Vol. 12 No. 12 (December 2002)

WHEN THE STATE KILLS: CAPITAL PUNISHMENT AND THE AMERICAN CONDITION, by Austin Sarat.  Princeton, NJ:  Princeton University Press.  Paper $17.95.  352 pp.   ISBN:  0-691-10261-9.

Reviewed by David S. Mann, Department of Political Science, College of Charleston.  Mannd@cofc.edu .

Academic book reviews are supposed to be unbiased, neutral, and—when appropriate—critical.  This review may not be any of those.  At the outset let me declare that for over 25 years, I have been a “fan” of Austin Sarat’s academic work; ever since I read “Judging in Trial Courts” (1977) as an ABD graduate student, whenever I see the author’s name I sit up and take notice.  The reissued book under review here, a book that has been reviewed a number of times in a variety of journals, is worthy enough of another.

Though only five new pages of preface were penned by Sarat for the paperback edition of this book, WHEN THE STATE KILLS remains appropriate for the 21^st Century, perhaps now more than ever.  Originally written in 1999, after the McVeigh trial but before his execution, Sarat’s collection of essays—all but the first and last published previously in one journal or another—are as relevant now as they were in the 1990s.  Sarat has a point of view here, one that may be as attractive to half of the academic world as it is repugnant to the other half.  In the “new preface by the author,” Sarat asserts “[w]hether the death penalty is abolished or simply reformed, change—serious, sustained, dramatic change—in the killing state is long overdue” (xiii).  As the pages and chapters unfold, it becomes clear to the reader that Sarat is an opponent of the death penalty (as am I) and offers arguments that merit serious consideration.

Chapter One, an introduction to the rest and not previously published in an earlier form elsewhere, addresses capital punishment from the perspective of the McVeigh trial and (then pending) execution.  The arguments run from Michel Foucault to Martha Minow, from Barry Scheck to Stuart Scheingold.  They are familiar scholars and arguments.  Capital punishment is biased as administered, GREGG v. GEORGIA notwithstanding.  There are probably innocent people on death row.  Executions have become routine, and they  remain violent processes.  Sarat asserts that “the time may be at hand to condemn state killing for what it does to, not  for, America” (at 30, emphasis original).  The remainder of the book is divided into essentially three parts:  vengeance, the legal process, and the political culture.

Chapters Two and Three discuss vengeance.  Chapter Two’s arguments I found quite attractive and important to those who teach undergraduate courses in Criminal Justice or Philosophy of Law.  Here Sarat draws a distinction between retribution, revenge, and vengeance.  My sophomore level students are urged to think in terms of why the state punishes:  specific deterrence, general deterrence, isolation, incapacitation, retribution, and symbolism.  Before reading this chapter, I had always thought that retribution and revenge were the same.  Sarat, quoting Robert Nozick, asserts the two to be different.  Revenge, aka vengeance, is personal.  Retribution requires no such ties.  This leads the reader to a discussion of victim impact statements in death cases at the Supreme Court, which reversed itself, from BOOTH v. MARYLAND to PAYNE v. TENNESSEE.  Sarat draws the conclusion that Justice Stevens, in his dissent in the latter case, is correct:  it is a “sad day for a great institution” (at 59) when the Supreme Court majority affirms revenge as a viable procedure in death cases.  Victim advocates will likely disagree.

Chapter Three provides the ironic title “Killing Me Softly,” and reviews the evolution in death penalty administration.  Sarat discusses how the term “cruel and unusual” used to permit hanging, lethal gas, and electrocution, but now seems to favor the same method we use to euthanize our pets.  Color photo inserts accompany this chapter.  An appropriate discussion of one my favorite—how inappropriate is that term—cases, FRANCIS v. RESWEBER, also is presented.   Sarat could have taken these arguments further than he does.  If what is now deemed to be “cruel and unusual” had at one time been the norm, then how is it that the Constitution’s evolving sense of decency (here I paraphrase the late Justice Brennan) “works” for the method of execution but not for execution itself?

Chapters Four through Six focus on legal processes:  trials, jury deliberations, and post-conviction advocacy.  For these chapters, Sarat relies on narrative.  In Chapters Four and Five he provides his own.  What better way to describe a capital case than to watch a trial?  He takes us to Madison, Georgia, where he finds himself a witness, in some sense, to a morality play.  “Good people versus bad people, virtue juxtaposed with vice—this simple morality tale, a reassuring sentimental narrative, fuels the engine of state killing”(93).  He quotes generously from the trial transcript through both the guilt and penalty phases of this “normal” murder case.  He describes three kinds of violence tales that unfolded.  “First is the violence of the murder” (122) described in a simple world of good and evil by the prosecutor.  “The second kind of violence whose ‘reality’ runs through capital trials is that done, in their childhood and throughout their life, to defendants . . ., the violence of an abusive home and family” (123).  The third kind of violence is the killing state.  Sarat notes that while the stories of the crime, the victim and the perpetrator are highly personalized, “state killing is barely perceivable as violence” (123).  So there are three narratives—two personified and one abstract.

