By Sarah Fenske
By Danny Wicentowski
By Lindsay Toler
By Danny Wicentowski
By Danny Wicentowski
By Jessica Lussenhop
By Lindsay Toler
By Lindsay Toler
"Frankly, at the end of that meeting, we all kind of scratched our heads and said, 'What was that all about?'" recalls Rice. Afterward, Landi proceeded to tag along as Rice and others knocked on the doors of Parliament. "He just wanted to know what we were doing," Rice says. "We would introduce him as an observer. He would nod his head very nicely. Our thinking was very superficial, to be honest with you. You know, it was kind of like, 'Maybe we could get Benetton to do some T-shirts for us.'"
On his return to the United States, Rice sent the Benetton executive a courtesy letter. Almost a year passed before he heard from the mysterious Mr. Landi again. In late November 1998, Rice remembers receiving a call asking whether he would be interested in helping plan a photo essay for Benetton featuring American death-row inmates. The discussions were so preliminary that Rice didn't even bother to take notes, he says. But the possibility of having a deep-pocketed benefactor bankroll an anti-death-penalty campaign intrigued him. The long-distance talks continued, including a conference call with Landi and a photographer named Oliverio Toscani, whom Rice had never heard of before.
Meanwhile, as the number of executions continued to climb in the United States, opponents in Europe, including Hands Off Cain, initiated a campaign advocating worldwide abolition of the death penalty by the year 2000. Other proposals by the United Nations Commission on Human Rights and the Vatican advocated a moratorium. The stage was set. The whole world was watching, and Benetton, which is noted for addressing social issues in its advertising, decided to seize the opportunity and fuel the death-penalty debate. Working with Rice and the NACDL, the company began laying the groundwork for its latest project. From the beginning, Benetton chose to associate its identity with a position that would inevitably foment an emotional response. This comes as no surprise. Playing devil's advocate, challenging the status quo and questioning established beliefs are all longstanding company traits.
Since Luciano Benetton founded the Italian clothing company in 1955, the family-owned business has grown into a multinational corporation that operates in more than 120 countries, with sales approaching $2 billion last year. But the global enterprise doesn't just knit sweaters. United Colors of Benetton campaigns manufacture, promote and distribute points of view, as if controversy itself were a company trademark. The unorthodox advertising has frequently stirred public outrage. In 1984, Benetton infuriated apartheid backers in South Africa by featuring photographs of black and white youths frolicking together. In 1992, the company focused a camera lens on a dying AIDS patient. Other Benetton campaigns have advocated peace in the Middle East and exposed the horrors of war in the Balkans. Shunning convention and breaking taboos are the main criteria for launching a Benetton campaign. The themes can sometimes be playful and are always provocative: a denim-clad Eve baring a breast; a nun and a priest kissing; a black stallion mounting a white mare.
Benetton calls these promotions "corporate communications campaigns," and the strategy of attaching the company's name to an issue is referred to as "branding."
"This is not Madison Avenue advertising," says Mark Major, a Benetton spokesman in New York. "We're talking about important issues around the world, and we're associating our brand with caring about those issues. This is a very unconventional way of looking at communications."
As a profit-making global corporation, the company's social consciousness can hardly be considered charitable. But the Benetton spokesman argues that altruism and profit aren't mutually exclusive. "It's hard to understand in the United States, where companies are motivated purely by profit," Major says. "We have a profit motive and we're in business, but we recognize the fact that we're global. We have a tremendous ability to reach lots of people. We feel that it is a waste of our money and our presence not to take advantage of that and communicate other things that are more important, as far as humanity goes, than just our product."
Julie Wasson became active in the death-row project for another reason: She was trying to please her boss. The 29-year-old assistant was relatively new to her job at Gonzaga University, a Jesuit school in Spokane, Wash., when Rice, who teaches there, asked her to help out.
"I thought this would be pretty fun," Wasson says. "We expected this project to last two months and we'd be done with it." Instead, it took seven months just to get the approval to visit the prisons, she says. Many states rejected their requests because of the notoriety of Benetton's previous campaigns. Ultimately, though, several states -- Illinois, Kentucky, Oregon, North Carolina, Nebraska, Pennsylvania and Missouri -- granted access.
