EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, October 20, 2011

Law & Crit: Alyssa Rosenberg's Pop Culture and the Death Penalty Project

Alyssa Rosenberg is one of my favorite writers on the internet because she writes about two of my passions -- politics and pop culture -- in an idiosyncratic but accessible way. You can find some of her pieces in The Atlantic, but in the post I want to focus upon her work at ThinkProgress, and specifically her new Pop Culture and the Death Penalty Project. Basically, in the shadow of the Troy Davis execution, Rosenberg decided to "to pay some serious attention to the death penalty in popular culture." And her attention will consist of weekly blog posts on a series of books, movies, and TV shows that could provide serious fodder for a "Law & Film" or "Law & Literature" seminar.

Her first post was yesterday, and it concerns Richard Wright's incendiary novel, "Native Son," which I rank as one of the greatest legal novels of all time, in large part because of its authenticity, which is unsurprising given that Wright was inspired in writing the novel by a triptych of real world trials involving Robert Nixon, the Scottsboro Boys, and Leopold & Loeb. In her postRosenberg notes that the prosecutor in "Native Son" makes a deterrence-based argument in favor of the death penalty while Mr. Max at least in part makes a teleological argument against it:

The surest way to make certain that there will be more such murders is to kill this boy. In your rage and guilt, make thousands of other black men and women feel that the barriers are tighter and higher! Kill him and swell the tide of pent-up lava that will some day break loose, not in a single, blundering, accidental, individual crime, but in a wild cataract of emotion that will brook no control.

Rosenberg then concludes that "I think there‚Äôs some danger in making this utilitarian argument, because it leaves open the possibility that if we were to achieve racial equality and harmony, if our justice system worked perfectly, the death penalty might, perhaps, in the sweet by and by be permissible, a canker in the rose." I agree, and I think that the Supreme Court missed its chance to drive a stake through the heart of the death penalty in 1972 in Furman v. Georgia, 408 U.S. 238 (1972), by merely concluding that the death penalty as it was currently applied was arbitrary and capricious based upon factors such as race and class disparities.

Furman in effect placed a temporary moratorium on capital punishment, but, in movie terms, the Court left the death penalty open for sequels and its eventual resurrection 4 years later in Gregg v. Georgia, 428 U.S. 153 (1976), when the Court felt that the penalty's ills had been cured after some Frankensteinian tinkering. You can check out Rosenberg's post for all of her thoughts, and for further reading, I would recommend I. Bennett CapersThe Trial of Bigger Thomas: Race, Gender, and Trespass, 31 N.Y.U. Rev. L. & Soc. Change 1 (2006).

You can check out the schedule of Rosenberg's upcoming posts here. I'm especially excited about her future post on Stanley Kubrick's chilling "Paths of Glory." I still get shaken when thinking about the final scene as Kirk Douglas walks toward the camera as "The Faithful Hussar" plays in the background.

So, what film, TV show, book, and song on the death penalty would I recommend?

Movie: Errol Morris"Mr. Death: The Rise and Fall of Fred A. Leuchter, Jr." I saw this doc on a twin bill with "American Movie" at the Music Box Theatre back in 1999, right before I went to law school. Leuchter was the the original creator of most execution equipment in this country and later co-opted by Holocaust deniers to "prove" that there were no gas chambers. Morris' doc was one of the main inspirations for me to decide writing about the law, and indeed, it led to my first legal article, A Death By Any Other Name: The Federal Government's Inconsistent Treatment of Drugs Used in Lethal Injections and Physician-Assisted Suicide, 17 J.L. & HEALTH 217 (2002-03).

TV Show: "The Good Wife" is about as good as it gets in terms of legal TV shows, and, especially given that it takes place in Chicago, I often find myself showing clips of it to my classes and even commenting about it on this blog (see, e.g., here and here). That said, I don't think that Alicia Florrick and company have handled (m)any death penalty cases. Before making "The Good Wife," however, co-creators Michelle King and Robert King made the one season wonder "In Justice," in which Kyle McLaughlin led a motley crew at an Innocence Project-type organization as they tried to free prisoners from death row. Especially good on the show was Jason O'Mara in the Kalinda Sharma investigator role (sometimes I get the feeling that the Kings are more interested in the investigators than the lawyers, which isn't necessarily a bad thing).

Book: I never could get into Scott Turow's legal fiction, but I enjoyed him as a talking head in ESPN's recent "Catching Hell." Maybe, then, Turow just works better for me in the nonfiction context because I dug the hell out of his "Ultimate Punishment: A Lawyer's Reflections on Dealing with the Death Penalty," which concern his time on Illinois's Commission on Capital Punishment, which led to a temporary moratorium on the death penalty in Illinois (which, unlike the Supreme Court, Illinois made permanent earlier this year). 

Song: Elvis Costello has been one of my favorites since I saw footage of him biting the corporate hand that fed him in 1977 on "Saturday Night Live" and aborting a performance of "Less Than Zero" to instead perform "Radio Radio." I don't know whether it was true, but the rumor was that Costello was banned from SNL for 12 years, making it a big event in 1989, when a 13 year-old version of myself saw him return and perform "Let Him Dangle." The song, inspired by the Derek Bentley case, contains lyrics such as these:

Well it's hard to imagine it's the times that
have changed
When there's a murder in the kitchen that is
brutal and strange
If killing anybody is a terrible crime
Why does this bloodthirsty chorus come round
from time to time
Let him dangle



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