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.

Another popular explanation for the survival of the death penalty in America is that Americans are more bloodthirsty than Europeans. Garland shows that the data suggest otherwise. Large majorities in many European countries favoured the death penalty even as it was being abolished. When Germany outlawed capital punishment in its 1949 constitution, two-thirds of its population were still in favour. François Mitterrand’s administration abolished it in 1981, ignoring the 73 per cent of the French population who approved of it. In the UK, 76 per cent of respondents backed it in 1995, nearly three decades after abolition. Meanwhile, about 65 per cent of the American public supported it in 2001.

So the question remains: why has the US not taken the final step and put an end to capital punishment? The reasons, Garland thinks, have more to do with the structure of American government than any fundamental difference between American and European culture. In most European countries, political elites were able to abolish the death penalty with a single piece of legislation, despite substantial popular support for it. Because of the US commitment to federalism, which allows states substantial independence with regard to criminal justice, the issue is not susceptible to national resolution, but must be worked out separately by each of the 50 states. This means that the US is comprised of pro-death penalty states, mostly in the South; abolitionist states, mostly in New England; and ambivalence and confusion everywhere else.

The death penalty could, however, have been abolished at the national level in the United States. Although states retain substantial discretion over matters of criminal justice, Congress has virtually unrestricted authority to make federal funding conditional on states acting as it wants them to – and it is not shy about exerting this power. Congress could have, but never has, made federal support for state and local law enforcement conditional on abolition of the death penalty. That it has not done so is not because it lacks the authority, but because it lacks the will.

There was, in fact, a moment when it looked as if the question might be resolved at the national level. In 1972, around the time that Western European countries were abolishing it, the US Supreme Court ruled, in Furman v. Georgia, that the death penalty as then practised in America violated the Eighth Amendment prohibition on ‘cruel and unusual punishment’. The court reasoned that the then existing practice of giving juries complete discretion in making their life-or-death decisions led to unconstitutionally arbitrary results, often tainted by racial prejudice. Because all state laws shared this defect, all 589 death-row prisoners had their sentences overturned, and in most instances were resentenced to life in prison.

The response to Furman was swift, strong and negative. States objected that the federal judiciary had improperly usurped their prerogative. And although not a single organisation had submitted a friend-of-the-court brief to defend the death penalty while the court was hearing the Furman case, the judgment sparked a nationwide campaign to restore the death sentence, articulated in terms of ‘states’ rights’ and ‘local control’. Within two years, 35 states had reinstated it. In 1976, the Supreme Court retreated, concluding that revised laws requiring juries to consider specifically framed ‘aggravating factors’, and to weigh those against ‘mitigating factors’, provided sufficient constraint on juries.

Despite the reforms, the imposition of the death sentence is at least as arbitrary today as when Furman was decided. The figures tell the story. The number of people executed each year was then and is now a tiny fraction of those responsible for the 15,000 to 20,000 homicides committed in the US annually. There has never been any assurance that only the ‘worst of the worst’ are executed. As Stephen Bright, a leading capital punishment lawyer, has said, it’s not the worst murderers who die, but those with the worst lawyers.

Before 1972, being sentenced to death as often as not led to actual execution. Then, the death-row population was about double the number of people executed each year. Today, by contrast, there are roughly 40 people on death row for every one executed, and in some states the ratio exceeds 100 to 1. Besides the manifest cruelty of condemning someone to live under the constant threat of execution, these statistics undermine any ‘rationality’ that the post-Furman reforms might have been thought to provide. Even if the jury’s decision to impose a sentence of death is now, in theory, subject to stricter guidelines, the selection among those sentenced of who will in fact be executed remains essentially arbitrary. There is no reason to believe that the byzantine and decentralised system of state and federal appeals and state clemency somehow rationally reserves the ultimate penalty for the most culpable offenders.

In some sense, Garland notes, the Supreme Court’s intervention in Furman was in keeping with the European model of abolition: it represented an action by an elite against the grain of popular opinion. But where the European initiatives succeeded, Furman failed. Part of the reason, he suggests, is that the intervention in the US was judicial and constitutional whereas in Western Europe abolition was generally accomplished through ordinary lawmaking. Legislative action by representatives answerable to the people is less vulnerable to the charge that it is anti-democratic. And it may also give rise to fewer objections precisely because it seems less ‘final’, more easily altered. A constitutional decision imposed by an unelected court, by contrast, dramatically raises the stakes.

