Festival of Punishment

Thomas Laqueur

  • Proximity to Death by William McFeely
    Norton, 206 pp, £17.95, January 2000, ISBN 0 393 04819 5
  • Death Row: The Encyclopedia of Capital Punishment edited by Bonnie Bobit
    Bobit, 311 pp, US $24.95, September 1999, ISBN 0 9624857 6 4

For most of its history the United States has been within the mainstream of Western enlightened thought and practice with respect to the death penalty. Sometimes ahead of the curve: Michigan abolished capital punishment in 1846, well before most of Europe; Rhode Island and Wisconsin got rid of it in 1853; North Dakota has never had it; sometimes a bit behind: seven out of nine states that had abandoned it embraced it again in the decades after the Great War and the Bolshevik Revolution; sometimes – as in its tacit acceptance of lynching and of the quasi-judicial hangings which gave mob murder a veneer of legitimacy – horribly out of step. But basically part of the pack and notably so in the shadow of the Holocaust.

Annual numbers of executions declined steadily after 1945 and by the early 1960s were barely a fifth of what they had been before the war. In 1965 – the year Britain abolished the death penalty – there were seven, compared, for example, to almost two hundred a year during the 1930s. There were two in 1966; one the year after; then none at all, and no further executions in the five years preceding the Supreme Court’s decision in the Furman v. Georgia case of 1972, which seemed to end capital punishment for good. In fact, it did nothing of the sort.

Henry Furman was a slightly retarded black man who had shot and killed a householder through a closed door in the course of a burglary and was now facing the electric chair in Georgia. He had the good fortune to be represented on appeal by Anthony Amsterdam, a learned and rhetorically gifted Stanford law professor. His argument before the Supreme Court not only saved his client’s life but irrevocably changed the history of the death penalty in America, if not exactly as he might have hoped. (Furman was paroled in 1984; he now works in construction.)

Amsterdam was, and is, a passionate opponent of capital punishment under any circumstances, however refined its procedures: contemporary jurisprudence which tries to rationalise the death penalty ‘offends humanity and reason’, he wrote recently. But in 1972 the majority of the Court did not go nearly so far. Five of the nine Justices agreed that capital punishment as then practised constituted ‘cruel and unusual punishment’ but only three would have purged the modifier ‘as then practised’ and ruled capital punishment itself to be ‘cruel and unusual’.

In Furman’s case only William Brennan and Thurgood Marshall, the Court’s one black member, voted to strike down nearly all existing capital statutes on the grounds that they were intrinsically in violation of human rights or communal dignity. As Marshall put it in another case, judicial murder is ‘obviously no less shocking than the crime itself . . . and adds a second defilement to the first’. Justice William Douglas came close. He saw Furman’s conviction as invalid because it was ‘pregnant with discrimination’ and because, more generally, a sort of moral evolution had brought society to a point where the death penalty – like branding, torture and public whipping before it – was no longer to be regarded as civilised. Historically new standards made it ‘cruel and unusual’ and hence unconstitutional. But the other two Justices voted with the majority on procedural grounds and it is their views which precipitated the very odd discussion in which we in the US are engaged today.

One of them, Justice Potter Stewart, held that Furman’s punishment would be ‘cruel and unusual’ as a matter of statistical observation: to find oneself the one man to be executed out of several thousand who were eligible was ‘cruel and unusual’ in the same sense as ‘being struck by lightning was cruel and unusual’. The problem was not a violation of human rights but of too much being left to chance. There was, as the fifth member of the majority held, no ‘meaningful basis’ for deciding who would die and who would not. And so capital punishment was declared unconstitutional largely because of the way it was then practised.

The story might have ended there. Instead, 38 state legislatures provided what they took to be a rationale for executing some and not other criminals. Finally, in 1976, a case went up to the Supreme Court – from Georgia – testing whether states had, in principle, succeeded in providing such a rationale. Specifically, the question in the case of Troy Gregg was whether Georgia had provided sufficient guidance to the sentencing authority – the jury in this case – to ensure that its discretion would be sufficiently ‘channelled’. If in Furman the Court ruled that there was at the time no rational basis for distinguishing those who would and those who would not face execution, in Gregg they decided that at least one state had succeeded in providing the required rationale. The prosecution would have to convince a jury that there was ‘at least one statutory aggravating factor before it [might] impose a penalty of death’ and that there was a preponderance of aggravating over mitigating factors before it actually passed a sentence of death. Yes, the court held in the Gregg case, Georgia – and by extension other states which passed similar statutes – had circumscribed chance sufficiently for capital punishment now to pass Constitutional muster.

