# What last meals can teach us about the death penalty

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After reading hundreds of articles about the trials, appeals and executions of criminals for my research assistantship I’ve become depressingly familiar with the tradition of reporting on an individual’s last meal. In the US, most states offer individuals on death row the opportunity to choose their last meal. The details of these requests appear in almost every article covering an execution, sometimes incorporated into the article, and surprisingly often as an afterthought, “He was pronounced dead at 12:17 am, following 15 years of appeals and an unwavering assertion of his innocence. In his final words he expressed his love and gratitude to his family. Oh, and his last meal was pecan pie.” I knew this practice existed, I’ve seen it in news coverage before, but reading mentions of last meals back to back to back was different. It made me realize just how weird, and contradictory and depressing the practice is.

Brent Cunningham has a great essay on last meals in which (among many other things) he traces the tradition back to ancient Greece and Rome, specifically to Roman gladiators who were fed lavish meals before their day in the Coliseum. The public obsession with last meals is much more recent, and probably stems from the shift away from public executions in the US – which has left the public with less opportunity to view executions but no less interest in them. And the media are well aware of this interest. CBS News coverage of last meals describes them pretty accurately as “an enduring, if morbid, source of fascination.” The Huffington Post, covering a website dedicated to last meals, describes them as “fascinating yet creepy.”

Blogs and crime tv website coverage of last meals trends towards morbid curiosity and frivolity. TruTv’s slideshow features mugshots and below, urges viewers to “also check out: hot celebs pretending to eat.” Headline News’ gallery is titled “Gatorade to Lobsters: Serial Killer’s Last Meals” and more disturbingly, features a smug Nancy Grace staring out from the page banner.

There is also work on last meals that is reverent and striking, including Celia A. Shapiro and Mat Collishaw‘s photo essays featured in MotherJones and Time respectively. Recognizing the power of the idea (and images) of the last meal, Amnesty International recently commissioned artist James Reynolds to recreate the last meals of men who were later proven innocent. The meals featured in an anti-death penalty campaign alongside the dates individuals were executed and presumed or proven innocent.

The Last Last Meal

In 2011, Texas, the state with by far the highest number of executions, ended this tradition following the execution of a man who did not eat any of the enormous meal he had requested (it included over ten items, one of which was a pound of bbq). Notably, the inmate in question was Lawrence Brewer, a white supremacist sentenced to death for the gruesome, racially motivated murder of James Byrd Jr. – a murder which motivated the passage of a Texas hate crime law and the Federal Hate Crimes Prevention Act.  Not surprisingly, Brewers final act outraged many, including State Senator John Whitmire, who called on the executive director of the Texas prison agency to end the practice of last meals. Within hours, the prison agency’s executive director had terminated the policy, effective immediately. The New York Times spoke to Whitmire about his opposition, which he said had little to do with cost and state budgets:

“He never gave his victim an opportunity for a last meal…Why in the world are you going to treat him like a celebrity two hours before you execute him? It’s wrong to treat a vicious murderer in this fashion. Let him eat the same meal on the chow line as the others.”

Whitmire was right not to worry about cost, since last meals are rarely as extravagant as they seem. In fact, the last meals published are generally what is requested, not what prisoners actually get. In most states there are limitations on what can be provided. In Florida, last meals can cost no more than $40 and all ingredients must be local. California provides last meals costing up to$50 and Oklahoma (the state with the third most executions) budgets just \$15 for last meal provisions. Following the change in Texas policy, Timothy Williams of the Times interviewed a Brian D. Price, a former Texas death row chef who description of his efforts to fulfill last meal wishes is worth quoting in full:

“The Texas Department of Corrections has a policy that no matter what the request, it has to be prepared from items that’s in the prison kitchen commissary. And, like if they requested lobster, they’d get a piece of frozen pollock. Just like they would normally get on a Friday, but what I’d do is wash the breading off, cut it diagonally and dip it in a batter so that it looked something like at Long John Silver’s — something from the free world, something they thought they were getting, but it wasn’t. They quit serving steaks in 1994, so whenever anyone would request a steak, I would do a hamburger steak with brown gravy and grilled onions, you know, stuff like that. The press would get it as they requested it, but I would get their handwritten last meal request about three days ahead of time and I’d take it to my captain and say, “Well, what do you want me to do?” And she’d lay it out for me. I tried to do the best I could with what I had. Amazingly, we did pretty well with what we did have. They are served two hours before they are executed and it is no longer a burger and fries or a bacon, lettuce and tomato sandwich or whatever they requested. All it is, two hours later, is stomach content on an autopsy report.”

As Price’s experience suggests, the tradition of the last meal is often misrepresented and is inherently counter intuitive. The “choice” of steak or lobster in reality amounts to a choice of reimagined prison staples. And two hours later the privilege of a personalized and (we imagine) comforting last meal is “stomach content on an autopsy report.”

Why Last Meals?

