VOL. 6 NO. 10 (October , 1996) PP.149-152.
AGAINST CAPITAL PUNISHMENT: THE ANTI-DEATH PENALTY MOVEMENT IN
AMERICA, 1972-1994 by Herbert H. Haines. New York: Oxford
University Press, 1996. 253 pp. Cloth $35.00. Reviewed by Dennis
D. Dorin (DDDORIN @ email.uncc.edu), Department of Political
Science, The University of North Carolina at Charlotte.
Sociologist Herbert Haines has attempted to apply "social
constructionist theories of social problems" and
"social movement analysis" to America's anti-death
penalty activism, especially of the post-1972 years. His primary
focus is the behavior of the Legal Defense Fund, the America
Civil Liberties Union, Amnesty International USA and the National
Coalition to Abolish the Death Penalty--poorly funded
organizations drawing primarily upon a narrow band of white,
liberal, middle-class professionals as they largely
unsuccessfully battle against the wave of capital punishment
engulfing American society.
The centerpiece of Haines's data is comprised of interviews with
fifty or so of the leading figures in the anti-capital punishment
movement, as well as 5,000 pages of documents from their
colleagues' and their files.
For Haines, there are four "abolitionist eras" in
American history. Of the two most recent, the third was dominated
by the movement's litigators and more or less reached its
crescendo with FURMAN V. GEORGIA (1972), whose demand for an
elevated level of due process in capital cases led, during a
four-year period, to the invalidation of every death penalty
statute in the country. But the leitmotif of the present fourth
is that the days of sweeping legal victories are largely over.
For, from the early stages of Ronald Reagan's presidency, the
federal courts could no longer be counted upon significantly to
limit the application of capital sanctions.
Thereby denied its previously most powerful weapon, its path
breaking litigation, how has the movement responded? In the
context of a present-day violent, angry, and frightened America,
Haines tells us, its moral arguments, which have tended to
dominate its message, have generally fallen upon deaf ears. It
has failed appreciably to mobilize potential supporters among
religious groups, students, and African-Americans. Its state and
local base is feeble. It has had nothing of the street presence
that could dramatically bring its case to large numbers of
Americans. And lacking such a public spotlight, it has seen its
message massively distorted by the media and its opponents.
A hopeless situation? If the movement remains largely as it is,
Haines argues, it can do only two things. First, with very rare
victories, it can try to make it legislatively and judicially
difficult to inflict death penalties. Second, it can, at least,
help to keep abolitionism alive. However, he continues, in the
long run, it might even attain abolition itself if it can
"reframe" its case to the public.
Rather than try to sidestep Americans' well-founded anxieties
about violent crime, Haines argues, abolitionists should make
appeals that respond directly to them. First, they should
dramatize just how dysfunctional capital punishment is. No valid
study, he contends, has shown that death is superior to
imprisonment in deterring illegal homicides. And every careful
assessment of the costs of executions shows that they are
massively greater than those incurred in life incarcerations. In
addition, this outlay rests far more substantially upon trial
court expenses - ones relatively immune to change - than on the
highly sensationalized ones of successive appeals.
Second, Haines observes, polls show overwhelmingly that, when
given the option of life without the possibility of parole, and
especially with restitution to the victims' families, very large
numbers of Americans are willing to abandon their support for the
death penalty.
In such a context, then, there is "a window of
opportunity" for abolitionists powerfully to argue that the
elimination of capital punishment will produce a substantial
funding "dividend" that can then be employed, in a time
of ever more constricted federal and state budgets, in far more
effective attacks upon violent criminality.
Yet, Haines concludes, given their ideologies, traditions, and
structures, the ACLU, Amnesty International USA, and the National
Coalition to Abolish the Death Penalty will probably find it
impossible to "repackage" their messages along the
lines he has advocated. Consequently, wholly new abolitionist
organizations may have to be created - ones capable of building
bridges to moderate, and even conservative, counterparts in law
enforcement, victims' rights groups, legislatures, and similar
institutions.
A fascinating thesis! And one presented persuasively. Haines
makes no pretense of objectivity; he is a dedicated abolitionist.
Yet, he does not appear so much a part of the movement that he
glosses over questionable positions of brothers and sisters. More
than any such study of which I am familiar, his illuminates
vividly the inner tensions and battles among abolitionists and,
at key junctures, explicitly and forcefully takes sides. Who
should call the shots, litigators or activists? Have individuals
like the Reverend Joseph Ingle, an often publicized spiritual
advisor to Death Row inmates, gone too far in seeking to
"humanize" them through the media? Has Sister Helen
Prejean provided a far more balanced, and thereby attractive,
alternative? Does it really make sense for large sectors of the
movement not to oppose, openly, abolitionists like Ingle when
they denounce life imprisonment as merely a drawn-out death
sentence?
In taking on such question, Haines seems the strategist first and
the social scientist second. He develops little new theory.
Social science concepts appear almost to flit in and out of his
analysis. Testing them does not seem the focal point of his
inquiry. They are more like handmaidens to the development of his
policy stands. Yet, given his objectives, such emphases are
hardly weaknesses. Haines, the sociologist, almost always keeps
Haines, the abolitionist, on firm empirical ground.
