Cold Comfort Food: A Systematic Examination of the Rituals and Rights of the Last Meal

Mercer University School of Law Mercer University School of Law

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Cold Comfort Food: A Systematic Examination of the Rituals and Cold Comfort Food: A Systematic Examination of the Rituals and

Rights of the Last Meal Rights of the Last Meal

Sarah Gerwig-Moore

Mercer University School of Law

, gerwig-moore@law.mercer.edu

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Sarah L. Gerwig-Moore, et al.,

Cold Comfort Food: A Systematic Examination of the Rituals and Rights of

the Last Meal

, 2 Brit. J. Am. Legal Stud. 411 (2014).

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409

COLD (COMFORT?) FOOD: THE SIGNIFICANCE OF LAST

MEAL RITUALS IN THE UNITED STATES

SARAH L.

ERWIG

-M

OORE

Merceer University School of Law

NDREW DAVIES

State University of New York at Albany

ABRINA A

TKINS

Baker, Donelson, Bearman, Caldwell & Berkowitz P. C

ABSTRACT

Last meals are a resilient ritual accompanying executions in the United States. Yet

states vary considerably in the ways they administer last meals. This paper ex-

plores the recent decision in Texas to abolish the tradition altogether. It seeks to

understand, through consultation of historical and contemporary sources, what

the ritual signifies. We then go on to analyze execution procedures in all 35 of the

states that allowed executions in 2010, and show that last meal allowances are

paradoxically at their most expansive in states traditionally associated with high

rates of capital punishment (Texas now being the exception to that rule.) We con-

clude with a discussion of the implications of last meal policies, their connections

to state cultures, and the role that the last meal ritual continues to play in contem-

porary execution procedures.

Associate Professor, Mercer University School of Law.

Director of Research, New York State Office of Indigent Legal Services & Post-doctoral

Fellow, State University of New York at Albany.

Associate, Baker, Donelson, Bearman, Caldwell & Berkowitz P. C. We would also like

to express our deep appreciation for the able research and editorial assistances of Bethany

Veasey, who gathered the lion’s share of the data relied on, and Natasha Crawford, Dale

Brantley, and Jessica Lee.

3 Br. J. Am. Leg. Studies (2014)

410

CONTENTS

INTRODUCTION .......................................................................... 411

I. THE CONTEMPORARY POLICY CONTEXT IN TEXAS ............ 412

II. CONTEXT AND PERSPECTIVE............................................... 416

A. ORIGINS OF AND SUPPORT FOR THE TRADITION OF THE

AST MEAL ........................................................................... 417

B. LAST MEALS AS POLITICAL STATEMENTS: WHAT THEY MAY (AND

AY NOT) MEAN ................................................................... 418

C. LAST MEALS OFTEN REVEAL SOMETHING SPECIAL AND

TENDER ABOUT A PRISONER- OR THE ONES GUARDING

IM ..................................................................................... 420

III. G

ETTING THE RITUALS RIGHT: WHY DO STATES MAKE

THE DECISIONS THEY DO ABOUT LAST MEALS? ................ 422

A. APPETITE SUPPRESSANTS: A DESCRIPTION OF THE RESTRICTIONS

STATES IMPOSE ON LAST MEALS .............................................. 422

B. ECONOMICS, PUNITIVITY OR RITUALISM? EXPLAINING

THE CHOICES STATES MAKE ................................................... 427

i. Economics and Security ...................................................... 427

ii. Punitive Penal Culture ........................................................ 428

iii. Retributive Ritualism and the Use of Capital Punishment .......... 429

C. ANALYSIS AND RESULTS .......................................................... 429

D. DEATH REALLY IS DIFFERENT ................................................. 432

IV. ANALYSIS AND CONCLUSION ...................................... 433

A. DO MERCY AND CRUELTY SHARE THE SAME DINNER

ABLE OR IS BLIND TRADITION THE MAIN COURSE? .................. 433

i. Cruelty ............................................................................ 433

ii. Guilt ................................................................................ 434

iii. Mercy .............................................................................. 435

iv. Blind Tradition .................................................................. 436

a. Historical Significance .................................................. 436

b. Texas .......................................................................... 437

B. IF THE PHILOSOPHY IS KINDNESS, THE KEY IS

CODIFICATION ..................................................................... 438

Cold (Comfort?) Food

411

INTRODUCTION

There is no shortage of controversy surrounding capital punishment in Amer-

ica. From innocence to lethal injection, from remorse to retribution, the issue is as

complex and painful as any modern policy issue can be. About the same time that

Troy Davis – a man whose innocence was proclaimed by supporters from his trial

witnesses to the Dalai Lama – was executed in Georgia in the fall of 2011, the

execution of a Texas man convicted of a brutal hate crime sparked its own brand

of controversy. Lawrence Russell Brewer’s case, however, seems to have gained

notoriety more because of the change in Texas policy it provoked than because of

Brewer’s crime or eventual punishment.

Brewer had been convicted in the late 1990’s and sentenced to die by lethal

injection for dragging James Byrd, 49, to his death in Jasper, Texas.

With his

execution looming, Brewer requested a final meal of two chicken fried steaks, a

triple meat bacon cheeseburger, a cheese omelet, fried okra, fajitas, a pint of ice

cream, a pound of barbecue with white bread, a pizza, and three root beers.

With

an extravagant meal in front of him (although it is not clear that he was served his

entire request), Brewer didn’t eat a bite. When Texas State Democratic Senator

John Whitmire learned of the request (and Brewer’s failure to eat his final meal),

he wrote a letter to the Texas Criminal Justice Division requesting that it immedi-

ately end the last meal practice and warning that if it did not, he would introduce

legislation to end the practice in the next session. “It is extremely inappropriate,”

Whitmire wrote, “to give a person sentenced to death such a privilege.”

In this article we review the meaning and substance of the last meal ritual

through a consideration of legal and empirical evidence. In Section I we raise the

question of what Texas ‘lost’ when it discarded the last meal tradition. We exam-

ine the manner in which the decision was taken, the process used, and the reasons

given by those involved. We end with a consideration of the possible impact on

those most directly affected – condemned inmates and their jailers.

In Section II we review evidence on the cultural roles that last meals play,

and have played, in execution rituals. A brief historical review reveals many forms

last meals have taken, and their remarkable endurance through different epochs.

Next, we review the use of last meals as a means of sending a political message –

both by condemned inmates and other commentators. Last, we consider the rare-

fied interactions that the occasions of last meals produce between condemned in-

mates and their jailors – from the somber to the light-hearted, the disengaged to

the compassionate.

In Section III we examine the different rules that exist in states regulating the

content of last meals. We review the details of these policies, and then divide states

into groups based on whether they permit greater or lesser choice among inmates



See 3 Whites Indicted in Dragging Death of Black Man in Texas, CNN.COM (July 6,

1998 11:07 pm), http://edition.cnn.com/US/9807/06/dragging.death.02/

See TEXAS ENDS ‘LAST MEALS’ FOR DEATH ROW INMATES, LA TIMEs Blog (Sept. 23, 2011,

2:03 pm), http://latimesblogs.latimes.com/nationnow/2011/09/texas-ends-death-row-

inmates-final-meals.html.

See Manny Fernandez, Texas Death Row Kitchen Cooks Its ‘Last Meal’, N.Y. TIMES, Sept.

23, 1991, at A17, available at http://www.nytimes.com/2011/09/23/us/texas-death-row-

kitchen-cooks-its-last-last-meal.html?_r=0.

3 Br. J. Am. Leg. Studies (2014)

412

in what they might request for their final meal. We then use some statistical com-

parisons to show that states which execute the most people are also those with the

fewest restrictions on what might be provided in a last meal. Further, our findings

also suggest a strong relationship between fundamentalist Protestant religious pop-

ulations in states and their willingness to honor elaborate meal requests. We sug-

gest some possible interpretations of these findings, which suggest that those with

the strongest attachment to the death penalty may also be those most invested in

the panoply of ritual which surrounds executions themselves.

In Section IV we elucidate four major themes present throughout contempo-

rary discussions of the last meal: that it is cruel, that it is offered out of guilt, that

it is a gesture of mercy, and that it is a vestige of a bygone era. Our discussion

suggests these descriptions may all be fair at times, but that above all the ritual

itself has the intrinsic property of recognizing the humanity, if not the dignity, of

the condemned inmate, and that as such it should be protected through statutory

codification.

I. THE CONTEMPORARY POLICY CONTEXT IN TEXAS

The really surprising thing about the abolition of the last meal privilege in

Texas is how easy it was. It took only one individual – Texas State Senator John

Whitmire, representative for parts of the city of Houston and Harris County, and

Chair of Texas’ Senate Criminal Justice Committee – to write to the Texas Depart-

ment of Criminal Justice (TDCJ) to express his moral outrage at Lawrence

Brewer’s last meal.

“He never gave his victim an opportunity for a last meal,”

Senator Whitmire explained, “It’s wrong to treat a vicious murderer in

this fashion.

Let him eat the same meal on the chow line as the others.”

TDCJ Executive Di-

rector Brad Livingston agreed and the matter was settled.

Casually breaking with a Texas tradition that extended back 87 years, the

Criminal Justice Division immediately and summarily ended its practice of offer-

ing Texas death row prisoners the opportunity to request a special last meal.

Pris-

oners scheduled to be executed are now served the same meal offered to all

other

prisoners.

With a history that goes back centuries, how could a single state legislator

successfully demand the end of this tradition? What does a final meal ritual reveal

about the larger, legal processes implicated by the death penalty, and what insight

might it offer into the personal relationships between the prisoners and those who

guard them? Is there something about a sentence of death that calls for ritual cour-

tesies, or are such courtesies weak and meaningless in the face of an execution?

Regrettably, Livingston’s deliberative process is not yet a matter of public

record. It is not difficult to imagine how it would have proceeded in an ideal world,

however. Livingston’s decision ought to have required him to answer at least three

fundamental questions. First, what is being abolished? The last meal is a complex

and long-lived ritual and one should know what is being given up in

advance of



See TEXAS ENDS ‘LAST MEALS’ FOR DEATH ROW INMATES, supra note 5.

See Manny Fernandez, supra note 6.

See Allan Turner, Last-Meal Requests off Death Row Menu, mySA Blog (Sept. 23, 2011,

1:36 am),

http://www.mysanantonio.com/news/local_news/article/Last-meal-tradition-for-death-

row-inmates-2184368.php.

Cold (Comfort?) Food

413

any decision. Second, how can it be abolished? Policy changes can

happen in

many ways. One should at least know the options. Third, what does it mean to

abolish it? Policy-makers regularly reflect on the wisdom of basing their decisions

on evidence. It would clearly be desirable to know the consequences of a decision

before it is made. Much less than the questions of high principle that the abolition

of the last meal invoke, the need to address at least these basic issues may be pre-

sumed to be broadly accepted by all involved in the debate.

