‘too soft’. Unable to cope with the stress, the son commits suicide, though not before his father confronts him one last time, telling him he has never loved him and has always scorned him for his softness. A few hours later, as Hank roams the city streets ridden with guilt and pain, he stops to help the victim of a hit-and-run accident, a black boy who is fatally wounded. He brings the boy and his devastated mother to the hospital, where the boy is pronounced dead. United by their grief, Hank and the mother soon fall in love. They are unaware, however, of the further 126

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ties that bind them: she is the executed convict’s widow, he is his executioner. Regardless, they stay together, Hank finally mending his hateful racist ways. Another 2001 film about the death penalty, also starring Billy Bob Thornton (though this time as the defendant), is Joel and Ethan Coen’s post-modern noir The Man Who Wasn’t There. The film’s protagonist, a somewhat obtuse small-town barber (Thornton), suspects his wife is having an affair with the manager of the general store where she works. Doing nothing initially, he later murders the manager, though the motive is financial rather than romantic. The main suspect, his wife, is arrested and commits suicide in jail. A few months later, the barber is charged with the murder of an alleged business partner – a crime he did not commit. Defended by an incompetent attorney with little experience in criminal litigation, the barber is sentenced to die on the electric chair. We see him stoically walk to the chair, as if expecting to meet his wife soon. Whereas in Monster’s Ball death served the cycle of life and helped the characters reconcile themselves to reality, in the Coens’ film death is a ‘just repose’, a corrective to the manager’s sin, the wife’s betrayal and the murderous barber’s crime. From the same period is Alan Parker’s The Life of David Gale (2003). Parker, whose critical films on American society and the American justice system include Midnight Express (1978), Birdy (1984) and Mississippi Burning (1988), collaborated on the film with screenwriter Charles Randolph, a philosophy professor and a staunch opponent of the death penalty. The film is based on James Liebman’s aforementioned findings, presented from the perspective of a young, ambitious journalist who is cynically used by opponents of the death penalty on the one hand and by the legal system on the other. The Life of David Gale tells the story of a university professor, an opponent of the death penalty, who deliberately incriminates 127

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himself in the murder of a fellow activist against capital punishment in order to go to the gallows and thereby prove that it is possible for an innocent man to be executed. The film follows closely the legal procedure, focusing on the defendant’s inept attorney and on the protests of opponents and proponents of capital punishment alike. An inquisitive journalist who looks into the case discovers that she, along with her readers, has fallen victim to the manipulative opponents of the death penalty, among them the professor himself, who have fabricated the murder in detail. Their ingenious scheme, she finds, was to help a friend who had been dying of leukaemia to commit suicide. The assisted suicide was then filmed to look like a murder committed by the professor. Their goal, of course, was to get the professor convicted and executed in order to demonstrate how easily the legal system can send people to their deaths without proper investigation. Parker and Randolph confront the case from both sides, expressing their dissatisfaction not only with the death penalty itself but also with its passive collaborators, the broadcast and print media. Both sides, opponents and proponents alike, treat executions as a mere means in their battle against the opposition. Ordinary people, Parker and Randolph suggest, are just pawns in this battlefield of ego, hatred and animosity. The film has resonated with audiences and was nominated for two awards; it is doubtful, however, that it has occasioned any changes in the legal system.

A Particularly Subjective Objectivity: The Jury Problem Any American citizen can serve on a jury, regardless of race, ethnicity or gender. Together, the jurors are supposed to represent the American people. They are ordinary citizens, carrying out their civic duty. They come from all rungs of society – professionals and 128

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housewives, laypersons and experts, doctors, plumbers, brothel owners, army veterans, gardeners, bankers, store owners, and so forth. On the face of it, the jury system offers an impressive procedure in which ordinary people are asked to judge their peers. The reality, however, has been more complex. For much of American history, juries were exclusively white and male. Until the 1930s the public and legal significance of this fact had largely gone unacknowledged. This changed in 1931, during the Great Depression, when the Scottsboro Boys case shook the entire nation.23 The affair began as nine vagrant black youths aged 13 to 18 hopped on a freight train to try their luck away from home. One of the boys was nearly blind; another was very sick, barely able to stand on his feet. On the same freight car were several white youths, male and female, and a brawl between the two groups soon broke out. The stowaways were taken off the train at the station in Scottsboro, Alabama. Two of the white girls, Ruby Bates and Victoria Price, approached the station managers claiming the black boys had raped them. The black youths, henceforth known as the ‘Scottsboro Boys’, were summarily arrested and jailed. A white mob soon took to the streets, forcing the town leaders to call on the National Guard in order to protect the boys from lynching. In the ensuing trial, the prosecution demanded the death penalty. Though findings from the crime scene proved there had been no sexual contact between the white girls and the black boys, the law, the police, the public and the press (which covered the case extensively) chose to put their absolute trust in the white girls’ testimonies. Their credulity did not dwindle even when one of the girls recanted, admitting she had lied. News of the events quickly spread and the entire nation was soon awaiting the verdict of ignorant, racist Alabama. In the meantime, the local press continued to agitate the public, demanding to avenge the honour of Southern women and falsely representing the defendants as known felons 129

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with a rich criminal past.24 Renowned lawyer Samuel Leibowitz – a gangsters’ attorney in more ordinary times – arrived from New York to defend the Scottsboro Boys, but to no avail. The jurors convicted them twice; some were sentenced to life imprisonment, others to death. Leibowitz, who as a Yankee and a Jew was not exactly popular in Alabama, found but one way to annul the sentences: the jury, which according to state law should have been heterogeneous, was, unsurprisingly, exclusively white. The US Supreme Court was persuaded to overturn the death sentences, returning the affair to its real proportions. Back in Alabama, District Judge James Edwin Horton found numerous legal flaws in the original trial and declared a retrial. None of the boys, who in the intervening years had become hard, bitter prisoners, was eventually executed, but the kind of life that awaited them was not much better. More than anything, the Scottsboro Boys affair drew America’s attention to the nation’s racial

Figure 3.1 Renowned lawyer Samuel Leibowitz – a gangsters’ attorney in more ordinary times – arrived from New York to defend the Scottsboro Boys. 130

Figure 3.2 Caricature by James S. Allen from a local newspaper in Alabama, protesting the initial verdict of ‘guilty’ which ordered the execution of the Boys. Sold for 1 cent.

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problems, in particular to its white citizens’ exclusive prerogative to decide the fates of their black co-citizens.25 The jury problem re-emerged in all its difficulty in Harper Lee’s 1960 novel To Kill a Mockingbird, which was inspired by the Scottsboro affair. In the 1962 film based on the book, director Robert Mulligan reinterprets the jurors’ role to engage the viewers in the psychological process of determining whether the defendants are innocent, thus making tangible the full horror of the jurors’ ignorance and racism. It was only in 1976 that the Scottsboro story was adapted to television in the Fielder Cook-directed drama Judge Horton and the Scottsboro Boys. More than two decades later, in 2000, two acclaimed documentary filmmakers, Daniel Anker and Barak Goodman, directed the documentary Scottsboro: An American Tragedy. Their film follows the events chronologically. While the laconic language of the film’s Southern interviewees taints the events in particularly disturbing ways, the activists – those who had fought to save the defendants – manage to bring the events to life. Some of them wonder why they had fought so strenuously to save the boys’ lives but did not help them once they were released from prison.26 The trial of the Scottsboro Boys was unique not only for the defence’s successful bid to overturn the jury’s verdict but also for the trial’s encapsulation of the era’s racism. In a twist of dark irony, defence attorney Leibowitz returned to New York after the relentless six-yearlong legal battle, only to be elected to the New York State Supreme Court on a platform of support for the death penalty. The American jury system attaches no importance to the fact that most jurors are bereft of legal knowledge and judicial capacity. Jury duty is as stringent a requirement as the military draft, an unshirkable legal obligation, avoidable only when a slated juror is disqualified by the defence or the prosecution. Not all courtroom procedures employ juries (for example, family courts do not); jurors are required, however, in both criminal and civil trials. The 132

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12 jurors who constitute such juries must attend the courtroom at every stage of the litigation. During the trial they must be isolated from anyone or anything that might affect their judgement. They must hear all courtroom discussions and adhere to the judge’s instructions. Reality, however, does not always conform to these ideal rules. Time and again, jurors are exposed to influences that may well affect their verdicts. American history is rife with such cases. One historical case is particularly infamous for having demonstrated the media’s influence on public opinion and thus indirectly on the jurors. That the defendant in the case never ceased to insist that he was innocent, and that he was eventually executed, makes this influence particularly disturbing. The case in question is the Lindbergh abduction case. One evening in 1932, the infant son of celebrated American pilot Charles Lindbergh was kidnapped from his cradle in the spacious Lindbergh home. In his note the kidnapper demanded a ransom. The press, which considered Lindbergh a hero, was beside itself. Portraits of possible suspects were printed and distributed. Parents out for a walk in the park would suspect any approaching stranger. The Lindberghs paid the ransom. Nevertheless, the boy’s body was found buried in the woods a few days later. A suspect, a local carpenter and German immigrant named Richard Hauptmann, was soon arrested, though the police could find no conclusive evidence establishing his guilt. Jurors were selected on the eve of Hauptmann’s trial. To be isolated from the general population, they were lodged on the right-hand side of the hallway on the ground floor of the only hotel in town. The rooms across the hallway, on the left-hand side, were occupied by the journalists covering the trial. Though the two groups were supposed to be kept apart, their members habitually met in the hallway or in the hotel bar for quick conversations or a drink. The jurors’ ‘information gaps’ were thus regularly filled in ways that may well have sealed Hauptmann’s fate in advance.27 And, 133

Figure 3.3 In 1932, the infant son of celebrated American pilot Charles Lindbergh was kidnapped from his cradle in the spacious Lindbergh home.

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indeed, Hauptmann was convicted on the basis of circumstantial evidence (a suspicious sum of money was found in his home as well as a ladder and nails which he had supposedly used to climb to the Lindberghs’ house and kidnap the infant). Hauptmann continued to deny all charges, however, maintaining his innocence until his death in the electric chair.28 None of the parties involved learned any lessons from the Lindbergh case: no legal procedures were reformed, and similar events recurred in future trials, especially ones involving celebrities. Hauptmann’s wife tried to clear his name for many years, but all her efforts failed despite the emergence of new evidence. The media’s veneration of Lindbergh, the national hero, prevented it from publicly revealing the full story as long as he was alive. It was only after Lindbergh’s death in 1974 that such a critical attitude emerged – for example in the television drama The Lindbergh Kidnapping Case (1976) starring a young Anthony Hopkins, which used its temporal distance from the original events to adopt a more objective perspective. In the film, Hauptmann’s capture by the police seems promising at first. During the trial, however, serious discrepancies are found between the available evidence and the prosecution’s claims. Hauptmann is a carpenter by trade, so it is only natural that a ladder and nails should be found in his house. The ladder can, however, reach the second floor of the Lindbergh house from which the boy had been kidnapped, and a nail of the type found in Hauptmann’s house, which had probably fallen from the ladder used by the kidnapper, is found at the crime scene. The money found at Hauptmann’s place is also nearly identical in sum to the ransom given to the kidnapper. Hauptmann denies, however, that the money is his, claiming it was given to him for safekeeping by another person whom he refuses to name until his very last breath. Also damning Hauptmann is his past as a thief in his native Germany. All of these factors, along with the hostility of the 135

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jurors and the public at large, combine to seal Hauptmann’s fate and send him to his death. The filmmakers, on their part, plant in the viewers’ minds the seeds of doubt which were so absent in the jurors’, affording Hauptmann some of the justice he was denied in his life – albeit too little and too late. Under the American jury system, the jurors must reach a unanimous decision regarding the defendant’s innocence or guilt. If a unanimous decision is not made, the judge may declare a retrial or a mistrial or give his own verdict. The sentence – such as prison time or a fine – is usually determined by the judge after the jury gives its verdict. When the prosecution requests the death penalty, the jurors’ verdict carries fatal significance since a conviction entails a death sentence. The judge’s main duty is to steer the trial in compliance with legal procedures and to ensure that the jurors have given the verdict on the basis of their sound understanding of the evidence. The judge has both the right and the duty to disqualify jurors whose decision making process he judges to have been flawed. The jurors are selected by the defence and the prosecution, whose attorneys interview jury candidates under the judge’s supervision. Since juror selection may crucially affect the trial’s outcome, the two sides invest considerable time and money in the process. In particular, much effort is devoted to profiling desirable jurors with the aid of psychologists, psychiatrists, sociologists, public-relations specialists and other experts, on the basis of such criteria as attitudes towards capital punishment and other relevant moral and religious issues. In addition, experts often assist the attorneys in the selection of actual jurors. Other experts employed by the defence are responsible for the defendant’s appearance and behaviour: they instruct the defendant in how to dress to impress the jurors, how to speak in order to stir their sympathies, and so forth. Others assist the defence by recruiting fake relatives for defendants without families in order to create a supportive atmosphere, to give jurors 136

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the impression that the defendant comes from a good family, to win the jurors’ sympathy and compassion, and so on. All this is subject of course to the defendant’s financial resources. Defendants who cannot shoulder the financial burden are assigned public defenders who, even when competent, can hardly be expected to win legal battles without the generous resources available to the prosecution. This anomalous state of affairs has found expression in numerous popular books (such as John Grisham’s suspense novels), films and plays – most strikingly in recent years in the 2003 film Runaway Jury, based on Grisham’s novel of the same name. (The film’s director, Gary Fleder, has directed episodes of such television series as The Shield and Homicide: Life on the Street.) The film moves back and forth between the defence’s interminable juror-selection ploys and the prosecution’s conviction efforts, until the legal skirmish finally deteriorates to mutual physical threats and attempted murder. Though the film’s exaggerated narrative serves artistic ends and does not reflect reality, certain of the events are quite representative of jury-chamber and courtroom incidents that do occur with alarming frequency. Juries pose not only technical problems for the prosecution and the defence but also psychological and moral problems for the jurors themselves. They must make decisions on the basis of largely unfamiliar material, and the expectation that they will reach a just verdict takes its psychological toll. In addition, they are constantly pressured, both openly and covertly, by interested parties. Jurors struggling with such stressful situations have been excellent fodder for cinematic suspense. Films focusing on jurors under pressure have included Budd Boetticher’s The Missing Juror (1944), about 12 jurors pursued by a mystery killer, Sidney Lumet’s classic 12 Angry Men (1957), Peter Yates’ Suspect (1987), in which a juror impermissibly contacts the defence attorney in order to help her find the real suspect and get her own client acquitted, and Brian Gibson’s The 137

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Juror (1996), in which a juror blackmailed by the Mafia is forced to acquit a mobster standing trial. Until the late twentieth century, criminal defendants facing the death penalty could request a juryless trial. A famous cases of this sort was the trial of Nathan Freudenthal Leopold and Richard Albert Loeb, who were charged in 1924 with the abduction and murder of a young boy in an attempt to commit the ‘perfect crime’.29 In their trial, which provoked a great deal of public outrage, the prosecution demanded the death penalty. In an exceptional move, their defence attorney, the renowned Clarence Darrow, opted for a juryless trial. To prevent his decision from leaking to the prosecution (which could then request two separate trials, for abduction and for homicide, increasing the likelihood of conviction), Darrow did not share his decision with the defendants’ families until the hearing. His move was met with astonishment by all, some claiming that he was putting his clients at risk. Darrow’s dismal experience with ignorant jurors who could easily be swayed by irrelevant considerations caused him, however, to prefer the judgement of one person to that of 12. The humanist yet sober and cynical attorney was well aware that while a judge was likely to sentence his clients to life in prison, a jury was likely to sentence them to death. His gamble paid off. Leopold and Loeb were sentenced to life imprisonment. Loeb was murdered several years later in a prison shower; Leopold spent 33 years in prison until his release in 1958. The public tumult stirred by Leopold and Loeb’s months-long trial continued to reverberate in the ensuing years. Numerous films and plays have referred to it, its protagonists becoming cultural icons in the process. One particularly memorable film based on the case is Richard Fleischer’s Compulsion (1959), adapted from Meyer Levin’s book of the same name. Though the film is short of a masterpiece, it is remarkable not only for the gripping story but also for Orson Welles’ impressive portrayal of a defence attorney 138

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based on the legendary Darrow. Welles’ final courtroom speech – a 15-minute cinematic tour de force – is particularly enthralling, a fine tribute to America’s greatest attorney of the early twentieth century. In the speech, Welles’ character appeals to the judge’s reason and compassion, asking him not to replicate the defendants’ vile actions by putting them to death; it is the judge’s responsibility, he insists, to put an end to the vicious circle of violence and to give future generations hope for a better, less barbaric world. Though the jury problem has been brought before the US Supreme Court many times in various contexts – not all related to the death penalty – a genuine solution has yet to be found. Studies have shown that the legal system’s failure to change has stemmed from its extreme conservatism and its staunch adherence to past legal and judicial traditions. Cinema, on the contrary, has long discerned the jury system’s negative influence on American cultural and social attitudes. The jury problem has been a staple of American cinema for decades, a striking representation of the country’s dismal legal realities and of the common person’s fragile position within them. It is testimony to the problem’s importance and to cinema’s contribution to its critical appraisal that dramas dealing with the jury problem have repeatedly drawn and thrilled millions of viewers with as little as a courtroom set and a bare jury chamber inhabited by nothing but 12 debating individuals.

Strange Fruit30 Discrimination against African Americans is rooted in the antebellum slavery era, a time when black lives were largely considered cheaper than white. Throughout this period, which spanned the first century of American independence, slaves accused of crime (including fugitive slaves charged with the then criminal act of 139

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Figure 3.4 A ‘souvenir’ postcard sold during the 1930s in general stores in the South showing a lynched African American man.

fleeing their owners) were penalized with the utmost severity – at best by flogging, at worst by hanging. Racial discrimination did not end with the Civil War. The 1868 ratification of the anti-discriminatory Fourteenth Amendment to 140

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the US Constitution did little to change the age-old practice of imposing little or no punishment on white people who committed crimes against black people. Neither did it significantly diminish the existing relations between capital punishment and race. The American public continued to treat the death penalty as an effective crime deterrent conducive to public order – and an inexpensive one at that, compared with the tax-consuming penalty of life imprisonment. Among the informal manifestations of this attitude were the frequent lynchings of black people, perversely meant to deter the victims from partaking in American social and political life, particularly as voters or as candidates for office. As an informal version of capital punishment, lynching was not much different from the institutional death penalty. Both forms of execution enjoyed public legitimacy; both were assisted in effect by representatives of the law; both put their victims to death – whether on an oak tree or in a prison’s execution chamber was of little practical significance; and both, it seems, went hand in hand with common American views and attitudes. From the 1930s to roughly the 1960s, all attempts to make the legal treatment of racial minorities – black people, those of mixed race, Hispanics – equal to that of white people failed. The courts were largely unwilling to reform their treatment of minorities despite the availability of groundbreaking precedents that allowed them to do so, for example the US Supreme Court’s two important rulings in the Scottsboro case, which decreed that defendants must be provided adequate legal representation and that juries must be racially heterogeneous.31 From the 1950s onwards, as the civil-rights movement was gaining momentum, racial equality before the law came to the fore of the public agenda. Studies on the effect of the defendants’ race on legal decision makers were consistently reaching disturbing conclusions. A black defendant’s odds of being sentenced to death 141

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were found to be higher when the victim was white than when the victim was black. Poor defendants and defendants from ethnic minorities were more likely to be convicted and to be sentenced to death. Such discrimination – deliberate or not – against weaker social groups was cited by the US Supreme Court in its decision to abolish capital punishment in 1972. In the 1980s, the US Justice Department claimed that discrimination of this sort had ended. To this self-righteous claim, supporters of the death penalty added one of their own: if it is true that the death penalty is meted out disproportionately to members of racially and economically disadvantaged groups, what should be reformed is the discriminatory system which disadvantages these groups in the first place and not the death penalty itself. Following pressure from various civil-rights groups in the 1990s, the Clinton administration published a ‘meticulous’ study claiming that racial discrimination no longer afflicted the American legal system. According to the report, the population of felons for whom prosecutors requested the death penalty consisted of black people and white people in roughly equal numbers. Opponents of capital punishment responded derisively to this claim, noting that since black people represent a far smaller share of the total US population than white people, their share in the felon population should be proportionately smaller as well. In reality, however, the percentage of black people sentenced to death as a share of the total black population is significantly higher than the percentage of white people sentenced to death as a share of the total white population. Moreover, studies have shown that given similar charges, prosecutors are likelier to request the death penalty when the defendant is black and life imprisonment when the defendant is white. This clear racial division between death row and the lifers’ clock belies the Justice Department’s claims about racial equality. The Justice Department’s position did not change significantly during George 142

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W. Bush’s presidency; it can only be hoped it will during what remains of Barack Obama’s. Racial discrimination in the application of capital punishment in the United States is a sad story of denial and abstention on the part of the administration, the federal courts, Congress and the state legislatures. The sentencing of African Americans to death has become highly symbolic in the twentieth century, representing the other face of the American experience.32 Cinema, in particular, has seen this clearly. The readiness with which black Americans have been put to death, whether by brutal lynch mobs or by the legal establishment, has been a central theme in American cinema, though its manifestations have changed over time. The first filmmaker to address the subject was black director Oscar Micheaux, whose cinematic treatment of the African American experience extends back to the 1920s, and whose work was discussed in Chapter 1. Another prominent film on the subject that reflects the spirit of its time is the aforementioned To Kill a Mockingbird (1962), adapted from Harper Lee’s novel and directed by Robert Mulligan. In the film, a young, white, small-town woman accuses her black neighbour of rape. He is soon arrested. An angry mob headed by the woman’s father soon approaches the local jail in an attempt to lynch the suspect, only to be stopped by his defence attorney, Atticus Finch (Gregory Peck). In court, the defence finds unexplained gaps in the woman’s testimony. As the viewers soon glean from the cross-examination and from flashbacks, the woman had tempted the black man and was caught by her racist father. To take revenge, the angry father persuaded his friends to charge the black man with rape. The defendant’s trial proceeds precisely as can be expected in such a racist community: the exclusively white jurors are uneducated country folk, the judge is concerned above all with his own political interests, and the police feebly look the 143

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Figure 3.5 To Kill a Mockingbird (1962). Lawyer Atticus Finch (Gregory Peck) protects a black man accused of raping a white woman.

other way as the townsfolk prepare to take the law into their own hands. The litigation does little to help the black defendant, who is soon convicted. But for the white townspeople, this is not enough: they are eager to mete out the punishment themselves. On the very same evening, the father and the enraged mob take over the jail and brutally lynch the convict. A reclusive, mentally challenged boy who roams the streets at night discovers, however, who the real culprit is. He soon runs into the woman’s father and kills him. The incident, it turns out, is secretly witnessed by Finch’s own children. Hearing about it from them, Finch decides not to turn in the white boy to the police. From his point of view, divine and earthly justice has been done: to him, the innocent boy is a messenger of God, his actions expressing both divine and human law. 144

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The film is not just concerned with that ‘eternal culprit’, the black defendant, it is also concerned with the black man’s trial as an allegory for America’s chief social problem in those years – its perception and treatment of the ‘other’. The film likens the deviant other – the black defendant, the mentally challenged boy – to a mockingbird: to kill the mockingbird, it implies, is to kill the very soul and integrity of society itself. To engage viewers in the action, the director employs a unique cinematic device. The jurors in the trial are often invisible. When the defence attorney speaks to them, he speaks directly to the camera, that is, to the audience in the theatre. In his speech, he tries to convince the jurors as well as the viewers that what is at stake is not only the defendant’s death but their own self-respect as individuals capable of distinguishing truth from untruth: the mob’s choice to treat the white woman as truthful and the black man as a liar for no other reason than the colour of their skin is a racist travesty of justice. Finch goes on to note the lapses of reason in the prosecution’s case: could the black man, he asks, have held the woman down and raped her with a right hand that had just recently been crushed by a thresher? He finally appeals to the jurors’ – and the viewers’ – hearts: The witnesses for the state […] have presented themselves to […] this court in the cynical confidence that their testimony would not be doubted, confident that you gentlemen would go along with them on the evil assumption that all Negroes lie, all Negroes are basically immoral beings, all Negro men are not to be trusted around our women. An assumption that one associates with minds of their calibre, and which is, in itself, gentlemen, a lie, which I do not need to point out to you. And so, a quiet, humble, respectable Negro, who has had the unmitigated temerity to feel sorry for a white woman, has had to put his word against two white people’s. The defendant is not guilty, but somebody in this courtroom is. 145

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Now, gentlemen, in this country, our courts are the great levellers. In our courts, all men are created equal. I’m no idealist to believe firmly in the integrity of our courts and of our jury system. That’s no ideal to me. That is a living, working reality! Now I am confident that you gentlemen will review without passion the evidence that you have heard, come to a decision, and restore this man to his family.

