Recently, two of my students, with whom I co-authored an article on public executions and lynchings in late nineteenth-century America, asked me why I have devoted so much of my career to studying the death penalty. They were interested less in my intellectual autobiography than in understanding more about capital punishment and the scholarly puzzles that people like me are trying to solve.
Along the way, as I was answering their question, I explained that doing death penalty scholarship, especially when it leads to abolitionist conclusions, came with a risk. That risk, I said, is that something you might write or say would not fit with the agenda of the abolitionist movement or would complicate the work of people trying to save the lives of people condemned to die.
Were this to happen, the death penalty scholar might be accused of not just being wrong in their analysis but of committing a grave moral error. They might be thought to have committed a kind of abolitionist apostasy.
Sure enough, three days after the conversation with my students, someone who once worked as a D.C. public defender and as an assistant federal public defender in Alabama between 2012 and 2015 and calls themselves a “death penalty abolitionist,” offered a telling illustration of the danger I mentioned.
They were kind enough to write in response to a piece I recently published, “Let’s Stop Asking for Last Words of People About to Be Executed.” But what they said was anything but kind.
I should have known I was in trouble when a colleague who moderates some anti-death penalty listservs and generously circulates my writing, added a note under the link to my piece, “Those with comments should please address them off list to the author, Austin Sarat….”
I got some emails from lawyers who had represented clients who had been put to death. One said, “Having seen two clients executed in recent years…I strongly disagree with your position…. Publishing last words is also an implicit statement that taking a human life, even of a condemned murderer, is a significant societal event and should be acknowledged as such….”
Another explained, “For my clients who have not survived the fight, having that chance to show their humanity and be heard by the world from which they have been cut off, offers a little bit of cherished dignity.”
These responses reminded me of the great and heartbreaking work done by death penalty defense lawyers. The disagreement they registered engaged with the substance of my ideas and avoided argument by adjective.
My most recent critic went in a different direction. They labeled what they characterized as my “desire to forbid last statements—muzzling people about to be executed…” as a “bad” idea.
Not wrong, but bad.
Just to be clear, among its several meanings, “bad” is a word used to describe “failing to conform to standards of moral virtue or acceptable conduct.” And “bad,” in this sense, is what seemed to be meant.
My critic made that clear when they wrote that my argument about last words “is perhaps only slightly less bad than…[my] morally unconscionable position in The New Republic, in 2019, that death penalty abolitionists should eschew the argument that ‘even the most heinous criminals are entitled to be treated with dignity.’”
From that, a reader might get the sense that I’d written that people condemned to death are not entitled to be treated with dignity. But I never said anything like it.
In my New Republic piece, entitled “How to Convince Americans to Abolish the Death Penalty,” I offered an argument about political strategy. I pointed out that when abolitionists have tried to convince death penalty supporters that people condemned to death “are entitled to be treated with dignity or that there is nothing that anyone can do to forfeit their ‘right to have rights,’” they “have never carried the day in the debate about capital punishment in the United States.”
In contrast, campaigns to end capital punishment succeed when abolitionists appeal “to American values of fairness, equal treatment, and pragmatism.” When they do so, I concluded, they can form “coalition(s) of legislators, political leaders, and citizens who shared the late Supreme Court Justice Harry Blackmun’s view that it is time to ‘stop tinkering with the machinery of death.’”
If someone thought that was wrong as a description of what has happened, or as advice to the abolitionist movement, so be it. But “morally unconscionable”?
Not satisfied, the critic of my last words piece turned up the heat some more. They ended their piece with the following: “[I]t’s a really bad idea—and un-American—to muzzle the last statements of others condemned to death now.”
I respect the work that my critic has done and have no doubt about their moral convictions. I don’t mind being called wrong, but “un-American”?
Back to my students.
I told them that I have committed myself to studying the death penalty because I want to make sense of the rationales governments use to explain why they self-consciously and cold-bloodedly take human life. I want to use my scholarship to remind public officials and the people they serve that, to paraphrase Robert Cover, “legal interpretation plays on a field of pain and death.”
And I believe that studying capital punishment helps us understand how racial discrimination, class injustice, and desires for vengeance play out in American life. I want to help illuminate how they shape the fate of people accused of capital crimes.
Although my critic generously called me “perhaps the most prolific anti-death penalty scholar in the country,” I am not sure about that label. Not because I do not oppose the death penalty—I do—but because that is not how I define myself as a scholar.
As I told my students, my work is not motivated by a desire to end the death penalty. Instead, it is motivated by a different calling, namely to study and speak in the hope of contributing to the collective store of knowledge about capital punishment.
My job is to examine some of the death penalty’s taken-for-granted practices and to tell the truth about them, even if I don’t always please people whose abolitionist commitments and courage I deeply admire, including my most recent critic.
As to last words, maybe they do as one of my email correspondents claims and give the condemned the “chance to show their humanity” or offer them “a little bit of cherished dignity.” But as a death penalty scholar, I have come to the view that they also serve “’to justify the state’s killing’” and “make the inhuman act of cold-blooded killing seem a touch more humane.”
My students seemed most interested when I explained, as I have many times before, that my work on capital punishment was inspired by “what Supreme Court Justice Thurgood Marshall wrote in Furman. He believed people supported the death penalty because they did not know very much about it. Marshall argued that the more people knew about the death penalty, the less they would like it.”
“He thought that scholars could play an important role in the work of educating the public about the grim realities of state-sponsored killing.”
While my student-collaborators seemed satisfied with that explanation, I’m not sure what they would think about my critic’s characterizations of my argument about last words.
I offer some thoughts about those characterizations to encourage young scholars, like my students, to join me in following Marshall’s wisdom, but to do so with their eyes open. They need to know that what they write may rub people whom they admire and consider their allies the wrong way.
It is by doing the work Marshall encourages us to do and telling the truths about state killing that our research reveals, even when it is inconvenient, uncomfortable, or out of sync with current abolitionist orthodoxy, that death penalty scholars may contribute to ending this “bad,” “morally unconscionable,” and “un-American” practice.
Yes, I know, those words were said about some of my work. But, as my scholarship suggests, they are better used in describing the death penalty itself.