The project was beginning to take shape. Rice, the NACDL's Death Penalty Abolition Committee chairman, acted as liaison with Benetton. Wasson helped set up the prison visits and handled correspondence. Ken Shulman, a freelance writer for Newsweek was brought on board to do the writing and interviewing. Finally, Toscani, who had done past Benetton campaigns, took on the responsibility of photographing the death-row inmates.
In July 1999, the Benetton team visited prisoners in Kentucky, Oregon and North Carolina. That trip netted a dozen photographs and interviews, which weren't enough to complete the project. So a second round of prison tours took place in October, which is when Wasson, Shulman and Toscani visited Missouri inmates at the Potosi Correctional Center in Mineral Point. The Benetton-sponsored project culminated in the publication of "We, on Death Row," a 96-page full-color booklet that was distributed as an insert in the February edition of Talk magazine. Although the company's slogan, "United Colors of Benetton," appears throughout the booklet, none of the company's products is pictured. Four of the 26 condemned prisoners featured are incarcerated at Potosi.
Neither the pictures nor the text overtly addresses abolition of the death penalty. Instead, the photo essay draws attention to the people themselves. In essence, the portraits aim to put a face on state-sanctioned death, capturing the inmates in their usual prison garb. One prisoner poses with a Bible in his hand. Another is shown in a wheelchair. The sole woman is displayed in shackles. The subjects are young and old, black and white. Some smile. Some appear pensive, remorseful or defiant. All stare straight at the camera. Their eyes peer out from the glossy pages of the catalog with the indescribable resolve of those who know what fate awaits them.
In the interviews, they speak about their lives, what went wrong. They offer advice to young people on how to avoid the same pitfalls they encountered. They share their dreams, aspirations, fears. They talk about being loved and not knowing what love is. Their discourses are filled with pathos, gallows humor and, at times, wisdom.
Benetton's gallery of Missouri death-row inmates comprises Steven W. Parkus, who is mentally retarded and schizophrenic, and who killed a prison inmate in 1985; Christopher Simmons, convicted as a teenager in 1994 for throwing a bound woman into the Meramec River, where she died; Jerome Mallett, sentenced to death for the 1985 slaying of a Missouri highway patrolman; and Joseph Amrine, who stands convicted of murdering a fellow prisoner 15 years ago (see sidebar).
Amrine's words appear in boldface type on the first page of the catalog:
"I am not ready to die."
Toscani, the provocateur who framed all these exposures, is Benetton's former creative director. He left his position in May to join Talk magazine, ending an 18-year association with the company. Through a spokesperson, Toscani voices opposition to the death penalty and predicts that someday the United States will abolish capital punishment, as it has slavery. Indeed, the photographer felt so strongly about his images of the condemned Americans that he asked Benetton to expand the "We, on Death Row" campaign. The decision was seconded by Fabrica, a Benetton-funded think tank that Toscani formed in 1994, which acts as the company's avant-garde mass-media-research arm. The expanded $20 million campaign paid for additional billboard displays and spreads in Interview, Rolling Stone, Vanity Fair and other magazines.
By no small coincidence, the blitz preceded the death-penalty controversy in this year's U.S. presidential race, because Texas Gov. George W. Bush, the Republican nominee, has approved 135 executions in the past five years -- more than any other governor. The issue gained further play earlier this year, when Republican Gov. George Ryan of Illinois imposed a moratorium on the death penalty, after the Chicago Tribune reported dozens of instances of inadequate defense and prosecutorial misconduct in capital-murder cases. In some trials, convictions hinged on the testimony of unreliable informants. The problem doesn't stop at the Illinois border. Moreover, the introduction of DNA testing as admissible evidence has raised further questions about the guilt or innocence of numerous death-row inmates nationwide.
In the wake of these revelations, recent Gallup polls show public opinion shifting. An estimated two-thirds of all Americans still back the death penalty in murder cases, but support for capital punishment has dropped precipitously in the last six years, from a high of 80 percent. More telling, perhaps, is the finding that only 51 percent of the American public now believes the death penalty is applied fairly, and fewer than half of those polled say they approve of the way GOP nominee Bush has handled death-penalty cases.