To Kill a Mockingbird gave rise to a distinct genre of protest films modelled after its main ingredients: a bloodthirsty mob, weak leaders, discriminatory laws, a persecuted black victim, a virtuous white protector, brutal death and stealthy revenge by God or his earthly representatives. It would be quite a while, however, before such films would return to the screen. In the 27 years after the release of Mulligan’s film, few films on the subject were made and images of lynching largely disappeared from the screens. Meanwhile, outside the theatres, times were changing. New winds of respect for ethnic and racial multiculturalism were blowing. As Alan Bloom has noted, however, these winds have been a double-edged sword.33 White society, which had previously shut ethnic minorities in genuine ghettos, underwent important transformations during this period, becoming increasingly aware of the importance of African Americans, Native Americans and Hispanics to American society. But the same process that demolished the fences of the old ghettos erected around these groups (often with their consent) fences of a new sort – academic ‘reservations’ in the form of ethnically separatist university departments devoted to studying these groups’ history, heritage and culture. The world of film has been affected by this new social and academic atmosphere, in particular by the new spirit of political correctness, which aims to eliminate discriminatory language, empower minorities and evaporate their sense of victimhood. Minority groups 146

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have begun to put their collective identities in sharper relief: African Americans, for example, have aspired to study and to express their pre-slavery African origins. Filmmakers, too, have been telling new types of stories to accommodate the new types of African American protagonists. In 1990, African American actor Denzel Washington won the Academy Award for his unforgettable performance in Edward Zwick’s Glory. Washington was only the second black actor to win the prestigious award. (The first was Sidney Poitier, who had won in 1963 for his role in Lilies of the Field – though his rise to superstardom was still an anomaly in the American film scene of the 1960s.) Hollywood’s recognition of Washington’s talent and professional capabilities signalled the beginning of a significant transformation in the on-screen representation of African Americans. Numerous films released since the late 1980s have offered incisive views of America’s most underprivileged population. These have included Spike Lee’s Do the Right Thing (1989) and Malcolm X (1992) as well as Steven Spielberg’s controversial reflection on slavery, Amistad (1997). Racial tensions and the African American experience have also increasingly engaged authors of both fine and popular literature – the former perhaps best exemplified by the African American Toni Morrison, the latter by the white John Grisham. The same trend was manifest in a number of 1990s films, including James Foley’s The Chamber (1996) and Joel Schumacher’s A Time to Kill (1996), both based on Grisham’s books, Rosewood (1997) by African American director John Singleton (whom many consider to be a present-day Oscar Micheaux), Joseph Sargent’s television feature A Lesson before Dying (1999) and Clint Eastwood’s True Crime (1999). Common to all these films is their forthright portrayal of both social and institutional violence as a violation of the delicate balance between black and white communities coexisting in a shared geographical region. The black population, typically presented as 147

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quiet and peaceful, is subject to the whims of the establishment; peace is violated by the local white population, which commits acts of violence for ideological and religious reasons. John Singleton’s Rosewood (1997) is based on a historical event, the Rosewood massacre of 1922. The film portrays the horrifying event against the backdrop of increasing racial tensions in the aftermath of World War I. As returning white war veterans are struggling to find jobs and resume civilian life, the black town of Rosewood is thriving and prospering, rousing the envy of the surrounding white population. All that is needed to set the town on fire is one spark. That spark is soon lit when a married white woman falsely accuses a local black man of sexual assault to deflect attention from her extramarital affair with a white lover. The cheated husband and his friends descend upon Rosewood, murdering some of its black residents and destroying their property. Two local white people know the truth. One is the local sheriff, who decides to keep quiet in the soon-to-be-frustrated hope that the white mob will not go further than vandalism. The other is a local store owner (Jon Voight), a war veteran, many of whose customers are black, who saves some of the black women and children by helping them sneak into a train passing by the town. Though the film is based on events that took place in the early twentieth century, it is clearly a product of its own time: it blends fact and fiction, genuine reconstructions of past events with their heroic present-day representation. Nevertheless, the film does justice to the essential historical truth – the assault, murder and lynching of the town’s black inhabitants. The film does not shy away from visceral images. Hanging by rope, the deliberate shooting of innocent civilians, execution by close-range gunfire, the digging of mass graves for scores of black victims including newborn babies. All these atrocities are callously justified by the white mob. As one local white tells his horrified son: ‘A nigger is a nigger… God made the 148

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world the way it is, and we gotta know how to live in it… A nigger is a nigger, and that’s just that.’ Though the local sheriff’s active contribution to the lynching is rather limited, he is hardly innocent: he largely gives the lynch mob free rein. His function in the film as a representative of the entire local establishment is a narrative choice on the part of the director, which does not necessarily accord with the original historical events. From his 1997 vantage point, Singleton wishes to give the 1922 white population some credit. Unlike the period’s Micheaux, Singleton seems to imply that though the white system may make mistakes, it is not inherently evil; the outrages perpetrated in the film are those of individuals acting as part of an incited mob. Also present, however, is one white man, the store owner, who risks his life for the sake of the local black population. The lethal combination of the story’s four elements – a precarious establishment represented by the local sheriff, the persecuted victims, the incited mob and the single white protector – make for a historical film which manages to describe in convincing and vivid detail how black people were lynched and executed merely because of the colour of their skin and were falsely accused with crimes allegedly typical of those of their race. The horrid narrative gains a degree of splendour due to its focus on a fictional, and somewhat mythical, character – a black World War I veteran symbolically named Mann. The memorable heroic character (portrayed by actor Ving Rhames) – a sort of knight in shining black armour – is the most clearly fabricated element in the film. His job is to help save the town’s persecuted black population (along with the white protagonist, who is somewhat marginalized after the black knight appears), to bring them to safety and to respond with force to the violence perpetrated by the white racists. It is safe to assume that Singleton was influenced here by Steven Spielberg’s Schindler’s List (1993) and by other Holocaust films from 149

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the 1990s in which human suffering was presented as the victory of the spirit over victimhood. From an early point in the film, the story focuses on the black hero’s struggle against the fate awaiting his community and himself. This aspect of the film is purely fictional, however. The historical events at Rosewood included neither such a hero nor armed resistance of the type he initiates. Moreover, the claim that approximately 100 black people were executed in sundry ways by the white mob is somewhat blurred in the film. All of this, however, does little to diminish the film’s significance for its modern audiences or its contribution to our knowledge of a heretofore hidden chapter of American history. It is a story of courage and bravery, typical of an era searching for heroes, not victims. Moreover, the film makes it possible to close a circle that begins with injustice and ends with justice and repentance. The title card shown in the film’s last shot sums it all up: In 1993, 70 years after the massacre, the Florida House Of Representatives granted reparations to the Rosewood families […] The success of the case was due largely to the sworn testimony of several survivors, who were children at the time of the massacre, and to the deposition of one white citizen who testified on behalf of the victims. The official death toll of the Rosewood massacre, according to the state of Florida, is eight: two whites and six blacks. The survivors, a handful of whom are still alive today, place the number anywhere between 40 and 150, nearly all of them African American.

Anti-black racism and lynching is featured in yet another film from the same period, 1996’s The Chamber. At the heart of the film is remorse and repentance for unspeakable actions. The main characters are the reverse image of those in Rosewood. The main white character (portrayed by Gene Hackman) is a death-row prisoner, a 150

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Ku Klux Klan member convicted of murdering two Jewish children, while the main black character is a prison guard whom the prisoner holds in contempt. Days before his execution, the prisoner is still confident of the justice of his ways, gladly greeting his fellow Klan members who come to visit and drawing encouragement from their support. Things change, however, when his grandson, an attorney, decides to represent him. Initially resisting the grandson’s visit, the prisoner soon learns from him the true story behind his conviction. His fellow Klan members had taken advantage of him: the murders they asked him to commit had nothing to do with the Klan’s racist aims and everything to do with the criminal disputes between the Klan’s leader and a competing crime gang. The prisoner, we learn, was turned in to the police in order to save the Klan’s leader from arrest and from execution. Having always believed that his murder of the Jewish victims had been an act of courage, he now understands he has been betrayed by his good friends. His ideology crumbles in front of his very eyes. He now understands that his hatred of those of other races was empty, that his friends’ actions have been more terrifying than anything he has ever attributed to black people or Jews, who had never hurt him. Having so far viewed his own death as a noble sacrifice, a form of protest against the white system that serves the black population and the Jews, he now realizes he has been nothing but a scapegoat for his treacherous, self-serving friends. After spending years in his solitary cell, he now wishes to look at the sky and ask for forgiveness. On the morning of his execution, he is given permission to watch the sun shine by the same black guard he had always scorned and despised. Their looks fleetingly cross as and the spark of forgiveness glimmers in the morning sky. The white racist’s execution is shown here in detail. Whereas in previous eras death was shown in a relatively sterile manner, here, in The Chamber, the execution verges on the pornographic. The killing of a white man in retribution for his murder of a black 151

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or Jewish victim would have been unthinkable in the films of an earlier era. By 1996, racism had a face that could no longer hide behind a mask. Racist acts of violence were now finally punished, though the punishment often turned out to be as revolting as the lynchings of yore. A film made for television in 1999, A Lesson before Dying, based on a novel by Ernest J. Gaines, concerns the execution of a black youth convicted of murdering a store owner on the basis of circumstantial evidence: the unfortunate boy is simply in the wrong place at the wrong time. The local sheriff captures him, claiming he is the leader of gang of thieves. The boy is tried, convicted and sentenced to death. The director, Joseph Sargent, whose films often deal with social problems and whose protagonists are often racially persecuted black people, presents us here with a unique perspective on the death penalty. In this film, the death penalty is a corrective experience for the black community of a Southern town in 1948. The young convict comes to know himself, acknowledging his place in the world as a black individual and as a member of a black community, and realizing his own strength and worth. He comes to recognize the power and spiritual support provided by religion, which he had previously ignored, by education, which he only now learns to see as an instrument of both individual and communal expression, and by the members of his community and his school, who learn much from his example of inner strength and from his ability to endure suffering. Instead of being presented as a cruel punishment imposed on an innocent person, the death penalty is presented here as having a different function: it allows the boy and his community to learn a lesson about themselves. The boy’s cell serves as a meeting point between various members of the community, between the boy and himself, between black people and white people. Instead of disintegrating the bonds of the black community, as the white authorities who sentenced the innocent 152

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boy to death perhaps intended, the death penalty only serves to make them stronger. The teacher accompanying the boy on his journey to inner enlightenment is portrayed by actor Don Cheadle, who nearly replicates here his earlier role in Rosewood, protecting his student here as bravely as he defended his children in the earlier film. The films differ in attitude, however. In Rosewood, the townspeople who feel they are fighting for their lives defend themselves by force. In A Lesson before Dying, self-defence is achieved through self-knowledge and submission. No one finds the boy a better attorney. There are no appeals. On the contrary, the film makes us feel that the death penalty has a positive role to serve in the black community: if not for the death penalty, the locals would not have been able to know themselves. The film offers us certain Christian pedagogic values. The emergence in the late 1990s of a film so rife with messages of submission attests to the victory of spirit over matter, in line with teachings of Martin Luther King and the New Testament. From the same year is Clint Eastwood’s True Crime, a somewhat patronizing film that relies on the trite and clichéd formula of a black man accused of a murder he did not commit and a righteous, justice-seeking white man who comes to his last-minute rescue. Eastwood himself portrays the talented journalist who, despite his failure in personal relationships, forms a special bond with the prisoner whose story he covers. Driven by his conscience, he tries to seek the true culprit – whom he finds of course at the very last moment, just before the prisoner is given his final lethal injection. The convict is saved and the truth is revealed. Though the film, as already noted, is somewhat patronizing, its use of the execution of a black victim within the conventions of a suspense film is novel. The race to prevent the execution is reminiscent of the early ‘lastminute rescue’ silent films directed by such pioneers as Griffith. The novelty here is the addition of the racial element, which evokes in the 153

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viewers care and empathy for the unjustified plight of innocent black people, turning the film into a chilling expression of protest against the arbitrariness, cruelty and irreversibility of capital punishment. There is another dimension to the representation racism in American cinema – the depiction of struggles against racism. A typical instance is the story of John Brown, one of the most important figures in the pre-Civil War abolitionist movement, whose filmic representations have been marginal and distorted. Brown was a prominent anti-slavery activist in the Virginia area. He lived with his 18 children near black villages, training the locals in agriculture. He and his supporters occasionally raided local plantations to free the slaves. In 1856, he was involved in the murder of five supporters of slavery in Pottawatomie Creek.34 In 1859, Brown and 21 of his men raided a military arsenal in Harpers Ferry in order to steal weapons for the abolitionist militia they were planning to form. The raid failed: nine of Brown’s men were killed by the Marines, and a company under the command of future Confederate general Robert E. Lee captured the remaining raiders. Brown was convicted of a series of crimes, including murder, conspiracy and treason, and was hanged alongside five of his men, three white and two black. A note he left behind included his last words and spiritual testament: ‘I, John Brown, am now quite certain that the crimes of this guilty land will never be purged away but with blood. I had, as I now think vainly, flattered myself that without very much bloodshed it might be done.’35 Brown’s role in the historical struggle against slavery and racism was central. He was a close friend of Frederick Douglass, the emancipated slave who became a symbol of the black struggle in the Civil War and formed in 1863 the 54th Massachusetts Infantry Regiment, the Union’s first military unit composed of freed slaves. Douglass had great appreciation for Brown; the latter, he wrote, had the body of a white person but the soul of a black man. Brown’s activity 154

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Figure 3.6 John Brown, one of the most important figures in the pre-Civil War abolitionist movement.

impelled certain slave owners to organize militias in defence of their plantations. These small military units would later form a core of the Confederate army. Brown’s actions can thus be interpreted as one of the causes of the Civil War. After Brown’s death, Douglass wrote: 155

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Did John Brown fail? […] John Brown began the war that ended American slavery and made this a free Republic. […] His zeal in the cause of my race was far greater than mine […] I could live for the slave, but he could die for them.36

Despite the controversy surrounding his actions, for many Americans Brown has been a model of resistance to slavery and injustice. Brown’s historical importance only serves to underscore his absence from American art and popular culture. Only one prominent film has been made about him, Michael Curtiz’s Santa Fe Trail (1940), starring Errol Flynn and Olivia de Havilland. Despite its director’s and actors’ fame (Curtiz would go on to direct such audience favourites as Casablanca), the film was a box-office failure. Brown was presented as a bloodthirsty madman leading himself, his family and his followers to certain doom. Devoid of any glorification or veneration, the film was simply the story of an insane white man trying – and predictably failing – to save the wretched black slaves. The film’s producers at Warner Brothers were hoping it would help to bring Americans together on the eve of World War II.37 For the studio, national unity and widespread social agreement to fight fascism and Nazism were a supreme necessity. Brown was thus presented as a divisive character. The film provoked anger and rejection, however, not only because of its positive portrayal of the slavery-supporting South, but also because the message of national unity was foreign to Americans who at that point still found it hard to believe that Japan would dare to attack their nation. As we well know, American culture is hardly short on historical figures venerated for their violent actions. Nefarious villains such as Jesse James and Billy the Kid have been immortalized in countless local myths and works of art and popular culture. Brown, by contrast, alongside others, both black and white, has largely been forgotten because his violent actions and death occurred in the 156

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midst of a terrible era governed by ignorance and racism. The only popular work commemorating his name is the marching song ‘John Brown’s Body’ (the music of which was later used for the ‘Battle Hymn of the Republic’, to which the US Army marches to this day).

The Intellectually Disabled and the Mentally Ill on Death Row The execution of the intellectually disabled and the mentally ill is a complex, multifaceted issue. Defendants falling into these categories naturally pose certain moral difficulties: can they be held accountable for their actions? If not, should they nevertheless be executed? To these moral difficulties is added an empirical one: how should we determine who should stand trial and possibly be executed, and whom to exempt for mental-health reasons? Not only do different US states give different answers to these questions, courts in the same state sometimes give different rulings from each other. In the absence of clear, widely accepted criteria for intellectual disability and mental illness, precise data on the numbers with such conditions among death-row convicts is hard to gather.38 In its 2002 decision in Atkins v. Virginia, the US Supreme Court ruled that the execution of defendants with intellectual disabilities or mental illness at the time of the crime violates the Eighth Amendment to the US Constitution.39 Whether they are imprisoned or hospitalized, the sentencing of such defendants must reflect not only the gravity of their crimes but also the severity of their condition.40 Establishing a defendant’s disability or illness is, however, a difficult task. The Atkins v. Virginia ruling focused on general principles; it did not lay out precise criteria or procedures for assessing a defendant’s mental condition. These were left for the various states to determine. One option was to adopt the criteria set in 1992 157

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by the American Association on Intellectual and Developmental Disabilities (known at the time as the American Association of Mental Retardation).41 This, however, posed further difficulties for the individual states. In the years from 2003 to 2005, many states were searching for plausible and convenient ways to establish mental capacity: measuring IQ seemed to be the optimal way.42 In August 2006, 24 lawyers, psychologists and psychiatrists from both within and outside the academy recommended classifying those with an IQ lower than 70 as mentally disabled and thus unfit to be executed according to the Eighth Amendment. Most state courts in the United States have adopted these recommendations. By 2008, courts in states with the death penalty had banned the execution of: persons who at the time of committing a crime suffered from mental or behavioural disabilities manifested in their conceptual, social and practical capacities and caused by mental debilities, dementia or traumatic brain injury; persons who at the time of committing a crime suffered from severe intellectual or mental disability hampering their ability to assess the nature, results or moral qualities of their actions, to exercise sound judgement regarding their actions or to act in accordance with the law; persons who either during or after their trial suffer from mental disabilities and are therefore unable to comprehend their surroundings, cooperate with their lawyers or understand the severity of the sentence awaiting them.43

Certain factual obstacles complicate, however, the precise diagnosis of such conditions. Such diagnostic difficulties include the difficulty 158

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of distinguishing meaningfully between the intellectually disabled and the (temporarily or permanently) mentally ill. Diagnoses of intellectual disability are subject to empirical criteria. Mental illness, by contrast, is often not amenable to genuine diagnosis. Distinguishing between these two general categories is, however, of utmost importance: a seriously mentally ill person may not be able to tell right from wrong, whereas an intellectually disabled person may be able to tell right from wrong but unable to understand the severity of his or her own actions. The difficulty of distinguishing clearly between those fit and those unfit to be executed is one of the most serious impediments related to the death penalty. Decisions in each US state are usually responsive to the needs of the local legal and political systems. Quantitative studies by Amnesty International have shown that dozens of the 1,000 or so convicts executed in the United States since 1977 were mentally disabled prior to the trial, at the time of the crime; others were mentally disabled after the trial, while in prison.44 The problem becomes even more complex when the defendant is poor and cannot afford a lawyer. In such cases, defendants are legally entitled to a public defender. Such attorneys usually belong to the lower rungs of the professional ladder. They are very inexpensive, which is why the public system can afford to employ them. Some are not primarily criminal lawyers, specializing in accountancy or tax law instead. Many US states, primarily Texas, where the largest numbers of convicts are executed every year, cynically claim, in the words of Victor L. Streib, that ‘all those executed are mentally healthy and thus fit to be executed, and that all claims to the contrary are misleading attempts to save them from punishment’. Texas rejects in advance the possibility that its convicts might be exempt from capital punishment. Its assumptions are based on three perspectives on the convicts: medical, social–moral and religious.45 That is, every person is responsible for his or her actions, therefore illness – even 159

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mental illness – does not exempt one from punishment; every person can tell right from wrong; every person must be punished for his or her actions, by death if necessary. Thus, every person is fit to stand trial; the execution of a person – any person – is not cruel and unusual punishment and therefore should not be replaced with life imprisonment. What about those who lose their sanity during their long tenure on death row? Is it morally permissible to execute them? The US Supreme Court has yet to give a general principled answer to this difficult question. According to various studies (for example Dennis Keyes’ study on low-IQ death-row convicts), 2 to 3 per cent of the American prison population and 13 per cent of those executed suffer from mental disabilities.46 This data contradicts the claims of the political and legal establishment. The history of American law is strewn with such examples, and the available data is growing. A further problem complicates, however, any assessment of the percentage of mentally disabled prisoners. Prisoners are often aware of the disability loophole and frequently try to take advantage of it, especially by claiming to be temporarily or permanently insane. Some claim to have been temporarily insane while committing the crime. With the help of good lawyers, such claims can save their lives and even lead to acquittal. Others pretend to be insane and unaccountable for their actions in order to avoid a prison sentence and to be sent to a more pleasant and comfortable psychiatric facility. One of the most notorious (and earliest) instances of this strategy in the history of American law is that of Daniel Edgar Sickles, a US congressman (and a Union general during the Civil War) known for his drinking and womanizing. In 1858, while living in Washington DC, Sickles discovered that his young wife was having an affair with one Philip Barton Key. Determined to confront Key, the enraged 160

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Sickles angrily burst onto the street, ran into the lover and shot him three times; he then walked calmly to the home of his friend, the US Attorney General, and turned himself in. The era’s double standards allowed men to enjoy the best of all worlds – to drink, gamble and have extramarital affairs – while women engaging in the same pleasures were scorned and despised. In the spring of 1859, the newspapers were overflowing with words of praise for the betrayed husband, portraying him as a noble man who salvaged his family’s honour. Sickles’ attorney, Edwin M. Stanton, was the first American lawyer to employ the temporary-insanity defence. Upon seeing Key in the street – so went the defence – Sickles briefly lost his sanity and shot his victim. A man under the influence of such strong emotions, Stanton claimed, could not be held responsible for his actions. The jurors – all men, of course – took only an hour to reach their verdict. The defence was accepted and Sickles was acquitted. The public response in Washington was celebratory: many gathered around the courthouse, and a crowd 1,500 strong came to congratulate Sickles that night at a reception in a local hotel.47 While the legal system was debating whether the intellectually disabled and the mentally ill could be executed, cinema approached the question by tracing the fabric of the convicts’ lives. Perhaps the best-known film on the subject is Miloš Forman’s One Flew Over the Cuckoo’s Nest (1975), about a defendant sent to a mental hospital for a pretrial diagnosis. To avoid prison and to serve his sentence at the psychiatric hospital, he feigns insanity. All goes well at first: for a while, he believes he has fooled the staff. Though the doctor diagnosing him tells him he is ‘completely normal’, he lets him stay at the hospital for further assessment. At the psychiatric hospital, however, he is in for a surprise that will eventually lead to his demise. There, he joins the other inmates who, like him, have been committed for criminal acts (including an Indian chief convicted for 161

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murder). After a while, as he becomes increasingly confident, he incites the other inmates against the medical staff, deriving great pleasure from his pranks. From the other side of the glass wall separating the patients and the carers, things look different. His wild behaviour and his incitement of the other patients lead his doctors to the conclusion that he really is insane – insane to such an extent that he must be restrained. It is thus decided to have him lobotomized – the standard treatment for aggressive patients – turning him into the living dead, a personality-free zombie. One Flew Over the Cuckoo’s Nest addresses the legal procedures used to identify the criminally insane, posing forceful questions about the way such people are treated in modern psychiatric hospitals and about whether modern medicine can reliably distinguish between impostors and the genuinely ill. The film’s shocked viewers are left to ponder further important questions: has justice been done after all? Has the prisoner paid for his deeds, if not by physically dying then by suffering mental death? And, finally, who benefits from all of this? Two films on the same themes were made in the late 1980s, at the end of a decade in which debates about capital punishment for the intellectually disabled and the mentally ill escaped the confines of the courts to figure more prominently in public debates, largely thanks to their representation in film and television.48 The first was Martin Ritt’s cinematic feature Nuts (1987); the second was Richard Pearce’s television drama Dead Man Out (1989). Nuts tells its tale of homicide from the point of view of the defendant, a high-class prostitute (Barbra Streisand) charged with murder, in a way that seems to legitimize the temporary-insanity defence. The attorney assigned to the defendant (Richard Dreyfuss) reveals to the jurors and the viewers the defendant’s dreadful past. The daughter of a well-to-do family, she was sexually abused by her father, who used to pay her for her sexual ‘favours’. The mother, who 162

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knew about everything, turned to the bottle instead of protecting her daughter. Years later, the young woman murdered one of her clients who abused and humiliated her. Moved by her horrid past, the judge and the jurors choose to acquit her. Streisand, in one of her dramatic roles, powerfully conveys the message that temporary insanity at the time of a murder can be permanent insanity as well – not in the medical sense of the term, but rather in the sense that her very experience of life, her daily mental and physical reality, is the fevered existence of an agonized woman–child. Pearce’s drama, Dead Man Out, presents by contrast the tension between two poles: on the one hand, the psychiatric profession, whose assessment of a defendant’s mental health can decide his or her fate in court; on the other, the convict, who in this case realizes that the only way to avoid the death penalty is to feign insanity. In the drama, a Hispanic prisoner named Ben spends years on death row awaiting his execution. After a few years, he begins to show signs of insanity – outbursts of violence, anger and disorientation; he talks to himself and stops communicating with those around him. The warden decides to examine his mental condition before he is sent to the electric chair. A psychiatrist (Danny Glover) brought in to diagnose him gradually reconstructs the story of his life. The impoverished Hispanic youth murdered a white woman, a mother of six, for a measly sum of money. His legal representation in court was poor. The prosecutor demanded the death sentence, as did a public shocked by the senseless murder. Ben was convicted and sentenced to death. To evade the execution, he has been pretending to be insane. After many attempts, the psychiatrist manages to win Ben’s trust and finds him to be fairly intelligent. He now realizes Ben is an impostor. The psychiatrist now faces a dilemma: should he report his findings to the prison authorities and thus send the prisoner to his death – or stall in order to try to save him? He finally decides to risk his own professional standing and help Ben escape 163

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the death penalty. Yet the only help he can offer Ben is to teach him how to continue his pretence, keeping him alive on death row. Ben, however, chooses a different path. He does not wish to die in shame. He wants to die a free man, in control of the circumstances of his own death. On the day of his execution he escapes to the prison’s inner courtyard in order to force the prison guards to shoot him. One of the guards tracks him down and shoots him dead. By dying according to his own plan, Ben has finally exercised his freedom of choice. The 1980s saw a wave of public concern for the mentally disabled on death row, leading to legislative action to decrease their numbers. Dead Man Out complicates matters, however, by posing to the viewers an even more difficult legal dilemma – for the film’s subject is not genuine mentally disability but its fraudulent use in order to evade punishment. The film also highlights the tension between the way in which the cruel treatment of inmates in state prisons causes them to lose their minds, on the one hand, and the prisoners’ fear of execution, which leads them to feign insanity, on the other.

