THE FUTURE OF AMERICA’S DEATH PENALTY

Vol. 19 No. 9 (September, 2009) pp.656-659

THE FUTURE OF AMERICA’S DEATH PENALTY: AN AGENDA FOR THE NEXT GENERATION OF CAPITAL PUNISHMENT RESEARCH, by Charles S. Lanier, William J. Bowers, James R. Acker (eds). Durham, NC: Carolina Academic Press, 2009. 582pp. Paper. $50.00. ISBN: 9781594604263.

Reviewed by David S. Mann Professor of Political Science, College of Charleston; mannd [at] cofc.edu.

It is important straight away that I inform readers of a personal bias: I am opposed to the death penalty. That being taken care of, this compendium should be on the shelf of everyone who has the same – or even a different – frame of reference. Not that the tome is preaching to a choir, rather, the work systematically outlines what the title purports the work to do. The contributors, many of whom are award-winning scholars in their diverse fields, attempt to do two things: to outline and summarize research in their areas and to offer suggestions as to “where do we go from here.” It is impossible in this space to honor all contributors by mentioning their names, and to name some here is not meant to slight others. Each co-editor also wrote or co-authored one or more chapters.

The stature of the scholarship may be outweighed only by the size of the volume, mercifully available in soft cover. There are five sections, each with multiple chapters, prefaced with an acknowledgement by the editors. There is a plethora of cited materials within each chapter. There are mini-bios of the contributors. The book’s index is good enough.

Section I is entitled “General Research Directions and Challenges.” Hugo Adam Bedau offers an eight page bibliography on death penalty books since 2000 (to 2008). So for those teaching undergrads who have the death penalty paper itch, there are no excuses. Jordan M. Steiker asks a constitutional law question on which essays and critiques can and have been offered: “Is Proof of Arbitrariness or Inaccuracy Relevant to the Constitutional Regulation of the American Death Penalty?” (p.23). In essence, he walks through the arguments that answer a question more easily posed: what do we do with wrongful convictions? William J. Bowers and Scott E. Sundby discuss the downturn in death sentences. Deborah Fleischaker reviews the ABA Death Penalty Moratorium Project, where questions addressing proportionality, defense lawyering, racial disparity, mental illness, prosecutorial discretion, clemency, law enforcement, and judicial independence are all asked. Many of the ABA’s issues are also forthcoming in later sections of the book. In other words, the ABA and a great variety of academics (most of whom do not claim to have had a legal education – aka lawyers) are on the same page. Charles S. Lanier informs us of the National Death Penalty Archive as a resource for future research.

Section II’s topic is “The Process Leading to a Capital Sentence.” This is an important unit for two reasons. The first [*657] all of us need reminding about now and then – procedure often trumps substance. So, here we go with an obligatory chapter on racial and ethnic disparities, by Michael L. Radelet and Glenn L. Pierce, regarding homicide. As this review is being written, recently we all had 10 days of possible racial and ethnic disparity that resulted in a Rose Garden happy hour with the president, vice-president, a famous professor and a now famous police officer, all drinking different brands of beer. Not to minimize or denigrate the issue, but there is racial and ethnic disparity everywhere, but no more critical than with death cases, which is of course the second reason this unit is important. Readers will be blessed with two chapters co-authored by David Baldus, whose studies invariably lead to the following teaching point: how do we reconcile empirical researchers who think inductively with lawyers and judges who are trained to think more or less deductively? The second of the two Baldus chapters studies and reviews race and geographic discrimination. It is quite lengthy, includes empirical modeling and regression models, and could serve as a handbook and guide for advanced undergraduate and graduate research. The last chapter in this section discusses Capital Juries, where we return to the arbitrariness issue once again.

