THE RHETORIC OF ABOLITION: CONTINUITY AND CHANGE IN THE STRUGGLE AGAINST AMERICA'S DEATH PENALTY, 1900-2010.

• Author: Sarat, Austin
• Position: The Death Penalty's Numbered Days?

This article seeks to understand when, how, and where the framing of arguments against capital punishment has changed. While others have focused exclusively on the national level, we studied the framing of abolitionist arguments in three American states: Connecticut, Kansas, and Texas. Each is located in a different region of the country, and each has its own distinctive death penalty history. We studied the framing of arguments against the death penalty from 1900 to 2010. Our study suggests that the rhetorical reframing of the campaign against capital punishment that has occurred at the national level has had deep resonance at the state level. Over the course of the 20th century in Connecticut, Kansas, and Texas, the focus on error and arbitrariness has assumed greater prominence among abolitionists. In each state, this change began to take hold in the late 1960s and 1970s and accelerated as the 20th century drew to its close. But, in each state, older frames persisted. Older arguments continued to occur with greater frequency than the new abolitionism.

TABLE OF CONTENTS INTRODUCTION 758 I. TEXAS 763 II. CONNECTICUT 768 III. KANSAS 775 CONCLUSION 779 INTRODUCTION

Today the United States seems to be on the road to abolishing the death penalty. Support for capital punishment, which for the last quarter of the 20th century appeared firmly entrenched, is weakening. (1) Moreover, across the U.S., the number of death sentences has dropped from a high of 315 in 1994 to forty-nine in 2015. (2) Mirroring this trend, the number of executions peaked in 1999, and has been steadily declining over the past fifteen years, reaching a twenty-four year low in 2015. (3) While thirty-one states still retain the death penalty, (4) sixteen of those states and the federal government have not executed anyone in the past five years. (5)

There are, of course, many possible explanations for the changing situation of capital punishment. Relatively low rates of violent crime and the growth of life in prison without parole sentences are two such explanations. (6) However, if the American death penalty eventually does end, it will be in no small part because abolitionists altered their political and legal arguments and, in doing so, successfully reframed the death penalty debate. (7)

Communications scholar Robert Entman broadly defines the term "framing" as "any effort to influence public opinion through the formulation of messages." (8) Issues of political import in a democracy are almost always being framed "as various political entrepreneurs [attempt] as best they can to affect the debate given changes in the stream of information coming in from forces beyond their control." (9) The framing of complex issues involves social, cultural, and political elements. In this way, debates surrounding the death penalty resemble other hot button issues in the United States.

The importance of framing in political contests is illustrated by the struggle for gay and lesbian rights. Teresa Godwin Phelps notes that an "unprecedented shift in the rhetoric used about gays and lesbians--the names they are called, the kinds of images and metaphors that describe them, the stories about them" paved the way for the Supreme Court's recognition of gay marriage in Obergefell v. Hodges. (10) A large reason for the change, Phelps argues, was "the strategic rhetorical choices made by gay activists and advocates." (11)

In the past half century, the framing of the death penalty debate has shifted and evolved dramatically. Perhaps the most important factor in this evolution has been wrongful convictions in death penalty cases. Since 1973 more than 150 people have been exonerated from death row. (12) Abolitionists have used the phenomenon of wrongful conviction to change the story about capital punishment and the public's understanding of what is at stake when the state kills. (13)

Professor Frank Baumgartner of the University of North Carolina at Chapel Hill and his colleagues examined this change in anti-death penalty rhetoric. (14) Focusing exclusively on the last part of the 20th century, they traced the emergence of what they called the "innocence frame" which "diverts attention away from theoretical and philosophical issues of morality to focus simply on the possibility of errors in the criminal justice system." (15) Furthermore, Baumgartner et al. noted the way in which "the process of 'framing,' defining an issue along a particular dimension (e.g., fairness and innocence) to the exclusion of alternate dimensions (e.g., morality, constitutionality, or cost)" completely shifted the grounds of debate. (16) They argued that the innocence frame came to dominate public discussion of the death penalty beginning in the mid-1990s. (17)