Old Enough to Die The problems associated with the execution of juveniles are not much different from those associated with the execution of the mentally disabled. In both cases, the chief question concerns the conditions under which one may be considered responsible for one’s actions. In the West, the category of ‘minor’ or ‘juvenile’ usually refers to persons under 18; the precise age threshold differs, however, from country to country and from one context to another. This can lead to absurd results: in many US states, for example, alcoholic beverages cannot be sold to ‘minors’ under 21, yet those 164

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same ‘minors’ can be tried for homicide as adults from the age of 17 or, in some states, from as early as 15. Studies on the execution of juveniles tend to focus on the formal execution of young males. The literature in gender studies offers us, however, numerous examples of young girls victimized by the legal establishment as well as by violent mobs. From 1632 to 1946, no fewer than 88 girls aged 12 to 17, most of them black, were either legally executed or lynched in what is now the United States. The youngest of these was the 12-year-old Hannah Ocuish, hanged in 1786 for the murder of a four-year-old white girl (with whom she allegedly squabbled over some stolen strawberries). That Ocuish was a mentally disabled minor did not prevent the court from convicting her based chiefly on her own dubious confession. As she was being hanged, the leaders of the community of New London, Connecticut, hopped onto the gallows scaffold to declare her execution an exemplary warning to others.49 An even younger female execution victim was the embryo in the womb of an eight-months-pregnant black woman hanged alongside her husband by a white lynch mob. As the woman was being hanged, the unborn infant fell from her womb to the ground; with the umbilical cord still tying the two, its head was crushed by a member of the mob.50 It was only in the 1980s that the constitutionality of the death penalty for juveniles was first addressed by the US Supreme Court. In its five-to-three ruling in Thompson v. Oklahoma (1988), the Court declared the execution of those under 16 at the time of the crime in violation of the Eighth Amendment to the US Constitution.51 Furthermore, in two other rulings from the same period (Stanford v. Kentucky and Williams v. Missouri, both 1989), the Court ruled that the execution of those aged 16 or above at the time of the crime did not violate the Eighth Amendment.52 Nevertheless, between 1973 and 1996, 144 individuals who were 165

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under 16 at the time of the crime – or 2.5 per cent of all death-row convicts – were sentenced to die.53 Leading these appalling statistics were Texas, Florida and Alabama. A wave of juvenile executions in the 1990s stirred protests in the United States and abroad demanding the abolition of capital punishment for juveniles. In 1992, foreign and domestic public pressure finally persuaded the US government to ratify the International Covenant on Civil and Political Rights, according to which those under 18 at the time of the crime should not be sentenced to die (Clause 6.5) – though the American insistence on adding to the covenant certain qualifications regarding juvenile executions drew harsh international criticism, including official objections by ten other countries. The diplomatic storm soon subsided, however, as more pressing crises – the first Gulf War, Rwanda, Bosnia – attracted the attention of the international community. The number of juvenile executions decreased during the Clinton administration, though the number of juvenile death sentences did not. George W. Bush’s arrival at the White House did not give opponents of the juvenile death penalty much hope either: the future of the issue remained uncertain during Bush’s first term in office and only marginally clearer during the second. In early 2005, in its five-to-four decision in Roper v. Simmons, the Supreme Court declared as unconstitutional the execution of homicide convicts who were under 18 at the time of the crime.54 In doing so, the Court overturned its earlier ruling in Stanford v. Kentucky, which had set the relevant threshold at 16. In its new ruling the Court appealed to changing social norms – which, it claimed, currently ascribe less responsibility to those under 18 than to adults – as well as to the 2002 Atkins ruling which, as already noted, had declared as unconstitutional the execution of the mentally disabled. An exceptional instance of a minor sentenced to death is the aforementioned case of Napoleon Beazley. In June 2000, several 166

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hours before Beazley’s scheduled execution, the Virginia court approved his request for a stay based on the claim that the overworked attorney appointed to him had neglected to ask for clemency based on his client’s age – Beazley was a minor at the time of the crime – and failed to note contradictions in the testimonies of Beazley’s associates which could have led to his acquittal. The lives of juveniles on death row are, naturally, a fascinating subject. Neither the generalizations of theoretical research nor the sensationalism of journalistic reports are likely, however, to yield a complete and reliable view of the experiences of juvenile convicts. Cinema, by contrast, is perfectly suited to the task thanks to its ability to tell a complex personal story while tying it to controversial social issues such as racism, Christian compassion, society’s treatment of the young and the immature, and so forth. In the early days of cinema, on-screen representations of reality were relatively unencumbered by censorship. The detailed depiction of executions in early films is only one instance of this phenomenon. Cinematic representations of juvenile delinquency were similarly forthright, and many films of the period were critical of the penal system’s treatment of juvenile delinquents. Otis B. Thayer’s sarcastically titled Saved by the Juvenile Court (1913) disparages, for example, the legal practice of sending juveniles to prison instead of an educational facility. Cecil B. DeMille’s The Godless Girl (1928) similarly criticizes the harsh treatment of female students at a juvenile reformatory.55 Talkies on the subject include Wesley Ruggles’ Are These Our Children? (1931), discussed in Chapter 1, which tells the story of high school students committing murder during an evening of wild drinking. Though the film’s script may seem unrealistic to contemporary viewers (the part in which the boys’ leader defends himself in court especially comes to mind), it is quite representative of the spirit of the times. The film’s message seems to be informed by the filmmakers’ staunch and vividly 167

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conveyed belief that no crime should go unpunished, no matter how old the criminal. The film chronicles a foretold story of lost youth: the boy is convicted and sentenced to die. The cinematic court leaves no room for pardon or commutation. The boy’s sad tale of corrupt youth thus sets an example for the viewers. Though Ruggles’ film attracted some interest, no other significant film on juvenile executions was made for quite some time. For years, the subject all but vanished from movie screens as well as from public attention. Like the proverbial three monkeys, filmmakers and audiences preferred to see no evil, hear no evil and speak no evil. An exception to this rule was the 1980 television drama Death Penalty, directed by Waris Hussein. Like its 1931 predecessor, Death Penalty is a product of its era, authentically reflecting the ambience of the period and in particular the lives of contemporary adolescents. By focusing on the story of one troubled teenager, the drama shines a light on the racism and xenophobia rampant within the lawenforcement system and fuelled by the rise of ‘new conservatism’ among Americans apprehensive that certain minorities might be advancing at their expense.56 Despite the filmmakers’ attempt to narrate the events as neutrally as possible, the film cannot help but sneak a peek at the inevitable question, namely, whether the boy’s treatment by the court and the jurors would have been different had the boy been white. The film’s story of loss – of one boy’s innocence and of the lives of two others – takes place against the background of gang wars between ethnic minorities in New York in the early 1960s. And as in other similar films – West Side Story, both the musical and the film, immediately comes to mind – gang violence soon leads to murder. The film’s protagonist is Carlos Rivera, a 15-year-old Puerto Rican gang member, who murders two white teenagers from a rival Irish gang. In his trial, the court appears to care little for Rivera’s harsh personal background – the boy is estranged from his family and has 168

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not attended any educational institutions – or for the mitigating circumstances of his case: though it is shown that he was not aware of his actions and acted out of uncontrollable rage, the court sentences him to death. The public, on its part, is eager to see Rivera punished for his misdeeds; terrified of gangs, particularly of the ethnically suspect sort, the mostly white public sees this as part of the all-important effort to ‘clean the streets’. In the three years that follow, Rivera’s attorney and teacher battle the legal establishment to have his sentence commuted. At 18, Rivera is a model prisoner. He uses his time in prison to complete his education and broaden his knowledge; his mentor, another death-row convict and a Marxist, is executed after some time. Rivera’s own sentence is eventually commuted, however, to 20 years of imprisonment. Rivera subsequently points the finger at society’s failure to look out for him prior to his turning to a life of crime. That this conclusion springs from his Marxist education in prison no doubt constitutes an implicit attack on the Protestant capitalism of 1980s America, with its worship of money and material success and its wilful neglect of those on society’s sidelines. As the prison gates slam shut, the viewers are left with the choice between this option and a more humane alternative. That four minors – three aged 17, the other aged 16 – had been executed in the year prior to Death Penalty’s release, and that 138 more would be executed by the decade’s end, failed, however, to attract much public interest. The conservative Reagan era was dawning; the Soviet Union was about to be dubbed ‘the Evil Empire’; and American cinema utterly failed to discharge its task of rousing the dormant American public. Other films on the death penalty address the opposite phenomenon, namely, juveniles whose obvious crimes are ignored by the public. One such film is Errol Morris’ The Thin Blue Line, discussed 169

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earlier in the chapter, in which a juvenile delinquent from a small Southern town commits a murder yet manages to persuade the local police of his own innocence and of the guilt of another person, a newcomer from the North. As noted earlier, the film itself not only led to the discovery of the real culprit but also contributed to public debates about the legal treatment of juvenile delinquents. The tendency to overlook juvenile crime may be due to the fact that adults find it difficult to watch the death of a young person. This difficulty is one theme in Gregory Hoblit’s Primal Fear (1996), in which a gentle altar boy (Edward Norton) living in a church orphanage is accused of murdering a priest. The reason for the murder, it is discovered, is the priest’s sexual abuse of the boy, among other orphans. Fearing controversy, the prosecution chooses to conceal this fact. Because of this, the boy does not receive the treatment he deserves as a sex-crime victim, in spite of the serious emotional damage he suffers, which, as a psychiatrist (Laura Linney) soon determines, seems to have deteriorated to acute schizophrenia. The diagnosis persuades the boy’s attorney (Richard Gere) to opt for an insanity defence in order to save his client from certain death. (His devotion to the case stems, however, from his desire for public attention and glory rather than any genuine concern for the boy.) The judge and the jury are eventually convinced of the truth of the diagnosis, leading to full acquittal. Only later does the attorney find out the truth: the boy had feigned insanity to save his life. Client confidentiality prevents him, however, from informing the justice system, and the boy is saved – or is he, really?

Forbidden Relationships The tragedy of crime and capital punishment features another legal institution besides the police and the courts: the prison. Wardens 170

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and prison guards play an important role in this drama – that of escorting the denizens of death row to the sweet hereafter. Prison films have always enjoyed great popularity. As early as 1901, director Edwin Potter – today chiefly known for The Great Train Robbery (1903) – filmed The Execution of Czolgosz with Panorama of Auburn Prison. On 6 September 1901, Leon Czolgosz, an American-born anarchist of German–Polish descent evidently inspired by the assassination of King Umberto I of Italy the previous year, assassinated President William McKinley at the Pan-American Exposition in Buffalo, New York. Within a month, Czolgosz was convicted and executed. The American public’s thirst for an explanation for the mysterious assassin’s motives was soon to be quenched by Porter, a specialist in crime and action films. (About half of Porter’s 177 output between 1898 and 1915 was action films, heavy on police chases and other similar attractions.) At the time, it was this film, rather than the now more familiar Great Train Robbery, for which Porter was best known. In its several minutes, the film depicts the infamous prisoner’s life behind bars prior to his electrocution. Like many other legal films, it focuses on the relationship between the prisoner, the prison guards and the court (with the last of these representing the political establishment as well).57 The constant tension between these elements fuels the plot and gives it its requisite human dimension. Friendships between death-row prisoners and their guards are usually born of their professional relationships, in which the latter give the former the services required by their role (clothing, meals, and so forth) and accompany them during their final moments. In the period between the prisoners’ admission to prison and their final exit, prisoners and guards occasionally form rich and delicate human relationships. Such relationship are based on shared moments, on bonds of dependence, and sometimes, perhaps, also on the guards’ sense of professional duty. With the slated execution as their terminal point, however, such relationships 171

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are also temporary and precarious – though commutation to life imprisonment can prolong them, of course, for many years. Though few studies have addressed the impact that contact with death-row inmates has on prisoners’ families and prison guards,58 the intriguing human relationships that develop between the two groups have been a recurring theme in numerous films. Two important films describe in detail the special relationships forged between guards and prisoners on death row: Michael Curtiz’s 20,000 Years in Sing Sing (1932), based on Lewis Edward Lawes’ recollection of his time as warden of New York’s Sing Sing Prison between 1920 and 1941, and Frank Darabont’s The Green Mile (1999), based on a Stephen King novel. In the earlier film, the relationship is between a prisoner and a guard; the more recent film addresses relationships between several guards and prisoners. While most prison films of the period described life in prison from the prisoners’ exclusive perspective, Curtiz’s film observed both sides of the bars and the relationships across them. At its heart is the special relationship forged between prisoner Tom Connors (Spencer Tracy) and Sing Sing warden Paul Long (Arthur Byron). Cocky and unruly, Connors is at first unwilling to conform to the prison’s many rules and regulations, earning himself a reputation as a troublemaker. Confident that his associates outside will pull strings to speed his release, he is openly contemptuous of the prison guards and soon lands himself in 90 days of solitary confinement, during which he decides to improve his behaviour and play by the rules. Recognizing the good in Connors and considering him a fundamentally decent person, Warden Long takes it upon himself to teach the newly reformed prisoner some social and moral values. Connors becomes such a model prisoner, in fact, that he is now granted the exclusive privileges enjoyed by a select group of reformable prisoners. Long’s trust in Connors is now absolute. Connors’ request for a 172

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vacation is granted, and he is released for a 24-hour leave to visit his girlfriend Fay (Bette Davis), who has been injured in a car accident. If he does not return on time, however, Long warns him, he will be imperilling both his own privileges and Long’s career. Feeling indebted to his benefactor, Connors is fully committed to comply. As Connors soon finds, however, he is unable to escape the vicious circle of crime. During his visit with Fay he is embroiled in a fight with a mobster whom Fay shoots and kills. Connors jumps out of the window and escapes the crime scene, but suspicion for the killing falls on him. Moreover, he is late to return to prison, causing warden Long to be fired. To atone, Connors decides to keep his promise and returns to prison; moreover, he assumes responsibility for the killing, fully aware of the price. His own life lost, he feels an obligation to help Long regain his job. Long’s unqualified trust in him was something he had never experienced before, and he is willing to pay for it with his life. Their friendship is thus consecrated with blood. The second aforementioned film, Frank Darabont’s prison drama The Green Mile, takes place in the 1930s, on a Southern penitentiary’s death row. Its main characters are white warden Paul Edgecomb (Tom Hanks) and black prisoner John Coffey (Michael Clarke Duncan), a towering dullard convicted for the murder of two white girls. As the story unfolds, however, Coffey emerges as a benevolent individual with supernatural, divine-like powers, who could not possibly have been the psychopathic murderer. As often transpires in Stephen King’s novels, The Green Mile subverts the familiar, stressing humanity’s dark underside and primal fears. In the film, death row is shown as a slaughterhouse. The convicts are executed one after another, as if on a never-ending conveyor belt. Rather than shown as evil incarnate, however, the executioners are depicted as guardian angels: with the exception of a newly arrived sadistic guard, the prison personnel are good-hearted 173

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people who do their job gracefully and compassionately. They carry out their jobs professionally but take no pleasure in killing their fellow human beings. They view their work solemnly, treating the convicts with sensitivity and respect until their last breaths. Though a fictional film, The Green Mile makes possible a fruitful dialogue on a variety of real-world subjects: the lives of prison guards at work and at home; the lives of death-row convicts representing America’s ethnic and religious diversity in the 1930s; the politics behind capital punishment; and the mysteries of religion, which according to King are what cements these disparate phenomena. The Green Mile presents, then, a unique, perhaps unprecedented, perspective on the death penalty. Rather than focus on a single individual, it shows capital punishment as a mass phenomenon – as an interminable series of executions, which together form the axis around which numerous lives revolve – those of the executed as well as their executioners. By taking a close look at the guards’ ongoing treatment of the prisoners, at the way all involved prepare for death, and at the deaths themselves, the film examines the emerging interpersonal relationships as well as questions of faith and trust. Through its representations of death, the film inspects the relative truth of each person’s attitude towards death, be they prisoner or guard. Death itself is represented in multiple ways in the course of the film, sometimes as just, sometimes as undeservedly sadistic, sometimes as beyond human control. Just killing is represented by the execution of a particularly depraved prisoner (nicknamed Billy the Kid) convicted for the brutal rape and murder of two young girls. Sadistic killing is represented by the execution of a prisoner named Del following his unfortunate conflict with a sadistic guard newly assigned to the prison. Frowned upon by the other guards and looking for an opportunity to establish his clout, the guard decides to treat Del with exceptional cruelty. On the day of Del’s electrocution, 174

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he personally sees to it that Del’s forehead is not dampened, thereby ensuring that the electric current kills him slowly and painfully. (Without moisture serving as an electrical conductor, the current is less efficient and more agonizingly painful.) Del is literally fried on the chair, with the horror well reflected on the faces of guards and witnesses alike. A third category in the film’s catalogue of deaths is death by disease, that is, divine death beyond human control. The chief warden’s wife is terminally ill. As she lies on her deathbed, the guards try to bring her succour in the form of the condemned man, John Coffey, who, as it turns out, is gifted with supernatural healing powers: by touching a sick person he can take away the latter’s pain and impart his own abundant health. Coffey magically heals the woman, saving her life at the very last moment. Yet another type of death shown in the film is the death of innocents. Included in this category is not only the aforementioned murder of the young girls, but also the killing of Del’s pet mouse by the sadistic guard, who derives pleasure from Del’s grief over his companion, his sole source of consolation prior to his death. Finally, the film’s inventory of death includes what can be termed ‘the living dead’, represented by the sadistic guard who eventually goes mad and whose final fate – locked in a padded cell and about to be shipped off to the insane asylum – quenches the viewers’ thirst for retribution and provides them with long-awaited catharsis. Cinematically, this last scene is the mirror image of the film’s first scene in which the same guard, announcing John Coffey’s arrival, pronounced the arrival of a ‘dead man walking’. Now, of course, it is he who fits that same description – still alive, but spiritually and psychologically dead as he awaits his confinement. Death row is depicted in the film as a very human place that could easily be mistaken for a regular section of prison. The guards are presented sympathetically, as fully human characters who harbour 175

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no ill feelings towards the prisoners. The latter, on their part, are mostly shown as innocent lambs led to the slaughter. This is in stark contrast to what transpires on the opposite side of the execution chamber, where the prison guards do their jobs with professional precision and where audiences gather to view the tragic executions like spectators around a bloody gladiator ring. The most fascinating character in the film, as in King’s novel, is that of John Coffey, the towering, seemingly feeble-minded black convict wrongfully imprisoned for murder. As the plot unfolds, Coffey turns out to be something of a superhuman figure, his hulking frame belying an almost divine spirit. Though caught at the scene of the crime with the girls in his arms, he was – as we soon find out – only trying to resuscitate them. He himself neither affirms nor denies the accusations, surrendering to the police as if submitting to a predestined fate. He imparts his deeply held creed in deeds – not in words – that earn him the guards’ respect and teach them important life lessons. Like Jesus, Coffey is the victim of a cruel, treacherous world, which judges him on the basis of his physical appearance and race, not his actions. Lamenting the failures of human law and unwilling to acquiesce in the awful squandering of God’s gift of love, Coffey wishes to leave this world rather than fight it. Before his execution he apologizes for being what he is: a human being gifted with divine love. His execution is thus the direct consequence of his own love of humanity.

Technological and Procedural Innovation in the Service of Death For most of the twentieth century, the electric chair was the most popular method of legal execution in the United States despite widespread ignorance about its inefficiency and the degree of 176

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suffering it inflicted on its victims. The chair was sometimes small and narrow – large enough to fit women and adolescents but not fullgrown men. The current flowing through the chair was sometimes insufficient, causing the ‘deceased’ to return to life half-an-hour after the execution and requiring the device’s recalibration. Many of the prison guards operating the chair were horrified by the way it literally fried some of the convicts. The liquids discharged from the convict’s body were not only repulsive but often put the guards at the risk of electrocution. The buckles restraining the convict would occasionally heat up and melt into the body, making it impossible to separate the prisoner’s body from the chair; even when the body was easily separable it would sometimes disintegrate at the guards’ touch. Use of the electric chair has declined since the mid-1990s after a better alternative was found in the form of the lethal injection.59 As early as 1924, however, authorities had begun searching for a more humane method of killing convicts. Gassing initially seemed promising, but it, too, proved to be disappointing. The gas would often leak outside the gas chamber, putting the prison guards and the witnesses at risk. Occasionally it would suffocate the convict without quite killing him or her. The guards, moreover, were repulsed by the urine and faeces often left behind in the execution chamber. Hanging had long been considered the most contemptible method of execution in the United States, reserved for the most despicable of criminals. But even this age-old technology involved many operational difficulties. The rope would sometimes fail to tighten around the victim’s neck, causing the convict to suffocate slowly rather than be killed instantaneously of a broken neck. The victim’s fall was often too forceful, severing the head. At any rate, hanging increasingly came to be viewed as an unpleasant public sight, especially in light of what seemed to be its amateurish character. Though popular in the United States until the 1930s, it petered out thereafter. 177

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As mentioned above, such outdated mechanical technologies were eventually replaced by a more advanced one: the lethal injection. By putting medicine in the service of death, this novel method has raised weighty ethical and moral questions. British documentarist Stephen Trombley, whose films have addressed such controversial socio-historical issues as the Nuremberg trials and the internment of Jewish children at the Drancy transit camp during the Nazi occupation of France,60 travelled to the American heartland in the early 1990s to study the new killing technology, resulting in the documentary The Execution Protocol (1992). By presenting firsthand testimonies of death-row convicts, prison guards and wardens – and by doing so naturalistically and objectively, without Trombley’s own narration – the film leaves it to viewers to draw their own conclusion regarding the death penalty. Among the accomplishments of Trombley’s film was its exposure of a particularly idiosyncratic character: the inventor of the automatic lethal-injection device, one Fred A. Leuchter, Jr, who would go on to be the subject of another documentary, Mr Death: The Rise and Fall of Fred A. Leuchter, Jr (1999), directed by Errol Morris. (In a bizarre turn of events documented in Morris’ film, Leuchter was later recruited by Holocaust deniers to inspect whether the Nazis really used gas chambers to murder the Jews.) Touting himself as the world’s foremost expert on execution technologies, Leuchter began his career maintaining, repairing and modifying electric chairs. After repeatedly witnessing the technical and emotional difficulties experienced by the prison personnel operating the chairs – prison guards had trouble operating the frequently faulty equipment and often found it psychologically hard to electrocute the prisoners they had accompanied for years, sometimes decades – Leuchter began planning a device that would minimize direct contact between convicts and prison personnel during the execution. He soon came up with the idea of a device automatically injecting lethal poison 178

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directly into the convict’s body. Located in the prison hospital, the device would administer the injection in three consecutive shots spaced over five to nine minutes. The injections, however, were to constitute only the final step of the ‘execution protocol’ – a long series of tasks performed by the prison personnel, the main aim of which was to prevent responsibility for the execution from falling on any single individual. According to the protocol, an announcement concerning the execution must be delivered to the convict and his or her family seven days before the event. During this week a supervising officer must inspect the equipment, which is located in two separate rooms: the control panel in one, the stretcher in the other. The control panel is batteryrun to allow operation in the event of a blackout. The officer is to apply a saltwater solution to the device’s manifold and infusion tube in order to ensure that no air is trapped inside. At this point the prisoner is scheduled to meet the chief warden for an assessment of his or her psychological condition. The convict is then separated from other prisoners and transferred to a distinct area of the prison, ‘Death Watch’, where he or she is closely supervised by an officer. The warden and his assistants are supposed to visit the prisoner at least every 24 hours, until he or she is transferred to the room adjacent to the execution chamber. There the prisoner may receive a last meal of his choosing and host visitors. Six hours before the execution the prisoner is medically examined, with special focus on the condition of the veins. Outside help from other prisons is sometimes requested to handle unexpected difficulties within the prison and without – demonstrators, media coverage, and so forth. Shortly before the execution, the prison gradually restricts all comings and goings, and the surrounding roads are closely watched. All other prisoners are locked in their cells. During his final 24 hours the prisoner may spend time with his family or file a last-minute appeal. At seven in the evening, five hours before 179

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the slated execution (executions usually take place one minute after midnight on the scheduled date), the convict is injected with antihistamines to prevent allergic reaction to the lethal injection and is medicated with sedatives. During the last four hours before the execution the entire prison is put on alert as final preparations are under way. A special telephone line is set aside for communications with the Justice Department and the Supreme Court. At the scheduled time, the prisoner is brought into the execution chamber and tied to the stretcher as a physician administers the intravenous infusion – this time not to preserve life but to end it. The control panel includes two switches, to be pressed simultaneously by two prison guards, with a computer determining which switch initiates the killing process. From this point on the device proceeds automatically. The poisons are released into the manifold and from there enter the infusion tubes leading to the prisoner’s veins. Within one minute, three substances are administered into the convict’s bloodstream: sodium thiopental, which causes the convict to lose consciousness within seconds, pancuronium bromide, which paralyses his or her respiratory system, and potassium chloride, which stops the heart. The device is supported by two backup systems, one mechanical, consisting of additional switches on the control panel, the other manual, consisting of three manual syringes. The process ends when a physician determines the convict’s death,61 whereupon he or she joins the long series of prisoners killed by lethal injection since George ‘Tiny’ Mercer, the first convict to be executed using this method, was put to death in Missouri in 1989, in a room which had served as a gas chamber over the preceding 27 years.

