Peculiar Institution

America's Death Penalty in an Age of Abolition

David Garland

• Publisher: Belknap Press
• Year: 2012
• ISBN:
  9780674736948
• Topic: History
• Subtopic: North American History
• Index: History

The U.S. death penalty is a peculiar institution, and a uniquely American one. Despite its comprehensive abolition elsewhere in the Western world, capital punishment continues in dozens of American states– a fact that is frequently discussed but rarely understood. The same puzzlement surrounds the peculiar form that American capital punishment now takes, with its uneven application, its seemingly endless delays, and the uncertainty of its ever being carried out in individual cases, none of which seem conducive to effective crime control or criminal justice. In a brilliantly provocative study, David Garland explains this tenacity and shows how death penalty practice has come to bear the distinctive hallmarks of America's political institutions and cultural conflicts.America's radical federalism and local democracy, as well as its legacy of violence and racism, account for our divergence from the rest of the West. Whereas the elites of other nations were able to impose nationwide abolition from above despite public objections, American elites are unable– and unwilling– to end a punishment that has the support of local majorities and a storied place in popular culture.In the course of hundreds of decisions, federal courts sought to rationalize and civilize an institution that too often resembled a lynching, producing layers of legal process but also delays and reversals. Yet the Supreme Court insists that the issue is to be decided by local political actors and public opinion. So the death penalty continues to respond to popular will, enhancing the power of criminal justice professionals, providing drama for the media, and bringing pleasure to a public audience who consumes its chilling tales.Garland brings a new clarity to our understanding of this peculiar institution– and a new challenge to supporters and opponents alike.

ONE

A Peculiar Institution

Every people, the proverb has it, loves its own form of violence.

CLIFFORD GEERTZ, THE INTERPRETATION OF CULTURES, 1973

As a Philadelphia journalist observed in 1812, “So much has been written and said on the subject of capital punishments that it seems almost like presumptive vanity to pursue the topic any further.”¹ Yet after two and a half centuries of moral debate and four decades of constitutional argument, the one thing that seems indisputable is that the death penalty produces an endless stream of discourse. Our bookstore shelves and law library stacks groan under the weight of writing provoked by this institution, and still the ink continues to flow. The rate at which we put offenders to death may have declined over the last few centuries, but there has been no let up in the practice of talking and writing about it. In twenty-first-century America, capital punishment remains a perennial subject of commentary and debate.

Perhaps all this talk should not surprise us. After all, the institution of capital punishment raises profound moral questions and possesses more than its share of controversial characteristics. As one scholar of criminal law noted, “Only someone who is morally obtuse could fail to perceive how charged the issue of capital punishment is with questions of fundamental value.”² And it is no doubt true that the death penalty poses, in the starkest form, a deliberate choice between life and death in situations where killing is neither necessary nor unavoidable. Perhaps we ought not to find it strange that it prompts so much discussion.

Perhaps. But bear in mind that American society does not always respond to moral problems by making them topics of prolix discourse and debate. The moral attention of Americans is highly selective. As a society, the United States does not spill so much ink over each individual fatality in war, or each life cut short by poverty, though these deaths are often “un-necessary” and “avoidable,” and those who die are certainly no more deserving of their fate than convicted killers. Yet if a murder suspect is capitally charged or a convicted murderer is sentenced to death, Americans somehow contrive to make this headline news, an occasion for a flurry of commentaries, and a rehearsal of all the familiar arguments for and against the institution.

Or compare the endless talk about capital punishment with the relative silence with which American public discourse (and Supreme Court case law) passes over extraordinarily severe prison sentences and the mass imprisonment they produce, even though incarceration affects tens of millions of individuals and families in the United States while death sentences are imposed on fewer than 120 offenders each year. Whatever else capital punishment does or does not do, it certainly functions as an incitement to talk.

The subject of capital punishment seems to invite, even to compel, the repetitive restatement of arguments and counterarguments that are all too familiar. For centuries now, it has given rise to a set-piece debate that contrasts the New Testament with the Old, Enlightenment with Tradition, humanity with justice, and restraint with retribution. There is very little in today’s debates that would not be familiar to those who addressed the issue 200 years ago, as a glance at the writings of Cesare Beccaria, Jeremy Bentham, or Benjamin Rush will quickly reveal. And although the emergence of constitutional challenges in the 1960s produced some novel legal arguments—about arbitrary application, “evolving standards of decency,” and the unreliability of a sanction that is so rarely used—even these propositions now seem commonplace.³

Yet the recent history of capital punishment has taken a surprising turn that raises a whole new set of questions. Increasingly over the last thirty years, the issue of American capital punishment has taken on a new character and urgency. The familiar moral-political debate continues, of course, with the same arguments being traded back and forth. But recent developments have produced a new challenge for analysis: the need to make sense of the peculiar institution that has emerged in the United States since the 1970s. What was once a familiar moral debate has been reborn as a sociological and historical problem: how to explain the peculiarities of America’s twenty-first-century death penalty?

