Progress and Execution

Frantz Schmidt hanged his first thief when he was 19, on a June day in 1573. Either his father or another master executioner pronounced the hanging “executed adroitly,” concluding Frantz’s apprenticeship and certifying him as a master in his own right. Over the next four decades, Frantz would hang, behead, or otherwise kill 394 people, and flog, maim, and torture confessions out of hundreds more. He began as a traveling freelancer around Bavaria, and then, from 1578 until his retirement in 1618, served as the full-time executioner of the jewel of the Holy Roman Empire, the populous, prosperous, and cosmopolitan city of Nuremberg. In elaborate sentencing rituals behind closed doors, the patrician judge and jurors of Nuremberg’s “blood court” pronounced who should die and by what means. Before crowds of hundreds, it was Frantz and his assistants who carried out the punishments, embodying the legal authority of empire. For Frantz, there was no special skill in hanging someone: just tie the noose and push. Beheading, by contrast, required an exact position of the feet, eagle eyes and a steady hand, a fluid swing of the arm. One blow must neatly and completely sever the head, lest the crowd erupt in anger: in a few instances, spectators had responded to a miscarried execution by stoning the executioner himself to death. Frantz, then, took pride in his near-flawless record. In almost 200 beheadings, he required a second stroke only four times.

Decades later, the elderly Frantz reflected bitterly upon his bloody career that “as much as I would have liked, I couldn’t escape it.” Frantz expressed no qualms about capital punishment per se. But, as his biographer Joel Harrington makes clear throughout The Faithful Executioner, the role of the punisher, which Frantz had inherited from his father, imposed a heavy social burden upon him. Executioners were unwelcome in respectable homes and often banned from public places, including churches. In addition, neither they nor their families could hold citizenship. The stereotypical executioner responded to his ostracism by immersing himself in the underworld and drinking to excess in the barroom company of vagabonds and mercenaries. Frantz, instead, took a vow of sobriety—an extremely unusual stance for his time—and oriented himself towards a lifelong campaign to reclaim some measure of respectability. Near the end of his life, he petitioned the emperor Ferdinand II to restore his family’s name. In his culminating achievement, he received the desired response from the imperial court: a proclamation that “the inherited shame of Frantz Schmidt … is, out of imperial might and clemency, hereby abolished and dissolved.”

In most respects, both day-to-day and metaphysical, Frantz’s world, in which highwaymen roved the countryside committing unspeakable acts and death was an ever-present specter, appears thoroughly different from our own. According to one of Frantz’s journal entries summarized by Harrington, one homicidal duo with a habit of chopping off the hands of newborns before slitting their throats murdered “scores of peddlers, wandering journeymen, farmers, and other travelers” before they were finally caught. Babies’ hands, they admitted after “repeated applications of the strappado,” were lucky charms for professional thieves. But mostly the terrors of 16th-century Nuremberg were more quotidian. One in three pregnancies were lost; one in two children died before twelve. In an especially virulent outbreak of plague, half of everyone you knew might be gone within the turning of the seasons. Which is all to say nothing of the frequent wars between city-states, and “the bewildering array of ghosts, fairies, werewolves, demons, and other supernatural attackers” who stalked the forests. In such a world, Harrington argues, people seized order where they found it: “The skilled executioner was … the ruling authorities’ most indispensable means of easing their subjects’ fear of lawless attacks and providing some sense of justice in a society where everyone knew that the great majority of dangerous criminals would never be caught or punished.”

And yet, juxtaposed with the ghoulish death chambers and the massive prisons of the modern United States, there is also something familiar in the world and work of Frantz Schmidt. Our monsters bear antiseptic names like “sex offenders” and “psychopaths,” but our ideas about fear and chaos, safety and order, are still intertwined with behaviors that we label crime and practices that we, through state officers, carry out as punishment. Not unlike Meister Frantz, if for different reasons, our modern-day executioners often feel themselves trapped in roles they do not perceive as freely chosen. Since at least the Enlightenment, a society’s punishments have been viewed as an index of that society’s overall level of civilization: note how consistently opponents of capital punishment, from the 18th-century philosopher Cesare Beccaria to the present-day American Civil Liberties Union, have registered their opposition by labeling the practice “barbaric.”¹ This epithet, which only seems pessimistic, carries within it the hidden hope that once enough people have been convinced to agree (have been, as it were, “civilized”) the practice will end. Meister Frantz’s career and the strange career of the American death penalty—along with the larger carceral regime of which it is a part—suggest a more discomfiting possibility: that humans have both the capacity and the tendency to build systems of power driven by logics of their own that are beyond the reach of individual awakening.