All of this brings  us to the question  of the purpose of last meals. Susan Jacobson reported on the ritual of the last meal following the Texas policy change, asking death penalty scholars and Florida prison officials about the purpose of the last meal. Explanations of the last meal emphasized treating the pre-executed with dignity, and demonstrating the absence of malice on the part of the state. According to Florida prison official Jessica Cary:

Last meals are a way to provide humane treatment in a dignified death-penalty procedure

U of Florida law professor Bob Dekle explained,

“the last meal is part of the process to demonstrate there is no malice on the part of the people who carry out the execution.”

Asked about Texas’s decision to revoke individualized last meals, former death row chef Brian Price echoed these justification:

“No, these people don’t deserve a last meal request, but we as a society have to show that softer side, that compassion. It’s bad enough that we have the death penalty, it’s so archaic, but then to turn around and say, “No, we’re not going to feed you,” just out of pure meanness or something. I don’t know. We have to show that we are not distorting that justice with revenge.”

As these quotes suggest, the mythology surrounding last meals lends an air of dignity to the proceedings, and absolves the state and the people of any appearance of malice, both of which help to clearly set us apart from the individuals we execute. In an article in Law and Society Daniel LaChance argues that allowing (and publicizing) last meals and last words is part of the state’s effort to demonstrate prisoner’s individuality and agency in the face of a penal system that achieves complete control over inmates (think of how rarely inmates physically resist execution). This is necessary if executions are to be retributive because it is difficult to feel catharsis, relief or social solidarity at the execution of someone we had already rendered completely docile and powerless. The last words and last meal re-establish a prisoner’s agency and individuality, demonstrating that they are “self-made monsters” who have chosen the path that led them to execution, and allowing executions to serve their emotional, social purpose.

As LaChance notes, most people facing death row are well aware that their last meal choices will be reported to the media. In participating in these rituals of agency they are thus simultaneously demonstrating individuality (choosing foods that represent them, symbolize the familiar or in the case of the many lobster requests, status) and participating in the process of their own execution (performing an act – requesting their meal – that is vital to the ritual of execution in the United States). Some might actually take some individual pleasure out of their final meal but reports suggest that many find themselves without any appetite. A rare few exercise their limited agency by treating the last meal as an opportunity for religious or political expression – Jonathan Nobles requested the Eucharist. Odell Barnes Jr. asked for “Justice, Equality, World Peace” and Robert Madden asked that his last meal be provided to a homeless person. But of course these requests went unfulfilled.

According to Gallup polling, support for the death penalty is at the lowest it’s been since the Supreme Court instituted a four year moratorium on executions in 1972. It’s still a majority (about 60%), but support seems to be steadily (if slowly) declining. A closer look at the practice of last meals suggests that despite overwhelming historic support for the death penalty, executions must be conducted in a very particular way, must strike a delicate balance, in order to satisfy the public. They must be retributive but not malicious, must simultaneously demonstrate and revoke the agency of the executed, must exhibit mercy but not too much mercy.

The response to recent shortages in the drug cocktail used in lethal injections also reflect the balancing act at work in implementing the death penalty. In this case, the difficulty is one of walking the line between execution and cruel and unusual punishment. Ohio recently executed a man using a new, untested cocktail and according to witnesses the results were horrifying. Andrew Johnson of the Columbus Dispatch reported on what was one of the longest executions in Ohio’s history:

At about 10:33 a.m., McGuire started struggling and gasping loudly for air, making snorting and choking sounds that lasted for at least 10 minutes, with his chest heaving and his fist clenched. Deep, rattling sounds eminated from his mouth. For the last several moments before he was pronounced dead, he was still.

The execution got significant press coverage, and the New York Times claimed that it had renewed the debate over lethal injections.  Because we can kill individuals with a lethal and potentially painful cocktail of drugs, as long as we don’t see them express their pain (or too much pain), as long as their death is quick and quiet. Of course there will always be those who could care less about dignity or mercy, and for them the death penalty doesn’t need to strike any balance other than that of an eye for an eye. In response to the controversy over the Ohio execution Kent Scheidegger, legal director for the Criminal Justice Legal Foundation told the New York Times “O.K., I’ve made snoring noises. What’s not disputed is he got a large dose of sedative. We’ve gotten namby-pamby to the point that we give murderers sedatives before we kill them.”

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## One thought on “What last meals can teach us about the death penalty”

1. Isaac Binkovitz says:

That kind of indifference is worse than “eye for an eye.”

Bava Kamma 84a, Seder Nezikin: “One who blinds another’s eye pays the damaged person money in proportion to the damage done.” As a cap on civil tort damages, an eye for eye, a tooth for a tooth requires just monetary compensation but no more.

Killing a potentially innocent person with total indifference is barbaric even by the standards of the ancient world.

Talmudic requirements for conviction of a capital offense would lead to substantially fewer executions than we have now. There had to be two eye witnesses, who warned the accused before the crime that the crime was a capital offense, the accused had to acknowledge that he knew this before starting to commit the crime, the witnesses had to each corroborate each other and attest that they saw each other at the scene, there had to be 23 judges, of whom at least 13 had to vote to convict, and the accusing witnesses were tasked with carrying out the execution. If the verdict was unanimous, you would go free because unanimity is suspect. And you can’t be tried twice for the same crime.