First, the last meal is a ritual stretching back across centuries of United States

history and before. Its resilience is due perhaps to the fact that the execution, unlike

the death penalty, is not usually a matter of extensive debate. The execution is an

administrative matter. It is the process by which a living person is put to their

death. It is governed by “execution protocols” which describe the procedure to

varying degrees of exhaustion, including the precise combinations of lethal chem-

icals, their manner of application, and the determination of the fact of death. They

lay out the chain of events that will accompany the administration of the lethal

dose including the visit by the family, the proffering of spiritual counsel, and, of

course, the last meal.

Although mundane and prosaic, these documents represent the accumulated

experience and tradition of centuries of execution practice in the United States.

Adapted as they are for modern purposes, they nevertheless bear the hallmarks of

the history of the manner and means of inflicting capital punishment in America.

They are cold, but they reveal the fundamental elements of the American execu-

tion. Amid tight security, the condemned meet family, eat their final meal and go

to their swift and certain deaths with spiritual and legal counsel at their side until

almost the final moments.

There has long been interest in the tradition of the prisoner’s last meal. Some

of the interest has been historical and academic, while some has been more sensa-

tional and voyeuristic. Swedish filmmakers Mats Bigert and Lars Bergström’s pro-

ject, Last Supper, carefully traces the origins of offering a ceremonial final meal

to prisoners set to die.

The blog “Dead Man Eating” includes an archived list that

dates back to early 2002, focused on what prisoners nationwide request to eat be-

fore their sentence is carried out.

Former Texas jailhouse cook Brian Price’s

book, Meals to Die For, includes descriptions of over 200 meals he has prepared

for condemned inmates awaiting their execution.

Notably, Price has offered to

cook all Texas inmates’ last meals

for free. As he explained in an interview with

CNN reporters, “We should not get

rid of the last meal…. Justice is going to be

served when this person is executed, but can we not show our softer side? Our



Bigert & Bergström (Producers), 2005. The Last Supper [Documentary] Stockholm,

Sweden: Studio Bigert & Bergström.

See generally

http://deadmaneating.blogspot.com.

BRIAN D. PRICE, MEALS TO DIE FOR (2005).

3 Br. J. Am. Leg. Studies (2014)

414

compassionate side?”

However, Texas Department of Criminal Justice spokes-

person Michelle Lyons told the Los Angeles Times that Price’s offer is “kind,” but

“it’s not the cost, but rather than concept we’re moving away from.”

It becomes clear, then, that the American way of execution is ridden not only

with legal technicalities but also with ceremonies and rituals which are vestigial

representations of a process that was once transected with spiritual concerns. Exe-

cution customs – even, arguably, the presence of defense counsel, to whom one

can after all confess with impunity – represent the vanishing traces of a once vi-

brant spiritual culture associated with death and execution.

Today’s last meals may seem a poor relation to those ornate and carefully

considered rituals of the past, but parallels remain. Louisiana State Prison Warden

Burl Cain reports that he has shared in the last meals of several of the inmates put

to death under his jurisdiction and that he tries to keep the mood of the occasion

‘upbeat.’

Robert Johnson, a sociologist who has studied the men who work on

death row directly, describes the meal as a focal point that guards will use to

dis-

tract the condemned from their fate.

The last meal continues to serve as a place

to manage the condemned and broker their co-operation in the execution process.

But in the midst of the tight security of death row, they certainly are not operation-

ally required.

The abolition of the last meal in Texas demonstrates a feeling that the state

has no understanding of (or at least respect for) the last meal’s ostensible meaning

and functions. What those meanings and functions are, and what it means to be a

society that no longer has use for them, are the questions that every decision-maker

in Livingston’s position must contemplate.

Second, the decision to abolish the last meal, if it is to be made, falls generally

under the auspices of the bureaucrats and professionals responsible for the execu-

tion protocol itself. As Livingston was reminded by Senator Whitmire, however,

those bureaucrats may not themselves be able to operate in a political vacuum.

Whitmire has presided over criminal justice for the Texas State Senate for some

years, and has clashed with TDCJ on numerous occasions. In 2006 Whitmire re-

ceived a direct, personal threat from a death row inmate who had s

uccessfully ob-

tained a cell phone, after which contraband became his signature i

ssue.

TDCJ

went on to be humiliated by a series of revelations about the ease of transporting

goods in and out of its prisons.

Such is Whitmire’s lack of regard for TDCJ that



See Lateef Mungin, Former death row chef offers to cook free meals for the condemned,

CNN JUSTICE, Oct. 2, 2011, at http://www.cnn.com/2011/10/02/justice/texas-last-

meal/index.html.

See Mark Memmott, Texas Turns Down Cook’s Offer of Free ‘Last Meals’, NPR.com

(Sept. 27, 2011), http://www.npr.org/blogs/thetwo-way/2011/09/27/140838771/texas-

turns-down-cooks-offer-of-free-last-meals.

Warden Describes Inmates’ Last Hours, ABCNEWS.COM (May 4),

http://abcnews.go.com/2020/story?id=124095&page=1.

Robert Johnson, Death Work: A Study of the Modern Execution Process (1998).

Death Row Killer Threatens Texas Senator Via Cellphone, USA Today (Oct. 21, 2008,

9:06am), http://usatoday30.usatoday.com/news/nation/2008-10-21-inmate-senator-

threats_N.htm.

Texas Prisons Can’t Stop Cell Phones at Cell Walls, CBS DFW. (Jun. 13, 2011, 9:20pm),

http://dfw.cbslocal.com/2011/06/13/texas- prisons-can’t -stop-cell-phones-from-reaching-

Cold (Comfort?) Food

415

he has called repeatedly for the entire department to be moved from its present

location in Huntsville – also the location of Texas’ death row – to the state capital,

Austin.

Livingston’s decision to abolish the last meal was made necessary, in effect,

by the combination of the actions of Senator Whitmire, on the one hand, and

Lawrence Brewer on the other. On Sept 22, 2011, Whitmire wrote directly to

Brewer that “I have yielded to TDCJ judgment in the past, but now enough is

enough.”

The practice should be discontinued immediately, he went on, “or I am

prepared to do so by statute next session.” Meanwhile, Brewer’s ordering and sub-

sequent rejection of a vast feast prior to his execution made a mockery of any

symbolic value the last meal might be said to hold. In the circumstances, it is hard

to imagine any other response option by Livingston. Was he to side with the

unrepentant racist who was laughing in his face, or with the politician with the

mandate – and apparently the intention – to implement popular will? Amid this

rattling of sabres, Livingston’s decision cannot have been difficult.

Given the ob-

vious constraints on Livingston’s actions, the question here is whether states wish

to construct execution protocols which are based on the judgments of professionals

acting freely to facilitate the operation of their units, or to arrive at them at the

conclusion of a morality play.

Third, the consequences of the abolition of the last meal will be felt most

keenly not by those debating it so hotly but rather by those implicated directly in

the process of the execution itself. For all their antiseptic bureaucracy, executions

remain somber moments in prisons. Condemned prisoners now average over

twelve years between sentencing and execution nationwide. In that time they may

come to be known, and often liked, in the prisons which are their homes. Execu-

tions and the protocols by which they are carried out are most binding, and most

onerous, on the condemned and those who must supervise and care for him in his

final hours.

Executions are conducted in a secret world inhabited by a select few people

and the research on what the last meal means to them has yet to be done. Certainly,

all is not well in that world. Robert Johnson reports that the mood prior to an

execution, particularly of the condemned, is one of despondency and fear, notwith-

standing the apparent best efforts of professionals such as Warden Cain. The final

meal is far from the idealized moment of sharing or forgiveness that ancient cus-

toms may have signified. But for those present – staff and condemned alike – it

may still be some kind of fitting but hollow consolation. It is hard to imagine why

else Brian Price, the erstwhile chef for Texas’ death row, offered in the wake of

the abolition to continue to cook final meals at his own expense. TDCJ’s response

to Price, that it was “not the cost but rather the concept that we’re moving away

from,” indicates that the types of consequences it contemplated in making its de-

cision may not have had anything to do with the concerns of the people involved

in the execution process.

If true, then this might be regrettable – not because



cell-walls: “In 2010 791 cell phones were taken away from Texas prisoners. From January

through May of this year about 316 phones have been confiscated.”

Letter from Sen. John Whitmire to Brad Livingston (Sept. 22, 2011), Texas Letter on

Prisoner Meals, available at http://www.scribd.com/doc/65940295/Texas-letter-on-

prisoner-meals (last visited Aug. 6, 2014).

See Mark Memmott, Texas Turns, supra note 14.

3 Br. J. Am. Leg. Studies (2014)

416

Price’s concerns should outweigh anyone else’s, but because it might indicate that

TDCJ has made the mistake of considering this reform in a vacuum. If there is

anything that should be remembered about the last meal it is that it is a story about

history, culture, politics and people. Whether Livingston was right or wrong, the

question of whether he could or should have made a different decision is not just

a matter of “concept,” but of judging whether

an act committed at a moment of

high passion, ending old traditions, and changing

the last moments of the hundreds

who remain on death row as well as the professional lives of those charged with

caring for them, was taken with due diligence.

II. CONTEXT AND PERSPECTIVE

Because of the religious, historical, and cultural complexity of the last meal

before execution, it is not surprising that a good deal has been written about it in

scholarly articles, cinema, popular and social media. One of the most comprehen-

sive of these academic approaches to the subject was written by Linda Meyer. Dis-

cussed together with the examination of prisoners’ last words, the author describes

last meals and last words as a final attempt to be human and to prevent the capital

punishment process from becoming an extermination.

Yet, the rituals introduce

an element of the unpredictable and unmanaged and human. Even in this atmos-

phere of near total control, the process of execution requires these last remnants of

the human.”

Indeed, this piece, among others, helps explore the most pressing

questions about the last meal – regardless of its abolition or the procedures for

providing it: whether it humanizes a barbaric process or whether it adds to the

macabre traditions surrounding execution.

When my co-authors and I first became interested in this project, we were

first struck by the broad, pop-culture interest in the last meal. A prisoner’s last meal

is almost always described in news stories about an execution. But little did we

know then about projects such as the “Last Meals Project” created by Jonathon

Kambouris. It focuses on the last meals of some of the most notorious prisoners,

including Ted Bundy and Timothy McVeigh, and it includes (reproduced) photo-

graphs of the meals the prisoners requested. Those meal requests ranged from a

bag of assorted Jolly Ranchers to a request for justice, equality, and world peace.

It has had thousands of visitors since its inception.