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THE WINNING FORMULA: WOMEN, GALLOWS, CAMERA The emblematic protagonist of the American death-penalty film is male. The vast majority of films on capital punishment present us with male, not female, convicts; in fact, a general survey of filmic representations of the death penalty reveals that only one in every five films on the subject features a female sentenced to death.1 These facts assume a very different meaning, however, when compared with the share of women in the real-world death-row population: in the United States, only one in every 50 people sentenced to death is a woman.2 That is, women’s share in cinema’s death-row population is ten times their share in that of the real world. It turns out, then, that cinema has been rather keen on showing women on death row. What explains this peculiar fact? What purposes – ideological, narrative or other – has the filmic overrepresentation of women on death row served? One case that may illuminate these questions comes to us from the early days of cinema, when the medium’s narrative foundations were laid. Among these foundations was the ‘last-minute rescue’ principle, which many film scholars have incorrectly attributed to the seminal D.W. Griffith, in particular to his monumental Intolerance (1916), 181

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but which can be traced back to the much earlier work of filmmaker F.A. Dobson. In December 1905 Dobson directed and edited two nearly identical films, both produced by his own production company, the New York-based AM&B, and both shot, as was then the norm, in a warehouse in the city. (Directors assuming all major filmmaking responsibilities – cinematography, editing, production, and so forth – were hardly an anomaly in those days.) In the first of the two films, An Execution by Hanging, a woman dressed in black from head to toe is escorted by two uniformed guards to a scaffold, where a hangman and a priest await her. At the foot of the gallows stands a doctor. The woman’s head is hooded and a noose is tied around her neck; the hangman pulls the scaffold floor open from under her feet, and she is suspended in mid-air. The doctor pronounces her dead. The beginning of Dobson’s second film is all but indistinguishable from that of the first: the woman ascends to the scaffold, her head is hooded, and the noose is tied around her neck. But a mere moment before the final signal is given, a courier arrives with a letter of pardon. The noose is untied, the hood is removed, and the woman faints. All present smile, perhaps in satisfaction, perhaps in relief. The film’s title is A Reprieve from the Scaffold. Both films were based on the true story of one Mary Rogers, a known felon caught, tried, convicted and sentenced to die. Newspaper readers followed Rogers’ story with much interest, leading Dobson to adapt the story of her execution to the cinema – not once but twice. But why did the filmmaker choose to shoot two diverging versions of the same story? To understand this choice we must remember that in the very early days of cinema, audience tastes had yet to be studied and tested. Like other filmmakers of the day, Dobson was probably trying to be responsive to two worldviews prevalent in the American public: puritan moralism and righteousness on the one hand, democratic liberalism on the 182

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other. Like other contemporaneous filmmakers, and as befitting his former line of work as a small-time merchant, Dobson treated film viewers as regular customers, offering two different products to cover all tastes.3 In her Regarding the Pain of Others, Susan Sontag calls photography a ‘species of alchemy’ because, as she notes, observers view photographs as transparently reflecting reality.4 If the reflected reality is dull, however, the viewers might get bored; to evoke a real response (and, in the process, to turn a profit), the filmmaker must shock his viewers by means of a dynamic story in which the protagonist is swept from one situation to another, from hope to despair and back again. A story in which a woman is executed can do even more by posing to its viewers particularly pungent questions: how does one kill a person? How does one kill a woman? How does the victim react? Does it hurt? How does death look on a person’s face?5 By posing such questions, cinematic treatments of the death penalty can quench our natural curiosity. But our initial question persists: what might explain the cinematic over-representation of females on death row? According to Laura Mulvey, male-dominated Hollywood distorts women’s image to satisfy men’s sadistic voyeuristic urges. Representations of women that are made to seem natural are in fact the products of persistent social construction, of which cinema has been a central agent. Presenting women in anguish and distress is, in this view, a tactic for tempting audiences into the movie theatres.6 In the United States, as elsewhere, the film industry has, of course, always been controlled by men. Most studio owners have been male; successful male stars have been more closely involved in the filmmaking process, and men have always been the major investors as well as the main contributors to production, cinematography, editing, and so forth. Hollywood’s fundamental point of view has thus always been distinctly male. The films’ main target audiences 183

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have also been male, as have cinema’s principal genres, revolving as they have around crime, violence and sex. With their combination of voyeurism, pain, humiliation and fragile physicality, on-screen representations of women on death row have involved implicit erotic and even pornographic elements. Many such representations have given expression to the age-old nexus of sex and death, with the demise of the (usually beautiful) female execution victim, a belt or a rope around her neck, often shown as an allegorical orgasm or as a kind of foreplay meant to ‘pleasure’ the female victim to death. Moreover, to the male cinematic gaze, the female execution victim usually represents the more general role of a submissive victim at the mercy of a male executioner. That is, placing a woman in a position of weakness and victimhood is a way of fostering the male fantasy that sees female weakness as the foundation of male power and physical and psychological control. In doing so, the filmmaker sadistically turns the passive woman presented on-screen into an object and a fetish.7 In this manner, the images subject to the viewer’s gaze shape the latter’s attitudes towards such phenomena as pleasure, fear, catharsis, compassion and power.8 In fact, the sexuality implicit in cinematic treatments of the death penalty has manifestations that precede the execution itself. Films about the death penalty often touch upon prison life, satisfying our clearly voyeuristic urge to have a glimpse into that hidden, normally inaccessible world. This is true when a film’s characters are male prisoners, doubly true when they are female, since women’s prisons are even less accessible to our view. The hiddenness of women’s lives behind bars can naturally provoke fantasies, which cinema can then process and express. Prison dramas can open a window to a universe of tense relationships – among the prisoners themselves, between the prisoners and the male or female guards, between the prisoners and their lawyers, and so forth. The opportunity to parade on-screen a group of attractive women in sexually charged 184

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scenes – from explicit depictions of nudity and sexually suggestive behaviour to such implicitly sexual representations as a woman moaning and groaning during her execution – further explains why filmmakers and viewers alike have found the subject of women in prison particularly attractive. Cinema’s relatively frequent preoccupation with women on death row is largely due to the news media’s attraction to the same issue. Precisely because women are relatively seldom executed and commit fewer serious crimes than men, the media is always eager to sink its teeth into such cases and to sensationalize them through exaggerated portrayals of the female convicts – either by aggrandizing them and setting them up as martyrs, or by portraying them as inhuman monsters. The news media thus provide the basic materials for cinematic narratives, which filmmakers, unbound by the constraints of factual accuracy that, to some minimal extent at least, keep the news media in check, can then sensationalize even further. The on-screen representation of true stories which the public already finds tantalizing can thus become even more thrilling, allowing audiences to go through a process of moral catharsis. The opportunity to watch the execution itself – an experience seldom available to ordinary viewers in the real world, where only public officials are normally permitted to witness the event – allows ordinary citizens to consummate their citizenship, as it were, by witnessing first hand how the law is applied. In other words, cinematic representations of this sort serve the typical American need for ‘law and order’, allowing viewers to see for themselves how justice is put into practice.9 This ‘civic’ function is admittedly qualified in films in which familiar movie stars appear as ordinary people and criminals – for example Charlize Theron as the murderous prostitute in Monster (2003) or Sharon Stone as a murderer and a drug addict in Last Dance (1996); in such films, pure entertainment often trumps the civic value of allowing viewers to witness the workings of the law. 185

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Cinema’s ability to sensationalize its subject matter is among its most striking features, as is its ability to instil doubt in its audiences. This may be one reason for the considerable success of Robert Wise’s I Want to Live! (1958), based on journalist Edward Montgomery’s account of the true story of Barbara Graham (portrayed in the film by Susan Hayward). Graham is a pretty, somewhat impetuous young woman, whose lust for life is met by nothing but misfortune. She develops a drug habit, marries a junkie, and turns to occasional prostitution to make a meagre living. She dreams of a better life for her young son, to whom she yearns to give all that she herself lacks. One night she joins her friends on a little ‘job’ – a robbery, she soon finds out – in the course of which an old woman is murdered. Barbara’s associates decide to blame the murder on her, hoping the court will spare her on account of her gender. Their ill-conceived plan quickly fails, however, as the press tramples over the wild young

Figure 4.1 A police photograph of Barbara Graham. 186

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woman and proclaim her guilty in advance of the court’s official verdict. Her own loose tongue and acerbic reactions only further motivate the journalists to expose every little detail of her life. As the trial continues, a team of professionals – a retired investigator and an experienced lawyer – assist Graham free of charge, enlisting the help of ballistics experts and psychologists to save her from execution. A psychiatrist they provide determines that though she may be a manipulative little thief, she is no murderer. Graham’s benefactors are soon joined by a journalist, the aforementioned Montgomery. Though initially antagonistic – his early reports describe the defendant as a loose tramp, dubbing her ‘Bloody Babs’ and ‘the Blonde Tigress’ – a few quick interviews in the courthouse hallways soon cause Montgomery to fall for Graham’s charms. His attempts to sway public opinion in her favour fail, however. Graham is executed – and for the first time in the movies the camera enters the gas chamber, focusing on the bound woman’s body. The audience is allowed to witness the execution from beginning to end. Shot from a low angle with the camera placed very close to her knees, Graham is shown wearing a long skirt in fulfilment of her request to die in decent clothes. Her hand, replete with her wedding ring, is shown grasping the armrest and then convulsing until she draws her last breath. Wise hardly recoils from exaggeration when it comes to Graham’s character, for better or for worse. In her jail cell she goes to bed wearing a sexy nightgown instead of the sleepwear provided by the prison authorities. She incites the other prisoners to riot, and generally causes mayhem wherever she goes. When her son visits, however, she treats him with motherly tenderness. To encourage the viewers to doubt her guilt, Wise uses the ostensibly impartial journalist as a neutral (and thus reliable) transference object. The film’s rhythmic jazz soundtrack also contributes to Graham’s characterization, its frantic pace mimicking her life and death – a 187

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death which according to the film she did not deserve. The film’s viewers cannot but identify with Graham and lament her fate. (The real-life Graham, who boasted a rich criminal record, pleaded guilty to robbery but innocent to murder, though the court eventually convicted her of both.)10 Non-American films have shown interest in capital punishment in general and in its female victims in particular, but while Hollywood filmmakers have had a ready supply of recent real-world cases on which to draw, the European film industry has had to settle for well-known historical cases, struggling to make them relevant to present-day audiences. The abolition of capital punishment in Europe over the years has not only depleted the reservoir of real contemporary cases but also diminished public interest in the subject. Not having experienced the death penalty as part of their social reality, European viewers have been more prone to take an interest in historical epics on the subject. Filmmakers in France and Great Britain – two countries boasting a rich history of dramatic executions – have been particularly attracted to such narratives. European films on capital punishment have in turn influenced Hollywood’s treatment of the issue.11 One striking exception to this European trend is the execution of Ruth Ellis, who in 1955 was the last woman to be executed in Britain. Thirty years later her story was adapted to the screen in Mike Newell’s Dance with a Stranger (1985), starring Miranda Richardson and Rupert Everett. Ellis is a lower-class woman who desperately falls in love with a young aristocratic man called David Blakely. Their stormy love affair ends abruptly when Blakely abandons her to marry a woman of his own social class. The humiliation leads to Ellis’ mental collapse. She murders her former lover and is eventually sentenced to death, leaving behind her ten-year-old son. Newell’s film sticks closely to the real events, addressing not only capital punishment but also the social circumstances leading to 188

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the lamentable crime, particularly the class and gender differences of mid-twentieth-century British society. Ellis, the film suggests, is triply wronged: first, by being humiliated by her upper-class lover; second, when her relationship with Blakely harms her both socially and occupationally, driving her to abject poverty; third, when the legal system fails to show her compassion, meting out the ultimate punishment. In both plot and structure, the film is designed to make us wonder whether an upper-class woman would have paid the same price. Let us now examine the development of cinema’s treatment of capital punishment and women by focusing on several different genres, historical eras and types of protagonist. We will begin with historical films on such larger-than-life heroines as Anne Boleyn, Mary, Queen of Scots and Joan of Arc, in which we find a nearly abstract (and decidedly non-topical) discussion of capital punishment, femininity and the relation between them. We will next turn our gaze to war films featuring such female protagonists as spies Mata Hari and Edith Cavell, which invite us to reflect on the relation between women, war and patriotism. We will then return to topical films on ‘ordinary’ criminals such as Barbara Graham, Karla Faye Tucker and Aileen Wuornos. We will conclude with reflections on the fictional protagonists of such films as Lars von Trier’s Dancer in the Dark (2000) and Rob Marshall’s Chicago (2002), which offer a deeply aestheticized view of American culture.

OFF WITH THEIR HEADS: POLITICS, MONARCHY AND RELIGION Few historical periods have stirred filmmakers’ imagination more than the decades-long reign of King Henry VIII as well as that of his daughter, Queen Elizabeth I, who between them ruled England 189

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for most of the sixteenth century. Much of the interest has derived, no doubt, from the gorier aspects of their reigns: between the former’s six marriages and the latter’s bloody confrontation with Mary Stuart, Queen of Scots, the two Tudor monarchs were responsible for their fair share of sensational female executions. The first of these was the beheading of Anne Boleyn, the second wife of Henry VIII, in the spring of 1536. (Not yielding at once, Boleyn’s head was not severed before the executioner struck his second blow.) The king’s fifth wife, Catherine Howard, was accused of treason and also beheaded. But it was the tragic story of Boleyn, a deeply romantic figure and mother of the future Queen Elizabeth I, which has captivated artists and historians alike over the centuries. The period following Henry VIII’s marriage to Boleyn was characterized by social, religious and economic upheavals. Sir Thomas More, the king’s close counsellor, opposed the marriage and the religious conversion it involved, which he considered not only sacrilege but also a threat to England’s form of government. These views cost More dearly, putting him on trial and leading to his beheading at the king’s command. More’s was hardly the last execution of English nobility in this bloody era of political turmoil. Henry VIII’s son and successor, Edward VI, ruled England for six years before dying early. Succeeding him was Henry VIII’s eldest daughter, Mary, who reinstated Catholicism in England and initiated a surge of religiously motivated executions, earning her the moniker ‘Bloody Mary’. After Mary’s sudden death her sister Elizabeth replaced her on the throne. The daughter of Anne Boleyn, Elizabeth was considered a bastard by the Catholic establishment, leading to a war of inheritance between her and her cousin Mary Stuart, Queen of Scots, which ended with the latter’s execution at Elizabeth’s command. (Though by eliminating the Scottish monarch Elizabeth had hoped to extinguish all competing claims to the English throne, Elizabeth’s own successor was Mary Stuart’s son, King James VI of Scotland, 190

Figure 4.2 Mary, Queen of Scots.

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who thereby also became King James I of England.) Each of these historical figures has been the subject of countless biographies, novels, plays and films, many of which have taken a historical–legal perspective, describing the events that sealed their protagonists’ fates. Films adopting this perspective include Fred Zinnemann’s A Man for All Seasons (1966) on the trial of Thomas More, as well as several British–American co-productions, among them Alexander Korda’s The Private Life of Henry VIII (1933). The exploits of Queens Elizabeth and Mary were brought to the screen as early as 1895, at the very dawn of the silent era, in American director’s Alfred Clark’s The Execution of Mary, Queen of Scots. In the film Mary is shown approaching the scaffold with two female companions, kneeling and extending her head forward. Above her stands the imposing figure of a burly executioner, who decapitates her with one blow of his massive axe. Mary’s head rolls on the floor; the executioner picks it up and, holding it up in the air, pronounces the queen dead as her shocked companions begin to cry. We see, then, that American cinema’s fascination with the execution of women has its roots in the medium’s earliest beginnings. The topic’s attraction, it seems, can be attributed to Americans’ thinly veiled yearnings for the romantic glories of England’s royal traditions. Queen Mary could meet these emotional needs: she was a tragic female figure from a fascinating era, a heroine who died because of her refusal to allow Elizabeth to inherit legally the realm that was hers by rights. Many Protestant American viewers admired the Catholic queen’s resolve. Whatever their differences with the Scottish queen in matters of religion and government, they admired her staunch insistence on what she considered to be her natural right to full sovereignty over her country. Her execution, which Clark’s film shows in detail, elicited not only their compassion but also their identification with the romantic queen whose death was 192

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hastened by her own political innocence in the face of her cunning royal relative, Queen Elizabeth I. The extremities of Mary Stuart’s character, from her obstinacy to her female tenderness, continued to stir filmmakers’ imaginations in the decades to come. Directed by John Ford and starring Katharine Hepburn, Mary of Scotland (1936) stages a fictional encounter between Elizabeth and Mary on the eve of the latter’s execution (in reality the two never met). ‘You are neither a mother nor a woman,’ says Mary, the woman who has followed her heart without relinquishing her legal standing, to Elizabeth, the woman who has sacrificed her femininity in order to ascend to the apex of politics. While Hepburn’s strong yet brittle physicality conveys wonderfully Mary’s self-confident femininity, Florence Eldridge’s Elizabeth is an androgynous character who can find comfort on the royal throne alone. Ford’s film confers an air of sainthood on the feminine Mary. Its final scene – the cloudy skies, the skyscraping turrets, the birds soaring a moment before the queen’s last walk to the scaffold – replicates with utmost precision the execution scenes from Carl Theodor Dreyer’s La Passion de Jeanne d’Arc (The Passion of Joan of Arc, 1928). The same cinematic skies that had taken to their bosom the saint from Orléans now embrace the unwavering Queen of Scots. Years before Mary’s reign, a young Frenchwoman whose tenacity in the face of ecclesiastical power had turned her into a saintly figure was executed by the English. Her femininity, her faith in Christ and her beliefs concerning the proper way to serve God were all her downfall, leading to her burning at the stake. The mythic story of the virgin of Orléans who challenged the patriarchy of her time and led the battle against the English invaders seems barely believable today. The protocols from her trial indicate that, as far as the Church was concerned, all would have ended well had Joan of Arc only consented to relinquish her manly clothes in 193

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favour of a proper woman’s gown and adopted properly feminine views about her mission on earth. In an astounding, one-of-a-kind performance, the star of Dreyer’s film, Maria Falconetti, conveys an ambivalent message of faith in God coupled with passion for God – a faith and a passion for which she is willing to die. This is Dreyer’s most impressive accomplishment in what is perhaps one of the best films ever made. Dreyer’s film is documentary in style, conveying palpably the ambience of the fifteenth-century courthouse. Dreyer forgoes the conventional mythic portrayal of the young woman as a warrior and a military heroine, devoting the entire film to her trial and execution. Masterfully using the silent cinematic form, the director sets the corrupt human law in ironic and bitter opposition to the divine law delivered by God’s messenger. The film is driven by Dreyer’s close-ups of the actors’ faces, which are used to expose the characters’ physical and mental states. The protagonist herself seems to alter before our eyes, sometimes a woman, sometimes a child, the tears rolling down her face like pearls. When she climbs to the stake she looks agonized, but as soon as she sees the cross looming nearer her face begins to radiate comfort and joy. The judges’ maleficent faces are shown in close-ups as well, as are the faces of the encircling spectators. As the doomed heroine is tied to the stake a bitter commoner cries out at the guard: ‘You’ve killed a saint!’ Film and history are thus interwoven. No later film on Joan of Arc – from Victor Fleming’s Joan of Arc (1948) starring Ingrid Bergman to Luc Besson’s The Messenger: The Story of Joan of Arc (1999) staring model Milla Jovovich – has depicted the French icon’s trial and death in quite the way Dreyer’s film had. The films discussed above bring out in sharp relief several central themes associated with the execution of women. Women’s sexuality is no doubt one of these: Joan of Arc is a virgin consecrating herself to God, whereas the story of Mary, Queen of Scots is that of a 194

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direct – and lethal – confrontation between two women: the barren and androgynous Elizabeth versus the fertile and feminine Mary. The figure of Joan of Arc also marks the separation, brought on by death, between the secular and the sacred, between the earthly woman and the dead saint. Films about Henry VIII have tended to focus on the exploits and desires of the male monarch, relegating to the background the women in his life. While ostensibly about the life and death of the king’s second wife, Anne de Boleyn (1913), a French production,12 largely focuses on Henry VIII’s tempestuous masculine character, playing down the atrocities done in his name. The film is permeated by an atmosphere of terror, stirred by the omnipotent king’s whims, which manifest themselves throughout his relationship with the doomed queen, from their initial courting to her bitter end. The film is lavishly produced, bringing the historical narrative to life via realistic costumes and sets that seem to have come directly from the court of the Tudor monarch. To heighten the narrative tension Boleyn’s tragic death is shown in a flash-forward segment in which the queen, perhaps dreaming, perhaps experiencing a prophetic, trancelike stupor, foresees her own demise. In a later film about the same calamitous historical episode, Alexander Korda’s The Private Life of Henry VIII, the cruel early death of Henry’s wives is only implied, the focus being shifted to the king himself, portrayed by an especially cheerful Charles Laughton. The tragic killing of his wives for political reasons is shown in the film as a warranted necessity, and not a whiff of criticism is directed at the king. The lives of Henry’s wives are shown chronologically, deflecting all attention from the women themselves to the cocky king in a way that precludes identification with the victims. It was not until the late 1960s that a film about Boleyn moved its viewers to identify with the ill-fated heroine. Charles Jarrott’s Anne of the Thousand Days (1969) – the title referring to the short 195

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duration of her reign – focuses on the queen’s personal story, creating a well-rounded, three-dimensional human character. Geneviève Bujold’s performance as Boleyn contributes to the character’s richness, though Richard Burton’s portrayal of Henry VIII prevents the film from lapsing into melodramatic sentimentalism, the popular actor’s abundant charm forcing viewers to vacillate between empathy with the victim and identification with the charismatic sovereign. Henry VIII’s daughter, Queen Elizabeth I, is the protagonist of 1998’s Elizabeth, an American production directed by the Indianborn Shekhar Kapur and starring the Australian Cate Blanchett. The film focuses on the female monarch’s unique character as a woman who chose to forgo her femininity ‘for England’s sake’, adopting the male behaviour codes of her time and walking in her father’s footsteps as an obdurate sovereign. In making this choice, Elizabeth affirmed the male law that had dominated Europe and the British Isles for centuries. The film does, however, provide a view of the queen’s private life. The harsh circumstances of scheming courtiers, treacherous domestic politics and power struggles between Protestant England and a Catholic-dominated Continental Europe cause Elizabeth to act as a man in a man’s world, treating her opponents, even her relatives, with boundless ruthlessness. In these stories of English royalty, it is from male law – the patriarchal laws of the Church and the throne – that capital punishment derives its force, whether the victims are male or female. Elizabeth, like her half-sister Mary who ascended to the throne before her, only continues to put that law to practice. While ‘Bloody Mary’ did so in the name of Catholic Christianity, aiming to restore Catholicism in England, Elizabeth does so in the name of the English Crown, paving the way to England’s transformation into Great Britain. This she accomplishes by battling the distinctly feminine Mary Stuart and while relinquishing her own femininity. 196

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From across the English Channel comes the spectre of another, utterly different queen – one who neither made laws nor ordered executions; one who until her last moment never renounced her femininity, and was taken to the gallows for no other crime than being the king’s wife and the mother of his children. She is, of course, Marie Antoinette, wife of King Louis XVI of France and victim of the French Revolution. Her complex character is the focus of two American sound films, both titled Marie Antoinette, the first directed by W.S. Van Dyke in 1938, the second by Sofia Coppola in 2006. Both tell the story of the young queen who arrives in Paris as part of a diplomatic exchange between Austria and France and spends several lonely years living with the frigid king, her innocence exploited, her psyche ravaged by rejection, decadent profligacy and empty extravagance her only consolation. In both films Marie Antoinette is shown as a mere victim of the historical process, not as an active contributor to its shaping. She is the victim of a corrupt system, her children remaining the only real part of her life. Neither of the two films shows the execution itself, leaving the cataclysmic event implicit. The religious–moralistic narrative of Van Dyke’s film strays somewhat from the historical facts: the execution is shown as a consequence of the deposed monarch’s own choice to avoid humiliation. Van Dyke, who had been Griffith’s assistant on the set of Intolerance, evinces here the clear influence of the earlier film’s images of Christian atonement and forgiveness. Coppola’s film differs in focus. One of Hollywood’s few successful female directors, Coppola draws clear parallels between Marie Antoinette’s fate and that of many modern women who may seem to enjoy the freedom to choose their way of life but are in fact often trapped in a gilded cage of materialistic consumerism and emotional alienation. The fact that the titular role is played by actress Kirsten Dunst is not insignificant in this regard: Dunst, too, started her career as a young child and has been the victim of an industry that demands 197

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beauty, perfection and success. Like the French queen, she traded her childhood for a life of fame inside Hollywood’s gilded cage. In the former’s case, of course, the eventual loss of freedom is not only mental but also physical: the queen’s bloody end on the guillotine is implied in the film by a scene in which an angry mob smashes the large windows of the palace at Versailles and by a shot of Marie Antoinette’s wrecked room. In Coppola’s view, it seems, not much has changed for women since then.