In 1966, Gallup reported that 42 percent of Americans favored the death penalty as punishment for murder—an all-time low. Several states had recently limited capital punishment, or were considering proposals to do so. In the 1950s, the United States had averaged 72 executions a year; in 1967, there were just two. During the 1960s and ’70s most of America’s peer nations, including much of Western Europe, Canada, and Australia, abolished the death penalty. And in 1972, the Supreme Court, in Furman v. Georgia, reversed three death sentences as unconstitutional “cruel and unusual punishment.” The New York Times trumpeted the result across page one: “SUPREME COURT, 5–4, BARS DEATH PENALTY AS IT IS IMPOSED UNDER PRESENT STATUTES.” The NAACP Legal Defense Fund, which had spearheaded the litigation campaign that culminated in Furman, threw a raucous party at its Manhattan headquarters, with entertainment from a rock band called the Eighth Amendment.

The celebrations were premature. As Evan Mandery, in his book A Wild Justice, chronicles in meticulous behind-the-scenes detail, Furman was a lengthy, divided, and confusing ruling—between the majority opinion, concurrences, and dissents, the nine justices issued ten different opinions—and left open the possibility that if states restructured their capital sentencing procedures to appear less arbitrary, the Court might find them constitutional. Within a few years of the Supreme Court’s decision, 35 states had passed new death penalty legislation intended to test that hypothesis, and according to Gallup, public support for capital punishment had boomeranged to 57 percent. Now the New York Times ran a horrified editorial, decrying America’s “break with more than forty years of an essentially liberal momentum.” In 1976, the Supreme Court approved several of the new death penalty laws, including Georgia’s, green-lighting the resumption of capital punishment. Today 32 states, plus the federal government, maintain the death penalty.²

Political and legal challenges to the death penalty now focus less on moral arguments, and more on practicalities—the method of execution, the precise size of the death chamber.

In recent years, the pace of American executions has again begun to slacken. There were 98 executions nationwide in 1999, at the height of the post-Furman era; last year there were 39. But where Mandery recounts an era in which it seemed possible, even likely, that the Supreme Court might hold capital punishment categorically unconstitutional, today that possibility appears very slim. Political and legal challenges to the death penalty now focus less on moral arguments, and more on practicalities—the method of execution, the precise size of the death chamber. In March, the Supreme Court heard argument in a capital case from Florida. The precise legal question in the case is whether Florida’s method for measuring “mental retardation” comports with the Court’s 2002 holding that the Eighth Amendment bars the execution of the “mentally retarded.” At oral argument, the justices asked few questions about the man Florida proposes to kill, or why Florida proposes to kill him; they instead engaged in protracted discussion of margins of error in IQ tests. In California, the campaign for a recent, narrowly defeated ballot initiative to shut down San Quentin’s death row focused on the costs to taxpayers of the protracted capital appeals process. Among the most formidable obstacles to the American death penalty today is not the United States Supreme Court, but European pharmaceutical companies that, under legal pressure from both individual countries and the European Union, refuse to supply American prisons with euthanasia kits. In response, some state legislators have proposed reviving the electric chair.

There is an irony embedded in the historical reversal that Mandery narrates. The Supreme Court’s own governing test in “cruel and unusual punishment” cases is unabashedly Whiggish, deriving from a 1958 case in which the Court explained that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” It was possible, 50 years ago in the United States, for small-l liberals of an optimistic bent, both on and off the Court, to assume that each new generation might recognize as “cruel and unusual” practices their more primitive forebears were too benighted to question. Writing in dissent in Furman v. Georgia, Chief Justice Warren Burger was more skeptical: “As a general matter,” he observed, “the evolution of penal concepts in this country has not been marked by great progress, nor have the results up to now been crowned with significant success.” It was therefore best, in Burger’s view, to leave the debate to legislatures. Against the faith in progress of the legal left, supporters of capital punishment perhaps better understood the truth about modernity, observed by Mandery by way of quoting Michel Foucault: “Between violence and rationality there is no incompatibility.”