Linda Ross Meyer, The Meaning of Death: Last Words, Last Meals, 2 (2008) (available

at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1480686,last visited Aug. 6, 2014).

Id. at 2.

Id. at 3.

Even beyond the context of actual executions, considering a last meal has become a sort

of get-to-know you game. A few years ago, an article ran in Time Magazine relaying the

questions asked by Melanie Dunea, in her book called “My Last Supper.” Dunea asked

celebrities what they would order for their last meal. The project drew responses from

Gordon Ramsay, Mario Batali and Jacques Pépin who claimed they would choose: a classic

roast beef dinner; a ten course meal including molto dishes of pasta, seafood and vegetables

both raw and cooked; and a hot dog. Joel Stein, You Eat What You Are, TIME, Oct. 2007,

at 51 (citing, M

ELANIE DUNEA, MY LAST SUPPER: 50 GREAT CHEFS AND THEIR FINAL MEALS

(2007)).

Cold (Comfort?) Food

417

But what we ultimately became more interested in was what the last meal

meant (or didn’t mean), what it represented (or didn’t). Beyond a popular fascina-

tion with the topic that might extend from sensationalism into art, this article, ra-

ther, seeks to investigate what prisoners’ actual last meals (or refusals

thereof)

might signify – and what we might learn from them.

A. ORIGINS OF AND SUPPORT FOR THE TRADITION OF THE LAST MEAL

Although most believe the ritual originates with the last meal of Jesus Christ,

according to Max Bigert, co-producer of the Swedish documentary Last Supper,

the tradition “can be traced back to pre-Christian times, to the fear of ghosts. In

Ancient Greece you had to feed the person who was going to be executed, so that

they could cross the River Styx into the underworld, and not come back as a

hungry

ghost.”

The Last Supper of Christ, contemplated and examined by artists,

histo-

rians, and religious figures for centuries, is one of the most sacred events for mem-

bers of the Christian faith.

Of course, that supper was not only tied to the tradi-

tional Jewish Passover meal but formed the basis for the Sacrament of Commun-

ion; laden with symbolism, it was at its most basic a supper in the shadow of arrest

and execution with people to whom Jesus of Nazareth felt especially close.

Over the years, new traditions surrounding a last meal emerged, sometimes

even incorporating a final Communion. In Germany, during the eighteenth century

the so-called Hangman’s Meal would be attended by jurists, clergy, local dignitar-

ies and often the executioner himself. The food served at such occasions

was

grand: Nuremburg established the municipal tradition of providing every

con-

demned man with an entire roasted goose. A series of scripted exchanges would

ensue in which the condemned would be directed to seek forgiveness in the next

life and would be offered bitter lemons to signify their fate. The entire meal com-

prised a grand symbolic gesture implying complicity between condemned and con-

demner, forgiveness and acceptance in the breaking of bread and the bittersweet

satisfaction of earthly desires.

History records that then, as today, appetites were

fickle.



A. Britten, Five questions for…Mats Bigert [Interview], Metro, 23 Jan. 2007, reproduced

at http://artesmundi.org/ebulletin/bulletin2007-02.htm (last visited Jun. 6 2012; unavailable

Aug 6, 2014, original on file with authors).

Terri J. Gordon, Debt, Guilt, and Hungry Ghosts: A Foucauldian Perspective on Bigert’s

and Bergstrom’s Last Supper, 6 Cabinet Magazine Online,

http://cabinetmagazine.org/events/lastsuppergordon.php (last visited Aug. 1, 2014).

Scholars have noted the irony of such a tradition, especially compared to a biblical

context. “Covenant meals in the Old Testament, for example, make plain that ritual meals

offered to an enemy must come with an obligation of protection, and sitting down to a meal

with an enemy who intends no such protection may be the deepest kind of betrayal.” Meyer,

supra note 21, at 21.

In Frankfurt am Main, Susanna Margarethe Brandt, 25, was sentenced to death for killing

her infant daughter. On the day of her execution, she was ordered to feast with six of the

local officials and judges through the ritual known as the “Hangman’s Meal.” On the menu,

there were three pounds of fried sausages, ten pounds of beef, six pounds of baked carp,

twelve pounds of larded roast veal, soup, cabbage, bread, a sweet and eight and a half

measures of 1748 wine. She reportedly managed nothing more than a glass of water. Brian

3 Br. J. Am. Leg. Studies (2014)

418

In eighteenth century London, some prisoners were allowed to hold a cele-

bration with outside guests on the eve of their execution. On the next day, the pro-

cession would stop at a pub for the condemned’s customary “great bowl of ale to

drink at their pleasure, as their last refreshment in life.”

Later, in America, the

Puritans of Massachusetts once held grand feasts for the condemned, believing it

mulated the Last Supper of Christ, representing a communal atonement for the

community and the prisoner.

Across cultures then, even in the context of the realities of a forthcoming

execution, the last meal emerges as a tradition verging on a celebration – or at the

very least of comfort – of the one facing his imminent death. Many see a value in

that, even as they protest the legality or morality of the execution itself. Put one

way by Celia Shapiro, an artist who has compiled photographs of last meals, “The

process of composing the pictures became a profound meditation on violence and

how the state metes out justice and retribution. The meal is life given to the body,

the execution is life taken from the body.”

Of course, reasons for publication of details related to the last meal may be

somewhat different from the reasons justifying the last meal itself. But both, oddly,

seem to be about connection, explains Treadwell, featured on the Dead Man Eating

blog, “I honestly think everybody loves food, and it gives people a way to connect

with this segment of the population they normally have nothing in common with,”

Treadwell said. “They can say, ‘Hey, I've never killed anybody with a hammer,

but

I love fried chicken.’”

Trite, perhaps, but that explanation is borne out in

other discussion of the reasons we seem to crave details about prisoners’ last

meals.

B. LAST MEALS AS POLITICAL STATEMENTS: WHAT THEY MAY (AND MAY

NOT) MEAN

There are political implications, too, of Last Meals: in the requests and

in their portrayals. Amnesty International began a campaign in February 2013

that showed the last meals of five innocent prisoners who were executed and later



Cunningham, Last Meals, LAPHAM’S QUARTERLY, Wed. July 23 2014,

http://www.laphamsquarterly.org/essays/last-meals.php?page=all (last visited Aug. 6,

2014).

BRIAN P. BLOCK & JOHN HOSTETTLER, HANGING IN THE BALANCE: A HISTORY OF THE

ABOLITION OF CAPITAL PUNISHMENT IN BRITAIN 34 (1997).

Meyer, supra note 21.

Celia A. Shapiro, Last Supper, http://www.celiaashapiro.com/posts/view/168 (last visited, Aug 1,

2014).



Carlos Campos, Prisoners' Last Meals Satisfy Appetite For Curious Facts, DEAD MAN

EATINGWEBLOG (Dec. 1, 2003),

http://deadmaneating.blogspot.com/2003/12/dme_02.html (last visited Aug. 6 2014).

Daniel Nasaw, Last Meal: What’s the Point of This Death Row Ritual?, BBC NEWS MAG.

(Sept. 26, 2011), http://www.bbc.co.uk/news/magazine-15040658 (last visited Aug. 6

2014). (“What men and women request for their last meal reflects how they lived their lives

and how they choose to face their deaths, and offers Americans a poignant human

connection to the people they have decided should die for their crimes, scholars and legal

analysts say.”).

Cold (Comfort?) Food

419

exonerated of their crimes in the United States.

The campaign won the Gold

Outdoor Lion at the Cannes International Festival 2013.

Prisoners know that their requests are described in news reports surrounding

impending (or completed) executions and sometimes use that opportunity to make

a final statement. While one death row inmate ordered a single olive (symbolizing

world peace) for his final meal, James Smith ordered a plate of dirt. Smith, how-

ever

, settled on yogurt since dirt was not on the approved list.

Robert Madden

“asked that final meal be provided to a homeless person.”

Counting on journalists

to report his outrage when prison staff could not accommodate him, Thomas

Grasso’s final words were, “I did not get my SpaghettiOs, I got spaghetti. I want

the press to know this.”

In at least two cases, food has been connected to prison-

ers’ attempts to avoid the execution completely.

Even when unintentional, a prisoner’s requested last meal may reveal infor-

mation crucial to a larger political or legal issue, such as his competency to be

executed. Before the United States Supreme Court decision finding the execution

of the severely mentally disabled to be unconstitutional,

many are haunted by the

case of Ricky Ray Rector, who ate his final meal, but “saved” pecan pie “for

later.”

A prisoner’s failure to request a last meal – or to eat the meal previously

ordered – may be the area most likely to produce controversy or speculation. This

ay or not be fair. There may be biological reasons for declining and psychologi-

cal reasons for partaking. Explains Meyer, “At a certain rational level, declination

of the last meal makes sense since – unless there is a late, unexpected pardon –

there is no biological need for energy. At other levels, declination of the last meal

makes little sense since the person voluntarily foregoes a final sensory experience

over which they have some degree of control.”

Or a prisoner may simply be too

terrified to take a bite of food.

Many accounts of those preparing meals for or



Amnesty and the Last Meal, THE INSPIRATION ROOM (July 2, 2013),

http://theinspirationroom.com/daily/2013/amnesty-and-the-last-meal/ (last visited Aug. 6

2014).

Sam Howe Verhovek, Word for Word/ Last Meals; For the Condemned in Texas,

Cheeseburgers Without Mercy, N.Y.T

IMES (Jan. 4, 1998).

Daniel LaChance, Last Words, Last Meals, and Last Stands: Agency and Individuality in

the Modern Execution Process, 32 L.

& SOC. INQUIRY 701, 714-15 (2007).

R. K. Elder, Last Words of the Executed, 205 (2010).

Julie Greene, Last Supper, PROTEUS 49 (2007) (“[I]n the early part of the twentieth-

century in Washington State, a condemned man tried to eat so much as to be too fat to fall

through the trapdoor when he was hanged. Around this time, a convict named Donald

Schneider also attempted to gorge himself so he wouldn’t fit into the electric chair. Neither

succeeded.”)

Atkins v. Virginia, 536 U.S. 304 (2002).

See http://www.famouslastmeals.com/2010/09/ricky-ray-rector.html (last visited Aug. 6

2014).

Meyer, supra note 21 at 15-16.

“[M]eal remains ambiguous until the prisoner acts. Did he refuse or ridicule the meal?

Did he order it, but was not sufficiently at peace to eat it? Did he eat and enjoy it? Did he

invite the guards to join him? Was his family allowed to eat with him? Did he thank the

cook?” Meyer, supra note 21, at 22.

3 Br. J. Am. Leg. Studies (2014)

420

sharing time with a prisoner before his execution explain that appetites have long

left many men facing death.