Section III reviews the process beyond conviction. It begins with Richard C. Dieter’s review of the Innocence Project, which the mainstream media picks up every time someone is discovered to be innocent via DNA evidence. We note that “the law” is consistently behind technology – another theme that is between the lines of many chapters. John H. Blume and others review Mental Retardation in light of the ATKINS case, including issues such as clinical definitions, state procedures, race, and experts. AEDPA, the Anti-terrorism and Effective Death Penalty Act, is the subject of the next chapter. The primary focus is to examine relevant cases where federal habeas petitions have been made. The authors suggest that future scholars create a database such as that which they present, to test the frequency of petitions controlling for Federal Circuit and to keep track of rulings. The last chapter in this section, very brief, is by Austin Sarat. His focus is on clemency. He suggests creating an “Archive of Injustice” (p.302), to keep track of clemency petition narratives as “documents that refuse despair” (p.305). I would perhaps create an index of gubernatorial compassion – my suggestion.

Section IV bears a title that might immediately raise an eyebrow or two: The Utility and Efficacy of the Capital Sanction. Jeffrey Fagan and Valerie West begin with a great discussion about deterrence – haven’t we all had a dialog or two in class on that and related topics such as incapacitation, why deterrence does not make sense in many instances, rationality, knowledge, and choices. This chapter covers many topics one might see in a substantive criminal law course. Jon Sorenson’s Chapter 16 addresses the fascinating topic of “Predicting Future Dangerousness.” Do commuted capital offenders kill again? I am intrigued with the notion that actuarial data may serve to predict future violence levels of capital murder defendants. Sorenson also suggests studying those who are serving life-without-possibility-of-parole, to see at least whether they continue their violent [*658] ways while behind bars. Chapter 17, by Margaret Vandiver, asks the victimology question: what is the effect of capital punishment on families of victims and the families of defendants? She cautions that to gather these data, very sensitive personal interviewing is the most likely empirical technique – the opposite interview strategy typically done by the unseasoned local media representative. Through all these chapters and others I wonder how many projects about the GITMO detainees – as they are processed – will emerge. The last chapter in this section adds some light to the issue of cost effectiveness of the death sanction. The premise is based on the dissenting words of Justice Marshall in Furman: “there can be no doubt that it costs more to execute a man than to keep him in prison for life” (cited at page 399). The authors then break down the post-Furman time line into three parts and then follow with some recommended research options, including calculating indirect costs, “coerce” to plead guilty (word choice is the authors’ at p.408), and the strain on state government funding in recent budget cycles.

The last section’s title is “Examining the Punishment of Death” (p.419). There are four substantive chapters and a concluding chapter by the editors. In chapter 19, David Garland distinguishes between the symbolic and instrumental purposes of death sentences. Essentially, he asserts that the two purposes, clearly outlined in existing literature, should be linked to another concept clearly outlined, that of status politics. A future researcher may find a link between the status-seeking legislator who votes to enact a death statute and either or both of the death penalty’s asserted purposes. James R. Acker writes chapter 20. He explores alternative sanctions for aggravated murder. After reviewing familiar arguments around “why punish the murderer,” he suggests that research should focus on “alternative sanctions for murder that lie in the expanse between capital punishment and LWOP” (p.463; LWOP is life without parole). Chapter 21 looks behind bars, to death row, conditions, attitudes of guards (personal query: are they like Tom Hanks’ character in Green Mile?), what it must be like to carry out a death sentence, and measuring quality of life in the death house. This chapter is a sociologist’s dream. Chapter 22’s topic asks the rather morbid question: is there a medically humane method of execution? This apparently was written before the Supreme Court approved of lethal injections. The subject nonetheless remains a viable, though grisly, research topic. The last chapter offers a two-page summary bullet list of topics outlined too briefly here and in the depth the topics deserve from the tome itself.

This is a great collection. It should be on many bookshelves and in all serious libraries.

The volume is presented even though Acker penned the contradiction: “As a practical matter, the death penalty does not figure prominently in contemporary criminal justice policy. At the same time, the political and symbolic significance of capital punishment is substantial and undeniable” (p.463). There are many wonderful topics here. I can see how, if only I were 30 years younger, it would be “fun,” a word often used to describe the process of research by my late dissertation adviser, Charles [*659] Sheldon, to turn toward any number of avenues mapped in this book.

CASE REFERENCES:

ATKINS v. VIRGINIA, 536 U.S. 304 (2002).

FURMAN v. GEORGIA, 408 U.S. 238 (1972).

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