Homework answers / question archive / The Death Penalty – Part I (Introduction) I

The Death Penalty – Part I (Introduction) I

Writing

Share With

The Death Penalty – Part I (Introduction) I. Introduction to Garland and his point of view - DG’s book “Sociological History” examination Traces DP history (mostly western European) and United States Re: USA, DG repeatedly looks to history of lynching DG examines significance of race. II. Why Study the Death Penalty? 1) DP Law (Punishment) as Window into Society Killing of Human Beings Ranks at High End of Human Affairs 2) DP (Support or Oppose) highlights relevance of personal beliefs and “Moral Values” to views on Law 3) DP Highlights Major Cultural Divides in America 4) POV of DP through prism of State v. Disobedient Subject Obscures looking glass 5) Race Matters 6) US Constitution Grants Locals (State) Power over Criminal Law Tenth Amendment is Central Component of American Justice Xth Amendment delegates “Police Powers” to States Some States (Voters’ Elected Representatives) Use Power to Really put Screws to POC, particularly African Americans. III. Legal: Highlights of SCOTUS DP jurisprudence IV. Major Themes in US Death Penalty Discussion 1) Geographic divides 2) Evolving Consciousness & American Politeness 3) Americans are Complicated 4) Who gets credit/ blame for DP 5) Trouble with DP from Utilitarian and Retributionist Grounds V. DP Law is Affected by Politics Some people may die because other people want to get elected VI. Systemic Jury Stacking (toward death) in DP Jury Selection. 1 VII. Traditional Moral Justifications Why We Kill 1) Rules 2) Self-Defense 3) Order and Balance 4) Healing 5) Democracy VIII. Documentary Film: The Life Penalty (74 Mins. … Start time before or at 8:20 p.m.) Disclosure: Obtained video as part of materials for lawyers training to defend clients facing death penalty prosecutions 2 Intro to Garland: 1) Garland not Agenda Seeking (at least claims he’s not) (DG, p. 15). 2) Garland will Examine Lynching and Race …. Identifies hypothesis. (DG, p. 34). 3) Law and the Death Penalty Not Solely About Race. (DG, p. 13). 3 I. Sociological Importance – Why (?!) Study Death Penalty? A. Examination of Punishment to understand Society Study of Society to understand punishment Killing human beings by Government pursuant to law is (respectfully) Major League/ worthy of College Student Consideration. DP = Gov’t Extinguishing Humans. Why, if at all, do we as human beings support it? What, if anything, can we take away from how we do it? What, if anything, can we observe about those to whom its done? There are more questions. Above just for starters. (DG, p. 16). B. Death Penalty Classically Illustrates Relevance of “Moral Values” to one’s view of Law “Fairness” and “Justice” ≈ Personal Moral Values/ Beliefs (DG, p. 9). - DP debates have endured for centuries Question of Government Killing escaped easy solution 4 C. Death Penalty exemplar of Tectonic Divides in American Society. 1. Law in America => Profound Regional Differences i) “America” defies easy characterization America is an Outlier America is a Paradox ii) Constitutional System Results in Permits Profoundly Different Treatment iii) Something Remains Different about the South (DG, p. 11). 5 2. Because (respectfully submit) “Click Lightbulb” significance of Race in America.1 (DG, p. 12). 1 Recall Milovanovic’s cite to Pound’s definition of law as a form of Social Control. DM, p. 111. 6 D. Potential Propaganda/Myth Making to Accept Traditional DP Analysis (aka, Death Penalty/ Law more than meets the Eye) 1. DG: Mistake to view Capital Punishment as relationship between sovereign state and disobedient subject. a. Lose sight of political arrangements that reflect group conflicts and racial hierarchies. p. 26. The FOLLOWING is David Garland Pulling Back Sheet at Autopsy (DG, p. 26). 7 E. “Local Justice” & United States Constitution: Learn More about Defining Qualities of United States Constitution –The Tenth Amendment is a BIG DEAL!! 1) Capital Punishment Highlights Local Control (DG, p. 35). - Local people will be allowed to shape how justice is done. (DG, p 35). ====== * Note: NOT just “tradition” that in America local people will be allowed to shape how justice is done. United States Constitution (as Amended) Grants Police Powers to the States. See Xth Amendment, though also note Federal Government holds tight to police (criminal law) rights as well. 8 Source: https://www.govinfo.gov/content/pkg/GPO-CONAN-1992/pdf/GPO-CONAN-1992-1011.pdf ================= - Xth Amendment = Local (State) Control over Punishment Lab Experiment: A) Local Control + B) Race Matters = C) ???? - Note: Lab Experiment Metaphor is not my own Associate Justice of the Supreme Court Louis Brandeis was the first to popularize the phrase that states “are the laboratories of democracy.” Justice Brandeis in his dissent in the 1932 case of New State Ice Co v. Liebmann stated that: "a state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." 9 II. Two Big DP SCOTUS Decisions (Furman and Gregg) and Results A. Furman v. Georgia, 408 U.S. 238 (1972) – Challenged “the racism and lynchlike practices that characterized the death penalty in some regions …. (U.S. Supreme Court) deemed such practices to be a violation of constitutional rights and invalidated every one of the nation’s capital statutes.” (p. 50). Furman was a SONIC BOOM. EVERY SINGLE DEATH SENTENCE IN THE NATION WAS INVALDATED. That’s, for example, why Charles Manson went from Death Row to LWOP. B. Gregg v. Georgia, 428 U.S. 153 (1976) - U.S. Supreme Court upheld a new set of capital statutes because it found that states had resolved these problems. (p. 50) =? “… [The United States Supreme] Court has emphasized the importance of due process safeguards to ensure that death sentences are not imposed summarily, arbitrarily, or on the basis of race.” p. 50. (DG, p. 50). C. Results? [Equal Justice = Fairy Tale] 1) “Research still consistently shows that race (above all, the race of the victim), social class, and the quality of legal counsel are the chief factors that structure outcomes, with the result that poorly represented blacks convicted of atrocious crimes against white victims are the group most likely to be sentenced to death.” (p. 51) 10 2) “[H]ierarchy is, in a ‘steep descending order of death sentence probability, ranked as follows: (1) Black kills white, (2) White kills white; (3) Black kills black; (4) White kills black,’ a pattern that is strongly suggestive of racial attitudes that value the human worth of whites above that of blacks. (p. 51) (DG, p. 51). 11 III. Major Perspectives, Societal Complexities & Internal Dissonance A. Geographic Diversity – 28 v. 22 (internal/ regional conflict)2 1) 28 states have DP3 Vs. 2) Michigan has been continuously abolitionist since 1846 World leader in Abolitionist cause. ** State Map of DP Jurisdictions https://deathpenaltyinfo.org/state-and-federal-info/state- by-state B. 2 America’s Evolving Consciousness Manifested in Polite Killing 1) Summary: We still kill but are much more sensitive about it … a. From: Town Square Hangings b. To: Hospital Like Settings behind closed walls 2) Traditional American Roots Extra-judicial racist lynchings Local (town) affairs Maximizing ceremonial displays Physical Pain Bodily Degradation Post-Cards and Mementoes circulated Textbook, published in 2010, indicates 35 states have death penalty. (See e.g., p. 22) 3 See States With and Without the Death Penalty, Death Penalty Info. Ctr., http://deathpenaltyinfo.org/states-and-without-death-penalty 12 3) Vs. Modern Day Opposite (in Public Appearance) We are willing to kill murderers, but we do not want anyone to derive satisfaction from doing it. (p. 56). Super Due Process* (*outside sham trial court IAC) Multiple appeals, years of post-conviction process Executions conducted in remote and private settings Protocols almost medical/ clinical to avoid physical suffering Process leaves prisoner’s body unmarked News cameras, photography, video prohibited (DG, p. 52). (DG, p. 53). ? A theme we will re-visit later is a fair amount of recent litigation is not about whether State Killing is Constitutional but over permissible techniques for Killing). 13 D. “American Exceptionalism” Probably Egotistic Characterization -- The Story is Actually More Complicated. (DG, p. 20). 1) Americans are an Exception to the international norm a) Americans are punitive Europeans are not b) Americans are Puritan, or vigilante, or racist or individualistic Europeans are not c) Americans continue to be God Fearing Europeans have lost their faith Vs. 2) Michigan, Wisconsin and Rhode Island have been abolitionist since mid-19th century a) Portugal first abolished DP for ‘ordinary’ crimes in 1867 France and Britain didn’t repeal until more than century later. 14 D. Who Gets Credit/ Blame for DP? 1) 2) E. Top Down display of might, imposed by all-powerful state that monopolizes violence and reserves to itself the right to kill. Michel Foucault: DP = means used by sovereign to create submission, obedience, and social order. Vs. Real Principals are ‘the people’ Victims, the public, the electorate State merely servants doing the people’s bidding Dutifully carrying out democratic mandate DP, as administered, spoils the putative/ intended ‘benefits 1) Average elapsed time between sentencing and execution = 12 yrs. (p. 45) Utilitarianism: Delays undermine deterrent effect Retributionist Spoil capacity for satisfying retribution. “Even a five or six year delay in killing is enough to gut the meaning of revenge. The many you wanted to kill was the abusive robber, high on crack, who pistol-whipped and shot two customers at a SevenEleven store in 1984. Instead, in 1990, the state electrocutes a balding, religious, model prisoner in a neat blue-denim uniform.” (p. 46) 15 V. Defining Operational Features of Death Penalty – Politics Law is Political. (Cliché … DP helps illustrate what that really means) A. Local and Political Forces Control 1) Decision to pursue DP made by elected county prosecutors, whose discretionary decisions are large unsupervised by state or federal authorities. (p. 47). Decision to pursue DEATH is a choice, not legal requirement (p. 47) (DG, p. 47). 