There may be some difference between declining to order a final meal and

ordering a final meal and refusing to eat it. Leonel Torres Herrera and Gary Gra-

ham, like others before them, were Texas prisoners who famously protested their

innocence in hard-fought legal challenges. In protest, each failed to order a last

meal. Explains Linda Meyer, “these denials impress upon us the seriousness of

their protestations of innocence. Their refusal to acquiesce in the ritual of the last

eal is itself a protest and a refusal to ‘make peace.’ Yet, if no such ritual existed,

these men could not ‘refuse’ it in so meaningful a way.”

Outside observers are forever trying to make meaning out of a prisoner’s last

words or actions.

What becomes clear, though, after review of last meals re-

quests, prisoners who declined last meals, and prisoners who ordered a last meal

but did not eat, is that our understanding of their meaning is extremely limited.

C. LAST MEALS OFTEN REVEAL SOMETHING SPECIAL AND TENDER ABOUT

PRISONER- OR THE ONES GUARDING HIM

A meaningful final meal is not limited to people in prison. Many who know

or suspect death is impending seek out meaningful rituals and traditions with loved

ones—some of which include food. The traditional last meal request, however,

often reveals what is on the heart or mind of someone who has taken life – and for

that reason – for reasons of

curiosity, of mystery, that fact has become newsworthy.

What we found in this

project, however, was less about the meal requests as a

collection of favorite tastes, but more about meaning and memory. As one article

related, “[w]hen it comes to our deepest desires, it turns out that food isn’t just

about taste. It’s tied right into memory and the longing for the sensations of when

we felt happiest or most

loved.”

And if our civilian belief that our choices of a last meal may reveal our deep-

est desires or core personality traits, how much more so may the last meal reveal

about a person with limited opportunities for expression? Prisoners, for example,

may request the Eucharist for a final meal

– or even whimsical, symbolic food.

A man once asked for a traditional Chinese meal whose recipe calls for a one hun-

dred year old egg; he promised he wouldn’t eat it “a minute early.”



Rev. Carroll Pickett and Carlton Stowers. Within These Walls: Memoirs of a Death

House Chaplain. 2002. See also Power Ekroth, L

AST SUPPER TEXTS, Studio Bigert &

Bergstrom (Jan. 6, 2010).

Meyer, supra note 21 at 51.

In New York City, there is an invitation-only supper club called Studiofeast. Every year

they host a dinner based on the best responses to the question, “You’re about to die, what’s

your last meal?” The group takes requests from all over and compiles the top 10 or 20

ingredients and creates a menu for dinner. The project was centered on the idea that what a

person chooses to eat in their final moments reveals a little about who that person is. I AM

WHAT I EAT: THE LAST MEAL, Studiofeast, available at Vimeo, http://studiofeast.com/our-

story/(last visited Aug. 6 2014).

Stein, supra note 24, at 51, 52.

Meyer, supra note 21, at 49.

Id. at 50.

Cold (Comfort?) Food

421

Even a refusal of a meal may be telling: one author tells of a prisoner refusing

his final meal “so that he could spend more time with his visitors, since he would

have had to be taken out of the visiting yard to eat it.”

And notably, there are also

touching stories of last “meals” revealing prisoners’ empathy – even for those car-

rying out an execution. Recalling a last

meal request to Lewis Lawes, the aboli-

tionist warden of Sing Sing, an article in the

New York Times recounted: “Once,

when a condemned man named Patrick Murphy pleaded for a strictly prohibited

last drink of spirits, Lawes broke the rules to deliver a medicinal dose of bourbon.

Murphy accepted it gratefully and then offered it back to the stricken Lawes, say-

ing, ‘You need the shot more than I do, warden.’”

Conversely, the meal is also a way for prison employees to show their com-

passion to the condemned. Over the decades spent on death row, guards frequently

build relationships with prisoners—and this is sometimes revealed through the last

meal tradition.

That is not to say all wardens or guards join in this tradition or

that they all support it. Expense

and punishment, after all -- regardless of one’s

opinion about a last meal -- are two core concerns of prison administration.

In at least one case, involvement in preparation of the last meal has changed

a prison chef’s views on death row prisoners. Brian Price, a Texas cook who pre-

pared hundreds of last meals before Texas discontinued the practice of offering a

special one, recalls, “I think that through their meals, they were seeking a small bit

of comfort and courtesy. Food can take you back to a better time in your life, and

it gave me comfort to give these dying men and women some comfort in their last

hours.”



Katya Lezin, FINDING LIFE ON DEATH ROW: PROFILES OF SIX INMATES 184 (1999).

RALPH BLUMENTHAL, A MAN WHO KNEW ABOUT THE ELECTRIC CHAIR, N.Y. TIMES, Nov.

6, 2011 5:02 pm, http://cityroom.blogs.nytimes.com/2011/11/06/a-man-who-knew-about-

the-electric-chair/ (last visited Aug. 1, 2014).

JOHN D. BESSLER, KISS OF DEATH: AMERICA’S LOVE AFFAIR WITH THE DEATH PENALTY

(2003) (citing Jim Willett, 89 Executions. I was the Warden, S

TAR TRIB. (Minneapolis),

May 20, 2001, at A25. “Sometimes I wonder whether people really understand what goes

on down here and the effect it has on us,” Jim Willett asks himself, “I wondered most about

the mothers who saw their sons being put to death,” he says. “Some would just wail out

crying. It’s a sound you’ll never hear any place else, an awful sound that sticks with you.”).

Others beyond the prison walls may be concerned with the expense of a special last meal,

but our research shows that in most prison systems, there is either a cap on the dollar amount

that may be spent in preparation of a prisoner’s final meal or that the ingredients must

already be stocked in the prison kitchen (see infra Section III generally.) We also note that

not all prison administrators use food as a way to connect with the inmates under their

supervision: “…Maricopa County (Arizona) Sheriff Joe Arpaio famously cut caloric intake

for nearly 9,000 jail inmates from 3,000 to 2,500 calories per day. Apraio justified the

caloric reduction on health-related and budgetary grounds. ‘Do you hear me?’ he was

quoted as telling inmates. ‘You’re too fat. I’m taking away your food because I’m trying to

help you. I’m on a diet myself. You eat too much fat.’ Arguing that he was saving the county

about $300,000 a year in food costs, Arpaio boasted: ‘I got meal costs down to 40 cents a

day per inmate. It costs $1.15 to feed the department dogs.’” Avi Brisman, Fair Food?:

Food as Contested Terrain in U.S. Prisons and Jails, 15

G. J. ON POV. L. & POL’Y 49, 67

(2008).

Brian Price, The Last Supper, LEGAL AFFAIRS, (Mar./Apr. 2004),

3 Br. J. Am. Leg. Studies (2014)

422

Coming to understand that these men and women – whatever they may have

done – were human seeking comfort amidst crisis has led Price to offer to prepare

last meals at no cost to Texas prisons. As with many other personal encounters

with men and women facing death, his experiences have even changed his views

n capital punishment: “I used to be a strong believer in the death penalty – thinking

that what goes around should come around. But my experience cooking for the

condemned

forced me to weigh my values and look at the death penalty from both

sides of the fence.”

III. GETTING THE RITUALS RIGHT: WHY DO STATES MAKE THE

DECISIONS THEY DO ABOUT LAST MEALS?

Last meals are served within the administrative contexts of state Departments

of Corrections, many of which regulate the contents of the meals themselves. As

such, while such meals are frequently interpreted for what they say about the con-

demned men and women who consumed them, they may also reflect something

about the states they come from. Our analysis in this section explores some of the

differences that exist between states in the restrictions they impose.

Executions are highly ordered procedures where everything, including the

timing and contents of the last meal, is prescribed. A comparison of these execu-

tion procedures reveals just how much states vary in what they permit inmates to

be provided.

Some, like Texas after the Whitmire affair, provide nothing special.

Most provide at least some special consideration, though this comes by degrees.

To better understand why states make the decisions they do about constrain-

ing the contents and lavishness of last meals, we examined available information

on last meal policies and rules for all states that used capital punishment in 2010.

Our analysis first catalogued the variety of restrictions states placed on meals, and

then examined how those restrictions were related to a variety of other state char-

acteristics including characteristics of their correctional systems, punitivity in state

penal cultures, and the extent of their use of capital punishment.

A. APPETITE SUPPRESSANTS: A DESCRIPTION OF THE RESTRICTIONS

STATES IMPOSE ON LAST MEALS

Thirty-five states had capital punishment as an available sentencing option

in 2010, though Illinois was at the time undergoing a period of moratorium. We

sought information on the rules and regulations surrounding the provision of last



http://www.legalaffairs.org/issues/March-April-2004/feature_price_marapr04.msp (last

visited Aug. 6 2014). (“The last meal is an ancient tradition, which some say predates the

death of Christ. I always thought of the LMs I prepared as a version of the Last Supper,

when Christ knew that he would die the next day.”).

Id.

See e.g., Deborah W. Denno, When Legislatures Delegate Death: The Troubling Paradox

Behind State Uses of Electrocution and Lethal Injection and What it Says About Us, 63

OHIO ST. L.J. 63 (2002).

See Fig. 1, below.

Cold (Comfort?) Food

423

meals in each of these states. Our preferred sources were so-called ‘execution pro-

tocols’ – documents drawn up typically by prison administrators which describe

in great detail the precise procedures to be followed in executions.

A total of

twenty such protocols (or part-protocols) were collected, from which information

regarding the restrictions placed on the contents of last meals could be extracted

from nine.

We then set about gathering information on the remaining states by scouring

state DOC websites, statute law, news sources, and other research articles in this

area.

We sought descriptions of last meal regulations in each state that could be

traced directly back either to official documents produced describing last meal

procedures, or to individuals with direct knowledge of such policies and proce-

dures. In this manner, we were able to compile a dataset containing authoritative

information on the regulations governing last meal provisions in all 35 states of

interest.

Two of the 35 states – Kansas and New Hampshire – had no execution pro-

tocols or regulations in place in 2010.

Neither state had executed an inmate since

Gregg.

In the case of New Hampshire no execution had taken place since 1939.

As a result, neither state had faced the need to actually draw up procedures for an

execution. In all of the remaining 33 states procedures for executions and last

meals had, to a greater or lesser extent, been stipulated. We organized all thirty-

three states in our dataset into four categories according to the extent of the explicit

constraints that were placed upon the decisions of the prison officials who pre-

pared them. The status for each state is shown in Figure 1.



For example, Idaho’s protocol can be found online, available at

http://www.idoc.idaho.gov/content/policy/708. The rules surrounding the last meal are

mentioned on page 19.

Denno, supra note 55.