FEMALE SPIES AND PATRIOTISM IN FILM In the decade or so leading up to World War II, no fewer than two films, both by director Herbert Wilcox, were made about the life and death of World War I-era British nurse Edith Cavell. Cavell was a courageous woman, the daughter of a British clergyman, who worked at a military hospital in German-occupied Belgium during the Great War. Aided by a local aristocrat, a loyal staff and a network of smugglers, Cavell helped prisoners of war under her care escape to safety until she and her accomplices were arrested by German intelligence. To save her beloved staff from death Cavell accepted sole responsibility for her actions, knowing full well that by doing so she was signing her own death warrant. Germany’s intention to execute a woman only reinforced British perceptions of the Germans as a barbarian and cowardly people. Attempts by the British and American governments to persuade the German authorities to commute the sentence proved futile, and on 12 October 1915 Cavell was shot dead by firing squad.13 The first film to tell Cavell’s fascinating story was a British production, Dawn (1928), directed by the aforementioned Wilcox and starring Sybil Thorndike as the brave nurse. It was banned, however, both in the United States and in Great Britain. Though the official 198

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Figure 4.3 British nurse Edith Cavell was shot dead by a German firing squad on 12 October 1915.

rationale given by British and American censors was the film’s allegedly excessive brutality, the real reason was its potential damage to postwar efforts to rehabilitate Germany’s reputation. The film’s portrayal of the Germans as ignoble barbarians responsible for the killing of a courageous and innocent woman was seen as a genuine threat to such efforts. The film posed a further threat, however, to the interests of the victorious powers: any damage to Germany’s newly rehabilitated image threatened to harm fatally British and American investments, both private and government-funded, in the fraught German economy. The film was thus heavily censored at first and eventually banned outright. Attitudes were reversed, however, after the Germans invaded Poland in September 1939 and Britain declared war on Germany. Clearly interested in demonizing their old–new enemies, the two Allied nations were now eager to portray the Germans as brutal 199

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villains. Since no one could yet anticipate the full horrors of the impending war, cinematic propaganda efforts tended to centre on valiant heroes who could provoke in audiences empathy mixed with frustration. Eleven years after Dawn, Wilcox was again called upon to bring Cavell’s heroic story to the screen. His new film, released in 1939 and starring Anna Neagle, was simply titled Nurse Edith Cavell. Though Wilcox’s two films were very similar, their reception could not have been more different: this time, Cavell’s story, with its portrayal of the Germans as ruthless brutes, was seen as legitimate, and the film was quickly incorporated into Allied propaganda efforts. Though it was a commercial failure – Neagle’s somewhat arid (and, for American audiences, overly British) turn as the righteous Cavell failed to elicit strong reactions from moviegoers, and the film quickly vanished from the screens – American viewers, such as they were, were ready to embrace the real Cavell as one of their own and found her story of tenacity and courage inspiring. American culture thus appropriated Cavell, as it had the English queens of earlier films, ‘naturalizing’ her, as it were, and invoking her as evidence for the bonds of blood between the two Allied nations. In Britain itself Cavell has been considered a heroic patriot. Although she served as a nurse in a military hospital, and despite being accused of treason and executed by the Germans, she has been viewed not as a spy but as a courageous nurse who had discharged her patriotic duty in an exemplary fashion. In London’s Imperial War Museum, she is commemorated in a gallery documenting nurses in wartime, but not in the exhibition devoted to spies and espionage. Despite her widespread reputation, she has not been accorded a place in Great Britain’s glorious pantheon of military heroes. Another important World War I female figure – one who could not be more different, however, from the virtuous Cavell – was the fascinating and colourful Margaretha Geertruida Zelle MacLeod, better known under her professional alias of Mata Hari. Dutch-born 200

Figure 4.4 Margaretha Geertruida Zelle MacLeod, better known as Mata Hari, 1910.

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but holding French and German citizenship, the battered wife of a Scottish officer and an erstwhile nude dancer, Mata Hari was also allegedly a German spy who, working for the Kaiser’s military intelligence, was responsible for the death of numerous Allied troops – or so claim many of those who have studied her life and death.14 Others, it must be noted, view her as an insignificant cog whose role was exaggerated in order to quench the public’s thirst for sensationalism and to boost morale among soldiers and citizens exhausted by the long war. The year 1916, which saw the death toll among the fighting armies rise to 1 million, was also the deadliest year of Mata Hari’s activity. According to one common estimate, no fewer than 50,000 soldiers were killed that year as a consequence of her stealth activity, primarily her steady supply of information on the deployment of Allied forces, which she delivered to the tune of 30,000 German marks. Her capture on 13 February 1917 in a Paris hotel put an end to this lethal activity; she was tried in a speedy procedure and

Figure 4.5 The execution of Mata Hari, 15 October 1917. 202

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sentenced to death soon thereafter. In retrospect, it is clear that her trial was unprofessional and patently unfair in terms of justice and the pursuit of truth. On the other hand, the trial documents (which over time have largely been lost) as well correspondence between some of the parties involved show that Mata Hari’s capture met a genuine public need, her scapegoating proving successful in boosting public and military morale. The alleged spy was executed on 15 October 1917, two years almost to the day after Cavell’s execution on the other side of the border. Both cases were similar, of course, in their exceptional subjection of a woman to military execution by firing squad. No one on the Allied side seemed to realize that by killing Mata Hari the Allies were lending retroactive legitimacy to the Germans’ earlier execution of the British nurse. Nevertheless, Mata Hari’s impressive character and defiant tenacity in the face of death on the day of her execution would soon stir the imaginations of numerous filmmakers.15 Produced by Metro Goldwyn Mayer and directed by George Fitzmaurice, 1931’s Mata Hari, with Greta Garbo in the titular role, was, like the 1928 film on Edith Cavell, deeply influenced by the American administration’s interest in Germany’s rehabilitation. This national aim shaped the film’s attitude towards the German spy. Cast for the part thanks to her ability to vacillate between toughness and feminine vulnerability, Garbo’s Mata Hari served as a metaphor of sorts for Germany itself – a warmongering Germany that after its defeat repents for its sins and atones via death. Though the film describes Mata Hari’s military exploits, at the heart of the plot is the spy’s final romance, one for which she is willing to sacrifice her own life – her love affair with a Russian officer blinded during a military operation because of Hari’s own delivery of secret information to the Germans. In the film, the French pressure Hari to plead guilty in return for her lover’s life, which is now in danger because of his forbidden relationship with her. 203

Figure 4.6 Mata Hari (1931). Greta Garbo in the lead role elevates Hari to iconic status.

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Hari’s execution by firing squad is presented in the film as her own choice, motivated by her desire to save her loved one from a similar fate. This emphasis on Hari’s choices relegates to the sidelines the doubts and vacillations of the French justice system, which is embarrassed by the prospects of executing a woman, especially given the rather feeble evidence. Nevertheless, the system’s final decision is to make cautionary use of Hari’s case, and she is thus sentenced to death by firing squad. The film’s portrayal of its protagonist is forgiving in several respects. By casting hugely popular star Greta Garbo in the lead role the film elevates Hari to iconic status, conferring upon her life’s story a degree of seriousness and prestige it does not seem to have had in reality. Moreover, the film’s dramatic, even melodramatic structure presents the life of one loved individual as equal in importance to the lives and deaths of hundreds of thousands of soldiers. Though her actions are ideologically motivated at first, Mata Hari undergoes a dramatic change as her emotions overtake her and she understands the gravity of her actions. The film is pervaded by ambiguity, however, in ways that obscure the historical facts, as two central examples will illustrate. First, in one memorable scene Mata Hari shows much sensitivity – much more than one would expect of a spy of her kind – to the injured French soldiers hospitalized at the facility where she is searching for her lover. Second, the scenes depicting her trial are very unreliable, omitting any genuine witnesses or testimonies. At the end of the film a plainly dressed Hari descends a staircase to face the firing squad, the execution itself only implied by a long shadow stretching into the night. The filmmakers’ clear aim is to obscure the story’s national context and focus on its personal aspects – to tell a stirring story of love and sacrifice, one in which politics and international conflict give way to the big star, Garbo, who with her heavy Swedish accent ironically served the purposes of American propaganda. 205

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The historical facts of Hari’s life are quite different, however. Though she had many lovers, some of them high-ranking French officers, nothing is known of a love affair for which she was willing to sacrifice her own life. She may have been involved in a relationship, albeit an insignificant one, with a French officer of Russian descent. Her grudge against the Allies probably had deeper psychological roots, possibly stemming from her bitter marital experiences. Her husband, a Scottish officer stationed in the Netherlands, was an alcoholic and a gambling addict who physically abused her. Her plea for divorce was rejected contemptuously by the courts, however, which ruled she had to return to her husband. When she refused, she was brought back by force. The traumatic experience must have deeply scarred the young Margaretha, then in her early twenties. Her escape from a respectable home to Paris, leaving two young children behind, marked the beginning of her journey of survival and revenge. Her espionage activity for Germany began in 1903, when she was working as an exotic dancer in Paris, and ended in 1917, when she was captured by the French. The extent (if any) of her influence on the war remains unclear to this day. Historians captivated by her unique story have produced contradictory studies of her life and death. Robert Hendrickson, for example, describes her as unusually confident during her execution: ‘Like any man about to be executed,’ he writes, she drank the portion of rum allotted to her. Refusing to cover her face, she smiled in the morning sun. Among the officers and soldiers watching the execution and among the members of the firing squad itself were several of her former lovers, seemingly eager to be the first to take her life.16

An even earlier film on the illustrious spy was a 1927 silent film also titled Mata Hari, a German–Soviet co-production directed by 206

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Friedrich Feher and starring then popular actress Magda Sonja. This film, too, was a romantic love story. Here, the heroine’s love for the Russian officer is used to pressure her. Once again she chooses to face the French firing squad in order to save her lover’s life, but this time she is also motivated by her wish not to harm the Soviet war efforts. Like much Soviet cinema of the period, the film was used by the Stalin-approved Soviet propaganda machine to convey ideological messages to the masses and to inculcate the ideas of the ‘permanent revolution’. To this end, the film’s Soviet and pro-Communist German producers fully appropriated the German spy, claiming her as a representative of Russian culture and presenting her as one of their own. In the United States, by contrast, whatever success the film enjoyed seemed to be entirely due to Sonja’s exotic costumes. A much later film, the French–Italian co-production Mata Hari, agente segreto H21 (Mata Hari, Secret Agent H21), was directed in 1964 by Jean-Louis Richard. Co-written by François Truffaut and starring Jeanne Moreau, the film’s main theme is again absolute love and its price, though this time it is the Germans who force Hari to spy for them in order to save her German lover. Here, again, it is extortion of this type, prompted by her love for the ‘right person’, a German, and her willingness to sacrifice herself for the right nation, Germany – and not her actual actions – which leads to Hari’s execution. Though by 1964 the French filmmaker’s cinematic perspective could be expected to be clearer and perhaps more realistic and critical, his romantic vision flattens Hari’s character, attributing her self-sacrifice to schematically female emotions instead of crediting her with genuine deliberation. The French characters responsible for her execution are presented, by contrast, as driven by patriotism, courage and the sense that this is the German spy’s just deserts. Interestingly, this motif is shared by all the above cinematic versions of Mata Hari’s story. Each seems to clear the heroine of the 207

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charges of wilful espionage. Each – whether Western European, American or Soviet – treats the spy’s actions forgivingly and sentimentally. The seriousness of her deeds is obscured, as if she were no more than a little girl misbehaving. Love and self-sacrifice are the central aspects of her feminine existence, both leading to her demise. The German version fails to respect her for her courage and patriotic sacrifice; the French version fails to recognize her as a dangerous enemy despite her treason and espionage. The male filmmakers, it seems, found it impossible to praise a women for her actions or to acknowledge them as important. From their perspective, it seems, she was unworthy of being included in the pantheon of male heroes. Nevertheless, her story of courage and bravery has become a European myth that is impossible to ignore. It could, however, be distorted and cast into the traditionalist mould that relegates women to the bedroom or to death, as films made in the ensuing decades have shown. Mata Hari’s beguiling character continued to stir filmmakers’ imaginations. At the centre of 1985’s Mata Hari, directed by Curtis Harrington, stood the sexual promiscuity that had characterized cinema since the late 1960s and early 1970s until finally becoming a legitimate aspect of ‘respectable’ films. Harrington and his producers saw the sexual – and thus commercial – potential of the historical story. In this version, Mata Hari is a nymphomaniac who sleeps with every handsome man she can find, regardless of nationality. The casting in the lead role of Sylvia Kristel, best known for her work in the soft-porn Emmanuelle films, further sexualizes the revived character: shedding the romantic veneer of the previous versions, this newer film focuses almost exclusively on Mata Hari’s sexual exploits. The spy’s chief strategy – tempting French officers to milk them for information in the bedroom – is depicted in thorough detail, highlighting the starlet’s physical assets and relegating to the background the historical facts. Mata Hari’s story 208

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thus takes a distinctly chauvinistic turn, appealing mostly to male viewers in search of titillation. The film was met with a lukewarm critical response and little commercial success. Mata Hari’s story had become an exercise in pulp fiction. How is it that a historical figure as unique and significant as Mata Hari – one so curiously flamboyant and lascivious and at the same time responsible for such daring acts of wartime subterfuge – has largely failed to inspire worthy cinematic adaptations? Is it possible that the failure of cinema’s many attempts to handle this one-ofa-kind character has simply been due to bad timing? Or have the films failed because of the misguided uses to which they put Mata Hari’s character and their mistaken interpretations of her actions? Mata Hari was not a prostitute; she was a lonely woman without a steady source of income who had to rely on men to survive. She was a small-time spy who used the oldest tricks in the book to achieve her aims. It was not love that blinded her, but money and feelings of vengeance. Reputedly dangerous and cruel, she was also a mother and a wife. She was no innocent naïf, nor did she go feebly and despondently to her death, as some filmmakers have chosen to portray her. Knowing full well where she was headed, she laughed in the faces of her executioners. Her actions were ideologically motivated, and it was ideology that led to her demise. Filmmakers have largely ignored these facts, however, exploiting her execution to tell the kinds of stories in which they happened to be interested. Cinematic representations of women executed for wartime courage, espionage and patriotism are hardly incidental. The stories of Mata Hari and Edith Cavell were repeatedly exploited for purposes incongruent with the two women’s real lives. As the years passed, both stories were removed from their historical contexts and abstracted from their original wartime circumstances. In this process of abstraction, the women themselves were stripped of their real contributions to the war effort. Thus, Mata Hari was first 209

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presented as a foolish and reckless woman, then as a sexualized tramp, almost a prostitute, dabbling in espionage primarily in order to satisfy her own sexual whims. That filmmakers have found the lurid spy more cinematically attractive than the deeply religious, self-effacing and, for some, somewhat dreary Cavell is perhaps not surprising; representations of both women, however, have been woefully tendentious and incomplete, exploited for purposes alien to their real lives and deaths.

FROM THE GALLOWS TO ICONIC STATUS From 1608 to the end of the twentieth century, 2.5 per cent of all capital punishment victims in what today constitutes the United States were women. Of those, most were executed by the end of the nineteenth century. Most of these women were executed for two types of felony – 76 per cent for homicide (their husbands constituting the majority of victims, most often killed by poisoned food), and 7 per cent for ‘witchcraft’. The first woman whose execution was documented – though neither her age nor her crime was recorded – was Jane Champion of James City, Virginia, hanged in 1632. The youngest female execution victim was a mentally challenged 12-year-old of mixed race, executed for the murder of a four-year-old boy and for stealing strawberries. The oldest was a black slave aged 65.17 During the first century of North American colonial history most executions took place in the town square. The executioners were, of course, male. Dressed in thin gowns minutes before the execution, the female victims were often indecently exposed in front of a leering, cheering crowd. Those in the front were usually permitted to hurl profanities as well as various objects at the convict. Public executions were often frequented by ‘regulars’ – ‘groupies’ of sorts 210

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who used to wander from one execution to the next. Since female spectators were largely excluded from such events, what the female convicts often saw in their last moments was a sea of men excitedly awaiting the offender’s impending death. In those days, death sentences were usually carried out either immediately or several days after the court’s pronouncement of the verdict, with no possibility of appeal.18 From the late nineteenth century onwards, execution methods and procedures became increasingly advanced. Executions by hanging and later by electrocution, gas and lethal injection were carried out indoors in relative privacy. The public’s fascination with the execution of women has nevertheless continued unabated. Americans have always taken a liking to sensational events. One would be hard-pressed to find a twentieth-century legal event covered by the media – first in the printed press, later on television – that was not then turned into a book, a movie or both, lending widespread exposure to female murderers among other criminals. If the death sentence’s original purpose was to eliminate all trace of the criminal’s existence, the retelling of execution stories on the big screen has turned the executed convicts into cultural icons forever commemorated on film. Whether male or female, modern criminals have thus won a measure of public exposure enjoyed (or suffered) by few others. At the same time as justifiably criticizing the American justice system’s over-eagerness to sentence people to death, Hollywood (and other) films have also glorified the criminals, relegating their victims to the margins of history.19 That such lawless figures have become cultural icons is surely instructive of our era. One such figure was Ruth Snyder, who in 1927 conspired with her lover, a girdle maker, to murder her husband, not before ensuring the latter had a $100,000 life-insurance policy.20 On the night of 19 March 1927 Snyder and her lover cruelly murdered the husband in his bed. Soon caught, the two confessed and were sentenced to 211

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death by electrocution. Though publicly reviled and widely seen as the epitome of evil, Snyder also drew the compassion of many soon after her death. Among those invited to witness the execution was Thomas Howard, a New York Daily News journalist and photographer, who used a small camera stealthily mounted on his thigh to photograph Snyder convulsing on the electric chair. The shocking picture, smeared all over the newspapers the following day, gave millions of Americans their first glimpse of a real-life execution by electrocution (and possibly their last, given the restrictions on the taking and distribution of such photos).21 From the moment the cruel photograph was published, a certain clemency began to characterize the public’s attitude to the late Snyder. Snyder’s luck turned for the better as soon as she entered the nation’s consciousness as a tormented (if evil and treacherous) mother. Less fortunate was another woman, Mary Surratt, charged in 1865 with taking part in the conspiracy to kidnap and assassinate President Abraham Lincoln. The North’s post-Civil War eagerness to avenge Lincoln’s death led to a court martial of dubious constitutional standing. Though Surratt was a minor accomplice – her son, John Surratt, was assassin John Wilkes Booth’s main co-conspirator – she was convicted before a military commission and sentenced to death. (Her son, in the meantime, was tried but never convicted.) Surratt left no cultural legacy behind her: the crime for which she was convicted was too political in nature, lacking the passion, mystery and personal daring so often adulated by the American public. While her case served as a general source of inspiration for films on the death penalty, the public’s hatred of her was too great for her to become a cultural icon. A film on Surratt, Robert Redford’s The Conspirator starring Robin Wright, was completed in 2010. Though it aimed at historical accuracy, and though Surratt’s guilt is still a matter of controversy, the film failed to make viewers empathize with Surratt or to convince them of her innocence. 212

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The Snyder affair, by contrast, served as the basis for James M. Cain’s 1943 novel Double Indemnity and for the subsequent film noir of the same name. Directed by Billy Wilder and scripted by Raymond Chandler, the 1944 film took some liberties with regard to the protagonists’ social standing: the woman (Barbara Stanwyck) was now a millionaire’s wife, the lover (Fred MacMurray) a handsome and overly confident insurance agent. Highlighting the intense sexual tension between the two, the film also added a second, more surprising conspiracy to the original one: after the cheating wife persuades her lover to murder the husband, she leaves the hapless insurance agent behind, escaping with the insurance money left by her late husband. With typical ingenuity, Wilder and Chandler managed to circumvent two major obstacles posed by the Hays Code – its prohibition of glorified portrayals of crime and realistic cinematic representations of death, and its prohibition of exploiting sex in general, and female sexuality in particular – to advance the plot. These restrictions only served to enhance the film, however, which focused instead on psychological suspense and made its femme fatale exciting and mysterious. In typical film-noir fashion, the sinning woman’s death is not shown explicitly on-screen but merely implied, though its presence permeates the entire film – in the shadows hovering over the two murderers’ heads, in the play of light and shade over their faces and bodies, and in the darkness pervading nearly every shot in the film. Social attitudes towards Ruth Snyder and her ilk have been deeply problematic in their moralistic self-righteousness and chauvinistic consignment of good women to matrimony and the bedroom, evil women to the gallows and death. They have also been paternalistic in their view of women as immature children in need of edification. When a story about a female murderer is first published, society initially reacts with harsh vindictiveness. This attitude turns into 213

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compassionate mercy, however, after the woman is executed. This has always been fertile ground for cinematic narratives. In Penrhyn Stanlaws’ The Law and the Woman (1922), based on the play The Woman in the Case by Clyde Fitch, a prostitute gets a second chance in life when she marries a man who knows nothing about her past. The newly-wed husband is soon found dead, however, and an investigation by his best friend traces the murder back to the newly-wed wife. The murderous ex-prostitute is sent to the gallows but saved at the very last moment. In Henry Kolker’s The Snow Bride (1923), two young lovers find themselves in a brawl with an Indian pelt trader and kill him. One eyewitness, a malicious alcoholic, forces the young woman to marry him by threatening to testify against her lover. On the day of his wedding the alcoholic dies of poison mixed in his drink. His bride-to-be is charged with murder, convicted and sentenced to death, but a last-minute rescue brings her back to her lover’s arms. Walter Lang’s The Golden Web (1926) and B.P. Schulberg’s Capital Punishment (1925) both tell the stories of women accused of murder and fraud only to be saved at the last moment from humiliating death. Both films use the rescue motif to cleanse the viewer’s conscience. Neither narrative criticizes the female protagonists for their actions; instead, each presents non-judgementally a sequence of events leading to impossible situations. Our bifurcated identification – with the murderer on the one hand and her victim on the other – finds resolution as each of the films reaches its comforting denouement. Other films from the same period protest against the injustice of society’s treatment of women. One of these is Marshall Neilan’s Tess of the d’Urbervilles (1924) based on Thomas Hardy’s novel. The film, like the book, objects to the injustice and distortion inherent in the paternalistic treatment of women in nineteenthcentury European society: young Tess’ potential for education 214

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and knowledge is destroyed by the self-righteous moralism of an atrophied class-based society. In the movie’s storyline, Tess is an innocent country girl, the daughter of an impoverished aristocratic family. Rumour says that her family name, d’Urberville, was purchased by a wealthy merchant family pretending to be the original noble family. Tess and her family live in abject poverty. Hoping for some financial gain, her lazy drunken father begins to explore the family roots. Tess is sent to the merchant family’s home to investigate whether the merchants have indeed been living under a false name. Fate is cruel to her, however. The assignment is more than she can handle, and she soon finds herself lost in a world whose many subtleties she does not understand. The innocent 16-year-old country girl falls into the hands of her employer’s corrupt son who exploits her cruelly and cynically. He rapes her, and she gives birth to a boy who dies soon after birth. In her sorrow, she wanders from farm to farm trying to make a meagre living and hide her shame. A local who knows nothing about her past marries her, only to leave her upon learning of her misfortune on the night of their wedding. In the wake of further tragic events Tess is forced to support her family. She returns to the merchants’ son, who falsely promises her a better, more secure life. She soon exposes his lies, however, and murders him. Male justice – the same justice that has thoroughly controlled Tess’ body, mind and life – now sentences her to death by hanging. The black flag flying over the prison announces her death. At the time, Neilan’s choice of topic was courageous. In Britain, Hardy’s book had been censored on its publication in 1891. The idea that Tess was a victim of injustice was anathema to Britain’s conservative, moralistic censors: as a member of the lower classes, they thought, death became her. In the United States, however, the issue of class was not as significant. Guided by the Protestant ethos according to which one’s success is determined by one’s hard work, not by one’s social standing or class origin, the New World 215

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was supposedly governed by freedom of choice and justice – if not always in practice then at least in theory. Using Hardy’s story as a social manifesto against the decadence and hypocrisy of Europe’s upper classes, Neilan protested against the evil that the Old World had inflicted on its daughters in the name of law and order. A newer, critically acclaimed cinematic adaptation of Hardy’s novel was made more than half a century later. Directed by Roman Polanski, Tess (1979) features a young Nastassja Kinski, who succeeds in combining feminine vulnerability with female strength even as she is led to the scaffold. (Polanski himself had famously lost his wife, Sharon Tate, who was murdered cruelly in 1969 by Charles Manson and his followers. Originally sentenced to death, Manson was never executed.) Robert Wise’s I Want to Live! (1958) is a product of its time – the decline of McCarthyism and the Hays Code – and marks the beginning of a new critical era with distinctively feminist aspects. No longer two-dimensional, its female protagonist, the real-life convicted murderer Barbara Graham, is a fully fleshed-out character with genuine aims and choices. No longer hidden, the marks of her femininity are accentuated: Susan Hayward’s blonde hair flows coquettishly, almost provocatively, as she walks in her prison cell wearing nothing but a sexy black nightgown. In addition, Wise intensified the film’s dramatic elements via a novel narrative technique that confused viewers by casting doubt on the protagonist’s guilt. Hayward’s character digs herself into a hole when her endearingly unsophisticated attempt to manipulate the court fails. Wise’s daring film thus paved the road to a newer, more aggressive era of cinematic discussions of the execution of women. Another sensational story from the same era – though featuring protagonists very different from the obviously delinquent Graham – was the national drama created by Ethel and Julius Rosenberg, a seemingly normal married American couple arrested in 1950 for 216

