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The Death Penalty: An American History
Harvard University Press, $29.95 (cloth)
Legal Lynching: The Death Penalty and America's Future
Rev. Jesse L. Jackson, Sr. Representative Jesse L. Jackson, Jr., and Bruce Shapiro
The New Press, $24.95 (cloth)
Who Owns Death? Capital Punishment, the American Conscience, and the End of Executions
Robert Jay Lifton and Greg Mitchell
William Morrow, $25 (cloth)
The Wrong Man: A True Story of Innocence on Death Row
University of Minnesota Press, $29.95 (cloth)
An Eye for an Eye: The Immorality of Punishing by Death
Rowman and Littlefield, $21.95 (paper)
Within These Walls: Memoirs of a Death House Chaplain
Rev. Carroll Pickett
St. Martin's Press, $24.95 (cloth)
When the State Kills: Capital Punishment and the American Condition
Princeton University Press, $29.95 (cloth)
Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted
Barry Scheck, Peter Neufeld, and Jim Dwyer
Doubleday, $27.50 (cloth)
The Last Face You'll Ever See: The Private Life of the American Death Penalty
HarperCollins, $25 (cloth)
Public interest in capital punishment thrives in part because of our susceptibility to the pornography of death—the murder and the grisly crime scene; the search for the fugitive; the arrest, trial, and sentencing (with all their flaws); the struggle of the accused to escape a death sentence; the usually futile appeals to higher courts; the perfunctory clemency hearing; the death watch; the clamor outside the prison walls; the execution itself; the disposal of the prisoner's body. The drama is even greater, of course, when there is reason to believe that the convicted prisoner is innocent.
Although a majority of Americans continue to favor the death penalty, as they have since 1967, the level of support has dropped from nearly 80 percent in 1994 to 66 percent as of February 2000. The chief factor in that drop seems to be public concern over the frightening possibility that innocent persons will be executed—a concern shared by supporters of capital punishment. A November 1998 conference in Chicago on wrongful death penalty convictions brought this issue sharply into focus. Organized by Professor Larry Marshall of Northwestern University Law School, the conference was attended by hundreds of students, lawyers, journalists, anti-death penalty activists, and ex-death-row prisoners.
The most striking moment of the conference was an unprecedented public display in the main auditorium with 1,500 in attendance. Thirty men and one woman from several death penalty jurisdictions, each an exonerated death row inmate, walked one by one from the wings onto center stage. Each introduced himself, saying: "If the State of…["Florida," "Texas," "Illinois," and so forth] had gotten its way, I'd be dead today." The unadorned eloquence of their message and their collective presence, standing shoulder to shoulder across the stage, was stunning. Here was personified and incontrovertible evidence of the worst failures of our criminal-justice system—the worst, short of the actual execution of innocents.
Several of the most egregious cases were from Illinois and had received considerable publicity (local and national) before the conference opened. One was the case of Gary Gauger, sent to death row in 1994 for the murder of his parents and released two years later when it was established that the police had no reason to arrest him in the first place.1 The Gauger case and others in Illinois where first-degree murder convictions were overturned (thirteen between 1987 and 2000), as well as the publicity surrounding the Northwestern conference, helped to encourage Illinois Governor George Ryan two months later (January 2000) to declare the nation's first moratorium on executions, pending reforms of the system to reduce the likelihood of further such errors. (The report of Illinois's special commission on procedural reforms in capital cases is due for release this spring.) For several years, the American Bar Association has been urging the federal and state governments to declare such moratoria, based on similar grave concerns.
