Vol. 15 No.2 (February 2005), pp.118-120

EVOLVING STANDARDS OF DECENCY: POPULAR CULTURE AND CAPITAL PUNISHMENT, by Mary Welek Atwell.  New York: Peter Lang, 2004. 178pp.  Paper.  €25.00 / £17.50 / $29.95.  ISBN:  0-8204-6711-1.

Reviewed by Austin Sarat, Departments of Law, Jurisprudence & Social Thought and Political Science, Amherst College.  Email: adsarat@amherst.edu .

These are interesting times in the ongoing debate about capital punishment in the United States.  Fifteen years ago supporters of the death penalty seemed confident and on the ascendance. Newt Gingrich said that by pushing on agenda of low taxes and frequent executions conservatives could achieve a permanent political majority.

Today, however, much has changed. Supporters of the death penalty are now on the defensive. The number of people being sentenced to death has dramatically declined in the years since 1999, from a high of about 300 in that year to approximately 150 in 2004. In that same period, the number of executions in the United States fell by almost 40%. Moreover, while public opinion surveys continue to register high levels of public support for the death penalty, the support seems less intense and shallower than in the recent past. National consciousness about capital punishment now focuses on the many documented flaws in the death penalty system—poor quality legal representation, racial discrimination, and the dramatic exonerations of people erroneously convicted and sentenced to death. Instead of focusing on the morality of capital punishment, today debate centers on the question of whether we can administer a system of state killing in a manner that is compatible with mainstream political and legal values. More and more, it seems that the answer to this question is “no.”

Mary Atwell’s book sets out to help us understand how and why we have come to this point. Her premise is that Americans derive most of what they know and understand about capital punishment from popular culture, from novels, television, and movies. “It is not,” Atwell contends, “constitutional law that influences public opinion about the death penalty, but high profile cases in the news, movies, television, and books that make the issue real and tangible” (p.47).  As a result, she tries to present a comprehensive overview of the way those media portray the system of state killing.

Atwell contends that the picture of the death penalty presented in popular culture is almost uniformly negative. Indeed, she finds no book, TV program, or film that presents capital punishment in a positive light. In place after place, popular culture documents the failures of the death penalty. Atwell suggests that in so doing popular culture “forces” Americans to confront the grim realities of a system marked by negligence, abuse, and incompetence, and, in so doing, feeds our new national consciousness.

Her argument is framed by an [*119] exploration of the Supreme Court’s capital punishment jurisprudence. At the heart of this jurisprudence is a commitment to judging the constitutionality of the death penalty against “the evolving standards of decency of a humane society,” effectively putting public opinion at the forefront of the legal battle over capital punishment. While there is disagreement about precisely how to measure evolving standards of decency, it is clear that what the public thinks and knows plays a crucial role in that calculation.

To anyone familiar with the Supreme Court’s death penalty decisions, there is little in this book that will be surprising. Atwell presents a fairly condensed treatment of these decisions, documenting along the way the role played by the evolving standards of decency concept. She does a good job, however, in reminding her readers that in the United States “There is no one death penalty. The policy is implemented at the state level and, more importantly, at the local level prosecutors, judges, and jurors within the jurisdiction determine how and when a person is sentenced to death” (p.22).

To try to understand what frames evolving standards of decency concerning capital punishment as it is implemented across the United States, Atwell presents a series of readings of nonfiction and fictionalized accounts of the death penalty. Yet, it is not clear what propels the organization of this book. One chapter treats the death penalty story as concerning “real people” and combines them with so‑called “true life” novels. The following chapter focuses on novels that are transformed into film. The chapter after that considers the other death penalty films, and the final substantive chapter focuses on crime novels that take up the issue of capital punishment. What this requires is a back‑and‑forth movement from one medium to another, from text to image, from an image to text, and so forth. Atwell’s argument would have been stronger had she offered her readers some explanation for this organization.

She moves from novels to television and film, treating them together as if they made up a seamless web of story and image. This is at once both a strength of the book and a considerable weakness. The strength lies in the comprehensiveness of the picture she presents. The weakness inheres in her inattention to questions of genre. Her focus is almost entirely on the plot lines, the stories, in the books and films she discusses.

The distinctive properties and experiences associated with reading a book or watching a film play no role in her account. How readers and viewers consume these different artifacts of popular culture make no difference to her. What this means, for example, is that when she turns her attention to movies about capital punishment she has almost nothing to say about their visual properties—about, for example, camera angles, the way shots are framed, the use of setting or music in a scene. This is, I fear, all too common when legal scholars turn their attention to visual media, and it detracts significantly from the quality and sophistication of the interpretations which scholars like Atwell can provide.

Yet whatever the medium, in Atwell’s hands popular culture seems quite [*120] didactic. It serves up a rather consistent lesson about capital punishment. That lesson focuses on innocent people falsely condemned, on racism and prejudice played out where life is at stake, on the political pressures brought to bear where even-handed justice is most desperately needed. She claims in her conclusion that “As this book has repeatedly demonstrated through the use of popular representations of the death penalty, the system is more like a blunt instrument than a fine‑tuned one, more riddled with flaws than unerring, more haphazard and random than precise”(p.149).

Somewhat surprisingly, given her interest in what people know and think about capital punishment, Atwell is almost entirely inattentive to the experiences of the readers and viewers. Hers is a study of the way the death penalty is represented in popular culture, not the way popular culture is received by its consumers. How and why that reception occurs as it does seem to be of little interest to Atwell. Whether men and women, blacks and whites, young and old, read and understand in similar or different ways is left unexamined. And when she does talk about the relation between text and reader, film and viewer, her way of doing so seems to me to be rather superficial. Throughout the book, in place after place, she talks about readers and viewers being “forced” to consider capital punishment in a particular way. Thus, she says about John Grisham’s THE CHAMBER that “Grisham forces the reader to consider the reality of execution by describing the procedure in minute and objective detail” (p.107).  And, in her conclusion she argues that consumers of popular culture “cannot avoid facing the deep biases in the capital punishment system” (p.150). Yet, studies of reception demonstrate the ingenuity of readers and viewers, the unpredictability of their reactions, the situatedness of their readings, the incompleteness of their understandings, their resistance. Atwell’s treatment of popular culture and its impact on the evolving standards of decency as they pertain to capital punishment should have allowed for and recognized such slippage between the producer and the consumer, the author and the audience.

In the end, I think Atwell is on the right track in calling our attention to the cultural lives of capital punishment. She helps open up a domain of inquiry and point the way toward a linkage of law and popular culture that it is, even today, little explored or appreciated by legal scholars or those with expertise in cultural studies. There is much to be learned from her effort.


© Copyright 2005 by the author, Austin Sarat.