Thirty-Five States to Go

David Cole

  • Peculiar Institution: America’s Death Penalty in an Age of Abolition by David Garland
    Oxford, 417 pp, £21.99, September 2010, ISBN 978 0 19 959499 3

Why does the United States alone among Western countries retain the death penalty? Long after all of Europe and much of the rest of the modern world abolished it, recognising that it violates fundamental human rights, the US has more than 3250 men and women on death row.

It’s tempting to chalk this disparity up to American exceptionalism, but that’s more a slogan than an explanation. And as David Garland points out in Peculiar Institution: America’s Death Penalty in an Age of Abolition, on this and many other matters of criminal justice, the United States is not so much a single nation as a federation of 50 states, each of which has substantial independence. Michigan, for example, abolished capital punishment in 1846, long before any country in Europe. It has remained abolitionist ever since. Rhode Island followed suit in 1852, and Wisconsin in 1853. Portugal, the first Western European country to abolish capital punishment, did not do so until 1867; it then reinstated the penalty for treason, permanently abolishing it only in 1976. The UK abolished it in 1969 (although retaining it for 20 years as a punishment for treason and piracy), France kept it until 1981.

In the US today, 35 states and the federal government retain the death penalty; 15 states have abolished it. Only a handful, mostly in the South, actually carry it out. Texas alone has been responsible for a third of all executions in the US since 1976. But the death penalty remains part of American law, and politicians risk their law and order credentials if they condemn it as a violation of human rights.

Until the 20th century, every country exercised the death penalty, initially as an expression of state sovereignty, pour encourager les autres. As nation-states began to base their legitimacy on democratic representation, gruesome public executions were gradually replaced, on both sides of the Atlantic, with more ‘humane’ and discreet versions of the penalty. Both the US and Europe restricted the kinds of crime that could be punished by death, reduced the frequency with which the sentence was handed down, and tightened up execution procedures. Today, even in those American states that retain the penalty, it has been fundamentally transformed.

The death penalty, as currently practised in the US, is no longer employed to assert sovereign authority. Ambivalence about its current status is reflected in the fact that while there are more than 3250 people on death row, fewer than 100 are executed in any given year. Americans seem quite willing to condemn defendants to death, but not so willing to see the punishment through. Delays of ten years or longer are routine, robbing the penalty of any retributive or deterrent value it might have. The most common cause of death among death-row inmates is ‘natural causes’.

Garland also resists the temptation to explain the American death penalty as a form of ‘legal lynching’. There were 4743 lynchings in the US between 1882 and 1968; three-quarters of the victims were black. But Garland argues that executions in the 21st century are crucially different from lynchings; instead of inflicting rough, vigilante justice, the death penalty is imposed only after a lengthy appeal process, and carried out not as a confident public display of brute and terrible authority, but as a rigorously regulated private procedure, almost as if the state were embarrassed by its own actions. Lethal injection, the method that has succeeded the noose, firing squad, gas chamber and electric chair, has almost therapeutic connotations. Capital punishment in its modern American guise is represented not so much as an outpouring of community rage but as a service to the victim, offering a form of closure, carried out as humanely as possible. It has been domesticated, and that very domestication makes it more difficult to extirpate.

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