The Waiver and Withdrawal of Death Penalty Appeals as "Extreme Communicative Acts"

Article excerpt

Abstract: Since Gregg v. Georgia, 428 U.S. 153 (1976)-the Supreme Court case that permitted the resumption of capital punishment in the United States-1203 executions have been carried out. One hundred and thirty-four (134) executions have involved "volunteers" of all races-individuals who waive or withdraw appeals at a point when viable claims still exist in their cases. This paper explores the power struggle between the State and the condemned over the timing and conditions under which an inmate is executed. It begins with a discussion of current public opinion about the death penalty and the ways in which the death penalty has been resisted. Next, it describes capital defendants who elect execution over life imprisonment and considers some of the reasons proffered for waiver and withdrawal. This paper then contemplates whether some instances of "volunteering" should be regarded as "extreme communicative acts" (Wee 2004, 2007)-non-linguistic communicative acts that are usually associated with protest, especially in the context of a lengthy political struggle (such as hunger strikes, self-immolation, and the chopping off of one's fingers). In so doing, this paper weighs in on the larger questions of who ultimately controls the body of the condemned and what governmental opposition to waiver and withdrawal may reveal about the motives and rationale for the death penalty. This paper also furthers research on how the prison industrial complex is resisted and how State power more generally is negotiated.

Keywords: death penalty/death row; hunger strike; power; protest; resistance; self-immolation; volunteer; waiver; withdrawal

INTRODUCTION

According to the 2008 year-end report by the Death Penalty Information Center (DPIC), a research and anti-death-penalty advocacy group, use of capital punishment in the United States has continued to wane (Death Penalty Information Center 2008; see also Moore 2008). State and federal courts executed thirty-seven inmates in 2008-a fourteen-year low. The thirty-seven executions also represent a continued downward trend from a peak of ninety-eight in 1999. In addition, state and federal courts sentenced 111 criminal defendants to death in 2008, the lowest number of per annum condemnations in three decades. Most significantly, the lull in executions defied expectations that more inmates would be put to death after the U.S. Supreme Court's 2008 ruling in Baze v. Rees, which upheld Kentucky's method of lethal injection and ended a de facto eight-month moratorium (from September 2007-April 2008). Instead, twenty-five executions were stayed in the aftermath of Baze v. Rees, as courts wrestled with issues involving mental illness, actual innocence, and ineffective assistance of counsel. The case of Troy A. Davis, in particular, has attracted international attention because seven of the nine witnesses against the Georgia inmate have recanted their testimony (Brown 2008a).

This is not to suggest that the country as a whole is uniformly moving in the direction of abolition. A Gallup poll conducted in October 2008 revealed that a majority of the public still supports the death penalty, although the numbers are down-64 percent of those surveyed indicated that they were in favor of the death penalty for a person convicted of murder in comparison to 69 percent in 2007 (Saad 2008). In the aftermath of a Georgia jury's failure to agree on the death sentence for Brian G. Nichols, who killed four people in an Atlanta courthouse escape in 2005, Georgia legislators have begun lining up to introduce bills that would end the requirement of a unanimous jury verdict for a death sentence (Brown 2008b). In December 2008, a New Hampshire jury issued the state's first death sentence in almost fifty years (Zezima 2008). And in 2008, the U.S. Supreme Court declined to expand the death penalty to non-homicide offenses, striking down Louisiana's death penalty for the rape of a child in Kennedy v. …

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