Furman had resulted in five years of de facto abolition. Then, in 1977, came the execution in Utah of Gary Gilmore, a theatrically brilliant criminal and the subject of one of the great pieces of modern American writing, Norman Mailer’s The Executioner’s Song. Gilmore forswore further appeals and faced the firing squad wearing his famously indestructible Timex watch: scarcely typical and followed by a mere trickle of other deaths. There were no executions in 1978 or 1980, one in 1981, the year France abandoned capital punishment. If not de jure, then de facto, the United States seemed to have abandoned this, the most ancient and most terrible of punishments.

By the beginning of Ronald Reagan’s second term, in 1984, however, something seems to have gone horribly wrong, or deliciously right, depending on one’s point of view. The US struck out away from Western democracies and found itself in very strange company indeed. The average annual execution rate increased from 23 between 1984 and the end of 1994 to 80 in the last three years of the millennium. As of 23 August this year, there have been 660 executions since the resumption of the death penalty in 1976.

While no European country has reinstated it after once abandoning it, and abolition has been enshrined in the European Convention on Human Rights – a marker of a civilised polity – the former leader of the free world seems to have joined a small handful of unlikely companions (China, Saudi Arabia, Iran and Iraq among them) by enthusiastically re-embracing it. (The company is even more exclusive when it comes to the execution of juveniles: China gave it up in 1997 and over the last decade the United States has more such deaths to its credit than the seven other countries that permit it combined.) That an issue seemingly settled almost everywhere else should re-emerge with such vigour and emotional intensity in the US at the start of the 21st century is curious, to say the least.

Modern discussion of capital punishment – and of criminal law reform more generally – begins in 1764, when Cesare Beccaria, a 26-year-old Italian nobleman, published his first book, Dei delitti e delle pene (An Essay on Crimes and Punishments). The debates today are often only thinly veil”ed rehearsals of arguments – and counter-arguments – he inspired.

Beccaria elaborated two theses which together made abolition of the death penalty a sign of progress from superstition and savagery to enlightenment and civilisation. The first thesis is broadly speaking moral, and anti-theological, with an empirical twist: the purpose of punishment, he said, is not vengeance – or what is spoken of today as ‘retribution’ – nor is it an exemplary affirmation of moral norms. Rather, it is the reformation of the criminal and the prevention of future crimes: in short, deterrence and the maintenance of public safety. Punishment of this sort would have to be carefully calibrated to meet these specific, utilitarian criteria – which capital punishment manifestly did not do. Killing a criminal obviously made his reformation impossible. And moreover, it was excessive. (I use ‘his’ because, at least since the 18th century and in most jurisdictions, men have been overwhelmingly the objects of judicial death.)

Punishment demanded proportionality and equity: equal punishment, predictably rendered, for equal crimes in the interests of clearly defined utilitarian ends. This meant, in the first place, that at least one old regime justification – that the execution of a certain number of criminals serve as an example to the community and as confirmation of its core values – would have to be abandoned. No one in colonial America or 18th-century England argued that a life was somehow a proportionate price to pay for a four shilling larceny or for the few bedsheets and candlesticks with which some hapless burglar might nearly have escaped. Yet almost half of those hanged in Pennsylvania during the Revolutionary decade died for such property crimes; as late as the early 19th century fewer than a quarter of the executions in England were for murder or attempted murder. The life of the criminal was forfeited – ‘sacrificed’ was the 18th-century term – ‘to the laws of his country’, which enshrined the sanctity of property, or of a man’s home, or of paper money or of normative sexuality. These were worth someone dying for and a number of thieves, burglars, forgers, sodomites and rapists were hanged because, it was felt, only death could confirm the foundational values which their crimes violated.

The persuasiveness of the argument that capital punishment is too blunt and too savage – more than is necessary to ensure the safety of the community, less than is needed to prevent similar crimes in the future – depends to some extent on the answer to an empirically decidable question: does the death penalty, as opposed to other ways of keeping a criminal off the streets, prevent crime? The matter has been debated, with ever increasing mathematical sophistication but in more or less the same terms, from the 18th century to the present, and the answer is by now fairly clear. It does not. But no one really cares today because the premise which led to the question – that punishment should serve primarily as an exercise in prevention – has been almost entirely abandoned by proponents of the death penalty. Were deterrence the issue, executions would long ago have given way to other, less fraught ways of keeping criminals from doing further harm. Clearly much more is at stake.