Obviously, any work so comprehensive and bold raises a number of
questions. Did the movement that led to statutory gradations of
murder and manslaughter really spring more or less solely from an
attempt to counter jury nullification? Or did it also have its
humanitarian motivations? One would think that this question
would be especially significant for a Haines, who is attempting
to promote his own coalition of liberal and conservative
anti-crime forces. Is there even threshold evidence that Death
Row media figures Roger Coleman and Leonel Herrera may well have
been innocent? Or was the case against them - a massive amount of
which was never fully reported to the public - overwhelming?
Should a serious Supreme Court researcher rely on Bob Woodward's
and Scott Armstrong's THE BRETHREN for his or her accounts of
what the Justices said behind-the-scenes relating to cases like
FURMAN? Or do studies of published materials, as well as ones now
based upon the recently opened Thurgood Marshall Papers, show
Woodward's and Armstrong's widely circulated book to be riddled
with errors?
Most importantly, Haines may have underestimated the continuing
role of the litigators. The ink was barely dry on GREGG V.
GEORGIA (1976), which approved the reimposition of the death
penalty, when they began their new drive to "whipsaw"
states attempting to bring back executions. Anthony Amsterdam,
the main architect of their strategy, told them at a 1977
conference that, if a statute contained any appreciable
vagueness, they would attack it, under the Furman and Gregg
Cases, as granting prosecutors and jurors a constitutionally
impermissible, because still "untrammeled," discretion.
And if it were explicit, Amsterdam added, they would still
condemn it, again under GREGG, this time, as unconstitutionally
preventing individualized sentencing!
This approach, as Haines notes, led to 14 victories out of the
first 15 fully considered post-GREGG United States Supreme Court
capital cases. And, although it may have taken a hammering since
the early 1980's, it remains very much alive. It can still lead
to the invalidation of large numbers of a state's death
sentences, as it did in North Carolina via the Dock McKoy Case
(1990). As Haines demonstrates vividly, it also came only one
vote short on the Supreme Court, in MCCLESKEY V. KEMP (1987), of
invalidating, as racially discriminatory, Georgia's entire
capital punishment system. Moreover, contrary to Haines's and a
number of other commentators' interpretations, MCCLESKEY did not
bar all future statistically-based
racial-discrimination-in-capital-sentencing claims. My research
into the Thurgood Marshall Papers, for example, shows that
Justice Scalia wanted MCCLESKEY's author, Justice Powell, to so
hold. But Powell refused to do so (Dorin 1994, 1065-1066). And
just last term, the Court encouraged more, not less, such data,
in the context of possibly racially discriminatory capital
sentencing, in UNITED STATES V. ARMSTRONG (1996).
In addition, on the horizon is a series of new social science
studies stemming from the Capital Jury Project which suggest,
most disturbingly, that the most basic assumptions of the GREGG
Court about how legal procedures would induce jurors to approach
fairness in their death sentencing may be unfounded (see, e.g.,
"Symposium: The Capital Jury Project" 1995). Can there
be any question that ingenious movement attorneys will soon
devise means by which these findings will be blended into pending
litigation?
How will such works fare before a Rehnquist bench? Jack Boger,
who argued MCCLESKEY at the Supreme Court level, has noted that
abolitionist lawyers tend to be incorrigible optimists. Is it so
far-fetched, they will reason, that a Stevens, Souter, Ginsburg,
or Breyer might find them compelling? Even Thomas went out of his
way, in a recent case, to brand the previously outlawed capital
rape sanction as racially discriminatory. Might he not be
concerned with these studies' implications for African-Americans?
And how about a Kennedy who, in personal conversations, can
expound, sharply, just about every one of Haines's anti-death
penalty arguments (Dorin 1996)? Suppose he now believes that only
retributivist concerns can justify death sentences? How might he
react if the Capital Jury Project findings show, persuasively,
that many jurors actually make their decisions on death and
retribution long before they collectively and systematically even
consider the aggravating and mitigating circumstances that GREGG
assumed would govern them in such determinations?
Will there even be a Rehnquist Court for very long, these
litigators are no doubt wondering, if Bill Clinton is reelected?
And could a Clinton, with or without a Democratic Senate, maybe
even successfully appoint to the High Bench such an articulate
and committed abolitionist as his Solicitor General-designate,
Walter Dellinger? So, should Haines start thinking about a fifth
abolitionist era - given how, with the judicial branch, even a
relatively small turnover at the highest level can soon have very
far-reaching consequences? If the answer proves to be
"yes," we have every reason to believe that Haines, cum
social scientist, will provide Haines, social reformer, with yet
another round of clear, commonsense, and empirically grounded
perspectives.
References
Dennis D. Dorin, "Far Right of the Mainstream: Racism,
Rights, and Remedies From the Perspective of Justice Antonin
Scalia's MCCLESKEY Memorandum," MERCER LAW REVIEW, 45, 3
(Spring, 199), 1035-1088.
Dennis D. Dorin, UNC-Charlotte Pre-Law Society Seminar with
Justice Anthony M. Kennedy, U.S. Supreme Court, Washington, D.C.,
May 9, 1996.
"Symposium: The Capital Jury Project," INDIANA LAW
JOURNAL, 70, 4 (Fall, 1995), 1033-1270.