Vol. 12 No. 6 (June 2002) pp. 260-264

THE DEATH PENALTY: AN AMERICAN HISTORY by Stuart Banner. Cambridge: Harvard University Press, 2002. 408 pp. Cloth $29.95. ISBN:

Reviewed by Samuel B. Hoff, Department of History, Political Science, and Philosophy, Delaware State University.

Washington University School of Law Professor Stuart Banner has written a book which uncovers "the many changes in capital punishment over the years--changes in the arguments pro and con, in the crimes punished with death, in execution methods and rituals, and more generally in the way Americans have understood and experienced the death penalty" (p. 3). His goal is to help readers comprehend how paradoxes which exist in contemporary utilization of capital punishment
in the United States came about. The study taps archival documents, law cases, newspaper and scholarly articles, and U. S. Department of Justice statistics on executions, among other sources.

The first three chapters of the text detail the evolution of the death penalty in America through the eighteenth century. Imported from England, capital punishment was invoked for a plethora of offenses in the American colonies. The reasons for its use included deterrence, retribution, and penitence. Except for the military, the standard method of execution in this period of U. S. history was hanging. However, government officials resorted to burning those whose crimes upset the social order.

Public executions were rituals carefully controlled by authorities for maximum terror effect. The event encompassed the march to the gallows, a sermon by clergy, and the last words of the condemned. Hangings often attracted thousands of spectators. According to the author, hangings were "occasions for the vicarious experience of violence, a niche occupied today by television, movies, sports, video games, and the like" (p. 31).

Chapters 4 through 6 highlight changes in American capital punishment which occurred during the 1800s. Aversion to employment of the death penalty for crimes other than murder actually began in the late1700s, as several states revised their laws. By the middle of the nineteenth century, three states--Michigan, Rhode Island, and Wisconsin--had abolished the death penalty for murder. Additionally, there was extensive debate over the justification for capital punishment in the
northern states. On the other hand, the existence of slavery perpetuated its maintenance in southern states, albeit more for blacks than whites.

The increasing deployment of prisons and a growing divergence of social classes among American citizens resulted in the replacement of public executions with jail-yard hangings. Other changes in the process of capital punishment --especially the growth of the press, celebrated trials, and the widening participation in clemency decisions--further redefined the public component of executions.

Chapter 7, the longest chapter in the book, examines the modernization of

Page 266 begins here

techniques for executing condemned criminals. The advent of electricity in the late 1800s led to the invention of the electric chair, which would be used by almost half of American states by 1950. Because of disagreement over the safety and appearance of electrocutions, several states followed Nevada's example and switched to the gas chamber. Both of the latter methods required specialists to operate them and further limited audiences. Banner notes that the reduction in witnesses meant
that "there was virtually no chance that one of the new technological executions would be conducted in the presence of the kind of person it was supposed to deter" (p. 206).

Chapters 8 through 10 review capital punishment in twentieth century America. Although the 199 persons executed in 1935 represented a peak, utilization of capital punishment waned during the 1900s. Among the reasons furnished by the author for the latter trend are belief in the biological causation of crime, social science research disputing the deterrent effect of the death penalty, Progressive era reforms which precipitated legislative abolition, opposition to capital punishment by
several governors and famous Americans, and a number of highly publicized capital cases where the guilt of defendants was questioned well after their executions.

The civil rights movement in the United States hastened constitutional challenges to the death penalty. Though unsuccessful in arguments about the nature of juries and racial disparity in death penalty cases, representatives of the American Civil Liberties Union and the Legal Defense Fund kept appealing capital cases to the U. S. Supreme Court. Their strategy paid off when the Supreme Court ruled in FURMAN v. GEORGIA (1972) that the variance in state laws permitting the death
penalty violated the cruel and unusual punishment clause of the Eighth Amendment. The judicially-mandated hiatus in executions would last for four years.

Almost 600 persons would be executed between 1977 and 1999. The resumption, or "resurrection" of the death penalty as Banner refers to it, was highlighted by the decline in clemency, by the legal rather than political emphasis of capital punishment antagonists, and by the time and expense prevalent in death penalty appeals. The last two decades of the twentieth century ushered in lethal injection as an ostensibly cheap, painless, and clean method of execution.

In the Epilogue, Banner discusses two ways to break the stalemate reached by capital punishment adversaries: either permit states to return to pre-1972 procedures or have state legislatures abolish the death penalty. Because he concludes that neither alternative is likely in the short run, Banner holds out hope for revision in Americans' views about crime as a consequence of free will.

Several recently published texts may be compared to Banner’s study. Greg Mitchell and Robert Lifton (2000) examine both the history of capital punishment in the United States and the parties involved in executions. Austin Sarat (2001) critiques American capital punishment from political, technological, social, and legal perspectives. He advocates televising executions. Finally, Jesse Jackson Sr., Jesse Jackson Jr., and Bruce Shapiro (2001) identify precedents of the death
penalty in the U. S. and cover controversies which have ensued in capital punishment cases since 1976. Banner presents a much more comprehensive history of capital punishment than any of the aforementioned authors and eschews

Page 267 begins here

the subjective, anti-death penalty approach adopted by them.

THE DEATH PENALTY: AN AMERICAN HISTORY has any positive features. First, it offers vivid portrayals of the execution process, or as Banner labels it, the "dramaturgy” of death. This is the case for executions that proceeded as arranged and for the several botched examples cited. Second, the study is current in that it includes reference to the Illinois moratorium on capital punishment instituted in 2000. Third, the author provides a particularly incisive explanation for the timing of the Furman v. Georgia decision by the Supreme Court.

Conversely, the study has a few shortcomings. Banner admits as much in the Acknowledgements section when he asserts that space limitations prevented theoretical development. However, that fact is less disturbing than his failure to synthesize the paradoxes in American capital punishment which he advances at the outset of the work. Much less problematic but still evident is the repetitiveness found in the first part of the book and the lack of first-hand observations of executions.

Without question, Banner's study makes a major contribution to the literature on capital punishment in the United States. Given recent events associated with the topic, including the 2002 Maryland moratorium, challenges to the use of the electric chair as a means of execution, and opposition to sentencing those of diminished mental capacity to death, the deteriorating support for capital punishment in recent years is likely to continue.


Jackson, Jesse L. Sr., Jesse L. Jackson Jr., and Bruce Shapiro. 2001. LEGAL LYNCHING: THE DEATH PENALTYAND AMERICA'S FUTURE. New York: New Press.


Sarat, Austin. 2001. WHEN THE STATE KILLS: CAPITAL PUNISHMENT AND THE AMERICAN CONDITION. Princeton: Princeton University Press.


Copyright 2002 by the author, Samuel B. Hoff.