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I. INTRODUCTION
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II. SUB-THEMES
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1. SYSTEM, FAILURES AND INNOCENCE
2. DETERRENCE AND PUBLIC SECURITY
3. VENGEANCE AND SOCIETY: IS IT POSSIBLE TO FORFEIT YOUR LIFE?
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I. Introduction
“Today it is impossible to determine why a society exercises punishment at all. All terms that
semantically merge a whole process elude a definition. Only that which has no history can be
defined.1” Nietzsche pretty much pointed out the inherent uncertainty and insecurity in the
“meaning” of punishment in general and how the very same procedure can be interpreted,
manipulated and formed the way it fits all kinds of (political) motifs and believes. This danger
of abuse, malpractice and oppression on the one hand hits the basic and existential
importance for every single citizen on the other.
In ancient times until the middle of the last century death penalty has been a natural and fully
accepted instrument of law. Whenever a delinquent infringed the rules of a society in a very
harsh way – though it has always been and still is highly subjective and various what a “serious
breach of law” should mean – he was sentenced to death. This procedure served two very
important goals for a society: One is the faith and believe in justice by the citizens and the
other one – even more important - is the control and guidance achieved due to this
confirmation of expectations by the people: The more a society can foresee events, the more
it trusts the “ruler”, the more it is willing to follow rules as well.
1
Friedrich Nietzsche, On the Genealogy of Morality, 1887, p. 7 ff.
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Nevertheless over the time most of the industrialized and rich countries of the world have
abolished the death penalty. It is widely recognized as an achievement of progress and liberty,
if a state does not practice it anymore2. States try to reduce death and cruelty as a former
natural and omnipresent aspect of life, which can also be seen in the fact that even in most of
the states with death penalty a public execution is forbidden, leaving the question
unanswered why a democratic society that believes a law represents the majority of the
citizenship does not execute in public anymore.
What can be said, is that the use of death penalty has been present for a way longer time in
human history than the arguments against it, therefore representing the past. Like in every big
change in human history there are conservative forces, trying to defend the “tradition” and
there are opposing forces, trying to achieve something they consider to be more righteous,
more lawful and more advanced. This general conclusion can be verified on a more
concentrated level in the United States of America, where the state law system – including
criminal law and state constitutions – and a quiet modern society that once departed from the
“old world”3 are a perfect nutrient solution for friction. The debate between supporters and
enemies of the death penalty is fought on a highly ambitioned level, though the majority of
the states as well as the citizens – if opinion polls are right – still are in favor of it.
One aspect of modern society that cannot possibly miss in this issue is art, especially the very
popular media: Film. Due to the fact that the “media is the message”4 it’s not astonishing that
film is a perfect transmitter for the dispute: The relative short length of time that has to be
spent in order to consume a film fits the snugness of most people, who do not want to spent
too much time with reading articles or statistics, becoming familiar with history and social and
2
Michael Asimov & Shannon Mader, Law and Popular Culture, 2004, p. 179
i.e. Europe. Interestingly though the entire E.U. area declared death penalty as a breach against
human dignity
4
Marshall McLuhan, Understanding Media: The Extensions of Man, 1964
3
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political background of a country, revealing huge differences among the states all around the
world on the question “why” they do practice death penalty. But most of all the medium film
fits perfectly to this theme because it is a very emotional form of art5, not only but also
because of its visual and acoustic style and the possibilities of a director to transport his –
manipulative – point of view.
The following lines should give a short overview of common movies dealing with death
penalty, connected to the key argumentation of the current debate.
II. Sub-Themes
1. System, failures and innocence
During the 1970s there must have been impressive changes in society, which led to a mistrust
of the credibility and impeccability of judges, courts and the entire law enforcement6.
Whereas criticism of the police (Dirty Harry7, French Connection8) as the “1st line of defense”
started, the “area behind the bar” itself with its judge and (in most of the criminal cases) the
jury followed. Films like To kill a mockingbird9 and Anatomy of a murder10 drew a much more
lawful picture of court procedure. Against all odds and cultural barriers (Mockingbird) and
even with a highly ambitious state attorney (Anatomy) one apodictic truth remained: At the
end, the truth will win. Justice will be achieved and the social balance will return once again
and for all. This changed throughout the 70s and 80s and the original status can never be
restored.
5
Michael Asimov & Shannon Mader, Law and Popular Culture, 2004, p. 165
Michael Asimov & Shannon Mader, Law and Popular Culture, 2004, p. 168 f.