2) State Judges who preside over trials and hear appeal, often “politicians who must run for office.” (p. 48) “Judges have sometimes been deselected because their capital appeals decisions were out-of-line with the views of their constituents.” (p. 48)4 (DG, p. 48). 4 See e..g., Rose Bird. https://deathpenalty.org/blog/the-focus/campaign-rose-bird/ 16 3) Governors (elected) more often authorize executions in election years (p. 48) 4) Question: Are Some People Executed because Other People want to Be Elected? Or are some politicians squeamish about doing “people’s will,” but muster fortitude in face of people’s vote. (DG, p. 48). C. Political Decision to Kill Presented as Bureaucratic (Blind Lady Justice) (DG, p. 55). VI. DP Jury Trial Odds Functionally Stacked Against Capital Defendants. A. “Witherspoon Excludables” – Jurors who are fundamentally opposed to the Death Penalty. Stated differently, only persons who are permitted to serve as jurors on Death Penalty prosecution are those who believe in Death Penalty. * The term “Witherspoon-excludable,” a person who is opposed to capital punishment and therefore may be excluded as a juror, comes from this case. See Grigsby v. Mabry, 569 F.Supp. 1273, 1289 (E.D. Ark. 1983). 17 VII. Metaphors & Justifications for (and Criticisms on) Why We Kill Good Stuff, Re: Background Introduction to DP Justifications (DG, p. 61). 1. Rules Based Society (We live in a Society of Laws) a) Law Deployed way Scripture was in previous centuries (p. 61) “Long before he is put to death, the capital defendant is made over as the judicial subject par excellence.” (p. 62) DP defendant receives Super Due Process. (DG, p. 61). b) c) President George W. Bush after execution of Timothy McVeigh “Due process ruled. The case was proved. The verdict was calmly Reached. And the rights of the accused were protected and observed to the full and to the ed. Under the law of our country, the matter is concluded.” (p. 62) CONTRA revelation: The most important decisions in the capital process (made by prosecutors, jurors and governors) are 18 discretionary, subjective, and not liable to external review. (p 62) 2. War (DG, p. 62). a) Death Penalty as Weapon of Self-Defense in War on Crime Lethal response needed to deter or incapacitate the enemy While raising morale Politician doing his/ her maximum to protect citizenry Set’s up: Whose Side are you on? If War, veritable test of P-A-T-R-I-O-T-I-S-M (DG, p. 63). 19 b) 3. CONTRA argument DP is weapon of Choice, Not Necessity Often yielded against poor/ minority/ mentally damaged persons Order and Balance a) Repayment in Kind Ultimate Punishment for Ultimate Crime Death Penalty as Moral Counterweight News of Atrocious Crimes provokes passionate outrage Produce powerful narratives that concentrate public sentiment Another, More Righteous Killing will settle accounts Express Collective Outrage Move public audience from cathartically from outrage to relief (DG, p. 64). b) CONTRA argument Forward looking and re-demptive DP is costumed Vengeance 20 4. Healing a) DP restores the community’s well-being and provides psychological closure for the traumatized victims. Metaphors of cleansing, restoration, and cure represent the DP as promoting social health. Lethal injections protocols evoke medicinal type solicitude and show respect for the human condition of the defendant, even as we put him/her to death. As Timothy McVeigh’s attorney noted, “We have made killing a part of the healing process.” (p. 67).5 b) CONTRA argument Deliberately killing a healthy person who represents no immediate danger (i.e., incapacitated in prison) and a violation of the Hippocratic Oath. Death penalty is not humane treatment but a human sacrifice. (DG, p. 66). (DG, p. 67). 5 Note: Multiple themes may be invoked; supportive metaphors are non-exclusive, e.g., President Bush’s rules based comments following McVeigh’s execution. 21 5. Democracy in Action a) DP as the People’s will, dutifully carried out by People’s lawful representatives. Capital Punishment represents democracy in action. “No prosecutor gives the death penalty, only people do.” (p. 67). (DG, p. 67). b) CONTRA arguments i) “The voters” are not the voters of the United States, or even of the full state but voters of a particular county – who elect county prosecutors, who make decision whether to seek death penalty. ii) Majority rule ought not to trample individual rights Popular opinion may be superficial and based on misunderstandings, and community sentiment is too volatile to be allowed to control such momentous matters. 22 Death Penalty – Part II (Historical and Social Explanations/ Lessons) Overview – DP Story of Shifting Justifications by Authorities, Kinder and Gentler Approaches to Killing, Eventual Decline and (in America) Inescapable Connection to White Oppression of African Americans (largely fostered/ enabled) by Duality of Federal/ State System favoring Local Controls.1 A. Part 1: From Political to Penal Emphasis & Long Term Story of Kinder/ Gentler DP & Geographical Erosion (DG @ p. 72).2 1 CJ 301 Law in Society: From Significant to Trivial, in USA internal boundaries = Different Legal Rights and Restrictions i) Death Penalty – Differences between States (many abolitionist, popularity heavily southern) ii) Abortion Rights – Differences between States 2 Legend: DG and page references are to Peculiar Institution: America’s Death Penalty in an Age of Abolition, David Garland (2010), The Belknap Press of Harvard University Press. 1 B. Basic Definitions, Tenants/ “Benefits” of Death Penalty and Intro to Its Decline 1) What? Death Penalty Defined: (DG @ p. 70) A. “Death is … of all dreadful things the most dreadful,” Samuel Johnson remarked, “an evil beyond which nothing can be threatened.” Introduction (Cont’d) 2) Why? “Benefits” of/ Justifications for DP i) ii) iii) Effective and Efficient way for authorities to eliminate threats Especially Useful for Unstable and/or Poor Nations Doesn’t Require much Technology Especially Useful if No Prisons3 Permits Authorities/ Authority to proclaim/ stabilize power Impress Onlookers Denounce the proscribed conduct Exacts Revenge Undoes Pollution Restores Social Order Sends Warning to Would be Offenders Benefits may (Ironically) GROW as Society Develops toward Valuing Human Life 3 (DG, p. 73). 2 (DG, p. 73). 3) FROM TO - Historical (“Big Picture”) Transformation of DP A. Big Picture Social Evolutionary Justifications - 1) 2) DP Key to Building and Maintaining Political Power || V DP Penological/ Criminal Justice Tool (DG, p. 71). 3 B. Factors Limiting Erosion of DP 1) Political Instability 2) High Rates of Criminal Violence 3) Public Insecurity 4) Effective Public Resistance (DG, p. 73). 4) Smashing/ Clarifying Myths Regarding Decline i) Not Story of Moral and Political Progress ii) Not Story of “Civilization” taking control iii) Not Narrative of DP’s continual decline. (DG, p. 71) iv) So What IS the Story of the DP?4 Here we go … 4 The “answer” to be sure defies a book or singular or definitive explanation. If only life were so convenient that CJ 301 (and/or an author or instructor) might definitively answer the question why the State kills? Garland’s book and the instant (derivative) Outline aspire to provide some insight, though I cannot (obviously) speak for Garland. 4 II. Historical Epochs: Time Marking Major DP Generations A. The Early-Modern Era (1400 – 1700) ? Low Key to Powerful Political Tool 1. Pre-Emergence of Modern States A. Death Penalty Pretty Low Key (DG, p. 75) (Note: Interesting to consider that before us/ humans organized ourselves into nations and states, DP – when it occurred was low key and unmarked by wicked forms of torture that later emerged). Not sure what it says about us as Human Beings and State Control, but as Garland notes, “Not Europe’s medieval lords but the absolutist rulers who replaced them gave capital punishment its greatest cruelty, intensity and display.” (p. 76). Maybe, one answer is that with “medieval lords” their control was more localized, so their grip on power depended more on their accountability to the local community. However, the explanation of local control is more commonly associated with gentleness fails when considered in the context of the Deep South and white supremacy) 5 2. Emergence of Modern States – Rise of Monarchies5 A. Background: Emergent European States/ Nations were Weak a) The Problems i) The State/ Emergent Monarchies Weak ii) Technology to Communicate was Poor iii) Lack of Alternate Means to “Control” (DG, p. 76). (DG, p. 80). 5 1648 (End of Thirty Years Wars) & Peace of Westphalia. (DG, p. 75). 6 b) Political Realities/ Needs Rooted Death Penalty i) Power Requires Survival ii) Once Conquest/ Thirst Satisfied i.e., State Boundaries Formed (following War) ii) Power/ Survival Needs Turn Inward iv) Demonstration of Power ? Survival (DG, p. 77). C. Consolidate Power) Adopted Historical “Cook Book” Solutions (to 1) 2) 3) 1) Monopolize Violence Identify Threats Extinguish the Threat * In a way that Minimizes Risk of Future Threats * EXTREME & PUBLIC VIOLENCE Step No. 1: Monopolize Violence (DG, p. 75). 7 (DG, p. 75). 2) Step No. 2: Identify Threats (DG, p. 76-77). 3) Step No. 3: Effective Elimination of Threat Also Discourages Others A. . Send a MESSAGE: “Shock and Awe” - Raise the Profile and Horror (DG, p. 77). (DG, p. 75) (Note: Kind of makes sense. Metaphor of an organism striving to survive. Nascent/ new/ insecure state turns to fierce displays of self-defense to protect itself, to help itself (the state) survive. Of course, “the state” controlled by human beings, so attributing self-protective instincts to “the state” conceals another/ darker reality – emergence of and interest in consolidating and protecting Power). 8 B. Solving Communication Problems in Pre-Mass Media Times (DG, p. 83). (DG, p. 83). 2. Death Penalty in “Early Modern” Titled toward Political Tool (versus crime control) (DG, p. 78). (DG, p. 78). 9 1) DP in “Early Modern” Era for Criminal Policy = Secondary (DG, p. 79). C. Death Penalty was Politically EFFECTIVE (DG, p. 78). (Note: Use of the word “Cherished” … if true, revulsion seems apt response). + Thought – DP may not discourage/ deter mentally disturbed people, but it sure as heck may cause political protestors to fall in line. (Maybe I won’t go outside and protest today against the King) 1) As State Consolidated Power, Justification Began to Shift (DG, p. 80 – 2nd paragraph highlights obscene political moral ease and convenience of shifting justification). Proposition and Questions: What to make of a State and its Subjects that Inflicts a Ultimate Punishment on Shifting Philosophical Grounds, e.g., First DP functionally used to assert and dominant and control; then, once power of State effectively established – principal 10 justification SHIFTS: (Yes, we kill, but please know we’ve changed the main reason for doing it and appreciate your continued support and loyalty. ….. What does that attitude suggest both about the nature of the State and those that are governed? (One may think, well, people that lived in the 1400-1700’s were fundamentally different, but do you really think that human beings that lived 600 years ago we really that different from you and I … hunger, love, jealously, sympathy, self-discipline, belief in God, and a 100 other attributes that define us as humans?) Larger Question: Are Governed Populaces (1) Generally (collectively) Stupid or Naïve or Trusting (so that they tend to believe whatever ‘story’ is presented to them); (2) Too busy with the business of Daily Survival that whatever their Collective Belief, there is generally not the luxury to intellectually reflect on the shifting (and thus debatable/ false) justifications; (3) naturally Patriotic (i.e., inclined to Support and Follow the Government’s pronouncement; or (4) Jaded and generally beaten down by life, so that so long as some reasonable sounding explanation is offered, they’ll go along. (Or something else)? D. Death Penalty Imbued/ Cloaked/ Draped with Religious Overtones (DG, p. 79). Note/ Question: Association with Monarchical Theory of Divine Right? Monarch’s introducing/ focusing/ emphasizing their likeness to God? 11 Larger Question CJ 301 – Law in Society, re: Political Leaders: Is there a Psycho-Social Phenomena among the Most Successful Political Leaders that Resembles a “God Complex” Some of Whom may view their entrustment and/or ascendancy as a sign of Otherwordliness)? Death Penalty, including both its Infliction (and Pardon power) stands as simply another example of the phenomena? E. Evidence of Marxist Truths also Present – State as a Proxy for the Elite* * The voice of the Rich/ Elites will Always Register with the State (“For Your Consideration”: CJ 301 – Law And Society, a Candidate (think Grammy’s or Oscars) definitely is the State Listens to/ and/or is a Tool of the Rich). Evidence? Exhibit (fill-in the number): Evidence - Exhibit 1 (DG, p. 81) 12 Evidence – Exhibit 2 (DG, p. 81). - Maybe shape shifting in modern times to political pardons? F. Death Penalty as (Another) Example of Law and Society Reflecting and Demonstrating Class Distinctions CJ 301 application (Another Grammy/ Oscar Candidate for Thematic Award: Law, even when applied in its most harsh dimensions, still finds a way to elevate concern for the Privileged/ Elites over the Poor. Evidence – Exhibit 1 (DG, p. 83). Evidence - Exhibit 2 (DG, p. 82). 13 III. The Modern Mode – 1800’s to Approx. 1960’s A. Main Themes 1) State more Stable => DP Shifted to Crime Control 2) Rise of Prisons Permitted Tapering of Application to “Ultimate” Crimes 3) Religious Overtones Persist but Meaning Changes 4) Improved Communications (“Press”) permitted movement to “Indoors” 5) Humanistic Considerations Begin to Sprout w/ Branched Results i) Applying Improved Technologies (to hasten death/ reduce suffering) ii) Morality Questions Grow ? Necessary (Re)Casting Condemned as Moral Alien 1. State More Stable ? DP Justification Shifts (DG, p. 89). (DG, p. 88). 14 (DG, p. 91). A. Justification Crime, Not Political Domination, Assumes Central (DG, p. 89). (DG, p. 90). 2. Rise of Prisons Permits Tapered/ Narrowing Application Exhibit No. 1 (DG, p. 88). 15 Exhibit No. 2 (DG, p. 88). Exhibit No. 3 (DG, p. 91). Exhibit No. 4 (DG, p. 104). 16 3. Religious Overtones Linger but Role/ Focus Shifts (DG, p. 94). Note: “Tradition” - Another reoccurring theme in Law in Society. (DG, p. 92). 17 4. Square Rise of Press Permits Move of Executions Away from Public (DG, p. 93). (DG, p. 108). (DG, p. 94). 18 5. Humanism Expressed by Improved Technology and Social Reframing of Offender A) Technology: Kinder and Gentler DP Exhibit 1 - Thank God for Small Favors (DG, p. 92). Exhibit 2 (DG, p. 109). Exhibit 3 (DG, p. 93). 19 Exhibit 4 (DG, p. 109). B) Condemned Person Re-Cast as Moral Alien i) Morality Questions Grow & Cause Discomfort Seeds of Humanism Sprout (DG, p. 94). 20 ii) DP Advocates Respond & Beef-up Their Offense/ Defense If Humanism = Sprouting Seeds, then (of course) Opponents Reformulate their “Round-up”6 Exhibit 1 (DG, p. 94). Exhibit 2 (DG, p. 95) 6 Round-up, I’m fairly sure, is Trademarked and owned formerly by Monsanto and now by Bayer. No claim to ownership or commercial use by the author is, respectively, intended or made. 21 Exhibit 3 (DG, p. 95-96). 22 IV. The Late-Mode Mode/ Era (1960’s – Near Present Day) A. * Major Themes: 1) Death Penalty is Going Away Western European Nations Abandon DP 2) American DP Usage Trending Downward a) America *Unique* in its Ceding Local Control Examples Abound b) Paradoxical Results DP Continues Racial Discrimination Procedure Morally Distanced from Racial Roots 3) Supreme Court Continues to Uphold Execution Laws EDITOR’s NOTE (For Your Consideration) – Provable Facts DP Remains Concentrated in South/ Southern States + Southern States is where Slavery Existed (See Civil War) + Facts Show BEYOND A REASONABLE DOUBT African Americans face heightened risk of Execution. + United States Government Permits Executions B. Foreshadowing: General Decline of DP Across European Nations (DG, p. 96). DG, p. 96). 23 1) Europe Eventually/ Wholly Abandoned DP (DG, p. 99) a) Alternative Penalties Permitted Harsh Retribution b) Rarefication marginalized DP’s Utility (DG, p. 98). (DG, p. 98). 24 c) United States Left Standing as DP Outlier (DG, p. 99). C. Trending Decline of the DP in America First the Good7 News – Looks like DP going down in U.S.A. Source: FactSheet (deathpenaltyinfo.org) 7 Use of adjective “Good” in the context of perspectives shared by, inter alia, Denmark, Finland, Norway, Portugal, Spain, UK, Germany, Belgium, Italy, et. al. (Western European nations) and minority of states in U.S.A. that have abandoned DP. 25 D. Abolition Local Control (and Racial Discrimination) Stunts/ Retards (DG, p. 121). Summary 1) America Unique in Decentralization of Control Federal v. State Systems/ Federal & State Systems/ Intertwined Federal and State Systems 2) Uniqueness (Dual Systems) Facilitates Discrimination/ Racism 3) Racism/ Racist Embers Still Glow Strong 1) America Unique in Decentralization of Control (State Level Law on DP) (DG, p. 121). 26 2) Uniqueness (Dual Systems) Facilitates Discrimination/ Racism (DG, p. 121). 3) Racism/ Racist Death Penalty Embers Still Glow Strong Exhibit No. 1 (DG, p. 122). Exhibit No. 2 Source: FactSheet (deathpenaltyinfo.org) 27 E. Move From Hanging to Lethal Injection (Salve to White America’s Conscience?) 1) Background of Post-Civil War (Mostly Southern) White Dominance a) Hideous Legacy of Lyching – Duty to REMEMBER Example No. 1 (of Hundreds or Thousands) Source: The Years of Lyndon Johnson: Master of the Senate, Robert A. Caro, p. 196). Example No. 2 28 Source: The Years of Lyndon Johnson: Master of the Senate, Robert A. Caro, p. 194-195). 2) Washington, D.C. Historical Failure to Support Reforms Exhibit No. 1 – President (then Senator) Lyndon Baines Johnson Source: The Years of Lyndon Johnson: Master of the Senate, Robert A. Caro, p. 738). 29 Source: The Years of Lyndon Johnson: Master of the Senate, Robert A. Caro, p. 202). =========== Critically Important Metaphor and Self-Admission by LBJ & Lesson involving Law and Society 30 3) Current Status of Lynching (Federal Law)? In 2020, Congress FINALLY passed anti-lynching federal law. Source: https://www.bbc.com/news/world-us-canada-51663053 31 4) Supreme Court? DP ≠ 8th Amendment & Okays Lethal Injection a) Lynching Gave Hanging a Bad Name Amongst Polite b) Killing People in a Manner Deemed Inhumane to Pets Company (DG, p. 119). = OK i) 1) Baze v. Rees, 553 U.S. 35 (2008) Case Background (all language is from the U.S. Supreme Court’s Decision Chief Justice Roberts announced the judgment of the Court and delivered an opinion, in which Justice Kennedy and Justice Alito join. Like 35 other States and the Federal Government, Kentucky has chosen to impose capital punishment for certain crimes. As is true with respect to each of these States and the Federal Government, Kentucky has altered its method of execution over time to more humane means of carrying out the sentence. That progress has led to the use of lethal injection by every jurisdiction that imposes the death penalty. Thirty States, as well as the Federal Government, use a series of sodium thiopental, pancuronium bromide, and potassium chloride, in varying amounts. 2) Supreme Court Focuses on Issue of Pain Not Killing It is uncontested that, failing a proper dose of sodium thiopental that would render the prisoner unconscious, there is a substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride. 32 3) Supreme Court Recognizes Most States Don’t Allow Vets to Kill Animals under the Protocols at Issue. Moreover, 23 States, including Kentucky, bar veterinarians from using a neuromuscular paralytic agent like pancuronium bromide …. 4) Supreme Court Upholds Kentucky’s Protocols State efforts to implement capital punishment must certainly comply with the Eighth Amendment, but what that Amendment prohibits is wanton exposure to objectively intolerable risk, Farmer, 511 U.S., at 846, and n.9, not simply the possibility of pain. 5) Dissenting (Losing Side) in Baze v. Rees? Kentuckys use of pancuronium bromide to paralyze the inmate means he will not be able to scream after the second drug is injected, no matter how much pain he is experiencing. Kentuckys argument, therefore, appears to rest on the assertion that sodium thiopental is itself painful when injected into tissue rather than a vein. See App. 601. The trial court made no finding on that point, and Kentucky cites no supporting evidence from executions in which it is known that sodium thiopental was injected into the inmates soft tissue. See, e.g.,Lightbourne, 969 So. 2d, at 344 (describing execution of Angel Diaz) =? Issue at Supreme Court Remains on How, Not Whether (Mostly Southern) States Kill. (And then, even on that point, Sup. Ct. again upheld protocols that involves drug that most States prohibit Veterinarians from using!!).8 8 https://www.youtube.com/watch?v=ls1YVhcLD2c 33 Source: FactSheet (deathpenaltyinfo.org) 34 V. Conclusion 1. Fact: Horrible Crimes Occur 2. Fact: America Has Proven Itself Incapable of Fairly Administering DP 3. Fact: You get to decide how you believe 1 & 2 are reconciled. You get to Choose Your Perspective and Response, if any* (* Activism is One Option, though potentially carries heavy personal costs. Thus, perhaps explaining why, in the words of Henry David Thoreau, “The mass of men lead lives of quiet desperation.” Example of one American Activist who promoted Reform: https://www.youtube.com/watch?v=oXRNKddVsw8&t=320s 35 Death Penalty – Part III: DP as a Study and Symptom of Society in the Law I. PECULIAR INSTITUTION: America’s Death Penalty in an Age of Abolition. (DG, p. 156). US Constitution, Art I, Sec. 2 (i.e., substance rated highly enough among “Founding Fathers” to include in the first Article of the Constitution). 1 1) Death Penalty Effectively Illustrates/ Epitomizes Some Imp. Course Themes Overarching Story of Law in Society involves Power - Racism remains Deeply Entrenched, as exemplified by DP - Liberalism and Humanitarianism with Tectonic-like force and resistant pressure may tend to produce (while fitfully slow) positive transformation + Positive Transformation, when occurring, sometimes happens in spite of popular majority preference. - Democracy (majority rule) and Capitalism (private ownership of property) are frenemies 2 II. Death Penalty is a Story of Power (DG, p. 127- 128). 1 A. Death Penalty Started as Essential to Establishment of Power A Brief History Review (DG, p. 128-129). (DG, p. 132). 1 Legend: DG and page references are to Peculiar Institution: America’s Death Penalty in an Age of Abolition, David Garland (2010), The Belknap Press of Harvard University Press. 3 i) R-E-S-P-E-C-T2 (DP as sign Elites Appreciate/ Demand it) (DG, p. 131). 1) AT ONE POINT DP MAY HAVE HELD SOCIAL UTILITY 2) Once Population “Pacified”/ “Civilized” DP becomes Inessential!!!!! (DG, p. 133). (DG, p. 130). 2 https://www.youtube.com/watch?v=SAI_Nv3qWto 4 III. Power, of Course, Broader than Simply Subject of DP 1) Brief Review of CAKE RECIPE – For State Formation & Civilization i) Step 1: State Forms when Elites Take Control ii) Step Two: “Civilization” - Elites Imprint Their Values (DG, p. 131). (DG, p. 131). 2) Important Ensuing Cultural Developments, Influences and Definitions i) Democratization (See Exhibit No. 2 – relation to Elites!) Exhibit No. 1 – (Note – “Exhibits” in Court are used to mark, offer and admit Evidence). DG., p. 131) Exhibit No. 2 (DG, p. 139) -- Ed. Note: Changes happen when rulers “forced” to make concessions – Nothing comes easy, when dealing with Power. 5 ii) Humanitarianism & Humanitarian Reform (defined) iii) Liberalization (defined) (DG, p. 131). (DG, p. 131). 3) Once DP Becomes Inessential, Status Becomes Political Issue (DG, p. 130). a) DP Inessential ≠ DP Historically Non-Useful i) When No Longer Essential – Justification Changed Exhibit No. 1 (DG, p. 133). Exhibits No. 2 & 3 6 (DG, p. 137). No. 2: Seeds of Racism - Elites Not Insensitive to Group Dynamics (DG, p. 132). 7 IV. In “Civilized” Society DP is a Tool Elites Use (or Not) to Promote Power3 1) Since Elites Control, DP Reform Usually Top Down (Imposed) (DG, p. 130). HEADS UP: AS WE WILL SOON SEE, PERHAPS A HIGHLY IMPORTANT ELEMENT IN SOCIAL CHANGE IS HOW ELITES COME TO FEEL ABOUT THINGS 2) First Level Reforms – (i) Take It Private; (ii) Make it Less Violent Looking a. Important Background Understanding: Shifting Movement/ Evolution of Patrician Sensibilities of Elites Exhibit No. 1 (DG, p. 145). 3 Law in Society devolves/ Strips down to Power. 8 Exhibit No. 2 (DG, p. 145). b. IMPORTANT Note: Does Not Mean Elites Opposed to Death Penalty, Just that For Heaven’s Sakes, Just Exercise Some Taste and Manners my good man in how you go about it. (Ed. Note: Reminds me of scene from movie Taken where Rich Sex Trafficker tells his underlyings to kill (hero) Liam Neesom, but to do it quietly because – after all, he’s entertaining].4 …. Victorian Era and sensibilities offer a good example. Exhibit No. 1 (DG, p. 145). Exhibit No. 2 (DG, p. 145). 4 The analogy is admittedly deeply flawed and imperfect since Neesom’s character was nobly motivated to free his kidnapped daughter and DP is accurately recognized as rarely associated with heroes. Ed. Sub-note: Be careful with use of analogies. One highly successful trial attorney once bragged there was no analogy that he could not rip apart. The point being that analogies may be associative effectively but vulnerable to rhetorical demolition (or ridicule). 9 Exhibit No. 3 *************** (DG, p. 145). ii) DP reform (e.g., to Lethal Injection) as less UGLY, ‘LESS DEATH’ LOOKING – MATTER OF REFINEMENT AND TASTE Exhibit No. 1 (DG, p. 129-130). Exhibit No. 2 (DG, p. 146) Exhibit No. 3 (DG, p. 146) 10 Exhibit No. 4 (DG, p. 147). Editor’s Note: My mentor (Former Kern County Public Defender) Mark Arnold, gave me many treasured pieces of personal and professional advice, including: BE PROUD OF WHAT YOU DO. The meaning is multi-dimensional and carries with it the corollary powerful message, If you are not proud of an action or behavior, then maybe you ought to re-consider/ not do it. The same theme might be applied to the Death Penalty. Be Proud of What You Do. If you/ we determine to kill convicted murderers, don’t hide it or disguised its Violence, making it resemble a medical procedure where the patient is simply anesthetized. 11 3) Plus: Elites Not Insensitive to RISKS of DP, re: their grip on Power. 4) Risks to Screw-ups PLUS Patrician Manners of Elites = Kinder Gentler LOOKING DP (BUT Still ULTIMATELY ABOUT CONTROL) 5) Elites Recognize Popular Majorities Typically Support DP (DG, p. 134). (DG, p. 135). (DG, p. 129). Ed. Note: Consider the possibility: Elites consider themselves Refined and Well Mannered. Elites have distaste for public showings of bodily functions and death and decay. (Ughh, the realities of life really are so vulgar. But the masses/ peasants often support the death penalty. What to do? Is is any wonder Lethal Injection “evolved.” Kill, Kill, Kill, but not in a way that upsets one’s stomach before sitting down to a fine meal. 12 V. The Reform/ Abolition Movement on the Death Penalty (finally some good news) Big Picture – Hypothesis/ Theory that Over Time Civilization Morally Progresses (DG, p. 142). Big Picture Sub-Thesis: DP Reform an Example of Part of Larger Movement (DG, p. 144). 1. Reforms to Death Penalty Multi-Causal (No Single Reason)5 a. “Liberal” forces Typically Drive Reforms (DG, p. 129). i) Are you a “Liberal”? (Just asked rhetorically, re: self-reflection) (DG, p. 136). 5 Just like most things in life: Non-Binary. 13 2. Democratic forces also Drive DP reforms, WITH MAJOR CAVEAT a. Reform Minded Impact of “Democrats” Exhibit No. 1 (DG, p. 140). Exhibit No. 2 *** b. Democratic “Credit/ Blame” Mirror Opposite of Majority Preference Exhibit No. 1 (DG, p. 140) – Things get highly tangled/ sticky when one interposes the proposition that Democracy elevates the right of “people” (non-elites) to have their voices heard – and then witnesses how “Charismatic” domination can lead people to support leaders who promptly pursue horrifying outcomes. See e.g., Hitler and Holocaust. 14 Exhibit No. 2 (DG, p. 141). Exhibit No. 3 (DG, p. 142). – Ed. Note: My Gosh – For those anti-DP liberals, consider the implications: Does this mean that there may be something positive found in Elite rule? That is, again from the liberal perspective, left to their own devices “the People” will choose in favor of Barbarism? 15 3. Humanitarianism – a Cousin of Liberalism/ Also Gets Credit (or Blame)6 (DG, p. 129). a. Solar Plexus Hit Question – Death Penalty and Abortion (DG, p. 148). * Ed. Note: Challenging to reconcile anti-DP and pro-abortion rights. Two possible ‘answers’; i) Intellectual Consistency is Overrated; or ii) Zygote/ embryo at early stage pregnancy is not ‘person.’ Of course, question then becomes when does embryo/ fetus achieve ‘personhood’ status, viability? (I DO NOT KNOW THE ANSWERS; JUST ASKING AND RAISING POINTS FOR YOUR CONSIDERATION). 6 “Credit” if one is an Abolitionist and “Blame” if one supports the Death Penalty. 16 b. Practical Limits of Humanitarianism (Why Can Still Kill w/ DP)? --- it’s the way we humans think. Exhibit No. 1 (DG, p. 149). Exhibit No. 2 – Key to Saving DP Defendant’s Life is to Humanize Him/ Her; Defense Attorney fails to reach the jury in a way that ‘Connects’ – Defendant Likelier to Face State Execution. (DG, p. 149). 4. Overall: Narrow/ Minority Typically Drives DP Reform Movement (DG, p. 144). 17 VI. Death Penalty a Story of American History Intro: Garland Raises then Dismisses Prospect of “Butterfly Effect” – then proceeds to Reveal much darker reality, matter of factly both Logical and Scarier than Any Theatrical Release Imaginable. (DG, p. 152). A. Summary Overview & Brief Retelling of Nation’s Founding: Establishment of Nation Required Compromises, Disadvantage and Consequences 1. Compromises Resulted in Decentralized Control [ Remember Back to Our First Class Federal and State Systems Constitution: Federal Enumerated Powers Balance of Powers Reserved to States] a. Nowhere is Local Control More Apparent than Police Powers 2. Compromises Sacrificed African Americans 3. American Economic Ethos is Individualistic and Entrepreneurial a. America is Capitalistic, Market Driven b. Story of Horatio Alger All it takes in America to Succeed is Hard Work!! c. Effect of Discrimination (vs. African American and Intersectionalism, women, Latinx, LGBTQ, socio-economic disadvantaged)? = Like Giving the Rich White Kid a 20 yard head start In 100 yard dash (or having African Americans start 20 yards back – with various Intersectionals placed a bit ahead of AA’s). Then giving the Rich White Kid a trophy when he wins on “MERIT”!! 18 1) BACKGROUND Founding of America Required Political Compromise (DG, p. 154). 2) Compromise Took the Form of Decentralized Control (DG, p. 154). (DG, 154). a) Stamp of Local Control Specially Marked Police Powers (with Devastating Consequences to African Americans) 19 (DG, p. 159-160). 3) Decentralized Control Doomed Generations of African Americans Proof No. 1 (DG, p. 156). Proof No. 2 (DG, p. 156). Proof No. 3 – Decentralized Power to State Ensured Black7 Subordination (DG, p. 168). 7 No dis-respect is intended as between alternately usage of African Americans and Blacks. 20 Proof No. 3a (DG, p. 177). Proof No. 4 – Once Subordinated it Becomes Easier to Prove “Otherness” of Blacks (DG, p. 168). Proofs No. 5 & 6 (1st Introduced in DP – Part II) – The Result is Cake Recipe Predictable 21 Source: https://files.deathpenaltyinfo.org/legacy/documents/FactSheet.pdf 22 VII. Cinematic Lens Draws Back to Move Lesson Beyond DP A. Racist Effects of Decentralization Transcend the Death Penalty America has Become More Humanitarian …. (DG, p. 164). But not Towards African Americans (DG, p. 165). With Continuing Crippling Effect …. (DG, p. 168). 23 B. Racist Effects Often Cloaked By Capitalism & Overlying Societal Ethos a) The Story of Horatio Alger – A Determined Man/ Woman Can Succeed … Just Requires Pluck and Hard Work b) American Ethos – Individual Responsibility (DG, p. 167). So … think about it. If we 1) Deny African Americans (and Variously Discriminate against other Intersectional Groups), and 2) then Interpose the Ethos of Individual Responsibility … VIOLA … If you fail, it’s YOUR FAULT. [Ed. Note: Respectfully, ONE COULD NOT DESIGN A MACHINE TO PERPETUATE CONTINUED ELITE DOMINANCE IF ONE TRIED. Again, deny benefits/ discriminate and then see who Crosses the Finish-Line First!!!!!] The American Experience (DG, p. 178). 24 C. Market/ Capitalist Based Society Ensues and Correlates with Harsher Punishments - Garland Invites Consideration of Socialist Structure a) Capitalist (Non-Socialist) Structure Contributes to Street Level Outcomes Proof No. 1 (DG, p. 171). Proof No. 2 – Discrimination “Time and Again” Results in Americans Opting for Punishment (DG, p. 170). Editor’s Note: Mass Incarceration of African Americans & Latinx a Coincidence? Source: https://www.naacp.org/criminal-justice-fact-sheet/ 25 VIII. And Finally Let’s Not Forget Guns and God 1. Despite the First Amendment Separation of Church and State, Religious Influences Hold Strong. a) On Guns (DG, p. 173). 26 b) On God & Separation of Church/ State 1. Revisiting CJ 301 Theme – Law on Books vs. Reality as Lived (DG, p. 179). 27 IX. Conclusion THANK YOU8 Personal Note: I’m not good at Goodbyes, so will go out with a Song …. https://www.youtube.com/watch?v=QrY9eHkXTa4 8 Although please note, your Essay No. 5 is still due, respectfully, on Tuesday, May 11, 2021. 28 PECULIAR INSTITUTION PECULIAR INSTITUTION America’s Death Penalty in an Age of Abolition DAVID GARLAND THE BELKNAP PRESS OF HARVARD UNIVERSITY PRESS Cambridge, Massachusetts 2010 Copyright © 2010 by David Garland All rights reserved Printed in the United States of America Library of Congress Cataloging-in-Publication Data Garland, David. Peculiar institution : America’s death penalty in an age of abolition / David Garland. p. cm. Includes bibliographical references and index. ISBN 978-0-674-05723-4 (alk. paper) 1. Capital punishment—United States—History. 2. Discrimination in capital punishment—United States—History. 3. Decentralization in government—United States—History. 4. Power (Social sciences)—United States—History. I. Title. HV8699.U5.G36 2010 364.660973—dc22 2010019967 For Anne, Kasia, and Amy Contents Prologue: The Exemplary Execution 1 1 A Peculiar Institution 9 2 The American Way of Death 39 3 Historical Modes of Capital Punishment 70 4 The Death Penalty’s Decline 101 5 Processes of Transformation 127 6 State and Society in America 151 7 Capital Punishment in America 183 8 An American Abolition 206 9 New Political and Cultural Meanings 231 10 Reinventing the Death Penalty 256 11 Death and Its Uses 285 Epilogue: Discourse and Death 308 Notes 315 Acknowledgments 395 Index 399 PECULIAR INSTITUTION Prologue The Exemplary Execution The following report appeared on Thursday, October 26, 2006, in the pages of an American newspaper: Killer of 5 Florida Students Is Executed Gainesville, Fla., Oct. 25—The serial killer who gruesomely murdered ?ve college students here in 1990 was put to death on Wednesday by lethal injection, and relatives of his victims said afterward that they could ?nally feel the beginnings of relief. Danny H. Rolling, 52, was pronounced dead at 6:13 P.M. at Florida State Prison in Starke, about 30 miles northeast of Gainesville. Witnesses said he stared toward them and sang a hymn-type song just before the drugs were administered. “Maybe now that we don’t have this on us,” said Dianna Hoyt, the stepmother of one victim, “we can try and relax and live with the memories we have of our children and be at peace.” Mr. Rolling was 36 when he arrived in Gainesville shortly before the fall semester began at the University of Florida, a drifter with a criminal past who pitched a tent in some woods near campus. He followed two freshman roommates, Sonja Larson, 18, and Christina Powell, 17, to their off-campus apartment, raped Miss Powell, repeatedly stabbed both women with a hunting knife and mutilated their bodies. The police discovered them on Aug. 26, after Miss Powell’s parents re- 2 Prologue ported that their daughter was not answering her door or phone. Later that night, the police found Christa Hoyt, 18, dead in her off-campus duplex. Mr. Rolling had raped and stabbed her, severed her head and placed it on a shelf. The next day, Tracy Paules and Manuel Taboada, both 23, were discovered stabbed to death in their apartment, not far from where the other killings took place. Mr. Rolling attacked Mr. Taboada, a former high school football player, as he slept, then killed Miss Paules. . . . Gainesville, a small city of pretty homes and live oaks, was crippled with dread. The campus shut down for a week and many of the 34,000 students scrambled home, some never to return. Others bought baseball bats and Mace, put triple locks on their doors or slept in shifts. . . . [I]n January 1991, the police discovered Mr. Rolling in a county jail south of Gainesville, awaiting trial in a supermarket robbery. He initially denied committing the murders, but DNA tests ultimately showed he was responsible. He pleaded guilty on the eve of his trial in 1994, telling the judge, “There are some things that you just can’t run from.” Mr. Rolling was also believed guilty of three slayings in his hometown, Shreveport, La., but was never tried for those crimes. He attributed his behavior to abuse by his father, a police of?cer, and to an evil alter ego. In prison, he drew disturbing pictures and wrote a graphic book, “The Making of a Serial Killer,” with a woman who was his ?ancée for a time. For his last meal, he asked for lobster tail and butter?y shrimp, prison of?cials said. Across the road from the prison, dozens of onlookers gathered into groups for and against the death penalty. It was perhaps the largest turnout for an execution here since that of Ted Bundy, who was put to death at Florida State Prison in 1989 after being suspected of murdering more than 30 young women across the nation. . . . Mr. Rolling was the third death row inmate executed here in recent weeks, and like the others he had ?led a late appeal claiming that the lethal injection procedure was so painful as to be unconstitutional. But Bill Cervone, the state attorney for the Eighth Judicial Circuit and a witness to the execution, said Mr. Rolling’s death did not seem punishing enough. “To watch his death in such an antiseptic and clinical environment convinces me that the punishment does not ?t that crime,” Mr. Cervone said. “We are, however, a society of laws, and the law governed what we carried out this evening.” Laurie Lahey, the sister of Tracy Paules, said she had been reluctant to witness Mr. Rolling’s death but felt exhilarated afterward. The Exemplary Execution 3 “Once everything quiets down, I’ll think about Tracy and I’ll be sad,” she said. “But right now, he’s gone. He’s gone.” This is a capital case report, a real-life death penalty story, written by Abby Goodnough for the New York Times. Danny Rolling’s case may not be typical of death penalty cases in contemporary America—outside of media reports, mundane robbery-murders are more common than macabre serial killings—but it is, in a certain respect, exemplary. Capital cases most often make national news nowadays because they raise claims of innocence, inadequate assistance of counsel, or racial injustices; because DNA exonerates the accused; because execution methods are challenged as “cruel and unusual”; or because botched executions and their aftermaths result in public outrage. When capital punishment features in the news today, it is often as a “broken system,” an institution subject to challenge and rebuke. The Rolling case appears, in contrast, as a striking example of the death penalty being “properly” imposed and “properly” carried out as punishment for murderous acts of breathtaking horror and wickedness. To read the Times report is to get a sense of what the death penalty is, at least of?cially, supposed to be. Florida Governor Jeb Bush said of Rolling, “He is the poster child . . . of why there should be a death penalty.”1 We might think of Rolling’s execution, in turn, as a poster image of the modern American death penalty, imposed and administered as the law and the authorities intended. A violent career criminal turned notorious serial killer (“the Gainesville Ripper”), convicted of horrendous capital crimes (multiple counts of murder, rape, torture, mutilation, and necrophilia) after due process of law (Rolling was represented by “the state’s outstanding public defender”; his guilty plea was backed by a confession and DNA; his multiple appeals were duly heard and turned down), is provided a last meal (“lobster tail and butter?y shrimp”) and gently put to death by lethal injection (“He relaxed, went to sleep, did not feel anything”), while grieving family members express exhilaration and relief and of?cials talk of what “a society of laws” requires.2 Unmarred by suspicions of race discrimination (like most American serial killers, Rolling was white); untouched by claims of actual innocence, inadequate assistance of counsel, or disproportionality; and unspoiled by any hitch in the execution protocol, Rolling’s case gives us a glimpse of the death penalty at its most legitimate, its most unproblematic, and, if the reports are to be believed—about his eve-of-death confession to other murders, about the feelings of relief experienced by the victims’ families, and about its cleansing effect on the local community—at its most effective.3 4 Prologue But if the Rolling case is exemplary, in its way, it is certainly not unproblematic. No death penalty case today ever is. On October 4, 2006, a few days after Governor Bush signed the execution warrant, Rolling’s attorneys ?led a motion claiming that their client had been denied access to relevant records, that the lethal injection protocol was unconstitutional, and that newly discovered evidence demonstrated that his execution would constitute cruel and unusual punishment. These claims were summarily denied by the Florida district court and, on appeal, by the Florida Supreme Court. On Wednesday, October 25, the U.S. Supreme Court voted seven to two not to grant a stay of execution pending an appeal challenging the method of execution. (The same challenge would eventually be taken up by the Supreme Court the following year, leading to lengthy reprieves for dozens of other inmates facing execution.) On the day before Rolling’s execution, the National Coalition to Abolish the Death Penalty distributed the following press release: Do Not Execute Danny Rolling Danny Rolling is set to be executed by the state of Florida on October 25. In late August 1990, Rolling went on a killing spree in Gainesville. Rolling broke into three apartments in the area belonging to ?ve college students, whom he went on to assault and kill. The victims were Christina Powell, Sonja Larson, Christa Hoyt, Manuel Taboada, and Tracy Paules. While these crimes are heinous and inexcusable, the death penalty is not the right choice for Danny Rolling. Rolling grew up in a dysfunctional household with an abusive father. Furthermore, he suffered from emotional and psychological problems, as noted in one appellate judge’s opinion at his sentencing. Rolling pleaded guilty in his 1994 trial, where it was established that at the time of his crimes, he had the emotional maturity of a 15-year-old and that he suffered from extreme emotional disturbance. During his trial, Rolling and his defense team tried to get a change of venue for the trial, which was denied. His story had been sensationalized by the media, so that he could not have received a fair trial where jury members had no bias about the crimes. Furthermore, several pieces of evidence, including statements made without counsel present and items gathered without a warrant from Rolling’s place of residence were allowed in the trial. Rolling expresses remorse for his crimes, as demonstrated by his confession and eventual guilty plea. His family has a history of mental illness, and his father’s abuse in?uenced his mental instability. Rolling’s emo- The Exemplary Execution 5 tional state, as well as several errors in his trial, prove that justice will not come to him in the form of capital punishment. Please send appeals to Gov. Jeb Bush on behalf of Danny Rolling. These appeals by Rolling’s attorneys and supporters focused not on his crime or his guilt but on his person and his punishment. What others had seen as wickedness and evil they saw as evidence of mental illness and a damaged personality. Whereas others viewed the death penalty as a just and ?tting punishment, they saw it as an undeserved, legally unsound, and deeply immoral act. In America today, a defendant can plead guilty to multiple heinous murders, have his conviction survive years of appellate review and federal court scrutiny, and even confess to further murders, but his death sentence will still be regarded by many as unjust and inappropriate. Questions will be raised about procedural injustice, about mitigation and mental illness, and about numerous other issues that might put the sentence in doubt. And, always, behind these challenges, and in the background of every capital case, are the devout objections that the death penalty evokes: “Justice will not come . . . in the form of capital punishment.” Even in its best-case, “poster-image” examples, America’s death penalty is a deeply troubled institution. If the Rolling story is a best-case illustration for the institution of capital punishment, the New York Times article is also exemplary in its way. The reports of executions carried by today’s newspapers exhibit a de?nite generic format, and the Times story is a model of the genre. All the usual elements are there: disturbing descriptions of the crime and its impact; emotional statements from the victims’ kin; the offender’s criminal history; the years of legal struggles and the last-minute appeals; homely details of the ?nal meal; eyewitness accounts of the execution and the condemned’s last words; interviews with supporters and protesters outside the prison; formal statements from of?cials. And they all add up to form a satisfying narrative of an evil offender being brought to justice, accorded his legal rights, then executed with maximum humanity. In the public telling of Rolling’s story, the October 2006 Times article presents the concluding chapter of a tale that had begun decades before, in 1990, with the initial reports of the Gainesville murders. That narrative continued, in local and national news, with dramatic accounts of Rolling’s arrest, trial, and conviction, followed by more sporadic reports of postconviction proceedings and Rolling’s exploits on death row. Viewed in the overall arc of its unfolding, this dramatic narrative has the form of a 6 Prologue morality play in two acts—Act I: the crime and the criminal’s conviction; Act II: the punishment and its ultimate execution—of which the Times report presents the concluding scene and epilogue. Rolling’s case is altogether singular in terms of its characters, events, and the twists and turns of its narrative, which is what makes it fresh and compelling as a news story. But the plot of the play, the dramatis personae involved, and the moral issues at stake are all too familiar, being repeated time after time in a standard performance that is well known to its audience and has a special place in contemporary American culture. In Rolling’s case, as in all the others, the morality play performed for the watching public begins with reports of a violent murder and ends in eyewitness accounts of a judicial execution. The dramatic relation between these paired killings—the murder and the execution—draws the audience in, ensuring popular interest, emotional involvement, and continuing engagement with the story. As the sociologist Emile Durkheim long ago observed, news of atrocious crimes provokes passionate outrage, generates collective excitement, and produces powerful narratives that concentrate public sentiment and give it force and focus. Capital cases—cases in which the death penalty is invoked—double this dramatic effect. The story of the initial killing is intensi?ed by the promise of another, more righteous killing that will settle accounts, express collective anger, and move the public audience cathartically from outrage to relief. That the terrifying mystery of death lies at the heart of these dramas serves only to deepen their emotional impact and extend their metaphoric appeal. Evidence of this excitement and emotional involvement becomes more apparent if we turn to the stories carried by newspapers less sober than the Times. In the breathless reports of the tabloid press, much space is devoted to lurid descriptions of Rolling’s crimes: “Rolling posed his mutilated victims in sexually provocative positions and kept body parts as trophies”; “Christa’s lifeless head was found sitting on a bookshelf in the bedroom, and her body was propped, sitting up on her bed”—and to expressing community views about his sentence: “I’m an eye-for-an-eye person . . . I think he’s getting off so easy it’s sickening.”4 Rolling’s deeds and Rolling’s death were also put into cultural circulation by other media: TV, ?lm, and the Internet. If we examine these words and images we see dramatic excitement shade into prurient interest and morbid fascination, and the narrative style shift from sober tragedy to sensational entertainment. Rolling wrote and published a book while on death row, in collaboration with a woman to whom he became engaged while in prison. Several books were written by others about him. Several The Exemplary Execution 7 Hollywood ?lms and TV dramas were produced, depicting his serial killer exploits and his eventual execution. And, inevitably, the publicity about the Rolling case triggered a fresh round of the public debate about the legitimacy of the death penalty.5 Rolling’s story, like each new version of the old morality play, serves as an occasion for the airing of opposing views and the ritualized back and forth of death penalty discourse. The New York Times story, then, is not just a factual report of a case. It is the speci?c enactment of a generic cultural form. In America today, capital cases are more than legal and political events: they are signi?cant cultural performances as well. The aim of this book is not to challenge the legitimacy of American capital punishment or to show the death penalty being botched, unfairly imposed, or unjustly administered. Rather, it is to describe and explain the peculiar institution of American capital punishment in all its complex, controversial detail and to explore its relationship to the society that sustains it. To pursue this aim faithfully requires a measure of detachment—a suspension of judgment in the interests of clear-eyed description and objective analysis. To understand the emotive, contested ?eld that today’s death penalty has become, we need to put aside partisan argument (to the extent that this is possible) and strive to understand the passions and interests of both sides of the debate, together with the values and attitudes that underlie them. I have begun with the “of?cial” version of the institution, a story of the death penalty “properly” applied, to show that this conception is as much a part of the institution as the miscarried cases and botched procedures that so often undermine it. I have quoted from the Times report to make clear that the practice of capital punishment in America today is as much about discourse as it is about death, and as much about cultural politics as about the punishment of crime. When considering the death penalty, we must conjure an image of the contemporary American practice—a lethal injection administered after many years of legal process—for theorists of capital punishment are all too prone to think of the death penalty as if it were still violently executed on a scaffold before a watching crowd. This heinous case allows the moral and emotional aspects of capital punishment to be rendered a little more complex than they sometimes are when we think about the injustice, or racism, or exonerations associated with the contemporary institution. To understand today’s American death penalty—which, despite the French proverb, is not to forgive it—we must try to see its moral power, its emotional appeal, its claim to be doing justice. We must strive to see in it what its supporters claim to see and not 8 Prologue dwell exclusively on its injustices and pathologies. As sociologists have long been taught, to explain a practice we must ?rst appreciate what it means for the actors involved. So the conviction and execution of Danny Rolling are presented here not as a moral tale but as an aid to thinking. In Rolling’s disturbing story and its denouement we catch a glimpse of a peculiar institution that operates today in America and nowhere else in the Western world. Understanding that institution, and the society that maintains it, is what this book sets out to do. ? one ? A Peculiar Institution Every people, the proverb has it, loves its own form of violence. clifford geertz, the interpretation of cultures, 1973 A s 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 ?ow. 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-?rst-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 ?nd it strange that it prompts so much discussion. Perhaps. But bear in mind that American society does not always re- 10 Peculiar Institution spond 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 “unnecessary” 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 ?urry 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-?rst-century death penalty? The contemporary American death penalty is, in several respects, a pe- A Peculiar Institution 11 culiar institution. At the start of the twenty-?rst 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 dif?cult 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 ?fty 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-?ve 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 con?icted set of arrangements. As a federal 12 Peculiar Institution 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—chie?y 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 bene?t 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 speci?ed. The vague understanding that there is a connection between nineteenth-century lynchings and twenty-?rst-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, A Peculiar Institution 13 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-?ve 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 ?eld 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 14 Peculiar Institution to be explained. And we can focus less on the death penalty as a matter of principle and more on the complex ?eld 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-?rst 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 af?rmed by the highest court in the land, its administration closely regulated by law, and its execution undertaken by state of?cials 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 ?nely detailed description rather than for ethical critique or moral assessment. Its ?rst concern (though not necessarily its ?nal 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 insub- A Peculiar Institution 15 stantial 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 ?eld 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’s death penalty history to that of other Western nations—as we will see, America was long regarded as typical rather than exceptional in this respect. This approach also reveals the historical ironies that connect capital punishment not just to America’s most shameful legacies (slavery, lynching, racial violence) but also to its most cherished values (democracy, localism, individual responsibility). Finally, a social science approach makes more apparent the positive uses of capital punishment, the opportunities it offers not just for professional success or political mobilization but also for pro?t, for cultural consumption, and for certain pleasures such as vengeance, schadenfreude, and the vicarious enjoyment of the death of demonized others—uses that are rarely part of today’s public discussions but are vital to the institution’s contemporary existence. There is plenty of evidence to support each of these observations, but they remain largely unremarked in contemporary debates because they ?t poorly with the two moral viewpoints that dominate discussion and structure the ?eld of death penalty debate. The perspective pursued here develops a detailed description of death penalty practices and an explanatory account of their sources, uses, and meanings. In place of moral and legal argument, it provides historical and sociological analysis. Instead of discussing capital punishment in general it analyzes American capital punishment in particular. And rather than argue for the institution’s reform or its retention, it describes exactly how it came to be retained and reformed in its present form. What is offered here, in short, is neither apology nor critique but a sociological history of an institution that forms a puzzling part of our present. 16 Peculiar Institution According to Michel Foucault, a “history of the present” focuses on an aspect of our contemporary world that has become somehow problematic, incoherent, or unintelligible.16 Using historical materials and “genealogical” analysis, such an inquiry seeks to show how the capital punishment complex came to exist in its present form. It seeks to uncover historical processes and political con?icts that are now obscured beneath the day-today practices of the institution. In producing such an account, and reconnecting the institution with the values, interests, and power relations out of which it emerged, a history of the present may change our perception of what that institution is and how, in fact, it functions. Paradoxically, then, a historical inquiry that strives to be detached and objective may nevertheless transform our evaluations of the contemporary institution—not by converting others to the writer’s viewpoint but by altering the perceived character of the phenomenon in question. A sociological look at punishment uses the study of society to understand punishment, but it also uses punishment to understand society. Running alongside the primary inquiry about capital punishment is a related inquiry about American society, an inquiry that seeks, however tentatively, to use the peculiar institution of capital punishment as a window onto American culture and social relations. By attending to the ways in which legal, political, and cultural actors have engaged with the death penalty and shaped it into its current form, we catch some glimpses of how America is put together, how it deals with its chronic disagreements, and how it coheres in the face of con?ict and contradiction. This is a “law and society” project that works in both directions—studying a social context to better understand a legal institution, but also using a legal institution to better understand a society. To frame matters this way—to suppose that the death penalty is somehow revealing about America—is not to assume that American culture is especially punitive or bloodthirsty. Capital punishment has been a feature of every nation and is still practiced in most of the world’s societies, even in a few developed, democratic ones such as Japan and India. There is no need to posit a more-than-usually punitive culture to explain a practice that continues to hold popular appeal for the publics of virtually every nation. Large-scale developmental processes have shaped the history of capital punishment throughout the Western world, but every nation nevertheless engages with capital punishment in its own distinctive way. Broad historical processes have transformed the death penalty in similar directions all across the West, but if we look closely, the governmental structures, political struggles, and cultural dynamics of each individual nation (and often of A Peculiar Institution 17 regions within nations) are what shape the particular form of capital punishment that exists in a speci?c place at a speci?c time. In analyzing the institution up close, paying regard to its distinctive forms and its multiple meanings, we get a tangible sense of the society and history that produced it as well as of the political and cultural ?elds in which it is deployed. The American death penalty has, for the best part of two centuries, been the terrain of continuous political, cultural, moral, and legal struggle. The peculiar institution that has emerged out of these struggles bears clear traces of the interests, values, and processes out of which it has been constructed. By observing the American death penalty up close, we can identify some of the major struggles that have shaped modern America and some of the fault lines that de?ne its social landscape, as well as the diverse localities and regional cultures that compose this complex nation. And by observing it from a distance—placing capital punishment’s American history in the broader comparative context of its Western history as a whole—we can trace the ways in which this nation both is and is not similar to the other nations that compose the Western world. Against Conventional Wisdom The conventional wisdom that shapes the way we think about the death penalty consists of a set of received ideas generated, in large part, from the debate that surrounds the institution. These ideas are rarely plain wrong or totally unfounded, but they are mostly half-truths that are partial in their perceptions and partisan in their judgments. Let us look at these familiar ideas more closely, using a critique of their misperceptions to move toward a more appropriate analytical perspective: Today’s death penalty is a vestige of a former age, an anachronistic holdover from a previous era. Contemporary capital punishment is often characterized as an archaic institution that inexplicably survives in a modern environment to which it is fundamentally ill suited and from which it will soon become extinct. Supreme Court Justice John Paul Stevens refers to it as “more and more anachronistic.” Charles Black calls it a “vestigial cruelty.” Hugo Bedau says that “the death penalty may at last be generally recognized for the anachronism it is—a vestigial survivor from an earlier era.” Sunil Dutta supposes it to be “no less than a vestige of medievalism,” and says that “when it comes to capital punishment we are still mired in the Dark Ages.” And Thorsten Sellin long ago concluded that it is “an archaic custom of primitive origin.” This death-penalty-as-dinosaur concep- 18 Peculiar Institution tion is spelled out explicitly by the cultural historian Thomas Laqueur: “The death penalty as it is carried into practice today is like an endangered species brought back from the brink of extinction, a creature from an earlier age making its way in a very different time from when it ruled the earth.”17 Important truths are contained within this recurring characterization. Capital punishment is indeed a long-standing practice that has been rendered problematic by the evolving social structures and cultural commitments of modern liberal-democratic states. The death penalty was more widely used, less contested, and more fully integrated in earlier times and in less developed societies. The American institution has persisted for decades after it disappeared elsewhere in the Western world, and this survival is to some extent a matter of contingent historical events. These are valid insights, but what is misleading here is the idea that the institution lacks a contemporary habitat and support system, and is maladapted to its current environment. This assumption prompts us to think about the death penalty in a manner in which we never would think about other contemporary institutions—that is, by means of models and exemplars drawn from a much earlier historical period. The dominant theoretical account—largely derived from the work of Michel Foucault— views today’s death penalty as a contradiction: an archaic, sovereign punishment surviving in a modern welfare state, the ancient power to kill mixed up with the modern politics of life. When sociologists discuss capital punishment in contemporary America, the accounts they typically invoke—those of Foucault, Durkheim, Gatrell, or Hay—are based on the workings of capital punishment in eighteenth-century Europe and not on the distinctive practices of twenty-?rst-century America. For this standard account, the death penalty is a practice standing out of time, a poorly adapted institution without roots in contemporary forms of life. A corrective to this standard account is the more valid picture of an institution that has been remade and effectively adapted to its late–modern American environment. Most of its forms and arrangements are of recent origin and have been crafted to ?t the culture and sensibilities of the present. Far from being an atavistic survival, doomed to disappear, American capital punishment has adapted in order to survive. The adoption of lethal injections to replace more openly violent and painful execution methods is a case in point, as is the recent abolition of capital punishment for juvenile and mentally de?cient offenders. And in that process of adaptation, the death penalty has developed new forms, new functions, and new social meanings—few of which are well captured by the standard account. We need to think about capital punishment not as a lumbering dinosaur A Peculiar Institution 19 with an ancient physiology but instead as a mobile assemblage of practices, discourses, rituals, and representations that has evolved over time in response to the demands of the social environment and the pressure of competing forces. Doing so reminds us that capital punishment has a history that shapes its forms as well as its uses. And it obliges us to take account of its contemporary incarnation—the institutional arrangements, legal procedures, discursive ?gures, and dramatic forms that actually exist today. The arrangements through which American capital punishment is currently enacted undermine the death penalty’s objectives. Today’s death penalty serves no identi?able function and accomplishes nothing. It is, in the usual phrase, “merely symbolic.” This familiar claim was put precisely by the sociologist Thorsten Sellin when he said that, “as now used, capital punishment performs none of the utilitarian functions claimed by its supporters, nor can it ever be made to serve such functions.” The historian Gary Wills says the same thing when he describes how the death penalty has ceased to be a vital instrument of state power and penal justice and has become, instead, a hollowed-out shell, devoid of positive meaning and social purpose. Wills lists more than a dozen functions traditionally associated with the death penalty—a grim catalogue of utilities he takes from Nietzsche—before going on to show that most of these purposes are no longer credible in contemporary Western society, and that the American institution is so constructed as to undermine those few objectives (such as deterrence and retribution) that continue to make sense.18 Wills’s points are well taken, and it is easy to show that the criminal justice functions of deterrence and retribution are poorly served by presentday arrangements.19 But it would be a mistake to end the analysis there. Capital punishment’s forms and functions have always been in motion, adapting to the various social environments in which the institution has been deployed. What we now think of as its “core” criminal justice functions (above all, crime control) were once peripheral, just as the forms we assume to be traditional (elaborate public ceremonies, for example) were once new and innovative. We would thus do better to assume that today’s system does in fact serve speci?c functions, even if these are not the ones historians lead us to expect. Instead of rushing to judge the death penalty dysfunctional, we should take the trouble to look for its positive uses and functions, even when these are not of?cially declared or acknowledged. We ought to consider the possibility that today’s capital punishment is organized and oriented differently from its predecessors—that it is a different social form, not a degenerate one. Instead of supposing that this is a 20 Peculiar Institution traditional institution that is now rarely used because it serves no purpose, we ought to ask whether its new forms and modes of deployment actually meet speci?c needs and serve speci?c functions in today’s society. We need a positive theory of what the late-modern death penalty is and does. The related charge that the death penalty is now “mere symbolism,” “illusion,” or “gesture” is one that recurs over and over again in the literature, made by frustrated death penalty supporters as well as by abolitionist opponents.20 The implicit claim that underlies these charges is that because capital punishment appears to lack an instrumental crime-control rationale it must therefore be a mere symbol lacking in substance. But this argument misunderstands the nature of symbolic communication as well as the effectiveness of modern death penalty discourse. The idea that “symbolic” is necessarily “noninstrumental” relies on a distinction that makes little sense when penal rituals routinely use symbols of condemnation as instruments of marking, degradation, and control. Worse, this misleading distinction prevents users of the term from following through with a positive analysis of important issues—such as the speci?c meanings being symbolically communicated; the rhetorical means by which they are being communicated; the audience to whom they are directed; and the effects that these communications produce. To understand the forms and functions of the death penalty today, we have to take communication seriously. We have to regard symbolic measures as effective actions, not as empty gestures or mere talk. Today’s death penalty is an instance of American Exceptionalism: an exception to the international norm that is explained by the fact that America, its history, its people, and its culture are constituted differently from other nations and driven by different dynamics. When commentators try to explain why America retains capital punishment in the context of comprehensive abolition in other Western nations, a popular notion quickly comes to mind. The conventional way they think about this question is to pose a simple opposition between abolition and retention—“the West” (or, more often, “Europe”) has abolished the death penalty, while America has retained it—and then to suggest an explanation that accounts for this stark contrast. The trouble is that if the phenomenon to be explained is presented as a simple, binary contrast, the explanations that come to mind tend also to be simpli?ed, binary ones: “Americans” are punitive and “Europeans” are not. Americans are Puritan, or vigilante, or racist, or individualistic, and Europeans are not. These, of course, are the preferred simplicities of the system’s critics. But supporters have simplicities of their own: A Peculiar Institution 21 for them, the explanation is that America is truly democratic and Europe is not, or that Americans continue to be God-fearing while Europeans have lost their faith.21 Such oppositions are misleading, quite apart from the dubious explanations that they propose. By aggregating “America” and “Europe,” they collapse important internal distinctions, for example, between states such as Michigan, Wisconsin, or Rhode Island, which have been abolitionist since the mid-nineteenth century, and others such as Texas, Oklahoma, or Virginia, which still regularly put offenders to death. Likewise, they fail to distinguish between European nations...