The absence of any protocols in either Kansas or New Hampshire was confirmed in email

communications with relevant Department of Corrections officials in each state, on file with

the authors.

See Gregg v. Georgia, 428 U.S. 153 (1976).

New Hampshire executed Howard Long in 1939. The sentencing to death of Michael

Addison in 2008 has led to discussions of the development of a new protocol, however. See

Death Penalty Information Center at http://www.deathpenaltyinfo.org/new-hampshire-1

(last visited Aug. 5, 2014).

A complete listing of sources for this material is available on request from the authors.

3 Br. J. Am. Leg. Studies (2014)

424

Figure 1: Last Meal policies by State, 2010. (Note Hawaii and Alaska, not

shown, were both abolitionist states in 2010).

In fifteen states, there were no specific constraints on the decisions prison

officials could make about what was prepared for the last meal.

Rather, discre-

tion over the contents of the meal was granted, often explicitly, to prison officials

themselves. Inmates in Arkansas and Tennessee, for example, may expect to have

any request fulfilled provided they are deemed ‘within reason’ by those charged

with preparing the meal.

Delaware inmates may be more fortunate: the protocol

in that state enjoins officials to make ‘every effort’ to fulfill the inmate’s request.

One restaurant near to the Bonne Terre prison in Missouri has the distinction of

having been selected several times; speaking to the local press, the cook said she

felt ‘honored,’ and explained, ‘I think it’s because we got the best food in the

county.’

Five states fell into a slightly more restrictive category – permitting prison

officials to purchase meals or ingredients from outside the prison, but stipulating



These states were Arizona, Arkansas, Delaware, Illinois, Indiana, Kentucky, Louisiana,

Mississippi, Missouri, Nevada, North Carolina, Ohio, South Carolina, South Dakota and

Tennessee.

Ashley Blackstone, Arkansas Death Penalty: Execution Day, T

ODAY

’

THV (Nov. 3,

2011) http://www.todaysthv.com/news/crime/179279/370/Arkansas-Death-Penalty-

Execution-Day-; Tennessee Department of Corrections website, ‘Deathwatch’, at

http://www.tn.gov/correction/media/deathwatch.html (last visited 9/24/2012).

Death Row Facts Sheet, S

TATE OF

ELAWARE

-D

EPARTMENT OF

ORRECTION

, available

at http://doc.delaware.gov/information/deathrow_factsheet.shtml.(last visited Feb. 12,

2013). Likewise in California which replicates the ‘every effort’ language, though, as noted

below, a financial limit is placed on the purchase of ingredients in that state.

Website of Office of Clark County, Ind., prosecuting attorney, mentioning details of

execution of Dennis Skillicorn, available at

http://www.clarkprosecutor.org/html/death/US/skillicorn1165.htm (last visited Jan.13,

2014).

Cold (Comfort?) Food

425

certain limitations on what could be bought.

In California, a meal could be pur-

chased from a local restaurant though a spending limit of $50 was imposed.

Florida the limit was $40,

in Georgia it was $20,

and in Oklahoma it was $15.

In Montana, no spending limit was imposed, but it was specified – as it was

in several other states in this category – that the meal must be purchased locally to

the prison.

The local purchase rule serves, at the very least, to formalize a more

or less real fear that last meal requests might generate excessive costs. Georgia,

for example, will provide local lobster if requested, but the state “will not fly it in

from Maine.”

Although still permitting prison officials to provide the inmate

with something above and beyond what they could usually expect as prison fare,

therefore, these states explicitly prescribed the breadth of discretion those officials

had as they set about fulfilling the inmate’s request.

A further ten states had drafted policies of a yet-more-restrictive form, re-

quiring that any last meals prepared for prisoners must be crafted only from ingre-

dients that are already available on prison premises.

In Pennsylvania the inmate

is presented with a menu in eight categories from which they are invited to choose:

protein items, starches, soups, grains, side dishes (such as coleslaw or apple sauce),

dessert, drinks (of which they might pick two), and relishes.

In Virginia and

Idaho, inmates are constrained to choose from among the items in the regular

prison menu, the Idaho regulations also noting that “The offender may retain con-

sumable commissary items as approved by the IMSI warden until completion of

the last meal.”

Texas fell into this category in 2010, and as Brian Price’s book

on the preparation of meals for condemned inmates in that state reports, this con-

straint required his to become creative in his attempts to fulfill inmate requests.



See Figure 1. These states include California, Florida, Georgia, Montana and Oklahoma.

California Text of Regulations, Subchapter 4, Article 7.5, 3349.3.4(b)(5), available at

http://www.cdcr.ca.gov/Regulations/Adult_Operations/docs/4_LI_7-28-10.pdf (last

visited Jan.14, 2014).

Florida Department of Corrections, Death Row Fact Sheet, available at

http://www.dc.state.fl.us/oth/deathrow/index.html.

Jennifer G. Hickey, Dining in with Capital Punishment, 17 INSIGHT ON THE NEWS, 24

(2001).

R. Peterson Life on Death Row – Execution Day, Mcalester News (2011) available at

http://mcalesternews.com/local/x756276814/Life-on-Death-Row-Execution-Day (last

visited Jan. 13, 2014).

Montana Department of Corrections, Montana State Prison Execution Technical Manual,

51.

Greene, supra note 38,at 48.

These states are Alabama, Colorado, Idaho, Nebraska, Pennsylvania, Texas, Utah,

Virginia, Washington and Wyoming.

Greene, supra note 38, at figure 2.

Regarding Virginia, see A. Stewart, Execution Day: What’s Scheduled to Happen (2009)

formerly available at

http://www2.insidenova.com/news/2009/jul/12/execution_day_whats_scheduled_to_happ

en but no longer available when last visited (Aug. 5, 2014). Copy on file with authors

available on request. Idaho Department of Correction, Execution Procedures, 19.

BRIAN D. PRICE, MEALS TO DIE FOR (2005).

3 Br. J. Am. Leg. Studies (2014)

426

Price reports ingredients were frequently not available, and substitutions were fre-

quently necessary. The use of hamburger meat in the place of steak appears to have

been particularly common.

Finally, last meal policies in three states stipulated that the inmate would be

served the same meal as other inmates prior to execution and that no special meal

would be provided.

In two of these, Oregon and Connecticut, although the regu-

lations clearly stipulated that “The inmate shall be served the same food as other

inmates at the normal meal time,” the prison warden was granted discretion to

overrule this general principle.

In the other state, Maryland, no such discretion

was granted.

In 2011, as a result of the Whitmire affair, Texas joined this cate-

gory.

Notwithstanding variation in the restrictiveness of last meal provisions, the

authority of correctional officials to make ultimate determinations about the form

the last meal would take was clear throughout all the documents reviewed. In Ohio,

for example, the rules stipulate that the execution “Team Leader” shall “ask the

prisoner to identify his or her special meal request,” which should then be served

“at a time to be determined by the Managing Officer.”

In Arizona, the duty falls

to the prison Warden, who should request that the inmate complete the “Last Meal

Request, Form 710-5,” and return it “no later than 14 days prior to the execution”

to give time for the request to be considered.

In Montana and California, the

responsibility of soliciting the inmate’s request fell to food services staff, though

California warns the inmate “The Associate Warden and the Food Manager will

review your request to determine if the request can be accommodated.”

In Ore-

gon, the affirmative duty to solicit the inmate’s request was absent altogether, the

regulations stating instead that “At the discretion of the Superintendent, the inmate

may be permitted a last meal of the inmate’s choosing.”



Id.

Maryland, Oregon and Connecticut.

The wording is from Connecticut Department of Correction Directive 6.15,

Administration of Capital Punishment, page 5. In Oregon, the language reads “The inmate

will be served the same food as other inmates assigned to the facility,” and the prison

official with discretion is the ‘Superintendent.’ Oregon Bulletin, 2011, Department of

Corrections Administrative Order DOC 9-2011, Capital Punishment (Death by Lethal

Injection), available at Oregon Secretary of State Archives Division,

http://arcweb.sos.state.or.us/pages/rules/bulletin/0711_bulletin/0711_ch291_bulletin.html

(last visited 13 Jan. 2014).

Greene, supra note 73, at 47.

State of Ohio Department of Rehabilitation and Correction (2011), rule ORC 2949.22;

2949.25, page 8.

Arizona Department of Corrections Department Order 710, Execution Procedures, page

California Lethal Injection Regulations, Thirty Day Notification, item 12. See also

Subchapter 4, Article 7.5, 3349.3.4 (b) (5) “The Team Administrator shall…Along with the

Food Manager, interview the inmate to ascertain what request, if any, the inmate may have

for a last meal.” Montana Department of Corrections, Montana State Prison Execution

Technical Manual 20.

Oregon Bulletin, 2011, Department of Corrections Administrative Order DOC 9-2011,

Capital Punishment (Death by Lethal Injection) available at Oregon Secretary of State

Archives Division,

Cold (Comfort?) Food

427

Reflecting the importance of the last meal as a ritualistic practice, the last

meal isn’t actually the last thing the inmate eats in at least three states. In Ohio and

Indiana, the meal is eaten the day prior to the execution – no less than “thirty-six

(36) to forty-eight (48) hours before the execution” in Indiana, where it is to be

“consumed in one sitting.”

In Idaho, the meal is served “at approximately 1900

hours the day prior to the execution,” while the following day “five (5) hours prior

to the execution, the offender shall be offered a light snack.”

While states differ

in the leeway they offer in the preparation of the meal, their level of commitment

to the ritual itself can also be gauged from their determination to preserve it even

in situations where its literal status as a ‘last meal’ no longer exists.

The geographical patterns shown in Figure 1 may at first glance be unex-

pected. The most restrictive, highly regulated last meal policies are clustered in

the Western half of the country, with the exception of a small number of South-

Western states. The states of the Deep South, meanwhile, where capital punish-

ment itself is most concentrated, vary in their restrictiveness, with several forming

part of a cluster of states with unrestricted last meal policies extending far north

into the Mid-West. Rather than correlating neatly with the prevalence of other pu-

nitive policies such as capital punishment and mass incarceration, therefore, last

meal policies evince a different pattern. To clarify this picture further, we exam-

ined statistically the relationship between last meal policies and a variety of

measures of differences in state correctional systems, punitive penal culture, and

their usage of capital punishment.

B. ECONOMICS, PUNITIVITY OR RITUALISM? EXPLAINING THE CHOICES

STATES MAKE

There are many things that might explain the choices that states make in how

they structure their last meal policies. Based on our review of existing literature

and theory in the area, we examined three: economic and security considerations,

punitive penal culture, and ‘retributive ritualism’ associated with the use of capital

punishment.

i. Economics and Security

Last meal policy decisions might be made on the basis of the need to preserve

security and efficiency in state correctional systems. Policy decisions about last

meal provisions are made most directly by correctional administrators themselves

with the result that execution protocols are likely to answer to operational needs.