7
Dirty Harry, 1971, Dir: Don Siegel, Cast: Clint Eastwood
8
French Connection, 1971, Dir: William Friedkin, Cast: Gene Hackman
9
To Kill a Mockingbird, 1962, Dir: Robert Mulligan, Cast: Gregory Peck
10
Anatomy of a murder, 1959, Dir: Otto Preminger, Cast: James Stewart
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Most of the films on the Death Penalty or prison and law system revolve around the danger of
system failures, consequently leading to the unlawful killing of an innocent man. Prominent
examples are the movies The Life of David Gale11 and The Star Chamber12.
In The Star Chamber an idealistic judge (Michael Douglas) gets involved in a secret circle of
judges who hire assassins in order to execute criminals that “fell” through the judicial system
and restore – in their beliefs – justice. The other movie tells the story of Professor David Gale,
who sacrifices his own life in order to demonstrate the flaws in the judicial system. Both films
fit the development mentioned above: Whereas in The Star Chamber from 1983 the error of
law occurs outside the court – though due judges – the movie from 2003 does not even need
this trick to point out its criticism. The process of finding the truth, determine guilt and liability
and elaborating an adequate punishment is highly exposed to manipulation. The suicide of
David Gale at the end of the movie has a double meaning in that matter: Whereas this
“gesture” illustrates the fatal errors and iniquity of the law system in general13, it also raises
the question of how many prisoners need to be killed in order to prove that even one man
killed innocently is too much to bear for a society that claims to be free.
Another related argument in favor of the death penalty is the costs of a lifetime sentence. It is
said that convicts could live as state pensioners at society’s expenses and feed off taxes. This
argumentation is probably the weakest one of all. The current expenses of maximal security
custody the whole time until the execution and the procedure itself, especially the salary for
11
The Life of David Gale, 2003, Dir: Alan Parker, Cast: Kevin Spacey
The Star Chamber, 1983, Dir: Peter Hyams, Cast: Michael Douglas
13
Michael Asimov & Shannon Mader, Law and Popular Culture, 2004, p. 178
12
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all participants easily meet the costs for life imprisonment14. Besides that this argument is
rather cynical and inhumane, measuring the values of taxes against a human life.
Related to that, the daily routine of a prison and the meaning of prison in general are
examined quiet often in film. The movie Shawshank Redemption15 from Frank Darabont
portrays the story of Andy Dufresne (Tim Robbins), a banker who spends nearly two decades
in a State Prison for the murder of his wife. The main focus lies on a ruthless and criminal
prison warden, who enriches himself upon the financial skills of the protagonist and later even
murders a witness for the defense that could cause the release of Dufresne, who was
sentenced to life imprisonment for a crime he didn’t commit.
More interesting is Dead Man Walking16 – this time Tim Robbins as the director – which
portrays the prison system as rather clinical and sterile, yet deadly entity. The deadliness does
not come from a malice or cruelty. The protagonist Matthew Poncelet is treated with all the
professionalism he can possibly get. What is criticized, however, is the lack of emotion and
empathy among all prison guards, judges, wardens, nurses and people. Robbins unites all of
these participants to one entity: They are the opposing force of those convicts who face the
death penalty. By leaving out the same plastic and stereotypical characterizations and plots,
already known by films like Shawshank Redemption, Robbins synthesizes and abstracts all the
possible arguments in favor for or against the death penalty and just reduces them to – in his
opinion – the core of the issue: Forgivness and guilt.
14
Michael Asimov & Shannon Mader, Law and Popular Culture, 2004, p. 178 f.; Marlene Lehtinen,
University Utah, Spiegel, 14/1984, p. 175 f.
15
Shawshank Redemption, 1994, Dir: Frank Darabont, Cast: Tim Robbins
16
Dead Man Walking, 1995, Dir: Tim Robbins, Cast: Sean Penn
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The prison system in Dead Man Walking still keeps a demonic connotation, though. Due to the
fact that the reasoning and the whole discussion is “unmasked”17, consequently leading to
Poncelets execution in cold precision, revealing the fact that the question of Death Penalty is
rather a matter of belief than argumentation, the execution by the government mirrors
Thomas Hobbes Leviathan18 motive. The Leviathan monster is mentioned several times in the
Old Testament19: Will he make an agreement with you for you to take him as your slave for
life? The answer obviously is “No”, meaning that there is no possibility to stop this Leviathan
or find a mutual beneficiary solution. Hobbes chose this seamonster in particular as a
synonym for the state, because he wanted to illustrate the uselessness of argumentation. The
citizens are like a swimmer in deep open water, facing a creature to powerful to escape or to
kill. The state – just like Leviathan – is almighty. As for the prison system in Dead Man Walking
this means hopelessness of all Poncelet’s tries for pardon. At the end his lie detector test is
not even shown, because the outcome is already certain.