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practising espionage for the Soviets. The American public was astounded by Ethel Rosenberg’s willingness to abandon her two small children in the name of the communist ideology in which she believed. Despite the danger to her own life and the prospects of turning her children into destitute orphans, Ethel Rosenberg refused to cooperate with her questioners; all the evidence against her was obtained from witnesses wishing to save their own necks. Both Rosenbergs were tried and sentenced to death by electrocution. On Saturday, 19 June 1953, at the apex of McCarthyism and to the delight of McCarthy himself, the two were executed one after another. Though many were shocked by the couple’s speedy trial, harsh sentence and hasty execution, and though pages upon pages were devoted to the trial in the press, filmmakers remained completely silent, wary of addressing the case for fear they may seem unpatriotic. It was not before 1983, at the dawn of perestroika and a mere six years before the fall of the Berlin Wall, that an American film – Sidney Lumet’s Daniel based on E.L. Doctorow’s novel The Book of Daniel and starring Timothy Hutton – dared to tackle the Rosenberg affair. At the centre of the film are the attempts made by the Rosenbergs’ eldest son (Hutton) to trace the family history. The Rosenbergs’ home life, it seems, was not radically different than that of many other American families in the postwar period. The parents’ participation in ‘red’-tainted social struggles was shared by quite a few of their contemporary compatriots. With the United States and the Soviet Union allied in the war against Nazism and fascism, many Americans had contributed gladly to the Russian war effort. Soon after the war, however, as the Iron Curtain descended upon Europe, all hopes of rapprochement between the two emerging superpowers were dashed. The Rosenbergs were among the Americans who had fostered such hopes, inculcating in their children values of social responsibility in a free and democratic country. Nothing in the film 217

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confirms the accusations against the doomed couple. All their son finds are worrying lacunas and unanswered questions. His parents are revealed to be the victims of an unscrupulous and panicking military establishment grossly overestimating the dangers to America’s safety.22 The media, on its part, sinks its teeth into the alleged spy couple. Confident of their own innocence, the Rosenbergs fail to understand the severity of the charges – possibly because of their naivety, possibly because of the government’s efforts to conceal the evidence in the name of national security. The Rosenbergs’ trial, as shown in the film, is dismally questionable. Allowed to meet their son one last time before the execution, the couple are cold and emotionless, the mother in particular stubborn and self-righteous. Their deaths on the electric chair are shown in detail in a long shot covering the entire execution chamber in all its terrifying emptiness. In the corner, a small woman sits on the oversized chair, her head covered by the iron cap that is about to send the lethal current through her body. The mundane word ‘electrocution’, which the son looks up in the dictionary at the outset of the film, receives here its terrible meaning of loss, cruelty and illogic. Ethel Rosenberg is executed as a criminal and a traitor, a mother willing to abandon her children for the sake of a forbidden ideology, a wife who may have been her husband’s victim. With audiences unable to empathize with the couple or their actions, the film was a box-office flop. That the couple’s two sons were adopted by a relative and raised in a normal environment hardly added to the sensational dimension expected of such a tragic case. Timothy Hutton’s sensitive, wounded looks – typical of this fine actor of psychological dramas – did not help. The viewers, it seems, could not shake the feeling that Ethel Rosenberg could have acted differently; her punishment, it seems, is well deserved. Another reason for the film’s commercial failure was the timing of its release. Efforts to clear the Rosenbergs of treason rekindled 218

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interest in their trial around the time that the film appeared. Not only did these efforts fail, however, they cast further doubt on the Rosenbergs’ supposed innocence, thus harming Lumet’s film. A Russian document was found recording the couple’s subversive activities. Soviet missives discovered in the Russian archives in the post-Gorbachev era showed that Ethel Rosenberg (mentioned by her codename ‘Liberty’) received $4,000 in return for her espionage services. In 2004 the Rosenbergs’ granddaughter, Ivy Meeropol, re-examined the facts in her documentary Heir to an Execution. Shown at the Sundance Festival in Utah, the film was met with little response, thus bringing to an end the story America has chosen to ignore, then as now. Another famous female outlaw who, as a mother, may seem to have had much in common with Ethel Rosenberg was Kate ‘Ma’ Barker. Unlike the alleged spy, however, Ma Barker was the head of a crime ring run by her sons; also unlike Rosenberg, she continued to care for her children to the death. She was killed by the police in January 1935 along with one of her sons. The police, some claimed, had orders to shoot to kill in order to save the ostensibly unnecessary trial costs. In the 1960s and early 1970s, Barker’s spirited and combative character inspired such films as Ma Barker’s Killer Brood (1960) and Bloody Mama (1970) starring Shelley Winters. Her notoriety has reverberated in popular music as well: in the 1970s, Boney M’s ‘Ma Baker’ (1977) was among the disco group’s biggest hits, and a more recent rock band, Maylene and the Sons of Disaster, who formed in 2004, based its name and concept on the matriarchal gangster’s story. Joining Ma Barker in the pantheon of notorious female outlaws was Bonnie Parker, the renowned bank robber and murderer, who together with her partner, Clyde Barrow, has been enshrined in America’s collective memory via film, pop culture and fashion. A symbol of audacity and impudence, she remained a cultural icon 219

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both before and after her brutal death by police gunfire in 1934. Parker, Ma Barker and others have become part of American cultural history due not only to their daring challenges to the law and to the very circumstances of their lives, but also – indeed, mainly – to the fact that they were unique women, stoppable by nothing short of the cold metal that pierced their flesh. Had they been ‘ordinary’ lawbreakers – had they killed a would-be murderer or rapist in self-defence – the public, the film industry and the purveyors of mass culture would hardly, it is safe to suppose, have taken such an interest in them. Nowhere is the truth of this last claim more apparent than in the case of Karla Faye Tucker, the cold-blooded murderer who was executed in February 1998. Her story, which had stunned the American public, was adapted for the screen two years before her death. Though not explicitly about Tucker, the resultant film, Bruce Beresford’s Last Dance (1996) starring Sharon Stone, incorporated all the main features of her case: the murderer’s young age, the method of killing, the sentence, Tucker’s repentance and her failed pleas for clemency. In a coming together of fiction and reality, the script foreshadowed Tucker’s actual death two years later, describing in what turned out to be accurate detail her execution by lethal injection. The struggle to commute Tucker’s sentence (led, incidentally, by the real-life Sister Helen Prejean, the inspiration for Susan Sarandon’s character in 1995’s Dead Man Walking) reverberated throughout the American media and public. Arguments against Tucker’s execution focused on her changed personality on the eve of her death. Proponents of the execution claimed she deserved to die on account of her unforgivable crimes for which only death could atone; commuting her sentence to life imprisonment, they claimed, could set a dangerous precedent, allowing any prisoner on death row to claim his life and personality have changed while in 220

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prison. Furthermore, Tucker’s crime was especially serious: she used an axe to murder her victims with terrifying cruelty. In the fictional Last Dance, the horror is toned down by having the murderer use a gun to kill her victims less slowly and painfully. The film’s attempt to display objectivity, perhaps even to edify its audience, is undermined by its failure to represent more faithfully the murderer’s ruthlessness and cruelty. Its compassion for her is expressed in a softened portrayal of her character and actions. Another film guilty of manipulatively exploiting its protagonist is Patty Jenkins’ Monster (2003), starring Charlize Theron in the role of real-life serial killer Aileen Wuornos. A prostitute who killed seven of her clients, Wuornos is considered the first female serial killer. Sentenced to death in Florida in 1992, she was executed by lethal injection in October 2002. Offering some reasons for her terrible actions – she is repeatedly raped and abused by her clients – the film focuses on Wuornos’ romantic relationship with a teenage girl who eventually betrays her trust and hands her over to the authorities. By making the love affair such a central part of the plot – and by making the lover’s betrayal in court (rather than the execution) the film’s climatic moment – the film encourages us to forget the murders and see Wuornos’ death primarily as the result of romantic betrayal. The film thus fails to offer a serious discussion of Wuornos’ past or of the circumstances that had led to her terrible crimes, squandering its efforts to make Theron as visually similar to the real-life Wuornos as possible and to create a piece of Oscar-worthy entertainment (successfully so, in light of Theron’s Academy Award for Best Actress). Monster’s treatment of Wuornos is especially striking when compared to the very different attitude displayed in another filmmaker’s work. In two documentaries on Wuornos, British filmmaker (and erstwhile law student) Nick Broomfield tried to decipher the killer’s character. The first film, Aileen Wuornos: The Selling of a Serial Killer 221

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(1994) follows Wuornos during her initial trial. The second, Aileen: Life and Death of a Serial Killer (2003) follows her during the last year of her life. Broomfield’s in-depth, firsthand study of Wuornos offers viewers a glimpse into her history, explaining how she first became a street hooker and later a serial killer. Throughout both films Aileen recounts her terrible memories, from her early years with her father (who impregnated her at 13), to her life in a wrecked car in the woods around her hometown and her years selling sex for food. Unfurling her troubled and exploited life, the two films also present her resolute stance in the courthouse, where she acknowledges the killings but claims they came in response to physical, mental and social rape. The crimes, she claims, were a result of her rejection and extreme degradation by society. By the time of her execution Wuornos is deeply confused after having apparently lost her sanity. Both her rape and her eventual mental deterioration are buried in the Hollywood film, which, failing to address properly the humiliating and oppressive relationship between the prostitute, her clients and the corrupt society in which she tries to survive, ends up obscuring the real reasons for the murders. The film’s focus on the two women’s romantic relationship diverts the viewers’ attention from the crimes themselves to superficial sensationalism, as Theron’s eventual Academy Award win further attests.

BETWEEN DRAMA AND MUSICAL COMEDY: LIFE (AND DEATH) AS A CIRCUS Two films made at the start of this millennium and summing up the end of the last were harshly critical of the execution of women in the United States and the American justice system in general. One, Lars von Trier’s Dancer in the Dark (2000), was a Scandinavian production made in accordance with the minimalist ‘Dogme’ 222

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principles concocted by a group of post-modern filmmakers; the other, Rob Marshall’s Chicago (2002), was a musical straight off the Hollywood assembly line, based on a hugely successful Broadway show. Both films feature women convicted of crimes. In one, the female convict is sentenced to death and executed; in the other, the death penalty hovers over the female prisoners. Both stories take place in the American past – the 1960s in von Trier’s film, the 1920s in Marshall’s. Both are fictional, though one is dramatic and the other entertainingly comical. In both, picture, sound and movement combine to create rich and complex works, offering audiences critical discussions of the death penalty. Directed by the Danish von Trier, Dancer in the Dark was a Danish, Swedish and French co-production shot in Sweden. It stars the pixielike Icelandic singer Björk in the role of a Czech immigrant living in a small American town. Her close friend, played by French star Catherine Deneuve, is a French immigrant, and the film’s central song is borrowed from The Sound of Music (1965), which was memorably set in Austrian Alps. The story of Dancer in the Dark is set in 1964, and tells the story of a single mother, Selma, a daydreaming factory worker whose visual impairment is quickly deteriorating to blindness. Worse, her short-sighted son faces a similar medical fate. Willing to do anything – even murder – to save her son’s health, she eventually pays for her actions with her own life. Selma is a simple woman, almost a saint in the eyes of her acquaintances, who is victimized by the establishment and executed, though not before she holds fast to her values and beliefs and saves her son. Von Trier’s film is stridently critical of American culture’s simultaneous aggrandizement and sacrifice of the individual. The victim, Selma, is sometimes reminiscent of Joan of Arc, the victim in Dreyer’s film; both battle forces of evil to discharge their female duties, becoming martyrs in the process. 223

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Dancer in the Dark was the last in a series of films which von Trier himself has dubbed the ‘Golden Heart trilogy’ (it was preceded by 1996’s Breaking the Waves and 1998’s The Idiots). It also anticipated, however, von Trier’s next linked series of films, the so-called ‘American trilogy’, which has so far included 2003’s Dogville, in which the filmmaker attacks Americans’ hypocrisy and violence, and 2005’s Manderlay, which ridicules Americans’ subjugation by capitalism and the racism still present in American society. (Von Trier’s more recent films, 2009’s Antichrist and 2011’s Melancholia, are no less acerbic in their misanthropy in general and misogyny in particular.) The film’s melodramatic events, from the beginning till the bitter end, are exhilaratingly accompanied, however, by song and dance. The protagonist’s wild imagination helps her escape her dreary surroundings, sometimes realistically – she is a member of an amateur-dramatics group – and sometimes in scenes of sheer fantasy in which she is shown singing in stressful situations or dancing to the monotonous rhythm of the machines in the alienating factory. In one scene, she is shown singing and dancing across railway tracks that seem to symbolize the road to happiness (the allusion to Dorothy in 1939’s The Wizard of Oz is clear). She is surrounded by dozens of extras who sway to the imaginary music in her head, dancing in straight rows of uniform rhythm and motion, in what sometimes looks like a communist military drill. The film clearly alludes to classic Hollywood musicals as well as to European musical films such as Jacques Demy’s Les Parapluies de Cherbourg (The Umbrellas of Cherbourg, 1964) and Les Demoiselles de Rochefort (The Young Girls of Rochefort, 1967), both of which feature a much younger Catherine Deneuve. Parts of the film also resemble India’s Bollywood musicals, which themselves often allude to Hollywood’s classic musicals. Many of these films use lyrical texts, music and dance to intensify their tragic plots and express the protagonists’ moods. Post-modern film critics, however, are more 224

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likely to see the protagonist’s flights of fantasy, as well as the film itself, as exercises in pure escapism. Either way, it is clear that everything the audience witnesses – including Selma’s crime, trial and eventual execution – is mediated by the imaginary reality in the protagonist’s mind. The film’s formalist nature removes the narrative from its local and national contexts, placing it in a detached exile of fantasy. But von Trier’s film is formalist not only formally but narratively as well. The director’s accomplishment may have been twofold had he not subjugated the plot to the film’s striking technical devices; as it stands, the film misses the opportunity to criticize the absurdities of capital trials. Instead, it is a technical and technological masterpiece whose form – the simultaneous use of 100 cameras, the unique camera angles – overpowers its content.23 The increased reliance on technological devices marks a new trend in films on capital punishment, which until quite recently had been exceedingly realistic, striving to represent faithfully the use of killing technologies.24 The visual blitz of von Trier’s film is closer, by contrast, to many of Hollywood’s classic musicals from the 1940s and 1950s – much clamour, little content and no genuine message to be found. Moreover, von Trier tells the entire story from the heroine’s perspective, flattening the courtroom’s other usual denizens – the defender, the prosecutor, the judge – into two-dimensional characters, thus robbing the film of its critical potential. Each legal interaction shown in the film – between the lawyers and the judge, between the defendant and her attorney, and so on – is subjugated to von Trier’s effort to portray Selma as a heroic, almost saintly, though feeble-minded character who in order to salvage her son’s eyesight neglects to save herself. In choosing to romanticize the heroine’s life and to idealize her terrible death, von Trier shuns all genuine social criticism. Instead of reliably depicting the absurdities of the justice system’s rash 225

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eagerness to take the defendant’s life – the absence of adequate legal representation, the failure to subject the defendant to proper psychiatric evaluation, the absence of a social support network, and so on – von Trier prefers to appeal to our most primitive emotions, turning the woman into a mere victim – her own victim, the system’s victim and finally the director’s victim. Death is certainly present in von Trier’s film, first in the heroine’s gradual physical deterioration as she goes blind and finally in the film’s meticulous, even ceremonial depiction of the execution itself. Confronting death is a curiously contented female victim who showers happiness on all those around her, including the prison guard who accompanies her from the moment her execution is scheduled to the moment of her death. In other films on the death penalty, the guard is often the one who affords the convict rare moments of honest reckoning, perhaps even true friendship. In I Want to Live! Barbara Graham gives her guard a tiger doll, a gift for the latter’s son. In Dancer in the Dark, however, it is the blind death-row convict who graciously and self-effacingly offers her guard an edifying life lesson. Von Trier squanders, then, the opportunity to address seriously the problems associated with the death penalty, including those concerning the execution of those perceived as society’s weakest link, women. In the United States – as Selma’s suffering attests – human freedom is bought with money. Von Trier’s heroine is but a modern instance of the ‘white slavery’ that afflicted those earlytwentieth-century immigrants to the United States who failed to meet their new country’s social and economic standards. Selma’s condition is even more extreme, however. Unlike most immigrants, she has no pretensions or aspirations to realize the American dream in full. Her dream is rather private – and that, von Trier implies, is something the American nation does not forgive. From there to the gallows the road is short. 226

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Notably, the date of Selma’s execution in the film – 1964 – is historically misleading. From 1962, the year of Elizabeth Ann Duncan’s execution in California, to 1984, when Velma Barfield was executed in North Carolina, and again from 1984 to 1998, the year that Karla Faye Tucker and Judy Buenoano were put to death, no women were executed in the United States. (Though other women were occupants of death row during this period, none were executed.) Selma’s execution could thus not have taken place in 1964, nor could it have occurred in the many years that followed. Possibly due to the general zeitgeist and the successful efforts of the death penalty’s opponents, the 1960s were a relatively convenient period for those on death row in general and for female felons in particular.25 Another anachronism in the film is Selma’s execution by hanging, a method no longer used in the United States by the 1960s. These flaws, I believe, damage the reliability and the validity of von Trier’s criticism. Von Trier’s choices could be construed as stemming from European condescension to the average American viewer. Moreover, the very choice to focus on the execution of a woman is incongruent with the American justice system’s consistently lenient penalization of women. Women have constituted a very low percentage of those executed in the United States over the years.26 Furthermore, executions of women have always been considered especially cruel, to be used only when absolutely no other punishment can be deemed appropriate. It is a well-known fact that women on death row have often had their death penalties commuted to life imprisonment27 – the most infamous case being perhaps that of Susan Smith, sentenced in 1995 to two consecutive life sentences for the murder of her two sons (a crime she committed for no other reason than to win the heart of her lover). Such lenience, it is important to note, has hardly been an exception: it has been enjoyed by the most heinous of female criminals. The public, claims Cato Institute member 227

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and Women’s Freedom Network vice-president Cathy Young, is eager to believe in the female convict’s innocence and thus shows a greater degree of clemency towards women than it does towards men convicted of the same crimes.28 To be sure, von Trier need adhere neither to the historical facts nor to genre conventions. Having clearly chosen to forgo the didactic realism typical of legal films, he is hardly obliged to follow the rules of discourse that normally govern such films, nor does he have to address the usual themes, be they the philosophy of the death penalty, the historical trends associated with it or the concrete social and cultural circumstances within which the penalty is rooted. Instead, von Trier has chosen to weave a modern melodrama on a painful topic familiar to international and specifically transatlantic audiences. Another narrative concept adopted in von Trier’s work has to do with a certain subcategory of films on the death penalty that display what can be termed the ‘joy of death’. Many films produced in the latter half of the 1910s took a cheapening view of the death penalty, presenting it as a type of popular entertainment.29 In doing so such films resembled public executions in past eras, from the ancient gladiators’ ring and the medieval auto-da-fé to the early modern guillotine. In the twentieth century these arenas of recreational horror were replaced by the movie theatre, where motion pictures could offer moviegoers a first-row view of the bloody events, exploiting the viewers’ most primitive drives and emotions. From the 1910s on, the death penalty became a staple of movies in general and suspense films in particular. One especially memorable suspense scene involving capital punishment is the race against the clock for the pardon at the end of Griffith’s Intolerance, a scene whose frequent imitation in countless subsequent films has since devolved to self-parody. Edward Sloman’s The Last Hour (1923) took this device to a new extreme: audience members who wished not 228

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only to see the execution but also, in a sense, to take part in it were invited to participate actively during the screening by swearing at the convict, goading the driver of the car taking the convict to the gallows, and urging the executioner to ‘finish the job’.30 One of the only films to treat the death penalty seriously and even to oppose it was Schulberg’s aforementioned Capital Punishment (1925), in which the innocent protagonist is wrongfully executed. When asked why the film lacks a happy ending, Schulberg said: ‘if you make a movie attacking the death penalty, then, dammit, attack it!’31 Von Trier, by contrast, shows more affinity to those directors of the turn of the century who celebrated their protagonists’ deaths with pornographic voyeurism. Whether such blatantly exploitative works could possibly have any critical value is in serious doubt. In a comprehensive interview given for Von Triers 100 øjne, a documentary by Polish filmmaker Katia Forbert on the making of Dancer in the Dark, von Trier expresses his own abhorrence of the death penalty. ‘America,’ he says, consists [for me] of all the films I’ve seen that take place in America. It is apparently a weak nation that must kill its own people to safeguard its morals. I oppose the death penalty, of course; I don’t see it as a penalty at all. I may not be an expert on the United States or know much about it, but to me the American justice system does not seem like that of God’s country.

Von Trier clearly believes, then, that the death penalty is a mark of America’s weakness and hypocrisy. What is less clear is whether his chosen dramatic devices are successful in conveying that message. These doubts are only amplified by von Trier’s attitude towards the women in his films. In Dancer in the Dark as well as Breaking the Waves, both part of the Golden Heart trilogy, the female protagonists 229

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sacrifice themselves for the sake of (white) males. The protagonist of Breaking the Waves is executed not by the establishment but by society itself. Sacrificing herself for her man, she is sexually abused by other men, the representatives of a selfish and hedonistic society concerned for nothing but its own pleasures. Like the primitive priests who sacrificed young virgins to their gods, the male malefactors of von Trier’s film victimize the feeble-minded female character – as does, in fact, von Trier himself. The source of the term ‘uterus’ is the ancient Greek hystera (womb). Hysteria was also the ancient Greeks’ ‘scientific’ explanation for premenstrual syndrome and for what they considered to be women’s irrational behaviour. Von Trier constructs his female characters exactly according to this schematic conception of women. His women are hysterical, stereotypical manifestations of ‘female insanity’. They are guided by emotion and whim, not reason and logic. The narrative structure closes in on them hermetically: they are worthy of death, death becomes them. ‘Women threaten me,’ von Trier claims in the aforementioned interview, ‘they always have. They want to shut me in, to ensnare me. But I have my own snare, of course, a little snare of power: the film I create.’32 The second musical to criticize the execution of women in the United States and the American justice system, 2002’s Chicago (for which both Richard Gere and Renée Zellweger won Golden Globes), is widely seen as the very antithesis of Dancer in the Dark. With its joyful dancing, catchy music, bright lighting and snappy editing, Chicago is a highly rhythmic film that constantly keeps its viewers on their toes. Its scantily clad chorus girls and grandiose costumes are a far cry from the melancholia of von Trier’s film, and its fictional characters are drawn from the realities of 1920s America. On the other hand, Chicago presents life in a women’s prison. It is precisely this saccharine, easily digestible exterior, however, which gives the film its considerable critical edge. 230

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Interestingly, it is precisely Chicago’s lack of critical pretension that makes it a more effective film both cognitively and emotionally. When its colourful, sentimental Hollywood exterior is removed, what is left is a fairly critical and cynical film which exposes the ignorance, sensationalism and gullibility rampant in American society. Chicago’s plot may be slick and well orchestrated, but a close look at the film reveals a pungent attack on the American justice system. The film mocks the jurors’ inability to separate the wheat from the chaff, the clownish duels between defenders and prosecutors and the unfortunate fact that money for crafty lawyers and shrewd public relations will always buy justice. In the midst of all this, the media is shown as the catalyst regulating the tension among the adversaries. The media is the real judge, presiding over the trial and shaping the public opinion it is supposed to represent, acquitting its darlings and convicting its pariahs. Its arena is an imagined circus-cum-cabaret with three main rings: the main stage, which entertains the bloodthirsty audience, the women’s prison and the courthouse. At the centre of the plot are two female characters – successful nightclub dancer Velma Kelly (Catherine Zeta-Jones), and a younger woman, Roxie Hart (Renée Zellweger), who seeks to replace her. Both murder their male partners – the first after catching her husband in bed with her own sister, the second after her boyfriend reneges on his promise to make her a star. Representing both in court is the shrewd Billy Flynn (Richard Gere), a celebrity lawyer who coaches his clients to manipulate their public image by spinning the media and placating the jurors. In the background of the trial are the two defendants’ lives in jail, a setting shared by several other characters, among them a black warden and a beautiful young ballerina, a recent immigrant from Hungary, accused of murdering her benefactor. Lacking the two protagonists’ social cachet, the Hungarian dancer remains hidden from public attention, her trial 231

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proceeding without much fanfare towards its predictably dismal end: while she is executed, Roxie and Velma become celebrities and are dramatically acquitted. The film is notably set in a jubilant, jazz-soaked Chicago in the 1920s, the same decade during which three women, one black and two white, were executed – two by hanging, one (the aforementioned Ruth Snyder) by electrocution. The film’s final third is the one most pertinent to our discussion. Endeared now to the public, Roxie Hart is escorted to the courthouse by her prestigious lawyer. From her window overlooking the dimly lit prison yard Roxie can see the Hungarian prisoner being led to the gallows, her hands tied behind her back as she sobs in her grey prison uniform. The film then cuts sharply to the stage of a prestigious nightclub, where the announcer introduces the Hungarian’s sensational disappearing act. The crowd cheers as the Hungarian, wearing an acrobat outfit with pink ballet shoes, confidently climbs to the trapeze. The camera again cuts abruptly, this time back to the Hungarian’s feet – now in drab shoes – as she climbs up the prison-yard scaffold. Back in the fancy nightclub, a rope hangs from the ceiling as the host once again announces the impending disappearing act. The Hungarian reaches for the rope and slides into the trapeze. The rope falls under her weight – and she vanishes. The crowd goes wild, cheering and clapping. Back in the prison yard, the Hungarian prisoner’s body swings miserably from the noose. The game is simple, Roxie’s lawyer tells her as she watches the execution with horror. All you need to understand, he says, is that the game is played in a three-ring circus which includes the court, the public and the media. If you can fool them all, if you bewilder and stupefy them, you will win. The court is a circus, there for the audience’s entertainment. The death penalty, the execution of a woman, is nothing but a visceral spectacle whose sole aim is to thrill the bloodthirsty spectators. 232

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This, then, is what underpins the film’s narrative structure, which alternates between these three rings. In the courthouse, Roxie’s lawyer asks his client leading questions, advises her to dress conservatively and repeatedly panders to the judge and the jurors. In the meantime, the media personality he concocts for her is part family woman, part sex bomb. No ploy is below him: he even bribes a gynaecologist to testify falsely that the defendant is pregnant. Roxie on her part feigns modesty and submissiveness, flirting with the journalists and feeding them with tear-jerking information to rouse their readers’ empathy. In one of the film’s most brilliant scenes, Roxie holds a press conference sitting on Flynn’s knees like a puppet on a ventriloquist, her words reflecting his, while the journalists surrounding them follow her every word mechanically like marionettes, writing the stories that would best serve her lawyer and her. In the trial itself Roxie shows her bare legs to the jurors (who – true to the era in question – are all men), feigns dizziness and weakness to win their sympathy, and winks at the journalists covering the trial. Everything, it seems, is fair game. Roxie is acquitted – and thanks to similar public-relations ploys Velma soon follows suit. Soon after the trial, as Roxie and Velma’s fame declines and another female criminal takes their place on the public stage, the two collaborate in a cabaret act whose topic is of course ‘law and order’ in 1920s America. If one of Chicago’s messages is the old cliché that women’s weakness is their strength, its other, perhaps more important, point is that the media, the public and the courts are but three aspects of the same game, three roles in the play dictated by the ‘American experience’.

