July 2 will mark the 40th anniversary of Gregg v. Georgia, a Supreme Court ruling that effectively re-instated the death penalty in the United States. With lower crime rates—and leaders in both parties supporting capital punishment—the debate has largely faded from the political arena in recent years.
Yet, in other ways, issues related to capital punishment are increasingly salient. The Serial podcast and the Netflix series Making a Murderer were pop culture sensations, and though not death penalty cases, they raised legitimate questions about the state’s ability to assess guilt and innocence.
For two American University School of Communication professors, Maggie Burnette Stogner and Richard Stack, capital punishment provides a window into our national psyche. Their forthcoming documentary film, In the Executioner’s Shadow, grapples with the death penalty, but it also explores larger questions about American identity, justice, and mercy.
“It’s about who we are as a country and what our values are in the 21st century,” says Stogner.
Stack is very much opposed to capital punishment, and he elucidated those arguments in two previous books, Grave Injustice and Dead Wrong. Yet after pre-film consultations, he and Stogner decided to take a more even-handed approach on this project. And they both appear excited by the prospect of reaching new people.
“We’ve discovered through our various interviews that one side talks past the other. It’s a mutual predicament. And we’re trying to get people to talk to each other,” says Stack.
In the Executioner’s Shadow features three stories that illuminate the moral dilemmas of capital punishment.
Karen Brassard, her family, and best friend were hospitalized victims of the Boston Marathon terrorist attack in 2013. The film follows Karen’s conflicted struggle over marathon bomber Dzhokhar Tsarnaev’s fate, and she ultimately decides that his crime should be punishable by death.
Vicki and Syl Schieber’s daughter, Shannon—then a graduate student in Philadelphia—was raped and murdered by Troy Graves (the so-called “Center City rapist”). The Schiebers later advocated against executing him, favoring a life without parole sentence.
Jerry Givens, the film’s fulcrum, is a former executioner in Virginia. He conducted 62 executions, but he’s since become a leading spokesperson for the anti-death penalty movement.
“We tried to take you inside a character’s world. A successful documentary reveals a world that we aren’t familiar with, or a new perspective or an untold voice,” says Stogner.
Givens is a man haunted by his experiences. Statistically speaking, Stogner and Stack say, it’s possible that one or two of the people executed during his tenure were innocent. He came within nine days of killing Earl Washington Jr., who was exonerated on the basis of DNA evidence. Years later, as part of this film, Givens reunites with Washington.
“Then we had a follow-up interview to see this big, burly executioner, with tears rolling down his face. It was pretty emotional,” Stack recalls.
A System Overwhelmed
That pertinent issue of guilt versus innocence, Stack believes, helps facilitate dialogue between opposing sides of the death penalty debate. “It’s common ground that pulls the political left and the political right together, because nobody in their right mind wants to see an innocent person executed,” he says.
According to the Death Penalty Information Center, there have been 156 individuals on death row exonerated since 1973. Stack says there are a number of reasons why errors are made: mistaken eye witness identification, unreliable “snitch” testimony in exchange for deals, inadequate defense representation, to name a few.
“It’s a flawed system. And, for me, that’s probably the bottom line argument for not having such definitive punishments,” says Stack.
The system is also costly and cumbersome, and Stack thinks this may increase skepticism from fiscal conservatives. Earlier this year, The Intercept reported that some 750 people were on California’s death row, while “condemned inmates spend years just waiting to be appointed lawyers who can handle their case.”
This fall, California will hold a ballot initiative on repealing the death penalty, and there’s another proposed initiative to speed up the execution process.
During the Gregg v. Georgia debate 40 years ago, some Supreme Court justices wanted the practice to be more consistent and less arbitrary. But death penalty reformers charge that the system is now extremely arbitrary, with the vast majority of executions carried out in a small number of states.
Eighteen states have abolished the death penalty, with Nebraska’s repeal on hold until a November referendum. Stogner and Stack say that anti-death penalty activists are looking at 26—the majority of states—as a possible threshold for a constitutional challenge.
“The idea is that if it gets to be 26 states that overturn it, then it goes back to the Supreme Court to be reviewed under cruel and unusual punishment,” Stogner says. “The momentum is definitely going in the direction of more people being anti-death penalty.”
Out of Sight, Out of Mind
Sister Helen Prejean—portrayed by Susan Sarandon in the film Dead Man Walking—is a spiritual hero of the anti-death penalty cause. She has said that capital punishment persists because most people are removed from the practice.
“Capital punishment is hidden from public view. It’s not televised. People don’t go and witness it, like they used to in a town square,” Stogner explains. “It’s not part of the community. It’s a state function, and it’s out of sight, out of mind.”
In the Executioner’s Shadow drives this point home through the story of Jerry Givens. His work as chief executioner was a closely guarded secret, and his own wife only knew him as a “prison guard.”
Potential changes in California—and certainly a future Supreme Court challenge nationally—could bring this issue to the forefront once again. And Stack and Stogner are hoping their film—slated for release in late 2016 or early 2017—could contribute to a revived capital punishment debate.
Stack concludes, “We’re trying to get people to think about something they don’t like to think about.”