Procedural reforms in capital cases, of course, are not a guarantee against convicting and executing the innocent. But such reforms—pertaining to the conduct of investigations, admissible evidence, and greater support for defense attorneys in capital cases—can reduce the likelihood of such errors. The issue is not a new one. Reform proposals emerged as early as 1932, but few have been incorporated into American law.2 Congress made a first step in addressing this problem with the Innocence Protection Act of 2001, championed by Senator Patrick Leahy of Vermont and co-sponsored by two dozen senators and more than two hundred representatives. It focuses on providing routine DNA testing for death row inmates in the federal system. (As of this writing the bill is still in committee and its future is uncertain.) That bill, however, reflects only a small part of a movement and a growing body of literature that takes a new approach to death penalty reform and abolition. The latest recommendations on reforms to protect the innocent come from attorneys Barry Scheck (the DNA expert witness in the O. J. Simpson trial) and Peter Neufeld and journalist Jim Dwyer, inActual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted, which opens with the shockingly complacent remark of former Attorney General Edwin Meese III: "If a person is innocent of a crime, then he is not a suspect."
After discussing several dozen recent cases in which innocent suspects were convicted and many of them sentenced to death, Scheck and his co-authors close their book with a list of more than forty "reforms to protect the innocent." Seven are restrictions on admissible eyewitness testimony. Fourteen are devoted solely to reducing the likelihood of false testimony from jailhouse snitches. Another fourteen focus on the work of forensic laboratories and the evidence they produce. Among their specific recommendations are these: Inform witnesses that the actual perpetrator may not be in the lineup. Videotape all interrogations by the police. Create an inspector general in each jurisdiction to investigate alleged misconduct in forensic laboratories. Provide defense lawyers with funds to retain qualified experts to review the prosecution's forensic evidence. Provide defense lawyers with services and funding comparable to what the prosecution has. And, of course, make the prompt testing of the accused's DNA routine.
Can we hope to see these reforms introduced into practice and law? To that end, Scheck and Neufeld created The Innocence Project at Cardozo School of Law in 1992. The Project has now grown into a nationwide undertaking involving faculty and students at many law schools. Despite this academic success, I confess to some skepticism regarding the adoption of their proposals at a state, much less federal, level. We will have some evidence on hand when we learn what reforms the Illinois commission recommends and whether they are adopted by the legislature. But if the Scheck-Neufeld-Dwyer reforms were incorporated into law, they would presumably go a considerable distance in the right direction. Research has shown that in murder cases, the most likely source of wrongful convictions is perjury by prosecution witnesses; limiting the use of testimony by jailhouse snitches should help to end that kind of abuse.3 Coerced confessions (the third most likely source of false convictions) would also be reduced by the proposed remedies. Still, good-faith but erroneous eyewitness testimony—the second most prevalent source of error—will continue to plague innocent defendants. As for DNA evidence, it is relevant in only a fraction of cases. If rape were still a capital offense, as it was prior to 1977, DNA evidence would be a godsend for many on death row. As it is, murder by poisoning, gunshot, and many other methods will elude the reach of that remedy.
Miscarriages of justice in capital cases result in large part from the ill-equipped defense counsel available to defendants and the all-but-overwhelming burden placed on even the most talented lawyers in such cases. To appreciate the obstacles faced by defense counsel in a modern capital case, one cannot do better than to study The Wrong Man,Michael Mello's account of a Florida death penalty case. Mello, now a professor at Vermont Law School, was a young public defender in Florida when the story began. In 1983, he became defense counsel on appeal for Joseph "Crazy Joe" Spaziano. Spaziano had been on Florida's death row since 1976, after being convicted of murdering one victim in 1973 and raping another in 1974; he would remain there for twenty years. During that time, five death warrants would be signed for his execution; each would eventually be vacated by court order. Today, Spaziano is still in prison, serving a sentence for rape; oddly enough, his conviction for that crime was based on the same testimony that, when later recanted, secured a reversal of his conviction for murder.
Mello gives the reader virtually a day-by-day account of his imaginative and relentless efforts on his client's behalf. The briefs drafted, the evidence presented to appellate courts, the race to meet filing deadlines, letters and memoranda, documents and journal entries—these, the detritus of the case, make up the bulk of the book. As Mello says, they acquaint the reader with "some of the chaos and uncertainty of daily life in deathwork." For anyone unfamiliar with modern death penalty cases, Mello's account provides a detailed and disturbing education.