Benetton's well-timed campaign helped focus public attention on the issue, but in some respects, "We, on Death Row" achieved more of a reaction than the company anticipated. Death-penalty supporters and the families of victims roundly condemned the campaign. Sears, Roebuck and Co. dropped its contract to sell Benetton goods, and law-enforcement fraternities railed against the company for coddling killers. Critics noted that details of the gruesome crimes were omitted from the text and the plights of victims' families ignored. The press responded with broadsides, including a scathing 60 Minutes II report, which highlighted those views. The Pennsylvania attorney general lambasted Benetton, and the California General Assembly called for a boycott of the company's products.
In Missouri, Attorney General Jay Nixon joined the chorus, zealously denouncing the company for exploiting the state's crime victims. Unlike others, however, Nixon didn't stop there. He filed a lawsuit against Benetton on Feb. 9, including as defendants photographer Toscani, freelance writer Shulman, the NACDL's Rice and his assistant, Wasson. The attorney general claims that letters and forms submitted by the defendants misrepresented the purpose behind their prison visit to Potosi. All have been accused of trespassing on state property for hiding the commercial nature of their project.
"They were, in essence, trying to sell sweaters on the backs of Missouri crime victims," says Nixon. "They lied to get into prison. Really, what it comes down to is, should you be able to lie to get on to death row to sell your product? The answer to that question is unequivocally no."
Major, the Benetton spokesman, says that if the company intended to promote anything in this endeavor, it certainly wasn't the latest line of sportswear. "In this campaign, there is no product involved," says Major. "There are no sales involved. The photo essay itself wasn't being sold. There is no commercial motive."
By filing the lawsuit, Nixon claims, he's merely upholding the laws of Missouri. "I don't know what they did in other states," he says. "I have not had discussions with them concerning specific facts. I have not talked to the attorneys general about what forms (the defendants) filled out, who they said they were, whether they got this form letter or that form letter. We have sued under a simple state-court theory of deception and trespass by deceit. This isn't about what they said to people in North Carolina or Colorado. This is about what they said to people in Missouri."
Charles Hatfield, the assistant attorney general pursuing the case, finds the Benetton campaign reprehensible. "Even if they had gone into the facility and hadn't lied to us, they (still) should not have published this material," Hatfield says. "It glorified convicted murderers. I strongly disagree with what they did. But that isn't the legal issue. That's not what we have sued them about. This is a trespass case."
Major says Benetton is willing to accept criticism and even boycotts, but it doesn't feel that the state of Missouri should have the authority to expend public funds to quell free speech. "We don't mind being the whipping boy, if being the whipping boy means fostering this kind of debate and discussion. We just don't want to be the whipping boy with taxpayers' money. That's not the role of government entities. The attorney general is exploiting this whole situation for his own personal gain. Out of all the states that we went to and entered the penitentiaries, this is the only attorney general who is taking any kind of legal action. He's a grandstander."
In a sense, the attorney general is accusing the defendants of breaking into prison. The Kafkaesque charge is warranted, says Nixon, because they violated Missouri Department of Corrections (DOC) regulations by failing to inform prison officials that the death-row inmates' images and words would be used for an advertising campaign.
But the defense counsel for photographer Toscani sees the issues raised by the case as far more profound: It's about free speech. "If the "We, on Death Row" campaign had been perceived by the state as pro-death penalty, there would not have been a lawsuit," says attorney Robert Haar, a former St. Louis police commissioner. "So it seems to me that the lawsuit is really an attempt to punish or penalize the defendants for their viewpoint on an important political issue. I have not seen and do not believe that there were any misrepresentations. It (the death penalty) is a controversial topic in this country at this time. I think all the catalog attempted to do was give the reader another perspective on these individuals. I'm not sure it was a positive or negative perspective. It was just different. I'm a little perplexed about what the state's objections are."
For his part, the attorney general doesn't shy away from objecting to the content of the Benetton catalog, but he contends that's not why he filed the lawsuit." The trespass issue is separate from the content of the publication," Nixon says. "We would sue anybody for this kind of trespass, whether it was pro-death penalty or anti-death penalty."
Assistant Attorney General Hatfield echoes Nixon's reasoning: "We do not allow commercial use of our prison facilities. That's the rule for everybody. It doesn't matter what your political point of view is or the content of your commercial speech. The bottom line is that if they would have told us up front -- 'We would like to gain access because we're preparing something for Benetton that will be used by the Benetton Corp. and will be distributed throughout the country' -- we would have said no immediately." Hatfield compares the circumstances surrounding the alleged trespassing to gaining illegal entry through fraudulent misrepresentation. "It would be just like somebody coming to your house and saying, 'I'm the meter reader,' and they were lying to you and, in fact, they were there to go through your drawers to see what kind of underwear you wear."
