Proffitt v. Florida: Distorting Death

Abstract

This essay, Chapter 7 in Painting Constitutional Law, examines Xavier Cortada’s depiction of Proffitt v. Florida, the 1976 decision that approved Florida’s guided discretion statute after Furman v. Georgia had invalidated the death penalty in 1972. Cortada’s depiction is a fantastical piece, a piece that captures the horror of death by electrocution set against two columns of ominous looking Roman numerals. The Roman numerals represent the mechanical imposition of death — the formulaic approach to death penalty decision-making that tells sentencers to simply add up the columns of aggravating and mitigating circumstances and see where the balance lies. Cortada resists this approach as obscuring the human element in death penalty decision-making, the awesome responsibility of sitting in judgment over another human being’s life. This essay unpacks Cortada’s key insight, teasing out its complexities and supporting the point with research showing that jurors do indeed treat the law as making the death decision for them, allowing them to avoid the emotionally wrought decision of deciding life or death for themselves. We numb ourselves with numbers. The essay then turns to what Cortada explains was the visual inspiration for his piece — a painting of a screaming pope by Francis Bacon. Bacon’s pope was not a comment on the death penalty, but the themes he was exploring — pain, imprisonment, isolation, and obfuscation — are all eerily apropos of the death penalty as well. Cortada’s painting is in dialogue with all four of these themes, so the second half of the essay uses these themes to draw parallels between the two pieces of art and the death penalty more broadly. Both works of art are a comment about distortion, and Cortada's painting--which is reproduced on the first page of the chapter, followed by his artist's statement--show how the law by institutional design works to distort death.

Keywords: death penalty, capital punishment, art