The contemporary American death penalty is, in several respects, a peculiar institution. At the start of the twenty-first century, the federal government and dozens of states continue to use capital punishment at a time when all other Western nations have decisively abandoned it. The “age of abolition”—as we might name the recent decades when abolitionism became standard throughout the West—has made America an anomaly, the last remaining holdout in a historical period that has seen the Western nations embrace abolitionism as a human rights issue and a mark of civilization. Yet paradoxically, several American states abolished capital punishment long before the European nations, and one of them—Michigan—has been continuously abolitionist since 1846, making it a world leader in the abolitionist cause.⁴ Indeed, for the 200 years between the 1770s and the 1970s, America was in lockstep with the other Western nations as they gradually withdrew from the scaffold and disavowed the executioner. Why did America suddenly diverge from the long-term reform trajectory in which it had played such a leading role?⁵

America today practices capital punishment in a peculiar form that is difficult to understand or to justify even for its committed supporters. American legislators continue to pass capital punishment statutes, American courts continue to sentence murderers to death, and on forty or fifty occasions each year, mostly in the Southern states, executions are authorized and convicted offenders are put to death. This is what people mean when they say America is a “retentionist” nation where capital punishment still exists. But most of the thirty-five states with the death penalty rarely carry out their threat to put capital murderers to death, and the vast majority of convicted killers end up serving a life-long prison sentence. Wherever capital proceedings are undertaken, the process is skirted round with procedural, evidentiary, and appellate rules that are much more elaborate than in noncapital cases. And even in the rare instance when a death sentence is imposed—which occurs in less than 1 percent of homicides—the majority of these death sentences are never executed because the sentence is overturned, the prisoner is exonerated, or the authorities refrain from setting an execution date.⁶ The primary cause of death for capitally convicted murderers is not judicial execution: it is “natural causes.”

Capital punishment in America today is a story of a legal norm combined with its widespread evasion. The law stipulates that convicted capital murderers may be put to death. In practice, most capital murderers are not put to death, and those who are eventually executed go to their deaths after a very long process of legal contestation and uncertainty. The overall picture looks less like the simple “retention” of capital punishment and more like an extreme form of institutional ambivalence, expressed in a uniquely cumbersome and conflicted set of arrangements. As a federal judge put it in 1995, “[W]e have the worst of all worlds. We have capital punishment, and the enormously expensive machinery to support it, but we don’t really have the death penalty.”⁷

Another peculiar aspect of the American death penalty is that it continues to operate in a racialized manner, disproportionately targeting black offenders whose victims were white. Before the case of Furman v Georgia (1972), in which the Supreme Court ruled that arbitrary imposition of the death penalty constituted cruel and unusual punishment, racial bias was more extensive and more blatant, involving “race-of-defendant” discrimination. (Black defendants were more likely, other things being equal, to be sentenced to death than were white defendants.) Since Furman, discrimination has become more subtle—chiefly involving “race of victim”—but it has continued nevertheless.⁸ As Thomas Laqueur observes, “capital punishment in the United States subsists—inescapably—in a miasma of race.”⁹ This generally acknowledged fact evokes widespread criticism and has prompted many commentators to view contemporary capital punishment as a continuation of the nation’s history of racial violence and lynching.

One hundred years ago, the formerly slave-owning Southern states of America attracted worldwide criticism as the locus of hundreds of spectacular public lynchings and burnings at the stake. At these notorious events, crowds of white townspeople looked on as lynch mobs tortured and burned black men and women accused of heinous crimes. Following the lynching, the dismembered black body would be displayed for all to see, and picture postcards would be mailed to friends and relatives as mementoes of the occasion.¹⁰ Today these same Southern states are once more attracting international criticism, this time for their practice of executing offenders, a disproportionate number of whom are African American and have been sentenced to death without the benefit of adequate legal representation. In the minds of many people, today’s death penalty—which is more than ever before an institution of the Southern states—carries clear traces of racial lynching and is inextricably linked to the “peculiar institution” of slavery that lies at the root of this blood-stained history.¹¹ As one observer remarked, “When we think about the death penalty, we think … of black victims and white mobs, of black defendants and white juries, of slave codes and public hangings.”¹²

But these relationships between past and present are more easily sensed than specified. The vague understanding that there is a connection between nineteenth-century lynchings and twenty-first-century capital punishment has trouble coming to terms with the following facts. Whereas lynchings operated outside state law, as acts of summary justice, today’s executions proceed within a legal framework, involving lengthy trials, multiple appeals, and many years of postconviction process. Whereas spectacle lynchings were designed to maximize ceremonial display, physical pain, and bodily degradation, today’s executions are conducted out of sight of the crowd, according to a protocol that aims to avoid physical suffering, leave the prisoner’s body unmarked, and prohibit the circulation of photographic images. Whereas lynching was, after the Civil War, concentrated in the Southern states, capital punishment laws operate today in thirty-five states, spread across much of the country. (It is the execution of these laws, not the laws themselves, that is heavily concentrated in the South.) And whereas Southern lynch mobs targeted blacks, it is nevertheless true that most of those executed today are in fact white, albeit poor, badly represented whites. The evidence of race discrimination in capital punishment today mostly concerns the more subtle race-of-victim discrimination, rather than the crude race-of-defendant bias.¹³ If there are continuities linking today’s death penalty with the popular justice and racial violence of the past—and such continuities seem undeniable—there are also crucial differences that make the nexus between communal lynching and capital punishment less straightforward than is commonly understood.

