Peculiar Institution: America's Death Penalty in an Age of Abolition
by David Garland
Reviewed by Marie Gottschalk
The New Republic
In the 1950s and 1960s, politicians and public officials in the United States generally did not view opposition to the death penalty as a major political liability. Indeed some of them were outspoken foes of capital punishment. To demonstrate his faith in rehabilitation, Michael Disalle, Ohio's governor from 1959 to 1963, made it a point to hire convicted murderers to serve on his household staff. Governor Terry Sanford's numerous statements against capital punishment were so well known that prisoners on North Carolina's death row pointedly referred to them in their clemency appeals. Chub Peabody, who was elected governor of Massachusetts in a tight race in 1962, vowed that he would not sign a death warrant even for the Boston Strangler, if he were ever caught and convicted. During this period, public support for capital punishment was rapidly eroding, falling by 26 percent from 1953 to 1966, when for the first time more Americans were against the death penalty than for it.
A decade later, the death penalty re-emerged as a central issue in American politics. Executions resumed in 1977 after a decade-long moratorium, first hesitantly and then with matter-of-fact regularity. Politicians began to boast about their willingness -- indeed, their eagerness -- to execute their own citizens, including child offenders (something done almost nowhere else in the world) and the mentally retarded. A campaign commercial in the Texas gubernatorial race in 1990 portrayed former governor Mark White walking down a hallway displaying larger-than-life photos of the men put to death during his administration in 1983-1986. "Only a governor can make executions happen," White declared as ominous music played in the background. "I did, and I will." During the Democratic primaries in 1992, Governor Bill Clinton made a point of flying back to Arkansas to sign the death warrant of Rickey Ray Rector, who had turned a gun on himself after killing a police officer in a robbery gone awry and ending up severely mentally handicapped. Lower taxes and more executions were key planks of Newt Gingrich's platform in 1995. The Republican leader even proposed mass executions ("27 or 30 or 35 people at one time") as a weapon in the war on drugs.
What explains this dramatic about-face? A number of analysts point to the symbolic value of capital punishment in American politics. They stress how American society deploys the death penalty to express its fear of crime and its revulsion of criminals. But this begs the question of why capital punishment became such a powerful symbol in the United States but not elsewhere. The institution of capital punishment in the United States has been stubbornly impervious to rational or scientific arguments about its limited impact on deterring crime and enhancing public safety -- arguments that have contributed to its undoing in other Western countries. In the United States, the growing momentum to abolish capital punishment sparked a powerful counter-movement in the mid-1970s that succeeded in bringing back executions with a vengeance.
In this magisterial account of the origins, the development, and the transformation of capital punishment, David Garland rejects claims that the death penalty is an anachronistic holdover that the United States retains largely for its symbolic value. Beginning in the late 1960s, he argues, Republicans strategically wielded the death penalty as a potent wedge issue to wean Southerners off the Democratic Party, and as a shorthand way to brandish their law-and-order credentials and their commitment to state's rights. Capital punishment served as a political euphemism to express a yearning for the good ol' days before the civil rights movement upended race relations in the United States. For "new" Democrats such as Clinton, it was a convenient and indirect way to distance themselves from the liberal grab bag of busing, multiculturalism, the Great Society, and some of the party's other signature issues.
Garland singles out the exceptional nature of American political institutions and the political culture that nourishes them to explain why the United States, seemingly a fellow traveler with much of the West on the road to abolition in the 1960s, veered off toward retention. European legislators, jurists, and elite civil servants, shaken by the Holocaust and convinced that the death penalty does not deter crime, abolished capital punishment in the face of strong, sometimes overwhelming public opinion in favor of retention. The counter-majoritarian, top-down route to abolition has been much more difficult to navigate in the United States because the American criminal justice system is highly politicized, localized, and personalized. Whereas judges and prosecutors in other Western countries are typically chosen through a non-partisan selection process and tend to be career civil servants, in the United States they are often locally elected. "To understand the peculiarities of American punishment we need to appreciate the radical character of local control in the American polity and its consequences for policy-making," Garland explains. The United States lacks "institutional buffers that separate the administration of justice from electoral politics."
Garland also attributes the persistence of capital punishment to the relatively undeveloped nature of the American state and to the country's low levels of social solidarity. Governments that are secure in their power and legitimacy are confident enough to banish the executioner. These tend to be countries that have professional criminal justice systems insulated from the public's passion for revenge and that are able to maintain low levels of interpersonal violence. Not so surprisingly, then, the death penalty is most entrenched in the South, which has had the nation's highest homicide rates and where the police have tended to be relatively under-funded and less professional.