Missouri claims that it has incurred increased costs in housing the inmates as a result of the fame they gained. The lawsuit lists phone and fax charges as an example of the added expense. "The actual damages in relation to the cost of running the state are not significant," acknowledges Nixon. "It's a relatively small amount of money." So, the state is seeking an unspecified amount for punitive damages. "I think a jury here has the opportunity to determine whether or not Benetton should be adequately punished for lying to get pictures to use in a $20 million ad campaign," Nixon says.
The attorney general's office has achieved initial success by blocking an attempt by the defense to move the trial to federal court on constitutional grounds. In June, U.S. District Court Judge Rodney W. Sippel turned down the motion. The suit has now been remanded back to state court and has been moved on a change of venue from Washington County to St. Louis County, where Judge Melvin Wiesman will preside. No trial date has been set, and Benetton has not yet filed a response.
The state's case rests on documents that allegedly show purposeful misrepresentation. Evidence includes forms signed by two of the defendants when they visited Potosi Correctional Center last year and two earlier letters sent by Rice, which appear to contain nothing deceptive.
In a letter dated Sept. 2, 1999, for instance, Rice outlined the project to Dora Schriro, the director of the DOC. The missive bears the letterhead of the NACDL and identifies Rice as leader of that organization's anti-death-penalty committee. Rice notes that Toscani, a "highly regarded" international photojournalist, will be taking the pictures. "He will be accompanied by Ken Shulman, freelance journalist with Newsweek, the project producer and interpreter," writes Rice. He then makes clear Benetton's role: "Naturally, a project this size has private funding and in this case the Benetton Company of Italy is the sponsor," he writes. Rice says upfront that 6 million copies of the photo essay will be printed in 13 languages. The letter assures Schriro that the interviews will not delve into the inmates' crimes, their cases or their living conditions in prison. Rice also states: "No profits will be generated from the publication of this photo-essay.... Benetton's only condition is that the inmates be photographed in their normal prison clothes and not clothing which would promote another company, such as a GAP shirt."
Rice's pitch is clear: Benetton is paying for the production and distribution of the photo essay, and the company does not want a competitor's products featured in the photographs.
Nevertheless, Hatfield says, the defendants failed to spell out their intentions fully enough. "The director of the Department of Corrections was very upset that anyone would misrepresent themselves in order to gain access into a correctional facility and would then use the information they gained for commercial purpose in clear violation of the correctional policy. She asked us to file a lawsuit on her behalf," Hatfield says. Neither the DOC nor the attorney general's office, however, could provide documentation as to whether Schriro requested the lawsuit be filed or whether Nixon convinced her to go along with it. A spokesman for the DOC declined to comment, noting the case is under litigation. During the final negotiations to gain access, at least, Schriro was very cooperative, says Rice. She is even credited for her assistance in the acknowledgments of the Benetton catalog.
Arguably, the most questionable statement in Rice's letter is that the photo essay would receive limited distribution in the United States. But in relative terms that statement is accurate, too. Talk magazine has a circulation of 600,000, which represents only a tenth of the total copies that Benetton intended to print worldwide. The decision to expand the campaign with additional magazine ads and billboard displays was made after the completion of the photo shoot, according to both Rice and Major, Benetton's spokes-man.
Aside from Rice's letter, the state's evidence consists of standardized forms that both writer Shulman and project coordinator Wasson signed when they entered the Potosi Correctional Center on Oct. 13, 1999. The forms are not entry passes per se but, rather, serve as releases or verifications that inmates have granted permission to be interviewed and photographed. The forms are usually filled out by a prison staff member and then signed by the inmate, according to a DOC spokesman. The forms also contain designated spaces for listing the visitor's organizational affiliation. Both Wasson's and Shulman's forms list Newsweek magazine in those spaces. But it's difficult, if not impossible, from the available copies, to discern whether it's their handwriting or the guard's or the inmate's. Shulman admits he signed the form but has publicly stated that the Newsweek reference is not in his handwriting. One of the forms shows that it was filled out in advance of Shulman's visit and signed by the inmate and prison employee on Oct. 12, the day before the writer's visit.
