January 28, 2022
Thanks to Rebecca L. Thacker, a 2021 HMU Fellow in Ideas, for today’s post.
As we enter the new year, as per usual the media is filled with “year-in-review” articles and listicles: the year’s best books, tv, movies, and music, the top ten highlights of 2021, those we’ve lost in 2021. The Associated Press’s Year in Review features articles on the January 6 insurrection, the billionaire space race, and cinematographer Halyna Hutchins’ shooting death. A Google search reveals several predictably common threads including the pandemic, vaccines, the revival of the American labor movement, climate disruption. I’m surprised, though, that I haven’t yet read a year in review describing 2021 as the “year of exonerations.” Several high-profile convictions were overturned this year. I’ve followed two cases in particular —In Oklahoma, Julius Jones was scheduled to die by lethal injection for a 1999 murder he has always said he did not commit. Oklahoma Governor Kevin Stitt commuted his sentence to life without parole at the eleventh hour. And in November, a Manhattan judge overturned the conviction of Muhammad A. Aziz and Khalil Islam for the 1965 murder of Malcolm X after a review found that evidence pointing to their innocence was withheld by the FBI and other law enforcement agencies.
Following these cases of wrongful imprisonment has inspired me to revisit the play The Exonerated (2000), a documentary anthology play by activists Jessica Blank and Erik Jensen. It’s a text my students and I have explored in Socratic seminar. The play is an affecting example of the role literature can play in exposing societal injustice. (Unfortunately), the play is just as socially relevant in 2021 as it was twenty years ago. In this post, I read The Exonerated through the lens of feminist performance theorist Diana Taylor’s theory of artivism in order to illuminate the efficacy of The Exonerated as an artivist performance.
During the summer of 2002, Blank and Jensen traveled the United States and interviewed individuals who had spent from two to twenty-two years on death row before each was exonerated and set free. From the forty-plus interviews, the playwrights selected the stories of six of these exonerees to form the basis of the play. Director Bob Balaban opened The Exonerated off-Broadway at October 2002. After this opening run ended in March 2004, Balaban directed a film version of the play which was released to DVD in March 2006. The script is based on the aforementioned six exonerees’ personal interviews as well as on documents, depositions, testimony, and letters. The six exoneree/characters are: Gary Gauger, convicted of murdering his parents in 1993, exonerated 1997; Delbert Tibbs, convicted of rape and murder in 1974, exonerated in 1976; Robert Earl Hayes, convicted of murder in 1990, exonerated 1997; Kerry Max Cook, convicted of murder in 1977, exonerated in 1997; David Keaton, convicted of murdering a police officer in 1971, exonerated 1973; and Sonya “Sunny” Jacobs, convicted of murdering two police officers in 1976, released in 1992.
Blank and Jensen are what Diana Taylor calls “artivists”: they “use performance to intervene in political contexts, struggles, and debates” (Performance, 2012, 147). Specifically, Blank and Jensen use The Exonerated to intervene in America’s death penalty debate, but from a unique position. Rather than arguing for or against the morality of the death penalty itself, Jensen and Blank’s play takes a more nuanced position. The play questions the morality of continuing to allow the death penalty in the United States when we know that, along with the guilty, we are also most certainly executing innocent, wrongly convicted citizens. According to the national non-profit Death Penalty Information Center (DPIC), since the reinstatement of the death penalty in 1973, more than 186 individuals have been exonerated of the wrongful convictions that sent them to death row. The National Registry of Exonerations has tracked every known exoneration in the U.S. since 1989 — we’re at 2927 overturned known false convictions and counting.
As an artivist text, The Exonerated calls on its spectators to become what Diana Taylor calls “Spect-Actors” (Performance, 2012, 73). Taylor argues that performances either can normalize behaviors, or they can shock and challenge normative beliefs. Artivist performances strive to challenge spectators’ beliefs, inspiring them to act after the performance has concluded. Artivist performances also often foreground gender, race, and class struggle in order to transform spectators into these activist spect-actors. The Exonerated is a transformative performance that critically engages and shocks spectators; it challenges the commonly held belief that the U.S. justice system is fair and unbiased for all citizens. The play asks, what happened in our justice system to cause these injustices?
From the image of Lady Justice outside our courtrooms, to the allegorical story of the battle of Good versus Evil, U.S. justice is figured as blind, impartial and fair, but in these cases, this artivist play effectively argues, it was certainly not colorblind. Because the text of each arrest and interrogation is taken directly from official court documents, spectators cannot deny the racial bias inherent in each case. This aspect of the play functions as a timely and effective example of artivism: by foregrounding Tibbs’, Hayes’, and Keaton’s cases, the play shines a spotlight on the racial disparities endemic to our contemporary justice system.
Blank and Jensen’s play also foregrounds the role class, gender, and sexuality biases played in these six wrongful convictions. For example, each of the exonerees featured in the performance was represented by a public defender. Sunny Jacobs, the first woman in the United States to be sent to death row, states, “I didn’t have any investigators. I didn’t have any expert witnesses. I didn’t have thousands of dollars. My parents said, ‘Well, you know, we were told we could try and get you a better lawyer, but you have a lawyer, they’ve appointed you one, so it’s ok.’ We didn’t know” (0:40:21-0:40:43). David Keaton was questioned without benefit of counsel, despite requesting legal assistance (Blank & Jensen, The Exonerated, 2004, p. 44). At the time of the murder for which he was convicted, Kerry Max Cook was a bartender at a gay bar. In court, the prosecutor accused Cook of being gay, and linked sexuality to Cook’s alleged motive, “This is the kind of sick perversion that turns Kerry Max Cook on . . . Do you want to give this pervert his butcher knife back? Now, we must look upon it as putting a sick animal to sleep” (0:37:30-0:38:55).
The Exonerated functions as an “act of contestation” (Performance 113). Taylor argues that such artivist performances “recontextualize, resignify, react, challenge, parody, perform, and reperform differently” (116). This performance calls on its spectators to resignify the terms of the death penalty debate, shifting it from a question simply of “is killing a murderer right or wrong?” It challenges spectators to answer that question once they know that many of those who are executed by our government could be innocent.
The Exonerated is a consciousness-raising, bearing witness to the injustices inherent in our justice system with the goal of inspiring viewers to act in order to effect positive change. Delbert Tibbs, the exoneree/character who functions as a Greek chorus in the play, concludes The Exonerated by addressing the potential spect-actors in the audience, “It is necessary to be curious, and dangerous to dwell here. To wonder why and how and when is dangerous, but that’s how we get out of this hole” (1:23:44). Although the number of death penalty sentences is the U.S. is steadily decreasing, the number of exonerations for all categories of cases is on the rise (there were183 exonerations in 2016 alone). The play reframes the central question of the death penalty debate from “Does a person convicted of a serious crime deserve to die?” to “Given the possibility that we may be executing an innocent person, do we deserve to issue the death penalty?”. This theme continues to resonate more than twenty years after the play was first performed. And so, in this new year, I encourage you to read or watch The Exonerated.
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