Vol. 8 No. 3 (March 1998) pp. 114-116.

AMERICA'S EXPERIMENT WITH CAPITAL PUNISHMENT: REFLECTIONS ON THE PAST, PRESENT, AND FUTURE OF THE ULTIMATE PENAL SANCTION by James Acker, Robert Bohm, and Charles Lanier (Editors). Durham, N.C.: Carolina Academic Press, 1998. 586 pp. $35.00 Paper. ISBN 0-89089-651-8.

Reviewed by Austin Sarat, Departments of Political Science and Law, Jurisprudence & Social Thought, Amherst College. E-mail: ADSarat@Amherst.edu

As the recent execution of Karla Faye Tucker vividly demonstrated, capital punishment still has the power to excite political passions and compel public attention. Despite its routinization and relative invisibility, the moment when the state takes life is just as central to the modern exercise of political power as it was to earlier incarnations of sovereignty. Today Americans live in a killing state in which violence is met with violence, and the measure of our sovereignty as a People is found in our ability both to make laws carrying the penalty of death and to translate those laws into a calm, bureaucratic bloodletting. We live in a state in which killing increasingly is used as an important part of criminal justice policy and of the symbolization of political power.

As we contemplate the end of the twentieth century, the most prominent manifestation of our killing state, capital punishment, defying the predictions of Foucault, Elias, and others, is alive and well in the United States. Not only does this country cling tenaciously to capital punishment long after almost all other democratic nations have abandoned it, but today the number of people on death row as well as the number executed grows steadily. While the full result is yet to be seen, it now appears that killing state will be a regular part of the landscape of American politics for a long time to come.

Nothing in AMERICA'S EXPERIMENT WITH CAPITAL PUNISHMENT contradicts that prediction. Nothing in this comprehensive and engaging collection of essays, almost all of them written by ardent abolitionists, suggests that we will soon put an end to our killing state. Borrowing from Justice Blackmun's labeling of the post-Furman era of capital punishment as an "experiment," the consistent and compelling message of the essays in this book is that that experiment has failed to provide a cost-effective deterrent to crime, solace to the families of murder victims, rational procedures for deciding who lives and who dies, and failed to meet our nation's highest aspirations for fairness and justice. And, yet state killing goes on. That it does so in spite of overwhelming evidence of its failures suggests something important about the politics of crime and punishment as well as about the status of capital punishment in our politics.

One question that arises from a cover-to-cover reading of AMERICA'S EXPERIMENT WITH CAPITAL PUNISHMENT is why America clings so tenaciously to capital punishment in the face of the kind of powerful evidence of its failure that is presented in this book. One answer to this question is that capital punishment is inseparable from the practices of popular sovereignty. Along with the right to make war, the death penalty is the ultimate measure of sovereignty and the ultimate test of political power. The right to dispose of human life through sovereign acts was traditionally thought to be a direct extension of the personal power of kings. With the transition from monarchical to democratic regimes, one might have thought that such a vestige of monarchical power would have no place and, as a result, would wither away. Yet, at least in the United States, the most democratic of democratic nations, it persists with a vengeance.

It may be that our attachment to state killing is paradoxically a result of our deep attachment to popular sovereignty. Where sovereignty is most fragile, as it always is where its locus is in "the People," dramatic symbols of its presence, like capital punishment, may be most important. The maintenance of capital punishment is, one might argue, essential to the demonstration that sovereignty could reside in the people. If the sovereignty of the people is to be genuine, it has to mimic the sovereign power and prerogatives of the monarchical forms it displaced and about whose sovereignty there could be few doubts. Understood in this way, state killing may be a key to understanding modern mechanisms of consent.