The Spaziano case shows dramatically that convicted innocents are frequently vindicated not by the system but in spite of it. Crucial to getting Spaziano off death row was Mello's success in persuading editors at The Miami Herald to examine the case afresh. (Florida has an unenviable record of miscarriages of justice in capital cases, and theHerald staff has more than once established the innocence of a death row prisoner.) Spaziano had already been on the row for seven years and was facing execution in a few weeks when the Herald concluded that he was not guilty of murder. Only when the Herald's investigation received nationwide publicity did the Florida authorities finally take notice.
Mello is no friend of the death penalty. But like several other volumes under discussion here, his book is not an argumentative brief against it either. Rather, as he explains,
In this book I tell a story; I don't make an argument. This book is not a polemic on capital punishment; I use capital punishment as a frame of reference and as a window into how the human spirit responds to extreme circumstances. What interests me is not the moral issue of the death penalty, but the world of capital punishment as it exists as a legal system. Joe Spaziano's case is a microcosm of everything that is wrong with capital punishment as a legal institution: rogue cops, rabid prosecutors, inept defense lawyers, cowardly, tunnel-visioned judges, and politicians who play the politics of death with perfect pitch.
Whether Mello's book or other death penalty case narratives can supplant more sustained argument is doubtful, though such accounts undeniably provide indispensable supplements to more argumentative texts. They may be of particular importance in moving public opinion.
Arbitrariness in sentencing is a second large problem that, along with execution of the innocent, plagues capital punishment. We gain some insight into the roots of such arbitrariness from what is perhaps the most important research project on the death penalty currently under way—the Capital Jury Project, initiated in 1990, funded by the National Science Foundation, centered at Northeastern University, and under the direction of William J. Bowers. Its purpose is to study why some capital trial juries award death sentences while others don't and whether these sentencing practices are reasonable under prevailing law. Thousands of interviews with former jurors have so far established two principal findings: juries rarely understand the judge's instructions that are supposed to guide them in choosing between a death and a prison sentence, and when they do understand, they disregard those instructions in favor of their own predilections.
This research (by no means complete, with only fragments available in print in scattered law review articles) has also shown that jurors in capital trials are quite reluctant to take personal responsibility for sending the condemned prisoner to death. But if the jurors won't accept responsibility, who will? To answer that question, psychiatrist Robert Jay Lifton and his co-author Greg Mitchell interviewed a wide variety of respondents, "scholars and activists, prosecutors and defense attorneys, religious figures…judges and jurors, murder victims' families, wardens and guards, and witnesses to executions." It turns out that jurors are not alone in shunning personal responsibility for the death sentences they impose: "No one feels responsible for the killing. Decision makers (prosecutors, judges, jurors, and governors) remain aloof from the execution itself as they ambivalently contemplate legal arguments or make judgments from afar while hands-on executioners simply 'do their job.'" As for the men and women on the execution teams who have the duty to carry out the death warrant, they are engaged in an unhealthy occupation. Lifton and Mitchell report that depression, anxiety, and psychic numbness often afflict the team members and occasionally result in an end to a career in corrections.
The authors also address the pursuit of "closure"—the alleviation of anger, frustration, and helplessness that the execution of the murderer is supposed to offer the victim's relatives. The desire for closure and the failure of an execution to achieve it were brought to public attention a few years ago in the book and film, Dead Man Walking, by Sister Helen Prejean. Lifton and Mitchell agree. "Psychologically speaking," they write, "'closure' is an illusion. Family members' sense of horror, pain, and loss may gradually diminish over time, but no outcome can enable them to be free of such feelings. They remain death-haunted survivors throughout their lives." In this connection, the authors mention the important work being done by Murder Victims Families for Reconciliation (MVFR), headquartered in Cambridge, Mass., a national organization of survivors that offers extensive support and counseling services. The three pages devoted to the stories of MVFR members are among the most significant and constructive in the book; they address the questions of reparation and healing without fostering illusions of "closure" where none is to be had.