Garland singles out the South's long history of meting out collective violence -- most notably the three thousand recorded lynchings of blacks between 1880 and 1930, many of them gruesome spectacles involving public torture and mutilation -- as further evidence of the limits of state development in the United States. The South in particular has a deep tradition of taking the law into one's own hands, often quite literally. The country's extensive history of violent racial strife and stark segregation has fostered low levels of social solidarity, he contends, making it easier to condemn a fellow citizen because he or she is not viewed as such.
Garland rightly acknowledges that these structural factors are not a permanent impediment to national abolition of the death penalty. He concedes that happenstance and accidental events -- most notably the vagaries of the Supreme Court appointment process and the idiosyncrasies of individual justices -- help to explain why the death penalty got a new lease on life beginning in the mid-1970s. "But they can hardly explain," he adds, the form that capital punishment has taken since then.
The death penalty has not been a stagnant institution. Garland artfully shows how capital punishment has a remarkable capacity to transform itself so as to adapt to shifts in politics, culture, and law. At its most basic, capital punishment has always meant the taking of a life by the government for some perceived transgression against the state or the society. But the manner in which the state takes that life and how it justifies executing its own citizens have varied considerably over time. Centuries ago the condemned were drawn, quartered, dismembered, and dissected in large public spectacles. Today they are "put to sleep" by lethal injection in a private ceremony designed to appear "professional, efficient, and humane."
Garland credits the American judiciary, in particular the Supreme Court, with remaking capital punishment so as to stem the tide of the historical forces pushing toward abolition in the late twentieth century. Beginning with the Gregg decision in 1976, which essentially reinstated the death penalty, the Supreme Court has ratified a series of "civilizing reforms" that are "often more intent on concealing distressing events than on abolishing them, and their effect has sometimes been to sustain capital punishment by making it less visible and therefore more tolerable," according to Garland. The Court has sought to expand due process protections so that the contemporary death penalty is not associated with the racial lynchings of the past. It has portrayed the death penalty as an essential weapon of self-defense in a society held hostage by rising crime and as a morally appropriate expression of retribution. It also has affirmed capital punishment as a tool that restores a community's well being, that provides psychological closure to victims' families, and that expresses community sentiment and the will of the people.
Despite the Supreme Court's efforts to reinvent the death penalty, it remains a "deeply troubled institution" that the courts and society are extremely ambivalent about. As Garland shows, capital punishment "continues to operate in a racialized manner" and is "poorly adapted to stated purposes of criminal justice." It is encased in a confusing and contradictory web of case law that is "more complex and elaborate than that of any other area of criminal law." As a result, capital punishment litigation consumes a remarkable amount of judicial time and energy.
Garland notes that the death penalty serves as a "masthead symbol for a new culture of control with its harsh sentencing laws, its mass imprisonment, and its risk-averse retributivism." But he does not delve into the connection between the reinvention of the death penalty and the start of the extraordinary rise in the country's incarceration rate, which began about the same time. Many of the institutional and political forces that he identifies as having given the death penalty a new lease on life also appear to have fueled mass incarceration and, in particular, the hyper-incarceration of African-Americans.
But there is one striking difference. Capital punishment operates today in an environment that is "hostile to its existence" in many important respects. By contrast, mass imprisonment has a taken-for-granted quality. The endless talk and legal maneuvering about the death penalty stand in striking contrast to the relative silence from the courts and the public about the "extraordinarily severe prison sentences and the mass imprisonment they produce," Garland acknowledges.
There are approximately 3,300 inmates now on death row in the United States. Nearly all of them will die in prison of natural causes or suicide -- not lethal injection. Compare that with the estimated 140,000 people now serving life sentences in the United States. This is about twice the size of the entire incarcerated population in Japan today -- or about half the size of the entire incarcerated population in the United States four decades ago. These figures on life sentences do not fully capture the vast number of people who will likely end their days in prison. They do not include inmates serving so-called basketball sentences that exceed a natural life span. The reinstatement and transformation of capital punishment have been central legal and political issues for going on four decades now. Meanwhile the United States has been nonchalantly condemning tens of thousands of people to "the other death penalty" with barely a legal or political whimper.
Marie Gottschalk is professor of political science at the University of Pennsylvania and the author of The Prison and the Gallows: The Politics of Mass Incarceration in America.