Beccaria and those who followed in his tradition of Enlightenment thinking understood abolition to be part of a more general project of political and cultural regeneration. Civil government, Beccaria argued, as did the Founding Fathers, was based on a social contract under whose terms human beings had not ceded their rights in their lives and bodies to the State. Citizens or their representatives might consent to go to war – risking death to defend the State against those who would injure it – but not, Beccaria concluded, to being hanged. Except by committing treason no one could forfeit this basic ‘human right’. This new regime of rights stood in sharp contrast to unenlightened polities where there was no civil contract and where to be sovereign meant precisely to exercise unlimited authority over the bodies of subjects. Torture and various acts of making such power felt in the flesh – drawings and quarterings, branding and whipping, theatrical public executions – which characterised punishment in most of Europe in the 18th century were understood to be exemplary displays.

In Beccaria’s view, backwardness in punishment thus mirrored political backwardness more generally: ‘countries notorious for the severity of punishments were also those in which the most bloody and inhuman actions . . . were committed.’ In other words, the death penalty was deeply old-fashioned, a left-over from an earlier, more savage era in the history of mankind. Thinking about it was from the beginning a way of thinking about the nature of political society and moral community. It was not primarily an empirical question.

The Essay on Crimes and Punishments was immensely influential in British reforming circles and even more so among their Revolutionary American cousins. Thomas Jefferson regarded it as belonging with the handful of books essential for understanding the new forms of civil government being built in America. Capital punishment was not abolished in any of the new American jurisdictions, despite the efforts of some of the Founding Fathers, but penal codes were dramatically revised and made self-consciously less bloody than those of the mother country. The Eighth Amendment to the US Constitution prohibiting ‘cruel and unusual punishment’ is another sign of the Founding Fathers’ commitment to the idea that a new sort of liberal polity demanded the rejection of absolutist forms of punishment. (The French Constitution of 1791, which created a short-lived constitutional monarchy, got rid of the death penalty entirely except for treason.)

By the middle years of the 19th century, the debate on capital punishment in the US had a more explicitly republican tone and a stronger religious content than could have been envisaged by Beccaria. But the connection between a progressive view of history based on the expansion of individual human rights and opposition to capital punishment remained strong. Theologically, too, opponents of the gallows tended to be optimistic in their view of salvation: Congregationalists or Unitarians, as against evangelicals or Calvinist Presbyterians – people more attracted to notions of redemption than of atonement, to the image of a merciful rather than a vengeful God. For them, the link between the moral government of God and the earthly city did not need to be so close. Theirs was basically a secular culture of republican reform; the human condition could be improved here on earth. Thus, the campaign for abolition was linked with other progressive causes: amelioration of the conditions of the insane, for example, and, most important, anti-slavery. To these 19th-century reformers hanging, like chattel slavery, represented a brutal, indefensible affront to human dignity.

In Proximity to Death William McFeely makes the connection between then and now explicit: ‘opposition to the death penalty today,’ he says, ‘is the contemporary equivalent of abolitionism.’ Stephen Bright, the lead counsel at the Southern Center for Human Rights, whose archives were the starting point for McFeely’s exploration of the way capital punishment actually works, sees himself as belonging to a tradition that goes back to the early days of the Republic.

One has to infer the arguments put by the other side, or look elsewhere (to Louis Masur’s 1989 Rites of Execution, for example). There we will find those who have been less sanguine about human progress and the efficacy of social reform, those who think that punishment ought to reflect a divine and intuitively obvious moral order. Human depravity, on this view, makes it necessary for civil government to assume the power of divine authority. Liberty, inalienable individual rights, procedural correctness and hopes for reformation or redemption have to be balanced against obligation, against the needs of a righteous community, and against the feeling that, social contract or no social contract, for civil government to be legitimate it has somehow to be congruent with God’s governance. In other words, a government here on earth can cast out and kill certain of its citizens under certain circumstances because God in heaven has ordained that this should be so. Capital punishment is the expression of both divine and communal outrage at those who have excluded themselves from full humanity through their acts. Although this view was not articulated in defences of the death penalty after the early 19th century, capital punishment retains something of its primordial sacrificial logic. Killing an offender is felt to make the world safer, more as it should be, for the good people, even if no connection is made, or claimed, at the level of social policy between the act and its putative effects. Seen in this way, as a ritual reassertion of a communal moral order, the death penalty has little to do with ideas of punishment in the rationalist Enlightenment or progressive theological traditions.

This clash of world views, which has informed the American debate since colonial times, resounds still in books like McFeely’s. The poignant stories he tells, of three men who committed terrible crimes, of their defenders, their victims and of the criminal justice system, are embedded in a twisted past and in very different visions of how a new world is to be made. One of the many strengths of his elegant, humane and subtle book is to show how the claims and counterclaims that are so often made like points in a college debate – a ‘pro’ parry met by an ‘anti’ retort – are freighted with the burdens of history and the ironies of modernity.

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