The death penalty is not simply a law on the books: it is part of a broader culture, and some of the most striking criticisms come from individuals deep inside the culture—from wardens who have had to supervise executions of which they did not approve to prison chaplains who had to provide spiritual comfort during a condemned man's last hours. Carroll Pickett, formerly a Texas prison chaplain, presents an intimate look at day-to-day life in the Death House of Huntsville. Not surprisingly, fifteen years of chaplaincy there (during which he attended ninety-five executions) have left their mark on him. "I am among those growing voices who believe it is time that lawmakers and peacekeepers, members of the greatest society in the world, come to the civilized realization that the cruel act of revenge—however cloaked in legal terms—nets us nothing and diminishes us all," writes Pickett. As for "closure," he echoes Lifton and Mitchell:
In those dark early mornings following an execution, I spoke with the loved ones of crime victims—husbands and wives; mothers, fathers, and children—and almost without exception found that the feeling of relief so long anticipated was not realized. A death, however horrible and senseless, cannot be erased by another death, however quick and humane.
Pickett was in attendance at the December 1982 execution of Charles Brooks, Jr., the first in Texas after the nationwide moratorium on executions ended in 1977 with the death by firing squad of Gary Gilmore in Utah. Pickett devotes some two dozen pages to Brooks's story and his death by lethal injection, the first execution by that method in the nation. "The execution had, as promised, taken only minutes—seven to be exact—and so far as I could tell, it had been as painless and as merciful as possible. As I stood there, I was vaguely aware of the witnesses quietly filing out. If there were tears, I did not see them; if there were sobs of grief, they did not reach my ears. All that remained was an air of stunned silence—testimony to the fact that none of those who had witnessed penal history being made had really been prepared for what they had seen." To judge by the silence of The New York Times,which covered the execution, there was no significant protest marking the inauguration of this new "humane" way of death.
One perhaps expects prison chaplains to be against the death penalty, much as one expects a more ambiguous posture from most of the prison guards and officials who manage America's death rows and carry out our executions. The nature of that ambiguous response is evident in journalist Ivan Solotaroff's account of his visits to death rows in the "Death Belt" that stretches from Florida to Texas. Many writers have, like Pickett, chronicled life on death row, but none has done so with more patience and intimacy than Solotaroff. One of his interviews was with Donald Cabana, former warden of Mississippi's Parchman State Prison and supervising official there at the gas chamber execution of Edward Earl Johnson in 1987. Cabana, author of Death at Midnight: The Confession of an Executioner (1996), is one of those rare corrections officials who resigned his post largely because of moral scruples about his job.
Solotaroff quotes Cabana on the issue of "who owns death" in a manner that recalls Lifton and Mitchell:
I really don't know what the motive behind the penalty is, or who the real executioner is…I teach criminal justice for a living, and I know that the penalty comes in watersheds and thresholds that politicians build and open, just on or about election day. You can call them your real executioners and get no argument from me, particularly in times like this, when everyone from the county courthouse to the White House wants to milk the law-and-order vote. And once you've done that, you can say: It's the people that elect them; that the yous and mes that pull the ballot box levers are the hands that pull the switch.
Like several of the other authors under discussion here, Solotaroff presents himself as neutral on the great moral issues raised by the death penalty. Early on in his book he states flatly that he has "made no attempt…in this book" to address the moral dilemma of capital punishment. But he later compromises this avowed neutrality: "Like mid-nineteenth-century slavery, [the death penalty] is rather our 'peculiar institution'—and…the will to enslave and the will to execute are either the same or remarkably similar." In the epilogue, Solotaroff stands back and concludes: "We execute to exert power over what horrifies us most supremely, and we execute imperfectly—randomly, cruelly, unusually—because murder itself seems exactly so to civilized eyes." One might well take issue with Solotaroff here; our "imperfect" executions are better explained not—as he explains them—by deliberate cruelty in executions, inspired by the cruelty of murders, but by the various forms in which society shields itself from too close an exposure to the realities of the death penalty culture.