In Rice's opinion, it is the Missouri attorney general's office that is guilty of misrepresentation." What they're saying is just not truthful," Rice says. "This is a political lawsuit. Nixon wanted to do something to show that he supported people who want executions." According to Rice, everything he did was aboveboard. He sent examples of Benetton's other corporate-communications campaigns to Schriro, the director of the Missouri Department of Corrections. He also provided press credentials to indicate the professional status of Toscani and Shulman, neither of whom is directly employed by Benetton. A DOC official refused his request to allow the Benetton crew into the prison twice, he says. After being rebuffed the second time, Rice spoke to a Missouri defense attorney who contacted a local person involved in prison ministry. It was the religious advocate who finally convinced Schriro to permit Benetton access, Rice says.
Both sides are now reluctant to discuss the details of the case because of the pending litigation. But attorneys for the defense question why Nixon has become more closed-mouthed of late. When John Davidson, the attorney for Shulman, tried to depose Nixon, the attorney general's office resisted the motion, claiming Nixon had no personal knowledge of the case. "He gave a number of interviews in which he described his version and sequence of events of how they got into the prison," Davidson says.
Burton Shostak, the attorney for Wasson and Rice, finds Nixon's stance unbelievable. "The attorney general says he has no personal knowledge of any of these facts," Shostak says. "That's filed in court. It's under oath. I find that to be just absolutely amazing. I find it to be almost incredible. Everyone knows what his position is. He's had all of these press conferences and press releases and all this stuff and then says, 'I have no personal knowledge of this.' I find that extremely hard to swallow."
In one way, at least, Nixon has exhibited a lack of knowledge about the case, says attorney Barry Short, who represents Benetton. "The attorney general is trying to figure out what entity he's supposed to be suing and hasn't done that yet," Short says. "The attorney general sued Benetton Inc. There is no Benetton Inc." Benetton is made up of a series of companies scattered from Amsterdam to Treviso, Italy. According to Short, court papers were served on Benetton USA Corp., a subsidiary in New York, which has a total of nine employees. "All Benetton USA does is marketing and consulting services," Short says. "It has nothing to do with the state of Missouri. It has no employees in the state of Missouri, has no employees that were participating in this lawsuit. It has nothing to do with the facts of this case." In addition, Short doubts whether St. Louis County Circuit Court has any jurisdiction over the Italian company.
Nixon is most offended by the publicity afforded Jerome Mallett, one of the Missouri inmates given prominence by Benetton. The inmate, whose execution is imminent, stands convicted of the 1985 murder of Missouri Highway Patrolman James Froemsdorf. The attorney general's ire was stirred because Mallett's image not only appeared in the photo essay but on billboards as well. "There certainly wasn't any $20 million ad campaign being run for Sarah Froemsdorf (the officer's widow) or any of her kids," Nixon says.
Mallett's added fame came about this way: After the photo shoot was completed, Rice says, Toscani was so impressed by the death-row portraits that he persuaded Benetton to ante up more money for wider distribution. The plan involved highlighting seven of the 26 inmates in an expanded billboards-and-magazines campaign. Although the inmates received no remuneration for the original photo essay, Benetton maintained that it was compelled to at least offer payment for the expanded campaign to obey applicable laws in Europe. Two of the seven inmates, including Mallett, declined Rice's recommendation and accepted Benetton's $1,000 fee. "At NACDL, we weren't in favor of it," Rice says. "But at the same time, we weren't going to tell Benetton that you can't follow European law by making the offer. Ultimately, it wasn't our decision."
Hatfield, the assistant attorney general, is outraged not about the $1,000 paid to Mallett but, rather, about Mallett's resulting fame. "I met the daughter of Trooper Froemsdorf, and I think it's reprehensible that anyone would put Jerome Mallett on a billboard in New York City; that anyone would put Jerome Mallett in a magazine and make him out to be some kind of sympathetic figure," Hatfield says. "He's not a sympathetic figure -- he's a cold-blooded murderer."