Building on Baumgartner's work, Professor Austin Sarat of Amherst College argues that abolitionist rhetoric has so radically shifted that we are living in an era of what he calls "the new abolitionism," an era in which moral, philosophical, and pragmatic opposition to the death penalty has been, he claims, displaced in importance by rhetoric that highlights problems in the processes of guilt determination and sentencing. (18) "The campaign to abolish capital punishment," Sarat observes:

no longer takes the form of a frontal assault on the morality or constitutionality of state killing. Instead, arguments against the death penalty occur in the name of constitutional rights other than the Eighth Amendment, in particular due process and equal protection. Abolitionists today argue against the death penalty claiming that it has not been, and cannot be, administered in a manner that is compatible with our legal system's fundamental commitments to fair and equal treatment. (19) Sarat's argument underscores dramatic changes in the framing of abolitionist arguments against the death penalty.

A change of the kind that Sarat describes can also be seen in jurisprudential opposition to capital punishment over the past forty years. (20) The opinions of Supreme Court Justices William Brennan, Bryon White, Harry Blackmun, and Stephen Breyer, in high profile death penalty cases dating back to Furman v. Georgia in 1972, capture the evolution of anti-death penalty rhetoric. (21)

While Justice William Douglas's opinion in Furman gave voice to elements of what emerged later as the new abolitionism, Justice Brennan's Furman opinion drew heavily on a moral or philosophical interpretation of the Eighth Amendment. (22) Justice Brennan noted that the argument about the death penalty is, at its core, a battle that has "been waged on moral grounds." (23) "The country," he suggested, "has debated whether a society for which the dignity of the individual is the supreme value can, without a fundamental inconsistency, follow the practice of deliberately putting some of its members to death." (24) In Justice Brennan's view, capital punishment is cruel and unusual, and thus unconstitutional because "the deliberate extinguishment of human life by the State is uniquely degrading to human dignity." (25)

Justice White joined Justice Brennan in voting to strike down the death penalty, but he did so more on pragmatic than on moral grounds. (26) For Justice White, the problem with capital punishment was that it was "so seldom imposed" that it ceased to be "a credible deterrent or measurably to contribute to any other end of punishment in the criminal justice system." (27) The death penalty amounted to the purposeless infliction of pain. (28) As Justice White put it:

I accept the effectiveness of punishment generally and need not reject the death penalty as a more effective deterrent than a lesser punishment. But common sense and experience tell us that seldom-enforced laws become ineffective measures for controlling human conduct and that the death penalty, unless imposed with sufficient frequency, will make little contribution to deterring those crimes for which it may be exacted." (29) More than two decades after Furman, Justice Blackmun turned his attention from the philosophical, moral, and pragmatic problems with capital punishment to procedural problems with what he labeled as "the machinery of death." (30) In his 1994 dissent in Callins v. Collins, Justice Blackmun argued that:

no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies.... The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution. (31) Although Justice Blackmun mentioned the "moral error" of the death penalty, he focused, to a much greater degree than either Justices Brennan or White, on defects in its administration, and he gave voice to a new abolitionist perspective. (32)

That perspective informed Justice Breyer's dissenting opinion in Glossip v. Gross, a 2015 case in which the Supreme Court approved the use of midazolam as a lethal injection drug. (33) Justice Breyer offered a wide-ranging account of possible constitutional problems with America's death penalty. (34) Justice Breyer cited three main defects: "(1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty's penological purpose." (35) All three of Justice Breyer's reasons for opposing capital punishment highlighted faults in the administration of the death penalty.

The salience of new abolitionist rhetoric was also seen in the American Bar Association's (ABA) resolution in 1997 calling for a moratorium on capital punishment. (36) The ABA resolution said that the death penalty as "currently administered" was not compatible with central values in our Constitution. (37) Like Justices Blackmun and Breyer, the ABA embraced the new abolitionism, eschewing a direct address to state violence...