Criticisms of that culture from insiders raise a question about the wider society: How firmly are we in the grip of a death penalty culture today? What are the prospects for a sea-change in that culture? Austin Sarat, professor of political science at Amherst College, is not optimistic:
Americans today live in a killing state in which violence is met with violence, and the measure of our sovereignty as a people is found in our ability both to make laws carrying the penalty of death and to translate those laws into a calm, bureaucratic bloodletting…[T]he killing state will be a regular feature of the landscape of American politics for a long time to come.
The evidence certainly supports such a disheartening judgment. Sarat's final judgment on the death penalty is equally uncompromising:
[S]tate killing contributes to some of the most dangerous features of contemporary America. Among them are the substitution of a politics of revenge and resentment for sustained attention to the social problems responsible for so much violence today;…the erosion of basic legal protections and legal values in favor of short-term political expediency; the turning of state killing into an invisible…act."
These conclusions rest on an argument that begins by examining the case of Timothy McVeigh and the "demonization" of offenders. Sarat then turns to examine the victims' rights movement and the ambiguity of its motives: "Victim politics looks like vengeance pure and simple. Yet it is also a symptom of frustration and cynicism with our public institutions." Next he charts the crooked path from hanging to the electric chair (1888), to the gas chamber (1923), to lethal injection (1977), in society's search for a reliable method of "painless" and "humane" state killing. The middle chapters of the book are devoted to case histories that illustrate the badly flawed current administration of the death penalty and to the role that narratives of the capital defendant's life can play in presenting to the jury, during the sentencing phase of a capital trial, the human qualities of even the worst murderer.
In response to the question whether we should be allowed to watch an execution "live" on television, Sarat argues, as have many opponents of the death penalty, that "the survival of capital punishment in America depends, in part, on its relative invisibility." He believes that making executions "visible to a mass audience would as likely reveal the sadism that is at the heart of the state's tenacious attachment to capital punishment as reveal and invite the 'bad taste' of its viewers. For me the possibility of the former is well worth the risk of the latter."
Two demurrers. First, "sadism" is excessive. Sarat offers no evidence of sadism on the part of those who actually carry out executions (any more than Solotaroff and Pickett do). This is a rare passage in which he seems to have forgotten that nothing exceeds like excess. Second, I am less confident than he is about the public reaction to executions on television. Although a strong argument on first Amendment grounds can be made for permitting some form of public display of executions, it also seems likely that over time, such displays, viewed in the comfort of one's living room (or during the distractions of feeding the children their supper), will coarsen public taste and eventually have a numbing effect. Balancing the gains and losses to be expected from any manner of return to public executions by means of modern technology is not easy. In any case, no pictures of an execution are worth a thousand words of effective argument and analysis that explore and explain what precedes the event itself in the life of the prisoner.
Critical analysis of the death penalty—as in many of the books under discussion here—often takes a narrative or ethnographic form: it tells stories about wrongful executions or arbitrary administration, or it presents the perceptions of the "players" in the death penalty system. Those narrative and ethnographic texts often contain implicit arguments about the immorality of the death penalty. The Jacksons, father and son, and their co-author, Bruce Shapiro, make the bases of moral condemnation explicit in Legal Lynching: The Death Penalty and America's Future. (Their book is an updated version of the Jacksons' 1996 book of the same title.)