2. Deterrence and public security
The most prominent argument of the supporters of the death penalty is the deterrence20: Any
future delinquent would think twice before committing a crime. The opposite side emphasizes
the lack of scientific proof or statistics which certifies that allegation. In 18th century England –
they say – even “pickpockets” have been sentenced to death and during their public
executions, the watching crowd has been looted by other thieves. In fact it sounds unrealistic
to believe a thief, robber, murderer would actually think about the consequences of his deeds,
17
see: II 3 “Vengeance and Society” for further explanation
Thomas Hobbes, Leviathan or The Matter, Forme and Power of a Common Wealth Ecclesiasticall and
Civil, 1651
19
For example Job 41, 4
20
Michael Asimov & Shannon Mader, Law and Popular Culture, 2004, p. 172 f.
18
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rather than being convinced he will never be caught. On the other hand one could argue that
without the death penalty, the crime rates would be even higher.
Even though the deterrence factor is dominant and very prominent in public debates, it is
rarely used in the fictional adaptions. The reason for that is the same for its prominence:
There is no proof for both sides, it revolves around science and therefore rationality – a very
unpleasant counter part of the primary irrational argumentation – and it lacks of the
necessary emotional dramaturgy, which is essential to film.
But even though this theme is rarely used actively, it is nevertheless present through a passive
way. The things a man does not say or do may have meaning as well.
A lot of films focus on a person being innocently convicted – as already mentioned above –
and therefore the message of the film concerning our question may be: There simply can be
no deterrence whatsoever if a person even has to fear being executed accidentally or through
misconstruction. The “gambling” justice would not be in no way able to impress a criminal.
This interpretation would be a highly aggressive defense, though.
In other movies like Dead Man Walking the deterrence aspect is not mentioned directly as
well, but it is linked to the motive of absolution and guilt. Matthew Poncelet (Sean Penn) at
first refuses to confess his deed, but throughout the whole film it is never questioned that he
has committed a brutal crime, it is only questionable until the end whether he “just” raped
the girl or if he also contributed to the killings as well. If it wasn’t for the work of Sister
Prejean, it is also highly questionable if Poncelet is impressed by the capital punishment at all,
because even on death row he continues to show his hatred against society and his denial to
follow its rules. Counting these two things together it becomes clear that Tim Robbins also
either tried to avoid the deterrence argument or he does not believe in it at all.
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So as we have seen deterrence on a scientific approach is not an issue in the film treatment.
This can be explained due to the fact that a film tells a story while a statistic – the heart of the
deterrence debate – tries to show the truth. Nevertheless a film has much more credibility in
the eyes of people than statistics and that’s probably the reason it is not focusing on it.
3. Vengeance and Society: Is it possible to forfeit your life?
The true “battle” of the issue is fought with the argumentation of vengeance versus
inviolability of human dignity. “Vengeance is an instinctive part of human nature and to
canalize this instinct through the application of the criminal law serves the important goal to
improve order in society.21” Along with this idea, the Bible is quoted frequently, especially the
phrase “an eye for an eye” which occurs in several passages of the Old Testament22. This is
generally translated with “the law of retaliation”, providing a legitimation for equitable
retribution for the offended party, i.e. killing the person who killed the victim. In fact the
majority of experts agree on a different meaning: Fitting the ancient “ius talionis”23-tradition
this phrase constituted the principle of proportional justice which was used to convey the idea
that punishment of an offender should fit the crime. Thus not providing a legitimation for the
death penalty, but being an obligation to exercise proportionality in the verdict. On the other
hand the bible has also a lot of passages that could be used in the other direction: “Thou shall
not kill”24 or “If someone strikes you on one cheek, turn him the other also. If someone takes
your cloak, do not stop him from taking your tunic.”25
This ambiguity of the bible is directly shown in Dead Man Walking. While Poncelet is having
his mandatory lie detector test Sister Prejean converses with a prison guard. The man asks
21
U.S. Supreme Court Justices Stewart, Powell, Stevens, Spiegel 14/1984, p. 178
Leviticus 24:19-21; Exodus 21:22-25; Deuteronomy 19:16-21
23
Translation: Equal (talios) Right (ius)
24
Tanach: „The 10 commands“, Hebrew Bible
25
Luke, 6:29
22
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her, why she is helping Poncelet, something a nun – in his opinion – is not supposed to do. He
then quotes “an eye for an eye”, where she replies the equivalents mentioned above. The
guard then relinquishes with the words: “I don’t go in a Bible-Contest with a nun. I can only
lose.” Nevertheless he makes clear that he has not changed his mind, he just doesn’t need an
affirmation from the bible. The interesting part of this scene is the fact that Poncelet’s lie
detector test is not shown directly. The camera focuses on the conversation between Sister
Prejean and the guard, while Poncelet sits in the next room behind a soundproof glass
window. The futility and uselessness of his last efforts to save himself from the execution is
emphasized. Whereas the first clemency hearing was shown in detail and the argumentation
of his lawyer and the state attorney, the verdict was short and simple. The following juridical
attempts became more and more secondary. Just like the prison guard is not impressed being
beaten with his own “weapons” (i.e. Bible quotation), the law system itself is not impressed
by any strategy or argumentation either, thus revealing the deep connection of this
“vengeance factor” with the society26.