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Postscript The United States is a land of paradox. Justly proud of its robust democratic institutions and its pledge to guarantee the freedom of all citizens, it is also a hotbed of intense political violence, the most striking expression of which – a festering wound which continues to bleed – is the death penalty. January 2009 saw the inauguration of the United States’ first African American president. America, it seemed, had come a long way since the days when, in cinema, D.W. Griffith could present the viewers of The Birth of a Nation (1915) with his appalling dystopia of black US Representatives crassly chewing sandwiches, drinking whiskey and picking their toes in Congress, while in the real world the Ku Klux Klan could repeatedly violate America’s black communities with impunity. The civil-rights struggle sparked by Rosa Parks’ refusal to vacate her bus seat to a white man and epitomized by Martin Luther King’s historic marches had paved the road to Barack Obama’s eventual ascent to the White House. Any hope, however, that the presence of a black man at the Oval Office might help transform American attitudes towards capital punishment – especially given the disproportionate numbers of African Americans sentenced to death and executed in the United States – was bound to be disappointed. The killing of convicts, most of them members of America’s downtrodden ethnic groups and classes, black or otherwise, has continued unabated throughout Obama’s term in 235

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office. Those with money have continued to benefit from skilful legal representation, while others saw their hopes of living (if only behind lock and key) sink in the mire of legal bureaucracy, at the bottom of which – now as before – awaits the Last Mile. As a major influence on the American public’s historical, legal and human consciousness, American cinema has no doubt contributed to the public discourse on the death penalty in the United States, as it also has to the improvement of the social and political standing of the nation’s African American population. Real change, however, must come from within the corridors of power, whether on the local state level or on the federal level of Congress, the Supreme Court and the administration. Yet another factor to consider is the American public’s own tangled and often bewildering attitude towards the death penalty. Studies and polls conducted over the years have shown that most of the American public supports capital punishment in response to serious crime. The same public, however, often responds differently to fiction and reality, choosing to identify with the fictional murderers portrayed by famous Hollywood stars in such tearjerkers as Dead Man Walking or Last Dance. Cinematic treatments of the death penalty hold our interest, among other reasons, due to the medium’s ability and tendency to reflect the spirit and the proclivities of its time. With this in mind, it would hardly be accurate to describe American cinema in general as unambiguously opposing the death penalty. Different American films in different periods have adopted diverse stances towards capital punishment – winking cynicism in the Depressionera Angels with Dirty Faces and the more recent Chicago; historical distancing in films about historic episodes as disparate as the Salem witch-hunts and the Nuremberg trials; a curious combination of moralism and exhibitionism in such films as I Want to Live! and Dead Man Walking ; a yearning for an alternative system of law and 236

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order in Sleepers; horror and outrage at the killing of innocents in The Ox-Bow Incident and To Kill a Mockingbird; emotional exploitation and reproach in The Life of David Gale. The interdisciplinary analysis presented in this book attests to the death penalty’s uniquely central place in American society, in the relationship between American citizens and their government, and within those most American of cultural forms, film and television. The history of representations of the death penalty in American cinema can thus be viewed as a prolonged attempt to grapple with Senator Orrin Hatch’s astounding claim that ‘capital punishment is [the American] way of demonstrating the sanctity of life’.

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Notes

Introduction 1

2

The present book focuses on both audio-visual media, film and television. To avoid cumbersome language, ‘film’ will henceforth be used to refer to both. Mark Grossman, Encyclopedia of Capital Punishment (New York, NY, 1998), pp. 81–3. See also Laura Randa King, ‘Introduction’, in Laura Randa King (ed.), Society’s Final Solution: A History and Discussion of the Death Penalty (Lanham, MD, 1997).

Chapter 1 · Law, Fiction and Death 1

See Paul Bergman and Michael Asimow, Reel Justice: The Courtroom Goes to the Movies (Kansas City, MO, 1996). 2 See John Denvir (ed.), Legal Reelism: Movies as Legal Texts (Chicago and Urbana, IL, 1996). 3 Nicole H. Rafter, ‘American criminal trial films: An overview of their development 1930–2000’, Journal of Law and Society xxviii/1 (2001), pp. 9–24. 4 Edward W. Knappman (ed.), Great American Trials: From Salem Witchcraft to Rodney King (Detroit, MI, 1994), pp. 319–21. 5 Alison Young, ‘Murder in the eyes of the law’, Studies in Law, Politics, and Society xvii (1997), pp. 44–5. 6 Ibid. 7 Christian Metz, The Imaginary Signifier (Bloomington, IN, 1982), pp. 96– 100. 8 Laura Mulvey, ‘Visual pleasure and narrative cinema’, in Philip Rosen (ed.), Narrative, Apparatus, Ideology (Oxford, 1986), pp. 198–9. 9 Kevin Brownlow, Behind the Mask of Innocence (London, 1990), p. 378. 10 Knappman, Great American Trials, pp. 267–72. 239

notes to pages 9–30

11 Steve Oney, And the Dead Shall Rise: The Murder of Mary Phagan and the

Lynching of Leo Frank (New York, NY, 2003), pp. 612–19, 647. 12 Knappman, Great American Trials, p. 272. 13 Frank was one of 288 white people lynched between 1882 and 1930,

compared with 2,500 black people lynched between 1880 and 1930. Frank is the only Jew known to have been lynched in the United States during this period or later. 14 Brownlow, Behind the Mask, p. 256. 15 See Michele Wallace, ‘Oscar Micheaux’s Within Our Gates: The possibilities for alternative visions’, in Pearl Bowser, Jane Marie Gaines and Charles Musser (eds), Oscar Micheaux and His Circle: African American Filmmaking and Race Cinema of the Silent Era (Bloomington, IN, 2001), pp. 53–66. 16 Matthew Bernstein, ‘Oscar Micheaux and Leo Frank: Cinematic justice across the color line’, Film Quarterly lvii/4 (2004), pp. 8–18. 17 Ibid., p. 14. 18 Ibid., p. 19. 19 Racism: A History – Episode 3: A Savage Legacy, Tim Robinson, dir. (BBC, 2007) [documentary]. 20 See Brownlow, Behind the Mask, p. 256. According to IMDb and other leading film websites, Edwards was the lead actor, Reginald Barker the director. 21 In the decade between 1915 and 1924, Ku Klux Klan membership reached 4 million and members demonstrated openly in America’s major cities, including Washington DC. 22 Variety, 9 January 1915, p. 24. 23 New York Dramatic Mirror, 23 December 1916. 24 Moving Picture World, 22 December 1917, p. 1800. 25 See Brownlow, Behind the Mask, pp. 294–5. 26 New York Dramatic Mirror, 8 September 1917. 27 Knappman, Great American Trials, p. 295. 28 Ibid., pp. 297–8. 29 Ibid., p. 298. 30 Quoted in ibid., pp. 296–7. 31 The censorship boards already in existence at the time derived their authority from the US Supreme Court decision in Mutual Film Corporation v. Industrial Commission of Ohio, 236 US 230 (1915), which ruled that as commercial products rather than artworks, motion pictures were not protected by the free-speech clauses in the Ohio and the US Constitutions. 32 The defendant’s character was based on the (then three decades old) Ruth Snyder case. For a discussion of that case, see Chapter 4. 33 See Chapter 4 for a discussion of this film. 34 See Rafter, ‘American criminal trial films’. 240

notes to pages 31–80

35 Allusions to the official documentary film Nazi Concentration Camp

36

37 38 39

40

41 42

(1945), which was used as evidence at Nuremberg, appeared in later films about the Nuremberg trials and about the actions of individual Nazis, such as Orson Welles’ The Stranger (1946). Lang’s own films include many prophetic passages, not least of which is the unforgettable scene in Metropolis (1927) in which the workers descending to the depths of a mine eerily resemble the concentration- and death-camp prisoners of a decade and a half later. Quoted in Anthony Chase, ‘Lawyers and popular culture: A review of mass-media portrayals of American attorneys’, American Bar Foundation Research Journal xi/2 (1986), p. 297. See Rafter, ‘American criminal trial films’. Albert Fried, McCarthyism, the Great American Red Scare: A Documentary History (Oxford, 1997), pp. 203–11. A well-known example is screenwriter and author Dalton Trumbo, who fled with his family to Mexico, where he continued to write pseudonymously for the film industry. Many other Hollywood artists were similarly victimized by the McCarthy witch-hunts. The official reign of the McCarthy blacklist stretched from 1950 to roughly 1964, though its implementation in practice became noticeably laxer after 1960. Antony Beevor, Stalingrad: The Fateful Siege: 1942–1943, trans. Carmit Gai [Hebrew] (Tel Aviv, 2000), p. 125. M.J. Clark (ed.), Politics and the Media: Film and Television for the Political Scientist and Historian (Oxford, 1979), pp. 25–9.

Chapter 2 · The Death Penalty in the United States 1

2

3 4 5 6 7

Arnon Gutfeld, ‘As American as cherry pie: Political violence as a persistent theme in American history’, Israel Yearbook on Human Rights xxviii (1999), p. 121. Philip Taft and Philip Ross, ‘American labor violence: Its causes, character, and outcome’, in Hugh Davis Graham and Ted Robert Gurr (eds), The History of Violence in America: A Report to the National Commission on the Causes and Prevention of Violence (New York, NY, 1969), p. 273. See Gutfeld, ‘As American as cherry pie’. Samuel Crowther, ‘Henry Ford: Why I favor five days’ work with six days’ pay’, World’s Work (October 1926), pp. 613–16. Seven films on the subject were made between 1962 and 2006, most significantly Lance Hool’s One Man’s Hero (1999) starring Tom Berenger. See Albert C. Ramsey, The Other Side: Or, Notes for the History of the War between Mexico and the United States (New York, NY, 1850). Eyal Naveh, The American Century [Hebrew] (Jerusalem, 2000), pp. 92–5. 241

notes to pages 80–97

8

See James J. Weingartner, ‘Trophies of war: US troops and the mutilation of Japanese war dead, 1941–1945’, Pacific Historical Review lxi/1 (1992), pp. 53–67. Several prominent films address the American treatment of Japanese Americans in those years, among them John Sturges’ A Bad Day at Black Rock (1955), Alan Parker’s Come See the Paradise (1990) and Scott Hicks’ legal drama Snow Falling on Cedars (1999). 9 See Paul Johnson, A History of the Modern World: From 1917 to the 1980s (London, 1984), Chapter 1. 10 Ruth Gavison and Allen Shapiro, ‘Introduction’, in Alexander Hamilton, James Madison and John Jay, The Federalist [Hebrew] (Jerusalem, 1992), p. xii. 11 Though black people had the right to vote after the Civil War and even exercised that right for a while, many white people, especially from the defeated South, considered this a threat and began to terrorize the black population. The resultant campaign of terror would continue unabated until the mid-twentieth century. 12 Mark Grossman, Encyclopedia of Capital Punishment (New York, NY, 1998), pp. 123–5. 13 Carl Sifakis, The Encyclopedia of American Crime (New York, NY, 1982), pp. 347–8. 14 The details of the execution scene, including Horn’s last words, are historically accurate. See: Tom Horn, Life of Tom Horn, Government Scout and Interpreter, Written by Himself; Together with His Letters and Statements by His Friends: A Vindication (Denver, CO, 1904), p. 17; Doyce B. Nunis, The Life of Tom Horn Revisited (Los Angeles, CA, 1992), pp. 88–90; Chip Carlson, Tom Horn: Killing Men Is My Specialty: The Definitive History of the Notorious Wyoming Stock Detective (Cheyenne, WY, 1991), pp. 220–1. 15 Laura Randa King, ‘Introduction’, in Laura Randa King (ed.), Society’s Final Solution: A History and Discussion of the Death Penalty (Lanham, MD, 1997). 16 See Robert M. Bohm, DeathQuest: An Introduction to the Theory and Practice of Capital Punishment (Waltham, MA, 2011), pp. 8–9. 17 Gutfeld, ‘As American as cherry pie’, p. 159. 18 Ibid. 19 Bohm, DeathQuest, pp. 65–78. 20 The Chair, Nicholas O’Dwyer, dir. (Channel 4, 1998) [documentary]. 21 Grossman, Encyclopedia, pp. 140–1. 22 The Chair, Nicholas O’Dwyer, dir. 23 William A. Schabas, The Abolition of the Death Penalty in International Law (Cambridge, 1993), pp. 15–17. 24 See: Grossman, Encyclopedia, pp. 81–3, 129–30, 140–1; Randa King, ‘Introduction’. 242

notes to pages 100–9

25 Naveh, American Century, pp. 20–33. 26 Robert K. Murray, Red Scare: A Study in National Hysteria, 1919–1920

(Saint Paul, MN, 1964), pp. 263–81. 27 Bohm, DeathQuest, pp. 10–11; Hugo A. Bedau, ‘Background and

developments’, in Hugo A. Bedau (ed.), The Death Penalty in America: Current Controversies (Oxford, 1997), pp. 26–35. 28 See Bohm, DeathQuest, p. 135. 29 Schabas, Abolition; Bohm, DeathQuest, p. 164. 30 Aryeh Gartner, American Jewry from Its Beginnings to the Present [Hebrew] (Tel Aviv, 1980), pp. 67–101. 31 This issue is brilliantly addressed in Gentleman’s Agreement, Elia Kazan, dir. (Twentieth Century Fox, 1947) [film]. 32 See Neal Gabler, An Empire of Their Own: How the Jews Invented Hollywood (New York, NY, 1988), especially Chapter 4 (‘Between the old life and the new’) and Chapter 6 (‘In their image’). 33 Bryan Vila and Cynthia Morris (eds), Capital Punishment in the United States: A Documentary History (Westport, CT, 1997), pp. xxv–xxxvi. 34 Brown v. Board of Education of Topeka, 347 US 483 (1954). 35 Plessy v. Ferguson, 163 US 537 (1896). 36 United States v. Jackson, 309 US 570 (1968); Witherspoon v. Illinois, 391 US 510 (1968). 37 Furman v. Georgia, 408 US 238 (1972). 38 Woodson v. North Carolina, 428 US 280 (1976); Gregg v. Georgia, 428 US 153 (1976). For more on the subject see Bohm, DeathQuest, pp. 56–7. 39 Gil Troy, Morning in America: How Ronald Reagan Invented the 1980s (Princeton, NJ, 2005), pp. 2–23.

Chapter 3 · A Cinematic Window to Problems Concerning the Death Penalty 1 2

3

4

See Alfred H. Kelly and Winfred A. Harbison, The American Constitution, Its Origins and Development (New York, NY, 1976), pp. 7–27. See for example Raymond Bonner and Ford Fessenden, ‘States with no death penalty share lower homicide rates’, New York Times, 22 September 2000. See Ruth D. Peterson and William C. Bailey, ‘Is capital punishment an effective deterrent for murder? An examination of social-science research’, in James R. Acker, Robert M. Bohm and Charles S. Lanier (eds), America’s Experiment with Capital Punishment (Durham, NC, 2003), pp. 251–83. See: Phoebe C. Ellsworth and Samuel R. Gross, ‘Hardening of the attitudes: Americans’ views on the death penalty’, in Hugo A. Bedau (ed.), The Death Penalty in America: Current Controversies (Oxford, 1997), 243

notes to pages 109–16

pp. 90–115; Richard C. Dieter, ‘Sentencing for life: Americans embrace alternatives to the death penalty’, in Hugo A. Bedau (ed.), The Death Penalty in America: Current Controversies (Oxford, 1997), pp. 116–34. 5 See for example George Bush senior’s 1988 campaign for the presidency against the Democrat candidate George Dukakis. 6 N. Gutman, ‘A moment before the electric chair’ [Hebrew], Haaretz, 24 August 2001. 7 A recent example of an execution carried out despite a lack of compelling evidence (such as DNA) from the crime scene is that of Troy Davis, who was killed by lethal injection on 22 September 2011. See ‘Georgia Board denies clemency for Troy Davis’, Death Penalty Information Center [website]. Available at www.deathpenaltyinfo.org/georgia-board-deniesclemency-troy-davis (accessed 4 July 2013). 8 Michael L. Radelet and Hugo A. Bedau, ‘The execution of the innocent’, in James R. Acker, Robert M. Bohm and Charles S. Lanier (eds), America’s Experiment with Capital Punishment (Durham, NC, 2003), pp. 325–41. 9 See: Bryan Vila and Cynthia Morris (eds), Capital Punishment in the United States: A Documentary History (Westport, CT, 1997), pp. 272–4; Richard C. Dieter, ‘Millions misspent: What politicians don’t say about the high costs of the death penalty’, in Hugo A. Bedau (ed.), The Death Penalty in America: Current Controversies (Oxford, 1997), pp. 401–15; Michael Mello and Paul J. Perkins, ‘Closing the circle: The illusion of lawyers for people litigating for their lives at the fin de siècle’, in James R. Acker, Robert M. Bohm and Charles S. Lanier (eds), America’s Experiment with Capital Punishment (Durham, NC, 2003), pp. 347–85. 10 Daniel T. Kobil, ‘The evolving role of clemency in capital cases’, in James R. Acker, Robert M. Bohm and Charles S. Lanier (eds), America’s Experiment with Capital Punishment (Durham, NC, 2003), p. 581. 11 See for example the testimonies of death-row convicts in a Missouri prison as presented in The Execution Protocol, Stephen Trombley, dir. (First Run/Icarus Films, 1992) [documentary]. 12 Besides demonstrating the special difficulties faced by impoverished defendants, the trial of the very young Beazley also drew public and media attention to the predicament of juveniles on death row. For more on this subject, see the section of the current chapter titled ‘Old Enough to Die’. 13 Jim Yardley, ‘Execution approaches in most rare murder case’, New York Times, 10 August 2001. 14 Ibid. 15 The nun’s character is based on the real-life Sister Helen Prejean, who worked with death-row convicts, offering them both spiritual guidance and legal assistance before their deaths. From her own perspective, one of her most urgent tasks was to persuade the convicts to confess to a 244

notes to pages 116–39

minister in order to help them clear their consciences prior to their deaths. In Dead Man Walking, the character she inspired persistently (and, in the end, successfully) urges Poncelet to acknowledge and take responsibility for his crime. Ironically, though she unofficially represents the anti-capital-punishment Catholic Church, she thus expresses her implicit acceptance of the execution. 16 See Austin Sarat, When the State Kills: Capital Punishment and the American Condition (Princeton, NJ, 2001). For earlier studies, see for example: Richard K. Sherwin, When Law Goes Pop: The Vanishing Line between Law and Popular Culture (Chicago, IL, 2000); Paul Bergman and Michael Asimow, Reel Justice: The Courtroom Goes to the Movies (Kansas City, MO, 1996); John Denvir (ed.), Legal Reelism: Movies as Legal Texts (Chicago and Urbana, IL, 1996). 17 Edward W. Knappman (ed.), Great American Trials: From Salem Witchcraft to Rodney King (Detroit, MI, 1994), pp. 431–5. 18 See Albert Averbach and Charles Price (eds), The Verdicts Were Just: Eight Famous Lawyers Present Their Most Memorable Cases (Rochester, 1968). 19 See ‘Costs of the death penalty’, Death Penalty Information Center [website]. Available at www.deathpenaltyinfo.org/costs-death-penalty (accessed 4 July 2013). 20 Vila and Morris, Capital Punishment, pp. 127–8. 21 Liebman’s data is discussed in Fox Butterfield, ‘Death sentences being overturned in 2 of 3 appeals’, New York Times, 12 June 2000. 22 See ‘Rate of death sentencing at its lowest point since reinstatement’, Death Penalty Information Center [website]. Available at www.deathpenaltyinfo. org/rate-death-sentencing-its-lowest-point-reinstatement (accessed 4 July 2013). 23 Knappman, Great American Trials, pp. 351–6. 24 Michael Maher, ‘The case of the Scottsboro Boys: Bigots whose mouths are slits in their faces’, in Lloyd Chiasson, Jr (ed.), The Press on Trial: Crimes and Trials as Media Events (Hartford, CT, 1997), pp. 103–17. 25 Albert W. Alschuler, ‘Racial quotas and the jury’, Duke Law Journal xliv/4 (1995), pp. 704–43. 26 Scottsboro: An American Tragedy, Daniel Anker and Barak Goodman, dirs (Social Media Productions, 2000) [documentary]. 27 Alfred N. Delahaye, ‘The case of Bruno Hauptmann: The greatest story since the Resurrection’, in Lloyd Chiasson, Jr (ed.), The Press on Trial: Crimes and Trials as Media Events (Hartford, CT, 1997), pp. 117–30. 28 Knappman, Great American Trials, pp. 386–92. 29 Ibid., pp. 307–10. 30 Billie Holiday’s famous anti-lynching song of this name was written by Abel Meeropol (the adoptive father of the children of ‘atom spies’ Julius and Ethel Rosenberg) under his pseudonym Lewis Allan. 245

notes to pages 141–62

31 See Julian A. Cook and Mark S. Kende, ‘Color-blindness in the Rehnquist

court: Comparing the court’s treatment of discrimination claims by black death-row inmates and white voting rights plaintiffs’, Thomas Cooley Law Review xiii (1996), pp. 815–52. 32 US General Accounting Office, ‘Death penalty sentencing: Research indicates pattern of racial disparities’, in Hugo A. Bedau (ed.), The Death Penalty in America: Current Controversies (Oxford, 1997), p. 271. 33 See Allan Bloom, The Closing of the American Mind (New York, NY, 1987). 34 David S. Reynolds, John Brown, Abolitionist: The Man Who Killed Slavery, Sparked the Civil War, and Seeded Civil Rights (New York, NY, 2005), p. 199. 35 Ibid., pp. 201–4. 36 Frederick Douglass, ‘The Heroic Slave’, in Julia Griffiths (ed.), Autographs for Freedom (1853; Boston, 1953), pp. 174–239. 37 From 1938 to 1941, Warner Brothers tried to warn Americans of the threat of European fascism and Nazism – but to no avail. The studio’s films on the subject were repeatedly censored. One of the era’s historical films – Howard Hawks’ Sergeant York (1941), about the eponymous World War I hero – fermented American public opinion, however. Though its overt theme was the Great War, the film’s implicit messages concerned the German threat and the Germans’ resolution to start another war. 38 Victor L. Streib, ‘Executing women, juveniles, and the mentally retarded: Second-class citizens in capital punishment’, in James R. Acker, Robert M. Bohm and Charles S. Lanier (eds), America’s Experiment with Capital Punishment (Durham, NC, 2003), pp. 314–16. 39 Atkins v. Virginia, 536 US 304 (2002). 40 From 2002 to 2008, the Atkins v. Virginia ruling prevented the execution of 80 individuals. 41 See Ruth Luckasson (ed.), Mental Retardation: Definition, Classification, and Systems of Support, 9th ed. (Washington DC, 1992). 42 James W. Ellis, ‘Mental retardation and the death penalty: A guide to state legislative issues’, Mental and Physical Disability Law Reporter xxvii (2003), pp. 11–24. 43 See ibid. 44 Amnesty International (USA), The Execution of Mentally Ill Offenders (15 March 2006). Available at http://www.amnesty.org/en/library/ asset/AMR51/003/2006/en/75c16634-d46f-11dd-8743-d305bea2b2c7/ amr510032006en.html (accessed 4 July 2013). 45 Streib, ‘Executing women, juveniles, and the mentally retarded’. 46 Keyes’ findings are discussed in John H. Blume and Sheri Lynn Johnson, ‘Killing the non-willing: Atkins, the volitionally incapacitated, and the death penalty’, South Carolina Law Review lv (2003), pp. 55–93. 47 Knappman, Great American Trials, pp. 127–32. 48 Streib, ‘Executing women, juveniles, and the mentally retarded’. 246

notes to pages 165–81

49 Kathleen A. O’Shea, Women and the Death Penalty in the United States,

1900–1998 (Westport, CT, 1999), pp. 1–33. 50 Ibid. 51 Thompson v. Oklahoma, 487 US 815 (1988). 52 Stanford v. Kentucky and Wilkins v. Missouri, 492 US 361 (1989). 53 Streib, ‘Executing women, juveniles, and the mentally retarded’. 54 Roper v. Simmons, 543 US 551 (2005). 55 Kevin Brownlow, Behind the Mask of Innocence (London, 1990), pp. 168–

82. 56 See Eyal Naveh, The American Century [Hebrew] (Jerusalem, 2000),

p. 141. 57 Brownlow, Behind the Mask, pp. 239–50. 58 For summaries of such studies, see Margaret Vandiver, ‘The impact of

the death penalty on the families of homicide victims and of condemned prisoners’, in James R. Acker, Robert M. Bohm and Charles S. Lanier (eds), America’s Experiment with Capital Punishment (Durham, NC, 2003), pp. 598–613. 59 ‘Lethal injection’, Death Penalty Information Center [website]. Available at www.deathpenaltyinfo.org/lethal-injection-moratorium-executionsends-after-supreme-court-decision#other (accessed 4 July 2013). 60 In one of the most harrowing events of the twentieth century, Jewish children aged one to 15 from around France were rounded up by the Vichy authorities and interned at the transit camp in Drancy, a suburb of Paris. Conditions in the camp were inhumane, with many of the children separated from their parents suffering hunger, exhaustion and disease. Four thousand of the children were sent to Auschwitz in August 1942, to be murdered upon arrival in experimental gas chambers (their arrival in the death camp pre-dated the construction of the later, better-known versions of the gas chambers streamlined for mass killing). 61 The American Medical Association has recently decided to expel any doctor taking part in an execution. In an article based on numerous interviews with physicians, many interviewees are reported to consider participation in an execution ethical, though many others are reported to disagree. See Atul Gawande, ‘When law and ethics collide: Why physicians participate in executions’, The New England Journal of Medicine cccliv/12 (2006), pp. 1221–9.