Lest the reference to Foucault give the wrong impression, A Wild Justice is not a theoretical book. Mandery, a professor and a former capital defense attorney, is also a novelist, and all three vocational inclinations are evident in this book. But Mandery’s tick-tock attention to deals struck over lunch meetings in clubby DC watering holes and to details of which argument was made by which law clerk in which memo is not merely necessary scaffolding for the storytelling mode. It is also the stuff of what I take to be his underlying argument: it may not have been inevitable that the death penalty would wither away, but it was also not inevitable that it would persist. The death penalty’s revival in the modern United States was not the satisfaction of some innate national thirst for vengeance, but rather the contingent outcome of interaction between particular litigation strategies, personal affinities, and institutional conventions with larger political whirlwinds and social contexts. In a final postscript, Mandery offers a litany of turning points at which an enormously consequential decision might well have gone another way. If so, he concludes, “then this history would have quite a different ending.”

William M. Vander Weyde, Electric Chair at Sing Sing (c. 1900). Wikimedia Commons

More inexplicable than the persistence of capital punishment is the rest of America’s carceral iceberg. In the 1970s, the United States not only revived the death penalty but also embarked upon a penal experiment without world-historical precedent in a democracy. This complicated and interlocking array of state and federal laws, programs, and construction projects has vastly increased the number of prisons, the number of people sent there, and the number of years they stay. By 2008, for the first time in history, one in a hundred American adults was either in prison or jail.³ The numbers have since declined slightly, but remain very high in both historical and international perspective. With 5 percent of the world’s population, the United States holds 25 percent of its prisoners, often in brutal and sanity-threatening conditions that most Americans would not hesitate to label torture if they encountered them somewhere else.

To be clear: the rate of Americans in prison is not just somewhat higher than the comparable rate for other countries. Compared to most other countries, and certainly to any of America’s putative peers, the American rate is exponentially higher. That 2008 “one-in-a-hundred” figure represented an incarceration rate somewhat higher than Russia’s, but five times higher than England’s, nine times higher than Germany’s, and six times the world median. In much of the Western world, the maximum possible sentence for murder is about 25 years, and life sentences are issued sparingly, if ever. In the United States, you can easily receive 25 years for far lesser offenses than murder, one in nine prisoners is serving life, and over 40,000 prisoners are serving life without the possibility, however slim, of parole.⁴

To be clear: the rate of Americans in prison is not
just somewhat higher than
the comparable rate for
other countries.

Building the largest system of imprisonment that this country has ever known—one of the largest such systems the world has ever known—has devastated millions of American families and decimated many communities. At this point in the conversation, it is often observed that reported crime rates have also declined sharply in recent decades. Some commentators attribute some of that decline to the ballooned prison population, although scholars fiercely question the magnitude and significance of any such connection. But even those commentators generally allow that mass incarceration has passed the point of diminishing returns for public safety. In recent years, journalists and scholars have turned renewed attention to America’s prison crisis, and politicians have demonstrated glimmers of interest in reform. It remains to be seen how deep any reforms will go. As states experiment with marijuana laws, it is possible to envision some coming detente in the War on Drugs. It is less clear that Americans can muster the collective will to confront the more politically entrenched foundations of our punishment complex, such as the militarization of the police, the largely unchecked power of prosecutors, and the belief, even among many opponents of the death penalty, that life without parole is a morally acceptable substitute.

Robert Ferguson’s Inferno: An Anatomy of American Punishment represents one law professor’s attempt to make sense of America’s massive carceral regime. Through a roundabout tour of punishment theory, the disturbing allegations of abuse and neglect made regularly in prisoner lawsuits, and a wide range of literary meditations on punishment (from Dante to Billy Budd), Ferguson seeks to understand how Americans could have constructed such an inhumane penal machinery and why voters, legislators, and jurists allow it to persist. A typical chapter blends social-scientific discussion of bureaucratic incentives with exegesis of a 1942 courtroom novel, a retelling of Bernie Madoff’s sentencing hearing, and a strident polemic against the concept of private prisons. In this patchwork eclecticism, Inferno is as apt a representation as I’ve encountered in prose of the sheer confusingness of mass incarceration, its mélange of deep cultural influences, under-theorized practices, conflicting institutional structures, recent history, and eternal emotions.