Chapter Five concentrates on juries and how they arrive at the life versus death sentence.  After reviewing some obligatory Supreme Court decisions, the author hones in on the work of Robert Cover, and how, quoting Cover, the legal system serves “to facilitate overcoming inhibitions against . . . violence” (134, citing Cover at fn 26).  Again Sarat goes to a real case, interviews real jurors, and makes his (and Cover’s) essential point that the penalty phase of capital cases is another narrative battle between prosecutors who try to depersonalize the decision and defense lawyers who attempt the opposite.  Prosecutors try to show that the defendant alone is responsible for the death sentence, not the jurors.  And besides that, the decision to execute actually is to be made elsewhere, not by the jurors.  These arguments, couched in subterfuge, literally scare jurors into thinking that unless they issue the death sentence, the perpetrator will be out amongst us in just a few years.  Defense attorneys typically lose these arguments. 

Chapter Six is where some defense attorneys win.   Sarat describes the world of post-conviction relief attorneys.  Those who work for death penalty resource centers construct their own narratives of their clients’ cases.  There are not many victories here, but there are a few.  The most important ones are those where the client simply didn’t commit the crime.  The rest are those where the death sentence is vacated and the client “wins” by serving a life sentence rather than waiting for the call on death row.  It could be argued that in no such case are the stakes higher, the pressure more intense.  Many of the academic source materials in this chapter come from the world of literary criticism, a world that has come to overlap into legal theory for the past decade or so.  “Telling life stories is for death penalty lawyers both the only meaningful way to help their clients in the legal process and their preferred method to inform, enlighten, and educate” (183).  Simply put, the lawyers are buying time.

Part Three is remarkably easy to digest, consisting of two substantive chapters and a conclusion, and covering legal/popular culture:  televising executions and portraying death cases in the movies.  Chapter Seven takes the reader from the era where the whole town came out to view the hanging to the current era, where the execution is carried out with a strictly controlled audience behind prison walls.  Now the issue is whether the execution should be televised.  There are few court cases of relevance (GARRETT v. ESTELLE and HOUCHENS v. KQED), but the arguments are simple.  Perhaps they were best put by an attorney here in South Carolina I once heard say:  “I say televise the execution, because once people see how brutal an execution is, they would grow to oppose the death penalty.”  The other side of the coin of course is the argument used by those who draw an analogy between televising death and playing video games.  Eventually no one will care, because it won’t be seen to be real.  Television will either permit understanding or become a barrier, it will either display the administrative dignity of state killing or become a spectacle.  As this review is being written, a debate is ongoing as to whether cameras should be allowed in death case jury rooms.  One hears the same arguments.  What is unknown and unknowable in advance is the outcome.

Chapter Eight is close to my own heart, admittedly having “borrowed” from Sarat himself without his knowledge—until he reads this review—an undergraduate course idea. In the mid 1980s I had taught a multi-media holocaust course in our honors program.   Here I confess.  In the mid 1990s, I attended a Law and Society Association annual meeting.  On a bulletin board there was a newspaper article on Professor Austin Sarat’s popular law and film course called “Murder.” Since reading that article, I have taught my own version of “Murder” and “Law and Film” on more than one occasion.  In this chapter, Sarat no doubt borrows from his own lectures regarding how three contemporary films, “The Green Mile,” “Dead Man Walking,” and “The Last Dance,” allow people the opportunity to see what television (to this point in time) does not.  Given my own teaching experience, this chapter was an easy read.  Film has its limitations.  Sarat warns us that “Films cannot either capture death nor help us know what cannot be known.  We can and do watch others die without being able to capture death's meaning or significance” (245).  Instead, films may simply serve to legitimate the state’s case that the death penalty is justified, as he puts it, to “keep the machinery of state killing in place and running” (id).  There is a bounty of film on the death penalty.  The next time I teach “Murder” will be in a senior seminar format in Spring, 2004, where I plan to show the film “In Cold Blood.”  Readers may remember the film to be based on a Capote work “based on fact” and starring a young Robert Blake, ironically (or not).  But readers may not know the maxim:  if legend differs from fact, print the legend.  The hazard of death on film is the same as that of television. 

Chapter Nine concludes the book by reviewing recent moratorium efforts, Illinois Governor Ryan, the ABA call, and Justice Blackmun’s conversion.  These are mercifully brief restatements of essential arguments made throughout the book.

I had contemplated reading this book when asked to review it.  There are a few annoying features to any reissued book “with a new preface by the author.”   For instance, the new preface alludes to the execution of McVeigh, and in Chapter Three there is a sentence that begins, “If McVeigh is eventually executed” (at 63).  I wonder how difficult it would be, even for the limited budget of a university press, to make simple textual corrections.  Nevertheless, the book remains relevant.  I plan on requiring my students to read it next spring.

REFERENCES:
Cover, Robert.  1986.  “Violence and the Word,” 95 YALE LAW JOURNAL 1622.

Nozick, Robert.  1981.  PHILOSOPHICAL EXPLANATIONS.  Cambridge:  Harvard Univ. Press.

Sarat, Austin.  1977.  “Judging in Trial Courts,” 39 JOURNAL OF POLITICS 368.

CASE REFERENCES:

BOOTH v. MARYLAND, 482 US 496 (1987).

FRANCIS v. RESWEBER, 329 US 459 (1947).

GARRETT v. ESTELLE, 556 F. 2^ND 1274 (1977).

GREGG v. GEORGIA,  428 US 153 (1976).

HOUCHENS v. KQED, 438 US 1 (1977).

PAYNE v. TENNESSEE, 501 US 808 (1991).

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Copyright 2002 by the author, David S. Mann.