Legal Lynching is a convenient vade mecum on the death penalty, descriptive as well as critical. The authors round up all the usual objections to death sentences and executions in a spirited manner—their racist administration, lack of superior marginal deterrence, risk of convicting the innocent, excessive costs, approval from misguided Supreme Court rulings, uncertain foundation in Biblical writ, and the tenuous support of public opinion. Though it is a useful compendium of arguments, the book contains little or nothing that is new; the authors have relied heavily on compressing and digesting the writings of others, as their frequent quotations indicate. (The lack of footnotes or other documentation in the book is unfortunate. For example, they quote—but offer no citation for—a hard-to-find pamphlet by Frederick Douglass against the death penalty.) The title, Legal Lynching, is of course an oxymoron. What is true is that the death penalty and lynching have always been most prominent in the Old Confederacy, that during the heyday of lynching 75 percent of these murders were white-on-black, that both practices have been above all forms of racist social control, and that the travesty of some capital trials even today are all but indistinguishable from outright lynching.4
As with the Scheck-Neufeld-Dwyer volume, possibly the most valuable contribution of the Jackson-Jackson-Shapiro book is its appendix. There we have the complete text of House Bill 1038, the National Death Penalty Moratorium Act of 2001, filed in Congress by the younger Jackson in March of last year. (His sponsorship of this bill puts him in tandem with Governor Ryan; both are from Illinois.) The bill lays out in thorough detail the structure of the argument in support of a national moratorium and the creation of a National Commission on the Death Penalty to review "the fairness of the imposition of capital punishment." (Back in 1980, during President Carter's administration, Amnesty International and other anti-death-penalty organizations took initial steps to obtain both a moratorium and a study commission, to be established in Carter's second term. But of course there was no such term.) The current mood of Congress is not friendly to such proposals, despite the overwhelming evidence accumulated over the past generation that shows the "new" (post-1972) American death penalty system to be a disgraceful mess.
Moral criticism of the death penalty falls into two main categories. One category focuses on the well-known flaws in its actual administration, the social and political objections explored by the Jacksons. The other category responds to more abstract questions. At their root they ask this: Suppose all the administrative flaws in the death penalty were corrected, on what ground would you then oppose this punishment—or would you oppose it? Is the death penalty morally objectionable because it is "the same as murder"? Do we need executions in order to "show respect" for the murdered victims? Is capital punishment justified because "murderers deserve death"? Was the Supreme Court right in ruling that the death penalty is not a "cruel and unusual punishment"? Is the death penalty justified because it expresses a legitimate "desire for vengeance"? In his sustained, sharply focused, and well-informed critique of the death penalty, An Eye for an Eye: The Immorality of Punishing by Death, Stephen Nathanson—a professor of philosophy at Northeastern University—gives each of these basic questions a thorough airing and concludes that none can be correctly answered in the affirmative.
This new edition of the book (first published in 1987) offers a philosopher's stalking horse for friends of the death penalty, a "knock-down argument" that he thinks trumps other arguments about the fate of this form of punishment. Addressed to a defender of the death penalty, the argument goes like this:
1. You accept justice and respect for human life as fundamental values.
2. The death penalty is inconsistent with these values.
3. Therefore, based on your own values, you ought to reject the death penalty.
The argument is certainly valid—if the premises are true, the conclusion is established. But are they true? Nathanson is well aware of how difficult it is to provide a knock-down philosophical argument on any question of social policy. In this instance, he seems to me to be obviously vulnerable to this counter-argument:
A. You (abolitionist) accept justice and respect for human life as fundamental values.
B. The death penalty is essential to uphold these values.
C. Therefore, based on your own values, you ought to accept the death penalty.
What is at issue, obviously, is the truth of the second premise in each argument. I happen to agree with Nathanson's defense of his argument; the evidence he marshals on behalf of both of his premises seems to me convincing. That evidence consists principally of the now-familiar truths about the maladministration of capital punishment, with no real improvements in sight (the relevant evidence can be found in the Jacksons' book). But resourceful defenders of the death penalty such as Walter Berns, Ernest van den Haag, Louis Pojman, and Tom Sorrell are confident that "justice and respect for human life" are more coherently protected based on their assumptions than on Nathanson's (or mine). Even if Nathanson fails to carry the day with his argument—and I do agree with the argument—he does focus the debate on the essential moral questions. Here, as elsewhere, we can use a formal argument as a tool of inquiry even if we can't use it as a bludgeon to finish off those who disagree.
Nathanson's book is the latest in a long line of moral criticisms of the death penalty. To be sure, in our day constitutional and political considerations have had an influence quite unlike their insignificant role in earlier centuries. Just the reverse is true regarding religious criticisms of the death penalty; even the best of these (such as the 1995 papal encyclical Evangelium Vitae) now rely heavily on empirical considerations regarding deterrence, racism, and miscarriages of justice. This contrast between the past and the present can now be seen with great clarity, thanks to Washington University law professor Stuart Banner and his comprehensive book, The Death Penalty: An American History.