There are two keys to the sociological aspect of this theme: One revolves around the
question, whether even one wrongfully accused and therefore unlawfully killed man
possesses enough significance in order to risk a ruthless murderer being untroubled by a
harsh sentence. In The Life of David Gale the director Alan Parker often uses the technique of
flashbacks. The viewer is confronted with an unusual or awkward initial position and through
the memories of its protagonists he learns the circumstances which led to the consequences.
This illustrates a general question in life, namely the uncertainty of so called “causation”. By
revealing the end before its beginning the viewer is reminded that nothing in life is
scientifically certain, especially not the question of guilt because human behavior is resistant
26
U.S. Supreme Court Justices Stewart, Powell, Stevens, Spiegel 14/1984, p. 179
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to any form of prognosis. But if this is true, the inevitability of a death penalty must seem
extreme and not proportional as described above.
The other opens a “god-debate”: Can the law as a representative of the people chose which
life forfeited and which is worth living on? This question is in the focus of The Star Chamber.
The judges in this secret lodge do actually play god, at least they neglect any form of
democracy and liberty because of their strict believe that the court – i.e. the rest of society
represented by the court – made a mistake. That in fact most of the judges in this circle do
expose themselves as plain sadistic murderers is more relevant for the drama and the tension
of the movie. More important for us is the character development of cynical Judge Hardin
(Michael Douglas), who at first is disappointed in the justice system and searches for a higher
value. But after his first enthusiasm for the Star Chamber, later his conscious comes back into
play and forces him to stop his comrades. At the end he nearly pays with his life when being
attacked by the serial killer, a man, he once was willing to sacrifice. This end – similar to Dead
Man Walking – leaves an ambivalent picture: Were the other judges right in the beginning?
Was Judge Hardin wrong at the end?
In the endscene of Dead Man Walking Poncelet is executed while the real murder night – this
time in color – is shown for the first time. Two killings combined in one scene. While at first
Robbins put some efforts in order to humanize Poncelet, for example when being with his
family, he now deconstructs his work by revealing the real brutality and cruelty of Poncelet’s
behavior27. So while the whole time the movie had a preponderance for the arguments
against the Death Penalty – Poncelet is crying, he is frightened and regretful while the lethal
injection is given – this image of his deed comes into our heads and the audience suddenly
27
Michael Asimov & Shannon Mader, Law and Popular Culture, 2004, p. 166, 169
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understands – if not already happened: This is why a society kills convicts and there is only
very few argumentation that is left.
Interestingly there are no films who point out this statement on a political level. There are
movies where death penalty is shown, but the makers are often very concerned to illustrate
that the executed prisoner is even a coldblooded “demon”28 or a sociopathic and traumatized
victim that turned into a “monster”29. In fact everyone would agree that a movie trying to
convince its audience about the huge and unacceptable prison costs, the scientific proof of
the deterrence factor and the necessity of avenge the victims is politically incorrect. So the
question that is left behind is: If vengeance is such an instinctive part of human nature and a
representation of the majority of people, why are there no films in order to defend it?
28
29
Fallen, 1998, Dir: Gregory Hoblit, Cast: Denzel Washington
Monster, 2003, Dir: Patty Jenkins, Cast: Charlize Theron