The American death penalty is peculiar insofar as it is the only capital punishment system still in use in the West. It is peculiar insofar as the forms through which it is now enacted seem ambivalent and poorly adapted to the stated purposes of criminal justice. And it is peculiar insofar as it seems, somehow, to be connected to the South’s “peculiar institution” of slavery and its legacy of racial violence, though the precise relationship is by no means clear.¹⁴ Explaining these peculiarities requires a comparative historical analysis, a close study of institutional and cultural forms, and a detailed investigation of the legal legacy of lynching.

The Capital Punishment Complex

To understand today’s death penalty we have to think in new ways about an institution that we appear to know all too well. To do so requires us to step outside that institution and view capital punishment from a distance. Instead of engaging with the institution, as everyone feels compelled (and surprisingly competent) to do, the social science strategy is to disengage, to avoid taking positions within the field of debate and instead to chart how the institution—and its debates—appear when viewed from the outside.

From this perspective we can regard capital punishment not as a moral dilemma to be addressed or a policy issue to be resolved but as a social fact to be explained. And we can focus less on the death penalty as a matter of principle and more on the complex field of institutional arrangements, social practices, and cultural forms through which American death penalties are actually administered. The object of study thus ceases to be “the death penalty” as such and becomes instead the “capital punishment complex”—the totality of discursive and nondiscursive practices through which capital punishment is enacted, represented, and experienced in American criminal justice and in American society.

At the start of the twenty-first century, the death penalty remains popular with a majority of Americans and a matter of serious moral commitment for many. But it is also opposed by a substantial minority, making it deeply controversial, within the United States as well as abroad. In penological terms, it is a minor institution, directly affecting a minuscule percentage of criminal cases. But in the public domain it remains highly visible, a subject on which everyone has an opinion. And though its constitutional validity is affirmed by the highest court in the land, its administration closely regulated by law, and its execution undertaken by state officials in a professional, bureaucratic manner, it is nevertheless enveloped in an unmistakable aura of transgression, anxiety, and embarrassment—particularly among those who actually carry out the practice. (In many states outside the South, executions occur only when death row inmates abandon their appeals and “volunteer” to be put to death.) For all these reasons, it is a rich subject for cultural analysis, especially when cultural analysis is understood as a way to get at questions of power and social relations.

Sociology strives for finely detailed description rather than for ethical critique or moral assessment. Its first concern (though not necessarily its final one) is to understand what is really going on, to learn to see things from the point of view of the participants and the social world they occupy, rather than to impose the judgments of the writer and his or her community. So rather than engage in the legal and normative debates that swirl around the death penalty, this approach regards these debates as an intrinsic part of the institution and analyzes them accordingly.

Public engagement with capital punishment—critiques, apologias, exposés, expressed attitudes for and against, opinion polls, and so on—is normally a matter of taking sides, joining the debate, playing the game. Moral criticism and defense, legal arguments for and against, political campaigns for abolition and against abolition, together with the extensive commentary that always accompanies these contests, are not incidental to the institution of capital punishment: they are intrinsic elements of the social fact that needs to be explained. Discourse may sometimes seem insubstantial and unimportant, especially when measured against the physicality of putting a person to death. But words, ideas, and images are real forces in the social field and need to be understood as such. If human beings are deliberately put to death by the state in a liberal-democratic society, it is always because certain words, ideas, and images have made this possible. These “forces in the practice of power” form part of the institution that needs to be explained.¹⁵

Viewing the clashing values and arguments of the death penalty debate as integral parts of the object of study rather than as opposing sides between which one has to choose brings certain features more clearly into view. From this vantage point we more readily notice the repetitive nature of death penalty discourse and the excess of talk that characterizes the capital punishment complex. We notice the curious fact that many of the practices deemed “cruel and unusual” by critics are nevertheless remarkably “civilized” in form—lethal injection is a good case in point. Viewing matters in a more detached, historical way, we notice many unacknowledged continuities that link America...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Prologue: The Exemplary Execution
• 1. A Peculiar Institution
• 2. The American Way of Death
• 3. Historical Modes of Capital Punishment
• 4. The Death Penalty’s Decline
• 5. Processes of Transformation
• 6. State and Society in America
• 7. Capital Punishment in America
• 8. An American Abolition
• 9. New Political and Cultural Meanings
• 10. Reinventing the Death Penalty
• 11. Death and Its Uses
• Epilogue: Discourse and Death
• Notes
• Acknowledgments
• Index