Punishment is both one way we humans try to rectify the pain that we inflict upon each other and, in turn, another instance of that pain.

While reading Inferno, I was often reminded of a seminar I participated in that was organized through San Quentin’s prison college program and included both prisoners and Stanford University graduate students. Like Ferguson, we read Kafka, we read Benjamin Rush, we read accounts that called prisons “the new Jim Crow,” accounts that called prisons an outlet for surplus labor in postindustrial capitalism, and accounts that emphasized America’s democratic political culture as compared with Europe’s hierarchical political culture. We contemplated retribution and utilitarianism and rehabilitation. I cannot speak for anyone else in the seminar, but after all that reading, I never felt myself that I had got much closer to the bottom of the abyss. “Pain” and “punishment,” Ferguson notes, share the same root, the Latin poena: punishment is both one way we humans try to rectify the pain that we inflict upon each other and, in turn, another instance of that pain.

Ferguson does not write within a Whiggish framework that assumes inevitable progress. To the contrary, he argues that punishment systems, left unchecked, will degenerate into ever-harsher severity, as punishers grow too comfortable in their roles. Nevertheless, he assumes that with greater public awareness and oversight of the criminal justice system progressive reform could be possible. Harrington has a similar but ultimately darker indictment to make of 21st-century complacency. It is too easy, Harrington insists, to view Meister Frantz and his contemporaries as “safe figures from the world of fairy tales,” to look upon men and women of the past “as adults watching children at play, all the time confident of our own superior rationality and sophistication.” If Frantz awoke from the dead, it would surely surprise him, Harrington archly suggests, “to hear his society characterized as especially cruel and heartless” once “he learned of such unthinkable modern atrocities as genocide, atomic obliteration, and total war.” Echoing Ferguson, Harrington also notes that Frantz “would recoil” to learn of our indefinite prison terms.

As Harrington’s reluctance to condemn Meister Frantz illustrates, historians, unlike lawyers and judges, have largely abandoned the notion of “evolving standards of decency.” Most historians today would say that they aspire to help their readers and students understand past actors in context, rather than simply to judge them, a stance often termed “historical empathy.” There is a risk of paralysis in this stance, of course. As historians and students of history, we are also, after all, citizens of particular polities and denizens of the world. If we cannot condemn Meister Frantz and the citizens of Nuremberg on whose behalf he tortured suspects and prisoners, how then can we critically assess ourselves? How can we condemn, as surely we must, the tortures perpetrated in our names? The easy way around the paralysis is to treat historical empathy as a mere heuristic—have our evolved superiority and eat our exegesis, too.

The more demanding but necessary challenge, I think,
is to take historical empathy seriously, As HARRINGTON DOES.

The more demanding but necessary challenge, I think, is to take historical empathy seriously, as Harrington does. This requires recognizing that history’s applications to present-day conundrums are rarely straightforward. Sam Wineburg, a cognitive psychologist who studies historical thinking, observes that beneath “every encounter with the past” lies a “tension between the familiar and the strange, between feelings of proximity and feelings of distance in relation to the people we seek to understand.”⁵ The highest reward of navigating that tension is not a how-to checklist for our lives, but rather the cultivation of a certain humanistic “humility in the face of our limited ability to know.”⁶

If we lived in Meister Frantz’s Nuremberg, we would do the following from to time to time. Walking through town, we would notice a red cloth hanging from the top of city hall, and, along with hundreds of our fellow citizens, we would join the procession: the sinner himself, his guards, the chaplain, the judge, the executioner and his entourage of assistants, and us, following along, the crowd. At the gallows we would pray and murmur, yell and throw. Finally, we would watch as the sinner wept, or repented, or howled, or laughed, or sang a song, whether he took or refused his final communion—and then we would watch as the executioner slew him.

