The Executioner’s Song is a Thorough Examination of the Death Penalty

THE EXECUTIONER’S SONG- Few novels have examined the death penalty as thoroughly as Norman Mailer's Pulitzer Prize-winning The Executioner’s Song.

The Executioner’s Song is a 1979 novel written by Norman Mailer.  It won the Pulitzer Prize.  Norman Mailer became fascinated with the execution of Gary Gilmore and spent years interviewing nearly everyone connected to the case, producing what many consider the definitive literary examination of capital punishment. 

Gary Gilmore grew up in a rough situation and was a career criminal.  He got paroled after serving 13 years for armed robbery and moved in with his cousin, who helped him get a job.  He met his girlfriend, Nicole Baker.  After a break-up he wanted to buy a used truck but did not have the money; he decided to get the down payment by committing a couple of robberies, where he murdered a gas station clerk and a motel desk clerk.  Gilmore was arrested and charged with two homicides.  Homicide was a capital offense in Utah and Gilmore’s trial was a death penalty case.  As the trial progresses, Gilmore did not understand what his attorneys were doing – as they rarely asked any questions of the witnesses.  Eventually Gilmore confronted his attorneys about their trial strategy.  They explained that the evidence was so overwhelming that there was no question about his guilt; their goal was to get him life without parole instead of the death penalty.  The issue of whether he committed the crimes was not going to be challenged.  Gilmore became upset because he did not want to spend his life in prison; Gilmore then testified that he committed the crimes.

Gary Gilmore then began to push for the death sentence and wanted to speed up the process.  Throughout the appeals process he had to fight his own lawyers to waive further appeals and allow his execution to proceed.  He was eventually executed by firing squad. 

One of the most common aspects of practicing law is the concept that lawyers are attorneys and counselors of law.  Counseling a client on the law is explaining how the law works in their case and showing the evidence to the client; then you explain the options that they have.  The difficult part is that, after receiving competent legal advice, clients sometimes choose the option that is clearly against their own best interests.  It’s one thing to fight for what your client wants.  It’s another thing to fight for what’s in their best interest.  For example, I once represented a child that was beaten by their father on a regular basis.  It was in the child’s best interests to be removed from the father.  However, if the child insists on remaining with the father, even when they know they will be beaten again, this creates a problem.  Does the lawyer represent what the child wants or does the attorney represent what’s in their best interest?  With children, the answer was easy; I merely had to go to court and request that another attorney represent what’s in the child’s best interests while I argue for what they want.  With adults, the answer is more difficult.

Children can get a Guardian Ad Litem appointed to represent their best interests because they are a minor and not necessarily able to make a decision in their best interest.  An adult, however, is presumed to be able to make these decisions as to what’s in their best interest – unless they lack the mental capacity to make informed decisions.  In Gilmore’s situation, he was competent and able to make his own decisions, yet his attorneys fought against his wishes.  It creates a serious dilemma in the courts as to whether he has a right to waive his appeals and move straight to execution.

The Executioner's Song is much more than a true-crime novel. It is a profound examination of punishment, personal autonomy, and the ethical obligations of lawyers and judges. More than forty years after its publication, it remains one of the finest books ever written about the death penalty and the difficult moral questions that surround it. 

TF’s Notes:  Gary Gilmore’s fight to be executed was not that unusual.  Even when a defendant insists on being executed, defense attorneys generally view it as their ethical duty to ensure that every legal safeguard has been exhausted before a death sentence is carried out.  They usually challenge the death penalty on two grounds – to make sure the client is not mentally incompetent and whether any mitigating factors (drug issues, mental illness, trauma, child abuse, remorse, or military service) can reduce the penalty from death to a life sentence.  Defense attorneys have an ethical obligation to fight to keep their clients alive.