Decisions against allowing external food to be brought into the prison may be



http://arcweb.sos.state.or.us/pages/rules/bulletin/0711_bulletin/0711_ch291_bulletin.html

(last visited Jan.13 2014).

Email communication with Indiana Department of Corrections. The Ohio protocol also

specifies the meal should be served the day prior to the execution: State of Ohio Department

of Rehabilitation and Correction (2011), rule ORC 2949.22; 2949.25, page 8.

Idaho Department of Correction, Execution Procedures 19, 33.

See Denno, supra note 55, at 123, where questions are raised about the possibility that

meals may interfere with injection procedures where the inmate has insufficient time to

digest its contents.

3 Br. J. Am. Leg. Studies (2014)

428

made on the basis of security concerns over contraband. California’s protocol ex-

plicitly notes that the meal must be inspected for contraband prior to being

served.

Equally, honoring lavish requests may be seen as wasteful. Rules in

Georgia state that in the event of a stay of execution the inmate will not have the

right to an additional “last meal” should they later find themselves strapped to the

gurney for a second time.

Accordingly, we collected data on the incarceration

rate in each state, the sizes of correctional budgets and the amounts spent by states

per inmate, in order to try and capture the operating conditions of correctional

systems across the county, and assess whether those conditions were related to last

meal policies. We expected last meal policies to be least restrictive where incar-

ceration rates were low, correctional budgets were high, and spending-per-inmate

was high.

ii. Punitive Penal Culture

Alternatively, decisions about last meal provisions may be made on the basis

of a wider desire to punish inmates and deprive them of comfort. Whitmire’s letter,

which noted Brewer did not provide the “privilege” of a last meal to his victim,

may be an example of this sentiment.

Sociologists of punishment have argued

that criminal justice policy has, for a generation or more, become progressively

more preoccupied with inflicting punishment, deprivation and austerity upon in-

mates.

Research has shown relationships between trends toward punitive cor-

rectional policy decisions and the size of states’ minority populations, the conserv-

atism of state electorates and the prevalence of fundamentalist religious beliefs in

the general population.

We collated data on each of these dimensions and exam-

ined them for any relationship to last meal policies.

We expected last meal policies



CALIFORNIA TEXT OF REGULATIONS, SUBCHAPTER 4, ARTICLE 7.5, 3349.3.4(B)(5),

available at http://www.cdcr.ca.gov/Regulations/Adult_Operations/docs/4_LI_7-28-

10.pdf.

Greene, supra note 73.

Correctional population and incarceration rate data obtained from Bureau of Justice

Statistics (2010) Prisoners in 2009, Appendix Table 1 (available at

http://bjs.gov/content/pub/pdf/p09.pdf, Mar. 18, 2013). Correctional spending data

obtained from Bureau of Justice Statistics (2012) Justice Expenditure and Employment

Extracts, 2009 – Preliminary, Table 3 (available at

http://bjs.gov/index.cfm?ty=pbdetail&iid=4335, Mar. 18, 2013). Spending per inmate data

calculated by the authors from the previous two sources.

Whitmire, supra note 19.

DAVID GARLAND, THE CULTURE OF CONTROL: CRIME AND SOCIAL ORDER IN

CONTEMPORARY SOCIETY, (2001).

See, e.g., Thomas D. Stucky, Karen Heimer, & Joseph B. Lang Partisan Politics,

Electoral Competition and Imprisonment: An Analysis Of States Over Time, 43

CRIMINOLOGY 211-47 (2005); D. Jacobs & J. T. Carmichael, The Politics of Punishment

Across Time and Space: A Pooled Time-Series Analysis of Imprisonment Rates, 80(1)

SOCIAL FORCES 61 (2001).

Cold (Comfort?) Food

429

to be least restrictive where African-American populations were high, the propor-

tion of Republican voters low, and the prevalence of fundamentalist religious be-

liefs was low.

iii. Retributive Ritualism and the Use of Capital Punishment

Finally, last meal policy decisions may be the result of a distinctive, contrary

trend in the area of capital punishment whereby states that execute the most are

also those with the most invested in the ritual panoply of executions. Linda Ross

Meyer has suggested that regular use of capital punishment is associated with

greater commitment to the curious rituals that surround it including last meals and

last words, commenting that “Without the symbolic accoutrements of death, exe-

cution becomes merely extermination.”

Noting that Texas is yet the only state

that chooses to publish the last words of condemned on its website,

she writes:

The ultimate justification for the death penalty, retribution, requires that these

executions have their ritual element, the uncontrolled possibility for rebellion or

pity, in order to have also the possibility of retributive meaning. States that resist

the tradition of last words tend to be states with less experience in killing.

If Meyer is right and the regular use of capital punishment is also associated

with a more full knowledge of and commitment to its ritualistic accoutrements, it

is also possible that states which use the penalty the most will also prove the least

restrictive in their provision of last meals.

Accordingly, we collected data on the

number of executions and the population of state death rows to test this hypothesis.

Notwithstanding our more general hypothesis about punitivity, therefore, we ex-

pected last meal policies to be least restrictive where the use of the death penalty

was most common.

100

C. ANALYSIS AND RESULTS

Because our sample of thirty-three states is relatively small for statistical pur-

poses, we divided them into just two categories: those which restrict the prepara-

tion of last meals to prison kitchens, and those which permit the purchasing of

meals from outside the prison. To our minds, this is a key distinction that divides

states that (literally) ‘go the extra mile’ to obtain and prepare last meals from those



Percent African-American data obtained from the Bureau of the Census, 2010 census

(available at www.census.gov, Mar. 18, 2013). Percent Republican data is the percent of

the popular vote in the 2008 Presidential Election favoring John McCain, obtained from the

Federal Election Commission (2009) Federal Elections 2008 (available at

http://www.fec.gov/pubrec/fe2008/federalelections2008.pdf, Mar. 18, 2013). Data on

percent evangelical obtained from the Pew Forum on Religion and Public Life (2008), U.S.

Religious Landscapes Survey, Appendix 1, p. 100 (available at

http://religions.pewforum.org/pdf/report-religious-landscape-study-full.pdf, Mar. 18,

2013).

Meyer, supra note 21.

See http://www.tdcj.state.tx.us/death_row/dr_executed_offenders.html.

Id.

Daniel LaChance, Last Words, Last Meals, and Last Stands: Agency and Individuality in

the Modern Execution Process, 32

LAW & SOC. INQUIRY 701, 702-704 (2007).

100

Data on death sentences and executions obtained from DEATH PENALTY INFORMATION

CENTER, http://deathpenaltyinfo.org/ (last visited Mar. 18, 2013).

3 Br. J. Am. Leg. Studies (2014)

430

that limit themselves to what can be prepared and served internally. Accordingly,

the comparisons that follow juxtapose data on correctional operations, punitive

penal culture and the use of capital punishment for the thirteen states that restrict

meals to in-house preparation (‘restrictive’ states) and the twenty that allow in-

mates to order food from other sources (‘non-restrictive’ states).

Table 1: Comparing restrictive and non-restrictive states on correctional oper-

ations and punitive culture.

Variable

Restrictive

states

(n=13)

Non-re-

strictive

states

(n=20)

Non-re-

strictive

states

are….

T-test

for dif-

ference

of means

Correc-

tional

operations

Incarceration

rate

(per 100,000)

411 502 Higher 2.031 *

Corrections

budget ($bn)

$1.499 $1.898 Higher 0.431

Spending per in-

mate

$64,230 $42,323 Lower -3.076

***

Punitive

penal

culture

% African-

American

9.56% 15.04% Higher 1.507

% Republican 50.16% 50.60% Higher 0.139

% Fundamental-

ist

23.92% 33.40% Higher 2.150 **

* p < 0.1, ** p < 0.05, *** p < 0.01; Degrees of freedom = 31.

Table 1 compares restrictive and non-restrictive states on characteristics of

their correctional operations and factors associated with punitive penal culture.

The column on the right hand side of Table 1 illustrates whether the differences

between restrictive and non-restrictive states are large enough to be considered

statistically significant – that is, unlikely to be due to simple chance. The findings

suggest that among all the differences between the states we observed, certain ones

are particularly worthy of attention. Specifically, states with the least restrictive

last meal policies have higher incarceration rates, spend less per inmate, and have

larger fundamentalist populations.

In short, our results suggest the opposite of what we hypothesized. We ex-

pected the states which placed the fewest restrictions on last meal policies would

be those which incarcerated the fewest and spent the most on housing their in-

mates. Instead, we found they tended to have higher incarceration rates and to

spend less on each inmate. Equally, we expected last meal policies to be least re-

strictive where state populations were the least fundamentalist. Instead, we found

that states with the least restrictive policies tended to have higher number of fun-

damentalist Christians. That states with the largest prison populations, the least

spending per inmate, and the most fundamentalist populations should also be those

that are the most ‘generous’ to those they condemn to die is at odds with our ex-

pectations of the influence that correctional operations and punitive penal cultures

have. Clearly, if last meal policies are a product of correctional operations or pu-

nitive penal cultures, then the relationship is more complicated than we had ex-

pected.

Cold (Comfort?) Food

431

Tables 2a & b: Comparing restrictive and non-restrictive states on their capital

punishment records.

Table 2a: Number of execu-

tions

Restrictive

states

Non-restric-

tive states

Under 12 executions 14 6 20

Over 13 executions 3 10 13

17 16 33

= 6.9453 ***

(1 d.f.)

Table 2b: Death row popula-

tion

Restrictive

states

Non-re-

strictive

states

Death row population 34

or under

14 6 20

Death row population

over 35

3 10 13

17 16 33

= 6.9453 ***

(1 d.f.)

Next, restrictive and non-restrictive states were compared on their capital

punishment records. Because state execution records vary so dramatically, with

some states carrying out many more executions and housing much larger death

rows than others, the states in the sample were divided into categories based on

whether they had carried out more than 12 executions since 1976 and whether they

had a death row population of over 34 individuals. These were the median values

among states in 2010, and by dividing states up in this way it was possible to

eliminate the disproportionate influence that states such as Texas and California

have on statistical analyses by virtue of their massive capital punishment opera-

tions.

The results of the analysis show that states with non-restrictive last meal pol-

icies do indeed conduct more executions and have larger death rows than those

with restrictive policies. This may seem surprising, since it contradicts the general

assumption that penal culture will be more ‘punitive’ where executions are more

common. This apparent ‘generosity’ in the form of relatively unrestrictive last

meal rights in states which also kill the most inmates is in keeping with Meyer’s

‘retributive ritualism’ hypothesis, however, which implies states which execute

the most will also be the most invested in execution rituals such as the provision

of last meals. This strong, statistically significant relationship supports Meyer’s

contention that states that make the greatest use of capital punishment are also the

most likely to institutionalize ritualistic aspects of executions.