Instead, perhaps, from time to time, we drive for hours for a brief visit in a sterile room with our brother in upstate New York, or our sister in the deserts of California; or perhaps we are among the lucky who only read about such places from a comfortable remove. Perhaps we are a prison doctor who injects pentobarbital into the arm of the condemned, unseen by almost anyone; more likely, we learn that the latest Texas murderer has met his state-sponsored demise only when the word flickers across Twitter or the CNN ticker, and then is gone. In terms of the proceedings it opens to the public, our legal system is the reverse of 16th-century Nuremberg’s sealed-off “blood court” and spectacle hangings: our trials are public and sometimes even televised, while our executions, and even the names of the executioners, are fiercely guarded by the state from public sight. But if we believe in democratic governance then we must also believe that our physical distance from the warden is, morally speaking, a mirage. As Chief Justice Burger once told a convention of lawyers, “When a sheriff or a marshal takes a man from the courthouse in a prison van … this is our act.”

Lethal Injection Room, San Quentin State Prison (2010). Wikimedia Commons

In contemplating the proximities and distances between Meister Frantz’s world and our own, the appropriate response is not to celebrate our own superiority, to write off Holy Roman Nuremberg as the remotest, barbaric past. But nor need we retreat into total cynicism or resignation. To adopt Sam Wineburg’s formulation, historical thinking ought to cultivate humility, not nihilism. Although not a naïve faith in automatic progress, there is, or can be, a certain tough-minded and hard-won optimism in that humility. Mandery’s insistence on the contingent circumstances that have led to the revival of the American death penalty models one route to such a humble optimism. When Mandery concludes that, if a few decisions had gone differently, “then this history would have quite a different ending,” he implies that with a few more decisions, it may yet still—that individual actions can have valorous consequences, even if they are not always consequences that we can fully control or predict. However confining they may feel, our professional duties and social positions are not wholly beyond our capacity to remake. Mandery shows several Supreme Court justices—some of whom, late in life, came to regret their decisions—balking at writing their own discomfort with America’s system of capital punishment into law, in the belief that such a position would exceed the limits of the judicial role. But his story also includes justices like William Brennan and Thurgood Marshall, who, beginning in 1976 and continuing until they retired, together dissented against the death penalty in 1,841 cases.

Of all the remarkable exchanges that Mandery recounts in A Wild Justice, I found most remarkable an episode he buries in a footnote. It concerns the execution, in Alabama in 1983, of one John Louis Evans, who, in the course of “a two-month crime spree” of “nine kidnappings and thirty armed robberies,” killed a Mobile pawnshop owner in front of his two children. George Wallace was beginning his final term as Alabama’s governor when he was asked to sign Evans’s death warrant. Wallace’s notoriety, of course, rests primarily on the day in 1963 that he stood in a doorway at the University of Alabama to keep black students out. But it is also worth noting that his 1968 third-party presidential campaign perfected the “tough-on-crime” sloganeering that would dominate much of American electoral politics into the 1990s.

Privately, George Wallace had long harbored doubts about capital punishment. In 1964, he told his law clerk that he thought it should be ruled unconstitutional. By 1983, Wallace had survived a shooting, converted to born-again Christianity, and recanted his segregationism. In Mandery’s words, his “reservations about the constitutionality of capital punishment had evolved into full-blown opposition.” The night before Evans was due to be executed, Wallace telephoned his lieutenant governor “in tears,” Mandery recounts. Wallace said that “he had been up all night ‘praying the Bible,’ and couldn’t bring himself to sign the warrant.” That lieutenant governor was the former law clerk, Bill Baxley, with whom Wallace had shared his reservations 20 years before. Baxley was a liberal Democrat—as Alabama’s attorney general, he had earned the wrath of the Ku Klux Klan for his investigation and prosecution of civil rights cases—who supported the death penalty. He convinced George Wallace that there was no political choice but to sign the warrant. Mandery ends the anecdote here, but I looked up what happened next. In a performance whose horror Frantz Schmidt would well have recognized, Evans was strapped into an electric chair and, after two botched jolts that left him burned but alive, was shocked to death on the state of Alabama’s third attempt.