The Supreme Court in Furman did not help matters by issuing nine separate opinions, which is highly unusual, and dividing five to four on the judgment. The result, Garland maintains, was ‘a monumental study in ambivalence’, exhibiting an ‘excess of discourse and an embarrassing lack of legal substance’. The dissenting judges repeatedly pointed out that it was not the constitution itself that had dictated the result but five activist judges. Instead of sparking a debate about whether the death penalty is consistent with liberal values, the court’s intervention began a backlash that reframed the issue as one of judicial activism versus local democratic values.

There are, no doubt, other factors that account for the resilience of the death penalty in America. The US has long had a frontier spirit: guns and violence are more pervasive there than in perhaps any country not engaged in fighting a war on its home soil. And while Garland is right that the death penalty as currently carried out is a far cry from lynching, Franklin Zimring, a criminologist at the University of California at Berkeley, has shown that the geographical pattern of executions in the US today almost exactly matches the pattern of lynchings in the early 20th century, both heavily concentrated in the South and Southwest. The implementation of capital punishment continues to reflect and reinforce the view that white lives are more valuable than black lives. In California in the 1990s, for example, those who killed whites were four times more likely to get the death penalty than those who killed blacks or Latinos. Virtually every study of the death penalty has found significant racial disparities between murder convictions that result in the death penalty and those that do not. In McCleskey v. Kemp (1987), the last constitutional challenge to the death penalty, a condemned man argued that the statistically significant role that race played in whether a defendant lived or died violated the constitutional guarantee of equal protection. The Supreme Court narrowly rejected the claim, five to four.

As Garland shows, the politics of race played an important role in the death penalty’s resurrection after Furman. The legal campaign to invalidate the sentence through the Supreme Court began in 1963, at the height of the civil rights movement. But by the time the issue reached the court in 1972, racial politics had changed. Widespread urban riots, the emergence of a radical black power movement and rising crime had made many white Americans wary of civil rights. These developments made possible Nixon’s ‘Southern strategy’, which sought to loosen white Southerners’ historic ties to the Democratic Party by appealing to law and order and trying to link Democrats with African American criminals. The death penalty became a litmus test, and support of it shorthand for being ‘tough on crime’.

Racial politics also infuses the federalist structure of American government that Garland identifies as a major impediment to national abolition. The decision to give substantial independence to the states was initially driven at least in part by the failure to resolve the issue of slavery when the constitution was drafted. Until the Civil War, the compromise was to allow states to go their own way. Ever since, ‘states’ rights’ has, as often as not, been a code word for resistance to racial equality. The South used the term to defend its position in the Civil War, to defend Jim Crow laws mandating segregation and to resurrect the death penalty. Federalism is not simply a preference for decentralised, local government, but a legacy of America’s racial history.

Finally, although Garland barely mentions it, international law also plays a role in the split between the US and the rest of the West on capital punishment. When most of Western Europe abolished the death penalty, it was not yet considered a violation of international human rights law. The ‘right to life’ enshrined in the European Convention on Human Rights and the International Covenant on Civil and Political Rights, for example, expressly reserved a state’s right to take life through a properly administered death penalty. The view that it violated human rights emerged only in the last quarter of the 20th century, after Western Europe had abolished it. That view is now reflected in Protocol No. 6 of the European Convention on Human Rights, and has become settled law in Europe. As a result, Eastern European nations have to abandon the death penalty if they want to join the European Union. The right to life has also made it much more difficult for individual countries to reverse abolition.

The United States, by contrast, has always taken a sceptical view of international human rights. It has never agreed to be bound by any human rights treaty that would impose obligations beyond those imposed by its own constitution. When it signs such treaties, it nearly always attaches ‘reservations’ that render them redundant as a matter of domestic law. And in any event, Congress rarely makes treaty rights enforceable by individuals. Unlike the European Convention, the American Convention on Human Rights is toothless as applied to the US. International law plays only a minor role in American death penalty jurisprudence.

Human rights advocates in Europe have sometimes envied the strength and independence of US courts when it comes to protecting constitutional rights. But the difference between the US and Europe on capital punishment suggests that it may well be better to pursue reform through the political system: efforts to enshrine the advance as a ‘right’ can follow. At present, in any case, the political system is the only viable option. The Supreme Court is as conservative as it has been in living memory, and not a single sitting justice has held that the death penalty is unconstitutional. Reform must come at the legislative level, most probably state by state, if it is to come at all.