3 Br. J. Am. Leg. Studies (2014)

432

D. DEATH REALLY IS DIFFERENT

The results of the foregoing analysis are fascinating for sociologists because

they represent an exception of sorts to the power of punitive penal culture in states.

States that execute the most also imprison the most, inflict the longest sentences,

and maintain correctional systems designed to inflict austerity. And yet our anal-

ysis shows that those states which execute the most are also the most likely to

provide an expansive entitlement to a last meal at the moment of a condemned

inmate’s death, allowing them the greatest freedom in what they choose to eat.

Even in systems which house many more people and spend almost a third less on

housing each inmate, condemned men and women are extended the broadest

choices of foods at the times of their deaths.

Meyer’s general argument that attachment to last meals reflects the latent

importance of rituals to accomplishing the retributive meaning of capital punish-

ment is compelling, but our results also point to a more explicitly spiritual reason

behind these more expansive entitlements in certain states. Large populations of

fundamentalist Protestants are present not only in the Southern states but also as

far west as Arkansas and Oklahoma (both 53%) and as far north as Indiana

(34%).

101

Moreover, recent research into fundamentalist Protestant opinions on the

death penalty has shown a complex relationship whereby fundamentalists tend to

support capital punishment generally, but are also more likely to be compassionate

to sinners and to believe in the possibility of forgiveness.

102

Little wonder, perhaps,

that states with the largest fundamentalist populations are also those that are least

likely to place constraints on the last meal ritual, given its longstanding role as an

occasion of reconciliation and peacemaking.

Of course, this ‘snapshot’ of state policies in 2010 renders us unable to ex-

amine the evolution of such policies over time or to speculate very deeply about

what ‘latent’ trends the patterns we observe reveal. The development and institu-

tionalization of capital punishment ‘rituals’ may well be an historical process

borne out of tradition and custom. As such, rituals such as last meals may have

evolved in ways that visibly confirm, or add nuance to, Meyer’s argument that a

kind of latent retributive ritualism is at work. More work of an historical nature

would undoubtedly elaborate on her insights. Nevertheless, the tokenistic ac-

knowledgment of the need for last meals in states that rarely resort to execution

may indeed be symptomatic of an approach which relegates execution rituals, like

executions themselves, into a position of ‘de facto abolition.’



101

Fundamentalist Protestantism has a variety of definitions. In our data, gathered by the

Pew Forum on Religion and Public Life, fundamentalists are described as a religious

tradition composed of denominations which “share certain religious beliefs (such as the

conviction that personal acceptance of Jesus Christ is the only way to salvation), practices

(such as an emphasis on bringing other people to the faith) and origins (including separatist

movements against established religious institutions).” Other related terms include ‘born-

again’ or ‘evangelical’ Christians. Pew Forum on Religion and Public Life U.S. Religious

Landscapes Survey 13 (2008), available at http://religions.pewforum.org/pdf/report-

religious-landscape-study-full.pdf (last visited Aug. 6 2014).

102

J.D. Unnever & F.T. Cullen, Christian Fundamentalism and Support for Capital

Punishment, 43 J.

RESEARCH IN CRIME & DELINQUENCY 169-97 (2006).

Cold (Comfort?) Food

433

IV: ANALYSIS AND CONCLUSION

A.DO MERCY AND CRUELTY SHARE THE SAME DINNER TABLE OR IS BLIND

TRADITION THE MAIN COURSE?

The circumstance of a last meal, then, begs Hamlet’s old question of whether

we must be “cruel only to be kind.”

103

Is the last meal part of a tough love approach

to the procedures surrounding the modern day death penalty? Is it cruelty disguised

as a gift? Maybe it’s just a last sentiment of kindness from the State, the guards,

and the wardens, or perhaps no one really knows and it is merely continued as

blind tradition sustained not by thoughtful understanding, but only by a vestigial

sense of obligation. Regardless of whether this ritual is considered as a form of

cruelty, of mercy, or as a relic, it is only by seeking an answer to the question of

why we continue to provide last meals that we can understand what exactly the

state of Texas has abolished; why the last meal is important; and where it came

from to begin with.

i. Cruelty

Is the last meal purely a tool wielded by the State for knowledge, voyeuristic

pleasure, or perhaps communal punishment? Once an individual is ensnared in the

penitentiary system, it has been argued; they become models for the internalization

of the law, individuals of constant scrutiny, and are subjected to never ending sur-

veillance.

104

Is the last meal, this so-called last opportunity for a prisoner to control

his or her own human behavior, really just one last chance for the State and the

public at large to scrutinize them, judge them, or probe them?

Gordon compares the last meal to Shylock’s treatment in Shakespeare’s Mer-

chant of Venice, explaining that “the last meal comes at great cost. The price of

the last supper for the prisoner is a radical loss of personhood and privacy, a weird

reduction of the individual for posterity to his/her last meal.”

105

Many last meals

requested by the condemned are composed of foods that recall an inmate’s pre-

prison life—a childhood favorite or their mother’s home cooking—and from this,

an intimate detail about him or her is revealed, subsequently broadcasted to the

public without regard to his or her privacy or human dignity.

106

The allegation that last meals are ‘cruel’ speaks to larger issues regarding the

perversity of affording the condemned inmate any kindness whatsoever. The ques-

tion is really whether an act of any sustaining kindness can have any meaning or

reality in the context of a system where every component continually turns toward

the moment of the recipient’s death. Of course, those who reside on death row may

be sustained by such kindnesses, so in human terms an interpretation of the last

meal as inherently ‘cruel’ may be questionable: the simple spectacle of states with

high execution rates which afford the greatest liberty in this last rite is perhaps

instructive as to the very great importance of such acts in the final moments of an

inmate’s life. Nevertheless, the question of cruelty may arise again in the context



103

WILLIAM SHAKESPEARE, HAMLET, Act 3, Scene 4, Page 8.

104

Gordon, supra note 26, at 9.

105

Id. at 10.

106

See e.g., Stein, supra note 24.

3 Br. J. Am. Leg. Studies (2014)

434

of actions taken to remove the entitlement to a special meal during an inmate’s

final hours. May a state, having elected to kill a man, reduce that act into a simple

performance of euthanasia, devoid of all emotion or humanity?

107

Whether as a

structured act of degradation or a withdrawal of a treasured privilege, there is

plenty of evidence to suggest last meals are acts of implicit cruelty.

In light of this continuing debate over this ritual’s cruelty, or kindness, the

history behind the last meal shows evidence of an extremely grim past. One of the

most disturbing examples emanates from the witch trials that swept across the

county and the world in the nineteenth century. Once a woman was convicted of

practicing witchcraft she was normally sentenced to burn at the stake. However,

before her execution, she would be served a considerable amount of alcohol. Un-

fortunately, this drink was not to calm the condemned woman’s nerves, but rather,

it was generally thought that the alcohol would make her burn more rapidly.

108

While the example above is almost a blatant cruelty, is the last meal just a

mechanism or an attempt to make the execution of a human seem gentler? It has

been argued that the last meal merely emphasizes the ‘softer side’ of society—

“just before they break your neck.”

109

ii. Guilt

Perhaps, as suggested by one analyst, we feed the condemned not because of

their own wrongs but rather because we ourselves are guilty as well.

110

We use the

last meal not as a gift, therefore, but rather as a tool to repress our own guilt spurred

from participating in a state sanctioned killing.

111

Conversely, to suppress or cast

doubt on our own guilt, we provide these last meals to the condemned in order to

move the spotlight from ourselves and onto someone else who we’ve deemed more

deserving of it. Additionally, it’s quite possible that the wardens and death row

personnel use the last meal to help them cope with and overcome their reluctance

to kill or the potential guilt which might stem from that killing – for being a part

of an execution team is, psychologically, a difficult task.

112

As the findings in Sec-

tion Three show, the Southern States of the United States seem to have more gen-

erous protocols concerning the last meal, but should we take the notion of ‘gener-

osity’ at face value? While the size of the meals provided to prisoners and the

variety of food allowed might seem large, is it all just for the prisoners; or rather,

as previously mentioned, is it to help with the coping of prison officials? If so,

should we really consider the meal as a ‘kind’ gesture when the desired conse-

quence is not to calm the nerves of the condemned but rather the nerves of the

living?



107

For the euthanasia analogy, see Meyer, supra note 21.

108

Bigert & Bergström, supra note 10.

109

Id.

110

See Stein, supra note 24.

111

Id.

112

Cynthia F. Adcock, The Collateral Anti-Therapeutic Effects of the Death Penalty, 11

LA. COASTAL L. REV. 294, 314 (2009) (quoting Robert Jay Lifton, co-author of ROBERT

JAY LIFTON & GREG MITCHELL, WHO OWNS DEATH? CAPITAL PUNISHMENT, THE AMERICAN

CONSCIENCE, AND THE END OF EXECUTIONS (2002)).

Cold (Comfort?) Food

435

At least in America, there has been a progression towards a dehumanized

capital punishment; we’ve attempted to make this system painless, those who work

for it passive, and the inmate pacified.

113

Is the last meal just another attempt to

make the process easier? Lawrence Hayes, a former death row inmate, spoke about

the last meal in a recent interview and stated (concerning a modern and historical

analysis of the ritual)

Last meals are a gimmick to make people feel better about execution….When I

first thought about the issue, I thought, ‘Ok, this is an act of humanity, of benev-

olence.’ But when I started studying it, I realized it was created to ease the con-

science of the executioner.

114

Hayes, when asked if he would have accepted a last meal if still on death

row, simply replied “no.” To him, it was a contradictory and ambivalent gesture –

using a meaningful and good thing, like the comfort of food and family, to make

a bad thing, like execution, “not so bad.”

115

So arguably correctional officials, so-

ciety, and its executioners use the last meal to force the condemned to accept their

fate. By partaking in this ritual, the prisoner, by eating or being forced to order the

meal, accepts the execution that they surely know awaits them.

116

In fact, many of

the convicted, whose guilt was called into question after their execution, chose not

to eat the meal served to them.

117

These perspectives, while sometimes seen as

centered on forgiveness, mercy, or kindness, are not to help the condemned but

rather, are based on the need or fascination of someone else – namely the personnel

in charge, the Sate, or the public.

iii. Mercy

Last, perhaps the meal is offered out of kindness, generosity, and mercy.

While the State considers these offenders to be morally irrelevant, unpredictable

and incapable of any sort of change, it still offers this gesture in the offender’s last

moments of life.