Thus it should not be surprising that the practice of state killing is relatively impervious to the kind of evidence presented in AMERICA'S EXPERIMENT WITH CAPITAL PUNISHMENT. Yet that evidence is nonetheless significant if we are to understand what the death penalty does to our legal, political, and cultural lives. This book's presentation of the case against capital punishment, the case that the experiment has failed, and should be abandoned, comes in four substantive parts. In the first--Capital Punishment: Public Opinion, Law, and Politics-- useful and engaging essays by James Acker and Charles Lanier and by Stephen Bright describe the politicization of capital punishment and the ways that politicization pushes the legislative process and compromises fairness in the handling of capital cases. But the highlight of the book's first section is the selection by Carol and Jordan Steiker. In this piece they carefully dissect the post- Furman legal regime and conclude that "The death penalty is, perversely, both over- and under-regulated .... Indeed, most surprisingly the overall effect of the Supreme Court's quarter century of doctrinal development has been to largely reproduce the pre-Furman world of capital sentencing." (p. 48) Theirs is more than a careful study of the latent consequences of efforts to regulate state killing; it is instead a clear demonstration of the illegitimacy of that practice when judged against the standards the Court has itself laid down. As a result, this article invites readers to inquire about what accounts for the persistence of capital punishment in America.

The section entitled The Justice and Utility of the Capital Sanction contains the only contribution by an avowed support of the death penalty, Ernst van den Haag. In that essay, van den Haag presents a retributive defense of state killing. Van den Haag's essay is an implicit response to the contribution by Peterson and Bailey which provides a thorough review of the evidence about the deterrent effect of the death penalty. "On balance," they conclude, "deterrence hypotheses for capital punishment have fared rather badly." (p. 173) Yet on van den Haag's account, even if state killing does not deter it is justified in terms of its retributive function. Yet if this were in fact the case, van den Haag's retributive argument is not adequate in the face of the substantial evidence presented by Radelet and Bedau of irreversible errors in the administration of capital punishment, errors which result in the execution of the innocent. The prevalence of errors not only undoes the retributive argument, but those errors point out the great damage that state killing does to basic legal values such as due process.

The next section--The Administration of the Death Penalty--contains important examinations of the lawyering process in capital cases, as well as research on juries in capital cases, the costs of capital punishment, and the recent erosion of federal habeas protections. Two contributions stand out. In one, Craig Haney discusses the difficulties lawyers face in presenting mitigation evidence in capital trials. That difficulty arises because the notion that crime emerges from and is embedded in social structure and life histories is counter-cultural. Jurors, Haney notes, come to their service in capital cases having been bombarded throughout their lives with the mythology of individual choice and responsibility. The challenge for death penalty lawyers, often insurmountable in the context of a single case, is to help jurors overcome that cultural prejudice against what Haney sees as more accurate, even if complicated, accounts of the etiology of crime. In another piece, Baldus and Woodworth reprise their classic analysis of racial discrimination in capital sentencing. They demonstrate across a variety of different sentencing schemes the persistent effects of race, and they suggest the damage done when discrimination infects state killing. It persists in spite of this damage, they contend, because of its "importance...as a symbol in American life and (of) the perceived political risk to public officials who appear unsympathetic to the use of the death penalty...." (p. 412)

The book's concluding section--Terminal Stages of the Penalty of Death--contains two essays, one about the failure of the clemency process, the other about the judiciary's unwillingness to effectively police methods of execution to insure their compatibility with the 8thAmendment, which remind us, yet again, of the damage the death penalty does to the integrity of our political and legal institutions. This section also showcases research about the people who are most intimately connected to state killing, medical professionals, guards on death row, the condemned and their families, and the families of the victims. That research describes the enormous human costs associated with the maintenance of a system of state killing. It shows the damage to human dignity done when the state takes life. Yet these costs are endured even though solace to grieving relatives is rarely provided and little other appreciable benefit is provided.

Readers looking for a balanced assessment, or a representative sampling of opinion on the death penalty, should be warned; they will not find it in this book. Though quite different in their politics and theoretical approaches, the authors whose work is brought together here are united in the belief that capital punishment has played, and continues to play, a major, and dangerous, role in the modern economy of power. AMERICA'S EXPERIMENT WITH CAPITAL PUNISHMENT is an enormously valuable book in bringing together some of the best abolitionist scholarship, scholarship which despite its political commitments is careful, rigorous, and persuasive in its attention to, and use of, empirical evidence. It is valuable for the answers it provides to central questions about state killing and for forcing its readers to ask why capital punishment persists in spite of what it does to our law, our politics, and our culture.

Copyright 1998