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Drawing from televised debates over capital punishment on CNN’s Crossfire from February 2000 to June 2002, I argue that Teles’s (1998) theory of “dissensus politics” is useful in understanding the U.S.’s preservation of capital punishment as well as current divisions in death penalty sentiment within the U.S. I pose the retention of capital punishment as the product of rival elites who are unwilling to forsake capital punishment’s moral character (and often the political benefits it offers), and who consequently ignore an American public that appears to have reached a measured consensus of doubt about the death penalty.

This paper examines coverage of America’s death penalty in “mainstream” and “radical” newspapers in the 1970s. That decade was a crucial period for capital punishment, and newspapers during that time helped set the trajectory of the public’s awareness and understanding for the remainder of the twentieth century. While scholars have recognized the role played by newspaper framing of capital punishment, most have limited their consideration to the mainstream press. We broaden the consideration to the radical press and note similarities in the treatment of the moral status of the death penalty across newspapers of different types. We find that the radical press was more likely to portray it as an instrument of racial and class oppression. In addition, long before mainstream papers attended to questions about the reliability of the death penalty system, radical papers were calling attention to the number of innocent people who were erroneously sentenced to death. Like dissenting opinions in judicial decisions, the radical press highlighted issues not emphasized in mainstream papers and foresaw concerns that would become important in the death penalty debate a decade or two later.

The debate about the future of the death penalty often focuses on whether its supporters are animated by instrumental or expressive values, and if the latter, what values the penalty does in fact express, where those values originated and how deeply entrenched they are. In this chapter, I argue that a more explicit recognition of the emotional sources of support for and opposition to the death penalty will contribute to the clarity of the debate. The focus on emotional variables reveals that the boundary between instrumental and expressive values is porous; both types of values are informed (or uninformed) by fear, outrage, compassion, selective empathy and other emotional attitudes. More fundamentally, though history, culture and politics are essential aspects of the discussion, the resilience of the death penalty cannot be adequately understood when the affect is stripped from explanations for its support. Ultimately, the death penalty will not die without a societal change of heart.

The very contextual nature of most mitigating evidence runs counter to America’s individualistic culture. Prior research has found that capital jurors are unreceptive to most mitigating circumstances, but no research has examined the capital sentencing decisions of trial judges. This study fills that gap through a content analysis of eight judicial sentencing opinions from Delaware. The findings indicate that judges typically dismiss contextualizing evidence in their sentencing opinions and instead focus predominately on the defendant’s culpability. This finding calls into question the ability of guided discretion statutes to ensure the consideration of mitigation and limit arbitrariness in the death penalty.

This chapter explores knowledge practices around the subject of capital punishment. Capital sentencing jurisprudence and certain strands of academic scholarship on the death penalty have certain resonances with recent developments in reflexive cultural anthropology. Using the notion of productive unraveling, this chapter seeks to reinforce relations between these various knowledge practices by conceiving of them as situated on the same ground, already interwoven with one another. This chapter presents itself as both an example of and a call for the development of interconnections between these various kinds of expert knowledges concerning the death penalty.

Punishment is essentially about the expression and establishment of power. As such, punishment always carries with it the possibility of debasement. I want to insist that the only morally legitimate purpose of punishment is to instill a respect for authority that does not demean the subordinated party (for example, as a parent might punish his or her child). In sum, my argument is that although harsh institutional punishment may be justifiable on utilitarian grounds, it is objectionable for aesthetic reasons that are ultimately far more important. As Nietzsche caustically recognized in the case of Christianity, the metaphysics of punishment is driven by the ugly feeling of ressentiment. Nevertheless, Christianity does emphasize one aspect of the question of punishment that Nietzsche would enthusiastically embrace: the attitude of forgiveness (or the act of mercy). For Nietzsche, mercy is a reflection of a beautiful strength. A new punitive paradigm, one that asserted superiority without debasing the criminal, might pave the way for a more general affirmation of life.

This chapter calls attention to penal regime shifts, emphasizing the importance of comparing different periods of prison development. In particular, it examines different instantiations of prison across time.

I discuss three periods of prison development (1790–1810s, 1820–1860, and 1865–1920), focusing on the nature of prison diffusion across the United States. Specifically, I discuss the homogeneity and diversity of prison forms in each period.

I demonstrate that the first two periods were particularly homogenous, as most states that adopted prisons followed a single model, the Walnut Street Jail model (1790–1810s) and the Auburn System (1820–1860), respectively. By contrast, the post—Civil War period experienced the emergence of women’s prisons, adult reformatories, and distinctively Southern approaches to confinement. Using neo-institutional theory, I suggest this post-war proliferation of prison forms was only possible because the prison had become institutionalized in the penal landscape.

Scholars rarely examine multiple shifts in penal regime together, reducing their ability to make comparative insights. This chapter juxtaposes three historical periods of prison development, thereby illustrating the diversity of the third period and improving extant understandings of prison evolution.

Based on interviews with 27 victims’ family members and survivors, this chapter explores how memory of the Oklahoma City bombing was constructed through participation in groups formed after the bombing and participation in the trials of Timothy McVeigh and Terry Nichols. It first addresses the efficacy of a collective memory perspective. It then describes the mental context in which interviewees joined groups after the bombing, the recovery functions groups played, and their impact on punishment expectations. Next, it discusses a media-initiated involuntary relationship between McVeigh and interviewees. Finally, this chapter examines execution witnesses’ perceptions of communication with McVeigh in his trial and execution.

This chapter examines jury nullification, through which American juries refuse to convict criminal defendants in the face of overwhelming evidence of guilt to express disapproval of specific criminal laws or of their application to particular defendants, through the political theory of Carl Schmitt. It distinguishes liberal components of American jurisprudence, especially the rule of law, from democratic sovereignty, and shows how the two are in deep tension with one another. In light of this tension it argues that jury nullification amounts to democratic sovereignty applied counter to the liberal state in a way that paradoxically upholds individual liberty.