118

In keeping in line with Meyer’s notion of ‘retributive ritual-

ism,’ the states with large execution rates just might be those that are the most

invested in the last meal ritual and the meanings behind it.

119

From our statistical

findings, it can be inferred that states with the greatest experience in executions

may have developed a more profound appreciation for the difference between ex-

ecutions and exterminations.

While in prison, an individual loses all forms of control. Prisoners must adapt

to prison food, meal times, wake up times, bed times, where they can go, who they



113

Meyer, supra note 21.

114

Interview with THE HUFFINGTON POST on Aug., 8, 2012, available at

http://www.huffingtonpost.com/2012/08/21/last-meals-on-death-row_n_1814369.html

(last visited Aug. 6 2014).

115

Id.

116

Bigert & Bergström, supra note 10.

117

Id.

118

LaChance, supra note 34, at 702-03, 711.

119

Meyer, supra note 21.

3 Br. J. Am. Leg. Studies (2014)

436

can talk to, and anything in between.

120

The lives of an American inmate are con-

trolled by every second – these men and women are powerless in almost every

regard to how they live their lives.

121

To most Americans or individuals world-

wide, food is central to religious beliefs, political power, economic security, and

the like; once it’s drastically minimized or controlled, a person’s core beliefs can

emphasize the powerlessness experienced while in prison.

122

There is a unique loss

of control over one’s body, privacy, dietary habits, and autonomy and the last meal

serves to return that one last choice, one last ounce of power, back to the pris-

oner.

123

This last choice might be the only thing left for a prisoner, “[j]ustice may

not always be served because the innocent can be proved guilty and the guilty can

be proved innocent. Choosing the last meal is a significant ritual because the ac-

curacy and validity of this choice is the only answer one can ultimately accept.”

124

So, while for many death row inmates it might be hard to accept the hand of cards

they’ve been dealt, one thing that is acceptable is the final choice they were able

to make for themselves. For it is inevitable that everyone will experience death,

and food can bring calmness to the experience for all involved.

The last meal, while it can give a calming effect to an individual can also be

a way for prisoners to assert one final time their political and religious beliefs –

one final way for them to express, without a correctional system limitation, how

they feel.

125

Perhaps it is this unawareness of what lies beyond death that attracts

the voyeuristic fascination with the last meal and sparks the imagination and in-

trigue of popular culture.

iv. Blind Tradition

a. Historical Significance

Death, its finality, and our mortality terrify yet intrigue us. Because of this

intrigue, this morbid fascination with after-life, we have, over time, created rituals

and traditions concerning the dead and the condemned. In particular, last suppers

have been in existence not only since our generation and the ones before, but more

notably since the time of Jesus Christ and before. It has even been said that “the

tradition of the last supper is traced to the belief in the eternal human soul, a soul

that will be able to continue life in one way or another after the body is being

dispersed.” For even the people of the pre-Christian eras had rituals concerning

the last meals of inmates or prisoners. Not only does the Christ’s last supper re-

semble the tradition which we hold true to today but the Ancient Greeks also par-

ticipated in similar offerings.

126

One would feed a last meal to prisoners so that

they could pass over the River Styx into the Underworld—for if not fed, the exe-

cuted might return to the living as a hungry ghost.

127



120

Rachel Marie-Cane Williams, Entering the Circle: The Praxis of Arts in Corrections, 31

ARTS MGMT. L. & SOC’Y 293, 299 (2002).

121

See Brisman, supra note 51.

122

Id. at 51.

123

Id. at 50-51.

124

LAST MEALS PROJECT, available at www.lastmealsproject.com/pages.html.

125

See LaChance, supra note 34, at 714-15 (2007).

126

Id.

127

Id.

Cold (Comfort?) Food

437

As such, therefore, the last meal is a rite that locates present-day executions

in a vast arc linking not only acts of criminal punishment but also noble acts of

selfless sacrifice, defeat in battle, and even suicide. The conundrum occurs when

one realizes that after decades of being treated mercilessly, a prisoner is given one

last small concession: a last meal. In other words, why would (before this recent

Lawrence Brewer debacle) a Governor like Rick Perry, who brags about being the

governor with the most executions in modern times (275 as of April 27, 2014),

show any sign of mercy towards the very end of a cruel process?

128

Do we even

know why we still give this seemingly sacred rite? Even if one could make the

argument that these men and women do not deserve a last meal – a last choice –

they’ve nevertheless grown to expect it. It’s a tradition that almost everyone has

heard of, a ritual of cultural significance allowing popular culture to express its

imagination. However, by a State revoking it, the Correctional system has success-

fully constrained and curtailed this once religious, cultural, and historical ritual

into nothingness.

b. Texas

What was it about Lawrence Brewer’s last meal request that sparked this ex-

aggerated, swift, and destructive decision? Was it the fact that he ordered enough

food to feed all of death row or rather, once served, he didn’t eat a bite of it? While

it is unclear as to whether Mr. Brewer was given his exact request (it seems un-

likely given the frequency with which the prison kitchen in Texas is known to alter

requests based on what is available)

129

; it is a factual surety that once served, Mr.

Brewer refused the feast altogether. Of the 35 of the states which executed prison-

ers in 2010 just two northeastern states (Connecticut and Maryland) provided no

special last meal. By joining this category, Texas is now a stark deviation to the

findings provided in Section Three – namely that deep-south states are more gen-

erous in providing last meals to prisoners.

Perhaps the oddity is that most states prescribe last meal protocols via their

respective Department of Corrections or through the Warden, however, in Texas,

the extinction of the last meal came not from DOC or a Warden but rather from an

elected legislator. A legislator isn’t politically invisible to the public as a commis-

sion or correction staff is; could it be that when politically accountable individuals

partake in decisions concerning death row inmates the findings might very well be

drastically different? Should this be a topic that legislators and governors consider,

and if it is, would our findings look different?

Regardless of Texas’ reasoning behind disallowing a last meal to current

death row inmates, Mr. Brewer’s request and actions, and the consequences re-

sulting from it, will surely affect future prisoners. There are many prisoners, unlike

Lawrence Brewer, who upon their final hours of life, kept their requests simple,

selfless, or as close to non-existent as one can get. Inmates have been reported to



128

Rick Perry on Death Penalty and ‘Ultimate Justice’ in Texas: ‘I’ve Never Struggled

With That,’ H

UFFINGTON POST ONLINE, http://www.huffingtonpost.com/2011/09/07/rick-

perry-death-penalty-gop-debate_n_953214.html (last visited Aug. 6 2014).

129

Price, supra note 12.

3 Br. J. Am. Leg. Studies (2014)

438

merely order a cup of coffee,

130

a bag of jolly ranchers,

131

oatmeal and milk,

132

fresh squeezed orange juice,

133

or just justice, equality, and world peace.

134

B. IF THE PHILOSOPHY IS KINDNESS, THE KEY IS CODIFICATION

If the philosophy that we are holding true to is kindness, or even some sort

of blind tradition, then it seems logical to suggest that there should be some stand-

ard that we hold this tradition to. Currently, there is neither a recognized Consti-

tutional right to a last meal, nor is there a nationally uniform administrative policy.

While the standard, and the procedures that accompany the last meal range greatly

from state to state, they are nonetheless important not only to the condemned but

also to the wardens, families, religious advisors, and prison personnel involved in

the executions..

To place this long marveled tradition on sturdy legs, it is the recommendation

of these authors that states codify the right to a last meal. The scenario that took

place in Texas is the perfect example to show just how easy it is to ban a practice

that is not codified. Had Texas created a statute which gave prisoners a last meal,

the entire legislature would have had to vote to remove it – not just one senator

who became angry after receiving news of Lawrence Brewer’s behavior.

Obviously, another best case scenario would be for the United States to pro-

claim that the last meal is a constitutional right – disallowing states like Texas to

ban it altogether. Although even with this scenario, the standards and contours of

that right would still be largely in the hands of the States.

However, considering the other side of this codification coin, would involv-

ing the legislatures of the states do more harm than good? As we have seen in

Texas, once the politically involved become an integral part of the decision mak-

ing process concerning the last meal, the protocols or lack thereof could change

drastically with little or no oversight.

There are others, though, who believe the last meal has been imbued with

more meaning than is appropriate.

135

Why bicker about SpaghettiOs or pecan pie

when life is at stake? In the shadow of an execution, does this tradition actually

matter? We acknowledge the truth of greater needs amidst the machinery of death,



130

9 LAST MEALS PROJECT, www.lastmealsproject.com. This was the last meal request of

Aileen Carol Wuornos. She was executed in the State of Florida at 9:47 A.M. on October

9, 2002.

131

Id. at 10. An assorted bag of Jolly Ranchers was the last request of Gerald Lee Mitchell

who was executed on October 22, 2001 by the State of Texas.

132

Id. at 3. Stanley “Tookie” Williams requested just oatmeal and a cup of milk before

being executed on December 13, 2005 in California.

133

Id. at 6. Nothing extravagant was requested by John R. Thompson when he asked for a

cup of fresh squeezed orange juice on July 8, 1987 when he was executed by the State of

Texas.

134

Id. at 13. The most unselfish of all requests (which now cannot be made under the last

meal rite) was by Odell Barnes Jr. who requested, simply and selflessly, “justice, equality,

world peace.” He was executed on March 1, 2000 by the State of Texas.

135

“If the last meal process has been abused, then maybe it warrants changing, but there are

a lot more serious abuses that have gone on in terms of lack of due process in Texas. Inmates

would much prefer a last lawyer to a last meal.” Richard Dieter, DPIC (www.dpic.org); see

also Fernandez, supra note 4, at A17.

Cold (Comfort?) Food

439

but also have learned of the comfort offered by this tradition amidst the emotional

pain for all involved. Put another way, “[k]illing people is a morally messy busi-

ness. Whether we allow a man carte blanche with junk food menus … or we simply

serve him that day’s fried chicken … the act is, in essence, the same.”

136

For us,

however, exploring this strand of the tapestry has revealed even more about the

needless difficulty and arbitrary choices accompanying legal executions in the

United States.

136

Tony Karon, Why We’re Fascinated by Death Row Cuisine, TIME (Aug. 10, 2000); see

also Earl F. Martin, Masking the Evil of Capital Punishment, 10 V

A. J. SOC. POL’Y & L.

179, 213 (2002) (“[T]here are other more subtle means by which the American public hides

the evil of capital punishment from itself in an effort to salve its collective conscience.

Specifically, through the bureaucratization of executions, the inclusion of lawyers and

medical doctors within the system, and the employment of religious themes and activities

in connection with the sanction, society manages to push the evil that is inherent in capital

punishment either our of view or, at least, to a place of minor significance, in weighting the

pros and cons of the sanction.”).