Chapter 4 · Death Becomes Them: Women on the Gallows 1

The statistics may change somewhat based on how the films are classified. The above figure of 20 per cent reflects my own classification, which relies on The American Film Institute Catalog of Motion Pictures, 6 vols (New York, NY, and London, 1971–97). 247

notes to pages 181–212

2

See: Kathleen A. O’Shea, Women and the Death Penalty in the United States, 1900–1998 (Westport, CT, 1999), pp. 1–33; Victoria T. Munro, Images of Crime and Criminals: How Media Creations Drive Public Opinion and Policy, PhD thesis (University of Minnesota, 1999). 3 See Kevin Brownlow, Behind the Mask of Innocence (London, 1990), pp. 255–61. 4 Susan Sontag, Regarding the Pain of Others (New York, NY, 2003), p. 81. 5 See Catherine Russell, Narrative Mortality: Death, Closure and New Wave Cinema (Minneapolis, MN, 1995), pp. 1–30. 6 See Laura Mulvey, ‘Visual pleasure and narrative cinema’, in Philip Rosen (ed.), Narrative, Apparatus, Ideology (Oxford, 1986). See also Robert Lapsley and Michael Westlake, ‘Introduction’, in Leo Braudy and Marshall Cohen (eds), Film Theory and Criticism: Introductory Readings (New York, NY, 1988). 7 Mulvey, ‘Visual pleasure and narrative cinema’, pp. 198–9. 8 Susan Sontag, On Photography (New York, NY, 2001), pp. 153–82. 9 Janice Carlisle and Daniel R. Schwarz, ‘Introduction’, in Janice Carlisle and Daniel R. Schwarz (eds), Narrative and Culture (Athens, GA, 1994), pp. 2–11. 10 Paul Bergman and Michael Asimow, Reel Justice: The Courtroom Goes to the Movies (Kansas City, MO, 1996), pp. 266–70. 11 See Mark Grossman, Encyclopedia of Capital Punishment (New York, NY, 1998). 12 Though its director is officially anonymous, the film is commonly attributed to Henri Desfontaines and Louis Mercanton. 13 Harold Lasswell, Propaganda Technique in the World War (London, 1927). 14 Grossman, Encyclopedia; R.W. Howe, Mata Hari: The True Story (New York, NY, 1986), pp. 174–6. 15 See: Grossman, Encyclopedia; Howe, Mata Hari. See also: Edward Huebsch, The Last Summer of Mata Hari (New York, NY, 1979); Erika Ostrovsky, Eye of Dawn: The Rise and Fall of Mata Hari (New York, NY, 1978). 16 Quoted in Grossman, Encyclopedia, pp. 174–6. 17 O’Shea, Women and the Death Penalty, pp. 1–33. 18 Victor L. Streib, ‘Executing women, juveniles, and the mentally retarded: Second-class citizens in capital punishment’, in James R. Acker, Robert M. Bohm and Charles S. Lanier (eds), America’s Experiment with Capital Punishment (Durham, NC, 2003), pp. 301–32. 19 See Austin Sarat, When the State Kills: Capital Punishment and the American Condition (Princeton, NJ, 2001), pp. 187–209. 20 See: Grossman, Encyclopedia; Frederick Drimmer, Until You Are Dead: The Book of Executions in America (Secaucus, NJ, 1990). 21 Grossman, Encyclopedia, pp. 242–3. 248

notes to pages 218–30

22 Ibid., pp. 224–6. 23 Uri Klein, ‘Dancer in the dark’ [Hebrew], Haaretz, 13 April 2001. See

also Von Triers 100 øjne [Danish], Katia Forbert, dir. (Zentropa Real, 2000) [documentary]. 24 One interesting example in this regard is the silent film The Return of Maurice Donnelly (1915), directed by William Humphrey and starring Leo Delaney, which includes a horrific scene in which an execution victim is revived by a wizard specializing in the reanimation of innocents wrongfully put to death. The victim is not human, however, but a rabbit used to test the efficacy of electrocution. The film makes tangible the cruel horror of the death penalty. Taken dead and cold from the experiment table, the rabbit is soon revived and shows signs of life. The screen then goes black, only to be filled with sparks and fireworks – though rather than celebratory, these are the sparks of electricity used to kill the innocent animal. Humphrey’s film thus shows the horrors of technology without thereby subjugating itself to it. 25 Bryan Vila and Cynthia Morris (eds), Capital Punishment in the United States: A Documentary History (Westport, CT, 1997). 26 Laura Mansnerus, ‘Sometimes, the punishment fits the gender’, New York Times, 16 November 1997. 27 Munro, Images of Crime and Criminals, pp. 268–70. See also Grossman, Encyclopedia. 28 For Cathy Young’s comments, see Grossman, Encyclopedia, p. 269. 29 Brownlow, Behind the Mask, pp. 255–61. 30 Kenneth White Munden (ed.), The American Film Institute Catalog of Motion Pictures: Feature Films 1921–1930 (New York, NY, and London, 1971), p. 20. Many readers are probably familiar with The Rocky Horror Picture Show, directed by Jim Sharman in 1975, which, like Sloman’s film, has generated rituals of active audience participation, with moviegoers throwing rice, mock-spinning the globe shown on-screen, and so forth. 31 Brownlow, Behind the Mask, p. 261. 32 Von Triers 100 øjne, Katia Forbert, dir.

249

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Index 12 Angry Men 50, 71, 137 20,000 Years in Sing Sing xvi, 172–3 African American Nation of Islam 15–16 age, see juveniles Alda, A. 120, 122 Aldrich, R. 59 American Association of Mental Retardation, see American Association on Intellectual and Developmental Disabilities American Association on Intellectual and Developmental Disabilities 158 American legal system xvii, 29, 31, 189, 225 civil rights movement 103–4, 142 communist impact on 101 Constitution 76, 107 denunciation of 52, 62, 125, 127–8 development of 89, 91 discrimination 76 intellectually disabled 161 McCarthyism 105 mentally ill 161 racism and 11

representation of xvii, 4, 67–71, 118, 120, 124 violence 82–6, 224 see also juries; justice Amnesty International 159 Angels with Dirty Faces 33–6, 236 Anker, D. 132 anti-communist activism 47, 49, 79, 81–2 see also communism; McCarthyism anti-war films 49–51 Arbuckle, Roscoe ‘Fatty’ 20–3 Archainbaud, G. 26, 123 Atkins v Virginia 157–8, 166 background to capital punishment xvi–xxi, 75–86 British influence 89 religious influence 86–9 Barker, Kate ‘Ma’ 219 Barrow, C. 219 Barrymore, J. 26 Bates, A. 60 Beazley, N. 113–15, 166–7 Becker, H. 67 Beresford, B. 69, 220 Bergman, I. 194 Besson, L. 194 ‘beyond reasonable doubt’ standard 111 257

index

Blanchett, C. 196 Boetticher, B. 137 Bogarde, D. 60 Boleyn, A. 190–2 Bonnie and Clyde 219–20 Breen, J. 24, 25 Brooks, R. xviii, 58 Broomfield, N. 221–2 Brown, J. 154–7 Brown v Board of Education 103 Bush, G.W. 111, 125, 142–3 juvenile executions 166 Byron, A. 172 Cabanne, C. 28, 37 Cagney, J. 33 Cain, J.M. 41, 213 Campbell, C. 19 Campbell, M. 72 Capote, T. xviii, 58 Carter, J. 105 Cavell, E. 189, 198–200, 209 censorship xxi, 11, 16, 23–46 class and 215–16 comedy 36–9 Hollywood, impact on 48 self-censorship 102 moral decency 22, 29, 33, 36 public interest 8 racism and 11, 13 representation of executions and 26 representation of juveniles and 167 representation of World War II 63, 199 sexual content 27–8 silent film 8 ‘talkies’ 23–4 United Kingdom 215–16 see also Hays Code Chamber, The 147, 150–2 Chandler, R. 213 258

Chaplin, C. 3, 44, 48 Chessman, C. 118–22 Chicago 70, 189, 223, 230–3, 236 cinematic devices 31, 32, 35, 46–7, 145, 225, 228–9, 236 civil rights movement 15, 19, 103–4, 235 discrimination and 141–2 see also social unrest Civil War 91, 99, 212 citizenship 82 opposition to the death penalty 90 racial discrimination 140 struggle against 154–7 Clinton, W. 111, 142 juvenile executions 166 Coen, E. 127 Coen, J. 127 comedy 36–9, 44, 53–4 censorship 36 musical comedy 222–33 women 222–33 communism 47, 99, 101–2 Chaplin, C. 44 McCarthyism 47–9, 217 Mata Hari 207 persecution and 62–3, 79, 81–2 Rosenbergs 217 see also anti-communist activism Constitution 76, 81, 86, 88, 95, 107 civil rights 103–5 intellectually disabled 157 interpretation by legal professionals 122 juveniles 165 mentally ill 157 racial discrimination 140–1 Cook, F. 5, 132 Coolidge, C. 5, 48 Cooper, G. 4 Coppola, F.F. 66

index

Coppola, S 197–8 corruption police 66 struggle against 70–1 Court-Martial of Billy Mitchell, The 4–5, 48 courtroom dramas 61 appeal to filmmakers 1–2 influence on public perception of law, 3–4 reality TV Simpson, O.J. 106 criminal trial system 50–1 Cukor, G. 45 Curtiz, M. xvi, 33, 156, 172 Czolgosz, L. 171

Dietrich, M. 41, 51, 57 Dirty Dozen, The 59 discrimination 78–9, 81 civil rights movement 141–2 Civil War 82, 140–1 history 139–43 legal system 76, 122, 139–46 lynchings 141, 146 racial oppression 81–2 see also civil rights movement; racism Dixon, T. 9–10 Dobson, F.A. 182–3 Douglas, K. 49 Douglas, M. 70 Dreyer, C.T. 193–4, 223

Dancer in the Dark 189, 222–30 Darabont, F. xvi, 172, 173 Darrow, C. 4, 19, 45, 138–9 Davis, B. 173 Dawn 198–200 Dead Man Out 162, 163–4 Dead Man Walking 5, 116–17, 220, 236 death 226 categories 175 idealization of 225–6 representation of 174–6 death row xviii acquittals 109–10 intellectually disabled 157–64 juveniles and 164–70 mentally ill 157–64 prison system 170–6 race and 142–3 social class and 116–17 women 69 DeMille, C.B. 167 Deneuve, C. 223, 224 deprivation, see economic deprivation deterrence 107–9

Eastwood, C. 147, 153–4 economic deprivation 15, 76, 103, 235–6 crime and 8, 117 death row and 116–17, 142 discrimination against 79, 82, 102 legal representation xxii, 107, 112–17, 125–7, 159, 163 Edison, T.A. xx, 92–9 Edwards, W. 16–17 Eisenhower, D.D. 48–9, 65 Eisner, L. 31–2 Eldridge, F. 193 electric chair, see scientific advances Ellis, R. 188–9 ethical considerations 58, 126, 178 European opposition 61, 89 Execution of Private Slovik, The 63–6 execution protocol 179–80 Farrakhan, L. 16 Feher, F. 207 feminist movement 56 see also women Fitch, C. 214 259

index

Fitzmaurice, G. 203 Fleder, G. 137 Fleischer, R. 4, 52, 138 Fleming, V. 194 Foley, J. 147, 150–2 Fonda, H. 30, 39, 51, 71 Forbert, K. 229 Ford, J. 30, 51, 193 forensic science, see scientific advances Forman, M. 161–3 Forster, M. 126 Fosse, B. 69–70 Frank, L. 8–10 see also Leo Frank affair Frankenheimer, J. 60 Friedman, S. 28 Furman v Georgia 104–5 Gabin, J. 57 Gable, C. 28 Gaines, E.J. 152 Garbo, G. 203–5 gender stereotypes 72–3 juries and 128 juveniles, execution of 165 see also women Gere, R. 170, 230, 231 Gibson, B. 72, 137–8 Giuliani, R. 109 golden age xxi, 46–54 Goldwyn, S. 22 Goodman, B. 132 Green Mile, The xvi, 117, 172, 173–4 Gregg v Georgia 105 Grisham, J. 137, 147 Grossman, M. xix Griffith, D.W. 9–10, 17–18, 99– 100, 153, 181, 197, 228, 235 Hackman, G. 150 Hale, W. 71 Hanks, T. 173 260

Harrison Bergeron 83–4 Hauptmann, B. xviii Hawks, H. 38 Hays, W. 22, 24–5 Hays Code xxi, 23, 24–5, 216 origins 24–5 sexuality and 213 Hecht, B 38 Heikes, M. 19 Hendrickson, R. 206 Hepburn, K. 45, 193 heroes 4–5 Herzog, W. xvii Hill Street Blues 71 hippy counter-culture 56 historical cases Europe 188 impact of xx representation of xviii–xx Hitchcock, A. 44–5 Hoblit, G. 170 Hollywood 188 censorship xxi, 23–46 ethnic relations 102–3 glorification of criminals 211 Hays Code 24–5 male domination 183–4 McCarthyism, impact of 3, 47–9, 79 musicals 223–5 Wall Street crash, impact of 25 women and 197 World War II, impact of 38, 58–9 Holmes, B. 36 Hopkins, A. 135 Huie, W.B. 63 Hussein, W. 168 Hyams, P. 70–1 Hytner, N. 3 I Want to Live! 52, 186–8, 216, 226, 236

index

identification 6–7, 52, 66, 73, 192, 195–6, 214, 236–7 immigration 99, 101–3 discrimination and 78–9 impact of film on public perception of death penalty xvii–xx, 3–4, 220, 228, 236 institutional violence 78–86, 147–54 racial oppression 81–2 vigilante justice 80–1 see also religion intellectually disabled 157–64 accountability 157 identification of legal procedures, 162 IQ testing 158 mentally ill distinguished 158–9 minors 165 moral difficulties 157 economically deprived 159 International Covenant on Civil and Political Rights 166 interwar years abolition of death penalty 100 gassing by cyanide 100–1 immigration 101–3 number of executions 101 prohibition 103 IQ death row convicts 160 testing 158 see also intellectually disabled; mentally ill Jarrott, C. 195–6 Jim Crow laws 15 Joan of Arc 189, 193–5, 223 Johnson, Lamont 63 Johnson, Lyndon 79–80 Johnson-Reed Act 1924 102 Jolson, A. 23

juries 106, 128–9 press influence of 129–30, 133 psychological issues 137–8 selection processes xxii, 50, 136–7 unanimous verdicts 136 justice 30–2, 67–8 natural v formal 52 pursuit of, 51, 54, 107, 109–11 representation of 4, 29 see also American legal system juveniles xxii, 164–70 cinematic representation of delinquency 167–8 constitutionality of death penalty for 165–6 gender 165 intellectually disabled minors 165 International Covenant on Civil and Political Rights 166 musical representation 168 Kapur, S. 196 Kemmler, W. xx. 95–7 Keyes, D. 160 King, M.L. 15, 153, 235 King, S. 172, 173 Kirkwood, J. 16 Kolker, H. 214 Korda, A. 192, 195 Korean War 55 Kramer, S. xvii, 4, 56–7 Ku Klux Klan 9–10, 17, 99–100, 235 Kubrick, S. 49 Kulik, B. 120 labour relations 77–8 see also trade unionism Lancaster, B. 57 Lang, F. xvi, 30–2, 40 Lang, W. 214 261

index

Lapierre, D. 119 Last Dance 69, 117, 185, 220–1, 236 Law and Order 71–2 Lee, H. 132, 143 Lee, S. 147 legal profession cinematic representation of 115–22 inadequacy of representation for underprivileged xxii, 107, 112–17, 125–7, 159, 163 Leibowitz, S. 130, 132 Lemmon, J. 71 Leo Frank affair 8–15, 71 Leopold and Loeb affair 19–20, 45, 138–9 Lesson before Dying, A 147, 152–3 Leuchter, F. A. 178 Levin, M. 138 Levinson, B. 115 Liebman, J. 124–6, 127 Lincoln, A. 30, 212 Lindbergh, C. xviii press influence 133–6 Lloyd, F. 53 Lumet, S. 50, 66, 72, 137, 217, 219 MacArthur, C. 38 McCarthy, J. 3, 47, 79, 217 McCarthyism xxi, 47–9, 105, 216–17 decline 216 impact on Hollywood 48 McKinley, W. 171 McQueen, S. 84–5 Malcolm X 15, 147 Marie Antoinette 29, 197–8 Marshall, R. 70, 189, 223 Mary Stuart, Queen of Scots 189, 190–2, 193, 194 Mata Hari xviii–xix, 189, 200–10 262

media, 20, 114 censorship 99 influence by 33, 37–8, 106, 128, 231–2 Lindbergh case 133–5 McCarthy, J. 47 manipulation of 232–3 Simpson, O.J. 106 patriotism 218 women on death row 185 mentally challenged xxii, 159 see also intellectually disabled Metz, C. identification 6–7 Micheaux, O. 143 censorship 14–16 lynchings 13–14, 149 Miller, A. 3 miscarriages of justice 41, 71, 127–8 Mitchell, W. 4–5, 48–9 Mong, W. 19 Monster 185, 221–2 Montaldo, G. 61–2 Montgomery, E. 186–7 moral decency 22, 25 ‘golden age of cinema’ 46 see also censorship Morris, C. 103 Morris, E. xvii, 123–4, 169–70, 178 Morrison, T. 147 Motion Picture Production Code, see Hays Code Muhammad, E. 16 Muhammad, W. 15–16 Mulligan, R. 5, 30, 132, 143, 146 multiculturalism 146–7 Mulvey, L. 7, 183 musical genre 69–70, 168–9 representation of women 222–33

index

National Prohibition Act 1920 103 Naveh, E. 80 Neilan, M. 214–16 ‘new conservatism’ 80, 105–6, 122 juvenile executions 168 newspapers, see media Nixon, R. 80 NYPD Blue 71 O’Brien, P. 33 Obama, B. 104, 143, 235–6 One Flew Over the Cuckoo’s Nest 161–3 opposition to the death penalty 10–11, 38, 128 Civil War 90–2 European opposition 89 Pacino, A. 66 Pakula, A. J. 5 Parker, A. 127–8 Parker, B. 219–20 Paths of Glory 49–50 patriotism 79, 83, 99, 189, 198– 210 media 218 Pearce, R. 162–3 Peck, G. 5, 30, 71, 143 persecution of Hollywood personalities 47–8 see also McCarthyism perspective 30, 80, 135, 152, 159, 174, 207 American society 39 characters 6, 68, 127, 172, 225 historical-legal 103, 192 Pittman, B. 83–4 Polanski, R. 216 politics xv–xvi, 174, 189–98 patriotism 205 Postman Always Rings Twice, The 41–4 Potter, D. 69

Potter, E. 171 poverty, see economic deprivation Powell, W. 28 Preminger, O. 4–5, 48, 49, 51–2 prison dramas 170–6 women 184–5 prohibition 103 propaganda 18–19, 200, 205 Soviet Union 207 protagonists African-Americans 147–8 ‘golden age of cinema’ 46 perspective 6, 68, 127, 172, 225 women 183–4, 216 lead roles 72–3 non-American cinema 188–9 racism struggle against 154–7 see also discrimination Randolph, C. 127–8 Reagan, R. 3 juvenile executions 169 ‘new conservatism’ 105–6 Redford, R. 212 Reid, H. 8–11 collaboration with Micheaux 13 relationship between citizens and government 83–6 religion 7–8, 10, 88, 109, 119, 136, 159, 197, 210 African American Nation of Islam 15–16 American society and xvi, xx, 75–81, 86 diversity, representation of 174 Hays Code 25–6 moralism 32 opposition to Hollywood 21–2, 24 Tudor England 190–2 Richard, J-L. 207 righteousness 31–2 263

index

Ritt, M. 162 Robbins, T. 5, 116, 117 Robinson, Edward G. 40 Roland, G. 11 Roosevelt, E. 119 Roosevelt, T. 97 Roper v Simmons 166 Rosenbergs, 216–19 Rosewood xix, 147–50, 153 Rosewood massacre xix, 15, 148–50 Ross, H. 69 Ruggles, W. 32, 167–8 Sack, A. 14 Sarandon, S. 73, 117, 220 Sarat, A. 118 Sargent, J. 147, 152–3 Schickel, R. 18 Schiffman, F. 14 Schroeder, B. 45 Schulberg, B.P. 214, 229 Schumacher, J. 72–3, 147 scientific advances 60–1 electric chair xx, 92–8, 176–7 execution protocol 179–80 forensic science 109–10 gassing by cyanide 100–1, 177 hanging 177 lethal injection 97, 177, 178–80 Scottsboro Boys xviii, 141 press influence over juries 129–32 Sears, F. 119 Sedgwick, K. 73 Selznick, L. 22 sexual content, 24, 61, 184–5, 194, 208, 210 censorship 26, 27–8 Hays Code 213 sexual orientation 58 Sherman, L. 36 Sifakis, C. 85–6 264

silent films 8–23, 194 Simoneau, Y. 58 Simpson, O.J. 106 Singleton, J. xix, 147, 148–50 Sloman, E. 228–9 Slovik, E. xx, 63–6 social unrest 101, 104 Sontag, S. 183 sound film, see ‘talkies’ Spielberg, S. 147, 149 Stanford v Kentucky 165, 166 Stanlaws, P. 214 Steiger, R. 4, 48 Stevens, G. 52 Stewart, J. 45, 51–2 Stone, S. 69, 185, 220 Streib, V.L. 159 ‘talkies’ origins 23–4 religious opposition to 24 Tarantino, Q. 59–60 television 55 death penalty Italy 61 United States 61 legal dramas 61–2, 71–2 televising court proceedings 106 Tess of the d’Urbervilles 214–16 Thayer, O.B. 167 Theron, C. 185, 221–2 Thin Blue Line, The xvii, 123–4, 169–70 Thomas, R. 53 Thompson v Oklahoma 165 To Kill a Mockingbird 5, 30, 58, 132, 143–6, 237 Tom Horn 84–6 Tracy, S. 30, 45, 57, 71, 172 trade unionism Ford 78 Ludlow Massacre 1914 77

index

Trombley, S. 178 True Crime 147, 153–4 Truffaut, F. 207 Turner, L. 41, 43–4 Van Dyke, W.S. 28, 29–30, 197–8 Vietnamese War 50, 56, 104, 122 Vila, B. 103 Volstead Act 1920 103 von Trier, L. 70, 189, 222–30 Vonnegut, K. 83–4 Ward, W. 84 Washington, D. 147 Washington, J. 15 Weber, L. 18 Wellman, W. 39 Welles, O. 44, 138–9 Westside Story 168–9 Westinghouse, G. xx, 92–6 Wiene, R. 39 Wilcox, H. 198, 200 Wilder, B. 39–40, 51–2, 213 Williams v Missouri 165 Wilson, W. 17 Wise, R. 52, 186–7, 216 women xxii, 45–6, 56 cinematic representation 183–4, 216 non-American cinema 188–9

feminist movement 56 history, in politics 189–98 war 198–210 iconic status 210–22 lead roles 72–3 lenience of penal system 227–8 musicals 222–33 press treatment of 186–9 self-sacrifice 229–30 sexuality 184 submissiveness 184 Women’s Freedom Network 227–8 Woodson v North Carolina 105 World War II xvii, xx, 5, 105, 156 impact on Hollywood 38–42 patriotism 198–210 representation in film 56–8 women 198–210 Yates, P. 137 young people, see juveniles Zellweger, R. 230, 231 Zinnemann, F. 192 Zukor, A. 13, 22 Zwick, E. 147

265