American historians have been slow to undertake anything like a full-scale study of the subject, comparable, for example, to what Richard Evans has done for the death penalty in Germany and Peter Linebaugh and V. A. C. Gatrell have done for the death penalty in England. Already, in the 1940s, a scattering of articles began to appear in professional journals, providing us with bits and pieces of our history. In more recent years, Philip English Mackey, Louis Masur, and Michael Meltsner, among others, have told portions of the story at book length. But great gaps remained, and Banner's book does much to fill them. His book is an important and comprehensive, even if not encyclopedic or flawless, treatment of the topic.
The essence of the story he tells is straightforward. The American abolition movement began with scattered protests against the death penalty by Quakers in the seventeenth century and by political leaders in post-Revolutionary Philadelphia. These protests led to widespread efforts in the first half of the nineteenth century to persuade state legislatures to end public executions, introduce the distinction between first- and second-degree murder, repeal all capital statutes except for first-degree murder, and give juries discretionary sentencing authority. Few of these efforts made much headway; as for complete abolition it was confined to no more than a dozen or so states at any given time. The story in the South is quite different. There, the death penalty is rooted in popular culture (even to the present). As Banner notes,
[M]ost of the northern debate over eliminating capital punishment completely was absent from the South. No committee of any antebellum southern state legislature recommended complete abolition. The issue was never part of any legislative agenda….By the time of the Civil War the North had been through decades of debate over capital punishment. The South had not.
After the Civil War it was not until the Progressive Era that abolitionists made any headway (in 1910); within a few years, eight states saw fit to end the death penalty. The great transformation in the struggle for abolition began in the 1950s, when the federal courts increased the frequency with which they reviewed state death penalty convictions and sentences. This led, in the 1970s, to what Banner calls "the constitutionalizing of capital punishment." During the subsequent three decades, as he points out, the Supreme Court has taken over the responsibility from the states and their courts and legislatures in order to manage the national death penalty system—refusing to abolish it entirely and willing to regulate it only sporadically. The result is our current deregulated system, deplored by friends and enemies of the death penalty alike.
What emerges from Banner's account is how disorganized, fragmentary, and impulsive the American struggle over the death penalty has been. But then, what else could we expect, given the federal nature of our government, the sovereign authority retained by the states to act or not as they see fit, and the hesitancy of the Supreme Court to intervene in the affairs of the states? Repeal of the death penalty has rarely been on the political agenda of the states and never on the national agenda of the federal government. (I learned from Banner, to my surprise, that President Roosevelt in 1933 said he "would like to see capital punishment abolished throughout this country"—a sentiment never publicly shared by any of his successors.) Save for the quarter-century struggle over the constitutionality of the death penalty (1963 to 1987), there has never been a national focus on abolition.
Banner's work addresses a variety of questions about the history of the death penalty in this country. For example: What were the reasons the traditional mandatory death penalty gave way to jury sentencing discretion (death or prison)? What accounts for the steady decline in death sentences and executions from 1940 to 1965? How private were executions after they ceased to be carried out in public places? Where and when have capital trial juries refused to convict because they could not otherwise avoid a death sentence they thought undeserved? Were politics always as prominent in protecting and extending the death penalty as they are now—and not only in the South? What accounts for this politicization of the death penalty since the 1960s? Could the Supreme Court have abolished capital punishment in 1972, instead of rendering its temporizing decision in Furman v. Georgia? How, if at all, is the death penalty in the South today connected with the erstwhile practice of lynching? Have the innocent not only been convicted of capital crimes and sentenced to death, but also executed? Why have some states abolished the death penalty, only to reinstate it—while other states either never abolished it or never reinstated it? Have various reforms, such as the end to mandatory death penalties and the adoption of "painless" and "humane" lethal injection, entrenched what remains of capital punishment? Banner offers compelling and detailed answers to these questions—answers that will reward anyone who makes a close study of the book. On a few of the larger issues, he seems to have ignored a significant amount of the published research. Though publications he neglects that I am aware of do not contradict his conclusions, they do contain useful details that he leaves unmentioned.5That cavil aside, Banner has done a prodigious amount of research—especially on the eighteenth and nineteenth centuries—and all subsequent historical studies on this subject will begin where he left off.