But when asked about the case of Joseph Amrine, another of Benetton's subjects, Hatfield is more reticent. Amrine received the death sentence for killing fellow inmate Gary Barber on the evening of Oct. 17, 1985, in the recreation room at the Missouri State Penitentiary in Jefferson City. Amrine is alleged to have stabbed Barber in the back for spreading rumors about a homosexual act involving the two inmates. The conviction was based on accounts by three other prisoners, who have all since recanted their testimony. Two of the inmates now claim they were coerced by a prison investigator into implicating Amrine.
Kent Gipson, one of Amrine's attorneys, says his client's case is hampered by an all-too-common foible of the court system. "It's the same thing that they always do," says Gipson. "They say that the trial testimony was credible but the recantations are not, which doesn't make any sense logically, because these guys don't have anything to gain by recanting their stories. In fact, they're sticking their necks out for a perjury rap for doing this. Perhaps the best thing we have going for us is there is now a prison guard, who lives in the St. Louis area, who basically says the guy who was the state's witness was the guy who killed (Barber).
Amrine's circumstances point to a fatal flaw in the application of the capital punishment -- the inevitable risk that someone facing the death penalty may be innocent. In a recent letter to The Riverfront Times, Amrine had this to say about life on death row:
"... I'm at the end of my appeals now and it's really taking its toll on me, mentally. As much as I love living in the past, three, four years, I've come to look forward to my execution cause I'm just tired of all this suffering. As you know, I've been in prison since '77 and on death row 15 years. And I've really been doing it on my own since my mother died.... I spend 23 hours a day in this cell, walking back and forth and wondering why I just don't drop my appeals and get it over with.... As far as the Benetton situation, I don't understand what the big deal is. Jay Nixon (is) just mad cause Benetton people are trying to help guys like me. "
Far from Amrine's prison cell, in the comfortable confines of a Clayton law office, defense attorneys Shostak, Davidson and Short are discussing Nixon's lawsuit. Chandeliers cast a soft light in the conference room and law books line the shelves. The men are impeccably dressed, well mannered, urbane. All of them concur that Nixon is pressing this case for reasons beyond the limited scope of the lawsuit, that the trespass charges are a thin veneer covering the attorney general's political motives. Shostak sums it up best in his answer to whether Nixon's lawsuit is frivolous.
"I suppose that if you're the attorney general seeking higher office, the case is not frivolous. If you are concerned about an expenditure of taxpayers' funds and the value you receive in return for those funds, you could well come to the conclusion that it is frivolous," Shostak says. "The people in the attorney general's office say that this is a simple trespass case. It's like you got a sign on your lawn -- 'Don't walk on the grass' -- and somebody walked on the grass. But the case has far greater implications than that.
"This company (Benetton) at least has the unmitigated brass to go out and run a campaign in which they bring to the attention of the public a very important issue as they have year before year," Shostak says. "The attorney general now files a suit because it's not his position. I don't have a problem if he wants to stand up for law enforcement. He has the absolute right to stand up for law enforcement and the Highway Patrol and the family of the murdered highway patrolman. I support that. I don't think anybody would quarrel with that. I think most people would applaud him. He has every right to do it, and I don't see anything wrong with doing that. The question is: Is that a basis for a lawsuit?"
The conversation moves from fine points of the law to broad constitutional issues and then turns to the attorneys' personal views on the death penalty. Two of them have had clients executed. One, a former federal prosecutor, has witnessed an execution. The men recall talking to their clients for the last time late at night by telephone, telling them that their appeals had been exhausted, saying goodbye. Each attorney, in turn, questions the vagaries of the judicial system, the procedural errors, the emotional cost of capital punishment, which can never be quantified. All have different views on the death penalty, under what conditions it should be applied or whether it should be applied at all.
Toward the end of the discussion, Shostak makes what could be considered his closing argument. "Keep in mind that this discussion that you're having with three lawyers who have been involved in this kind of litigation comes about because Benetton put that book out," he says. "They have everybody talking. So the forcefulness of the book speaks for itself."
For more information see, The Benetton Four.
Jay Nixon press release announcing the lawsuit:
Part of the case is built on whether Shulman signed the forms identifying himself falsely as a representative of Newsweek:
Rice represented Benetton as a member of the National Association of Criminal Defense Lawyers. He is being sued by Jay Nixon:
Slate magazine story on Missouri's lawsuit against Benetton:
Death Penalty Information Center:
Jay Nixon Biography: