Death Undying

The Death Penalty: An American History

By Stuart Banner, Harvard University Press, 385 pages, $15.95

The Contradictions of American Capital Punishment

By Franklin E. Zimring, Oxford University Press, 285 pages, $30.00

More than 3,700 people reside on death row, an average of 60 people are executed annually and, except for a brief period in the 1970s when executions were unconstitutional, capital punishment has been part of our legal system since the Colonial period. It has also been an enduring subject of debate. As Stuart Banner notes in his history of the death penalty, the ink began spilling long ago: "So much has been written and said on the subject of capital punishments," a Philadelphia newspaper observed in 1812, "that it looks almost like presumptive vanity to pursue the topic any further."

Still, the pursuit continues, as does the practice of executions. Banner, a University of California, Los Angeles law professor, and Franklin Zimring, an eminent University of California, Berkeley criminologist and ardent opponent of the death penalty, have produced estimable new books on capital punishment. Banner's The Death Penalty: An American History is an accessible, balanced and reasonably comprehensive history of death-penalty practice and policy from the 17th century through the present. Zimring's The Contradictions of American Capital Punishment hones in on the cultural ideals that both challenge and sustain the death penalty.

Not many people approach this issue agnostically, but, as Zimring notes, many are ambivalent about capital punishment and not well-versed in its history. Banner's book is a useful introduction to the American experience, partly because he treats the grisly matter of execution with unusual dispassion. Refraining from overt advocacy, he focuses on the methods and meanings of executions, from the somber, sometimes inept public hangings of the 1600s through the sanitized, relatively secret poisonings of the condemned today.

In Colonial America, as in Europe, property crimes as well as crimes of violence were punishable by death. Moral lapses, such as adultery, were also liable to be classified as capital crimes, as were religious offenses, such as heresy or blasphemy. The proliferation of death penalties partly reflected the absence of imprisonment as an alternative sentence, as penitentiaries date back only to the late 18th century. But punishment practices themselves reflect dominant cultural ideals, and, Banner suggests, the harshness of the Colonial codes was rooted in a harsh religious worldview. The death penalty was a faith-based initiative.

Executions were public religious rites, designed to instill terror and virtue in the general populace while encouraging the repentance of the condemned. Mercy was available through clemency or the imposition of lesser sentences, such as mock hangings, which required people to stand in public with ropes around their necks. But condemnation could be unremitting: Sometimes prisoners were sentenced to death and then dissection -- a fate regarded with particular terror by people who feared that the destruction of the body after death would preclude resurrection. From this perspective, the hubris of condemning someone to dissection is breathtaking; as Banner observes, the state was "exercising its power to deny the afterlife."

Hanging was the primary method of ending this life. A procession to the gallows was followed by a sermon and "gallows speeches" by prisoners who either insisted on their innocence (sometimes truthfully, no doubt) or confessed and sought forgiveness. Sometimes they tried doing both, Banner reports, by asserting variations of diminished-capacity defenses. Last-minute reprieves were available, so gallows speeches were apt to be desperately strategic.

This was a highly discretionary system of justice. Trials were speedy and nonadversarial. (Considering the quality of our own indigent defense system, you might say the same of many capital cases today.) There were no formal appeals and no standards governing the issuance of clemency, although it was guided by "stable, unwritten conventions." In addition, "connections mattered," but as the political system became more democratic in the 19th century, public opinion began mattering, too.

Elite opinion began reconsidering the death penalty in the early years of the republic, mainly in the North. (In the South, by law and practice, free blacks and slaves were subject to many more death sentences than whites.) Banner chronicles early 19th century death-penalty abolition debates, attributing the emergence of an abolition movement partly to changing ideas about crime and human nature: Throughout the 17th and much of the 18th centuries, the death penalty complemented a view of all human beings as "innately depraved" and entirely responsible for policing their own vices. "(A) criminal," Banner writes, "was someone who had failed to control a natural tendency that everyone shared." The Enlightenment introduced a competing view of the individual as a blank slate and crime as a disease or the product of a corrupting environment. Penitentiaries were built, and capital punishment for property crimes was gradually eliminated.

Execution practices also changed drastically during the 19th century. Public hangings were gradually abolished, partly because the public enjoyed them too much. The large, celebratory execution crowds did not seem appropriately terrified and offended the sensibilities of the emerging middle class. Hangings were moved into prison yards, and later, when the electric chair and gas chamber replaced the gallows in the late 19th and early 20th centuries, executions were moved inside prison walls. Beginning in the 19th century, Banner observes, the trial, not the imposition of sentence, became a focal public event, and people began vicariously witnessing the spectacle of criminal justice through newspaper accounts, as they witness it today on cable television.

Banner follows the history of capital punishment through to the present, focusing on the constitutionalization of the process, which has satisfied neither its supporters nor its opponents. He predicts that the future of capital punishment will be determined, as was its past, by prevailing ideas about free will and individual accountability. This seems a bit reductive: If religious or psychological explanations of crime determined our response to it, you'd expect the United States to follow the example of other Western nations in abolishing the death penalty. Instead, we share with Islamic fundamentalist regimes, whose cultures are so foreign to our own, an apparent belief in its justice and efficacy.

Franklin Zimring explains why. His new book includes a sharp, sensitive discussion of the political and cultural forces shaping contemporary attitudes toward the death penalty, along with hard data about executions, a cogent explanation of the capital process and an account of successful efforts to abolish the death penalty in Europe. American support for capital punishment has always had its paradoxes: Mistrust of government, especially on the right, has long coexisted with faith that the criminal-justice bureaucracy applies the death penalty with relative infallibility. What Zimring characterizes as the public's "profoundly mixed feelings" about capital punishment have only been exacerbated recently by revelations of wrongful capital convictions, as the surveys he cites suggest. Today, according to a Gallup Poll, about 70 percent of Americans express support for the death penalty (compared with 80 percent in the mid-1990s). Support drops further when people are presented with an alternative sentence of life without parole. And many people who favor the death penalty do seem to wonder about the justice of it: A 2001 ABC/Washington Post Poll reported that while a majority of survey respondents agreed that the death penalty was fair because it prevents killers from killing again and provides "closure" to victims, a majority also agreed that the death penalty was unfair because it was inconsistently applied and sometimes imposed on the innocent.

If these conflicts about capital punishment provide openings for abolitionists, they also complicate the challenge before them. Persistent majority support for the death penalty despite significant concerns about its fairness and fallibility suggests that American care deeply about preserving it. This distinguishes the United States from other Western nations that abolished capital punishment in the latter half of the 20th century, Zimring suggests. Generally, in western Europe, Australia and Canada, abolition was a top-down process, "engineered by governing elites at a time when public opinion still favored capital punishment for murder." But the political elitism of abolition did not spark popular outrage or a damaging backlash. Instead, after abolition, European nations adopted even stronger policies against the death penalty, declaring it a human-rights issue, not merely a matter of criminal-justice policy. Central European nations quickly abolished the death penalty after the fall of the Soviet Union, and, outside the United States, abolition is generally considered "an integral part of liberalization."

Abolitionists have attributed the American attachment to capital punishment alternately to a history of violence and vigilantism, to an ethic of revenge and, of course, to racism. There may well be some truth in all of these speculations, especially the latter. It's hard to overstate the role that slavery and its aftermath have played in the administration of the death penalty, not to mention lynching; even today, as Zimring reports, the vast majority of executions in America occur in the South (89 percent in 2000). But Zimring rightly focuses on public concern for crime victims and the confusion of justice with therapy in explaining the intensity of American support for capital punishment.

In the past 20 years, he observes, the purpose and even the process of capital cases were partially privatized -- transformed, in part, from public crime-control measures into efforts to provide personal, psychic compensation ("healing") to the victims' survivors. Empirical evidence that executions are indeed more helpful to victims than life sentences seems at least as scarce as evidence that the death penalty effectively controls crime. But, Zimring writes, "Closure is not important as a behavioral phenomenon; it is, instead, a belief system." Moreover, conceptualizing the death penalty as a "victim-service program" has greatly enhanced its legitimacy: The language of therapy softens what might otherwise be considered a desire for vengeance by presenting it as a quest for closure. It also cloaks an awesome exercise of government authority by training our attentions on the service executions supposedly provide, not on the power they represent. It maligns efforts to provide time-consuming due-process protections to the condemned as counter-therapeutic attacks on victims. Finally, rhetoric about victims' rights resonates with a cultural tradition of communally controlled punishment, which sometimes but not always devolves into vigilantism.

Thus the therapeutic "culture of victimism" often derided by the right has played a central role in popularizing crime-control policies long favored by the right. Still, the victories of capital punishment advocates have been limited, like the progress made by abolitionists. While the death penalty remains in force, it is applied to only a tiny percentage of homicide cases. The Supreme Court and Congress have established often insurmountable roadblocks to capital appeals, even in cases in which guilt is greatly in question. But there seems to be growing uneasiness at the Court's center-right over the system's gross inequities. Consider Justice Sandra Day O'Connor's expressed concern about the quality of indigent defense. The Court's far-right wing, however, remains quite cavalier about such problems and the likelihood of wrongful convictions: Justice Antonin Scalia has even questioned whether executing the innocent would raise a constitutional claim.

Of course, whether or not the Court decides wrongful executions are illegal, the people can decide they're immoral. You'd think that most Americans would oppose empowering the state to execute the innocent, and many do. The trouble lies in defining "innocent." I suspect that support for capital punishment, in the face of so much information about negligence or malfeasance in prosecuting capital cases, partly reflects an inchoate belief that even the wrongly convicted on death row are not exactly innocent -- that if they weren't guilty of the murders for which they were condemned, they were guilty of other crimes for which they weren't even tried. Along with a belief in therapeutic justice, the death penalty seems supported by an unspoken presumption of guilt.

Add to that the public's apparent tolerance, post September 11, for secret, summary detentions of many innocent people in the hope of snaring even one terrorist; add, too, the judiciary's increased deference to prosecutorial discretion and you begin to comprehend the challenge facing abolitionists. Justice requires painstaking, individualized determinations of guilt and a process for correcting mistakes. It doesn't seem in much demand today.