It does not fall to Banner, of course, to suggest what the future will hold for the death penalty in our country. But in the wake of 9/11, with all the attendant concerns about security and our undeclared war on "the axis of evil," it is hard not to speculate. Does that large-scale tragedy constitute a new baseline for the future of our death penalty? Some signs are ominous. The Bush administration, right from the start, seized on the threat of execution both as a deterrent and as suitable retribution; the President also proposed placing this weapon in the hands of special tribunals that would be created to deal with accused terrorists. Whether those kangaroo courts (if they ever come to pass) or the regular federal courts will have recourse to the death penalty remains to be seen, but it seems likely. Meanwhile, several states (including three traditional abolition jurisdictions—Iowa, Rhode Island, and Wisconsin) have drafted bills to make terrorism a capital crime. We should not be surprised if many erstwhile opponents of the death penalty now find themselves willing to make exceptions for perpetrators of attacks like those of September 11. Some abolitionists reacted this way to the bombing of the Murrah Federal Building in Oklahoma City, for which Timothy McVeigh was executed in June 2001, even though that disaster—grim as it was—pales by comparison with 9/11. Still, a politically minded abolitionist might say that if the friends of the death penalty would be willing to confine its application to terrorist acts of mass murder, we abolitionists ought to be able to live with that, provided all the other convicted murderers were (re)sentenced to prison. It's not such a bad compromise because it would empty our death rows of upwards of 99 percent of their current occupants. Whether abolitionists will have this or some other compromise available only the future will tell.
In his concurring opinion in Furman, Justice Thurgood Marshall remarked that the American people have a very incomplete understanding of the death penalty—its history and current practice—and that if they were not so ignorant they would oppose it. In the thirty years since Marshall made that observation, abolitionists have often said that they have won the battle of words, even if they have yet to prevail in the courts, the legislatures, and the hearts and minds of the public. The nine volumes under review here add much of value to the already burgeoning literature on the death penalty. Is it too much to hope that a future generation will seize on the moral, political, and constitutional objections to capital punishment and bring it to a long-overdue end?
1 The Death Penalty Information Center in Washington, D.C. keeps a running tally of such cases; see their pamphlet, Innocence and the Death Penalty (1997) and their web site: <www.deathpenaltyinfo.org> [15 March 2002].
2 See Edwin Borchard, Convicting the Innocent (New Haven: Yale University Press, 1932).
3 See Hugo Adam Bedau and Michael L. Radelet, "Miscarriages of Justice in Potentially Capital Cases," Stanford Law Review 40 (1987): 21–179.
4 For an attempt to connect lynching to the death penalty in Texas, see James W. Marquart, Sheldon Ekland-Olson, and Jonathan R. Sorenson,The Rope, the Chair, and the Needle (Austin, Tex.: University of Texas Press, 1994). The Jacksons do not cite this research. The subject deserves fuller attention; it is all the more disappointing that the excellent study by Philip Dray, At the Hands of Persons Unknown: The Lynching of Black America (New York: Random House, 2002), has virtually nothing to offer on the topic.
5 On some points of detail, Banner errs. It is not true that in the decade of 1844–54 "three states [Michigan, Rhode Island, Wisconsin] had abolished the death penalty completely"; Michigan did not abolish the death penalty for treason until 1963. Banner repeats a widespread error when he says that the Furman decision emptied "all" of the nation's death rows; a few prisoners under a mandatory death sentence (e.g., in Massachusetts) were untouched by the decision. It wasn't church "memberships" that sought abolition in the 1960s; it was their social action committees and a few outspoken clergy.
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