THE KILLING STATE: CAPITAL PUNISHMENT IN LAW, POLITICS, AND CULTURE by Austin Sarat (editor). Advance Uncorrected Bound Galley. New York: Oxford University Press, October 1998. 288 pages. Cloth $35.00. ISBN 0-19-512086-8.

Reviewed by Conrad P. Rutkowski, Institute for Applied Phenomenology, Spring Valley, New York and Spruce Head Island, Maine. Email: abmaphd@aol.com.

A visit to amazon.com, a website, revealed 340 titles dealing with capital punishment. Is another book on the subject needed? If read carefully and digested properly this work does provide excellent food for thought as to whether a civilized society needs to rely upon the death penalty for any reason. Those gaining the most from this compilation will be serious practitioners and students of American politics, law and sociology.

This book consists of eleven essays which came out of a conference entitled "Capital Punishment in Law and Culture," held at Amherst College in April 1997. The aim of the conference was "to launch a broad inquiry into the question of how state killing affects our law, politics, and culture." The book is also organized along these three major categories.

In the introductory essay the editor, Austin Sarat, issues a telling caveat: "Readers looking for a balanced assessment and response to [questions regarding the death penalty,] or a representative sampling of opinion on [that subject,] should be warned; they will not find it in this book." What they will find is that the authors "address the powerful symbolic politics of the death penalty, the way capital punishment pushes to, and beyond, the limits of law’s capacity to do justice justly, and the place of the politics of state killing in contemporary ‘culture wars.’ In each of these areas they highlight the insidious and destructive presence of capital punishment."

In the second essay entitled "After the Terror: Mortality, Equality, Fraternity," Anne Norton, traces the modern day Killing State back to "killing the state." She notes that the liberal constitutionalism of the United States had its origins in the killing of the rulers by the ruled in England and France. Our democratic regime and its historical antecedents were spawned and characterized by the violent taking of life. Rather than seeing the death penalty in absolutist terms where it or its opponents are demonized, Norton sees it as a means of achieving a society characterized by justice and equality. Norton is not so much advocating actual use of the death penalty as she is arguing a society’s commitment to its use.

In the third essay entitled "Abolishing the Death Penalty Even for the Worst Murderers," Hugo Adam Bedau examines many of the various moral arguments of the abolitionists. He finds that such arguments as the value of human life, the right to life, the sanctity of human life, social utility, and the test of cruel and unusual punishment are flawed for one reason or another.

Bedau turns to the constitutional principle of substantive due process to make the case against capital punishment. The principle that he formulates is as follows:

In formulating this principle, Bedau argues that one must accept three distinct propositions that go into formulating it. First, punishment of crime is of necessity, a valid means of pursuing the ends of a civil society. Second, the death penalty is worse than any other form of punishment. Third, other lesser forms of punishment are sufficient to bring about the securing of societal ends that are deemed proper. Thus, there is no need to resort to the death penalty.

In the fourth essay entitled "A Juridical Frankenstein, or Death in the Hands of the State," Julie M. Taylor looks at how a police state or what she terms a "police dictatorship of terror" came to be in Argentina. Argentina is characterized as a nation with a tradition of violence where the state also has a monopoly on that violence. Given such a deeply rooted tradition, Taylor argues that Argentinean citizens saw state violence as both a necessary evil and normal. In the culture and history of Argentina the police are seen as judge, jury and executioner all at once, whereas in other cultures these are distinct and separate power centers.

In the fifth essay entitled "Tokens of our Esteem: Aggravating Factors in the Era of Reregulated Death Penalties," Jonathan Simon and Christina Spaulding discuss a specific legacy of the Furman v. Georgia, 408 U.S. 238 (1972) case and other subsequent cases that involve the impact of "aggravating factors" upon trials involving the death penalty as well as the sentencing phase after trial. They conclude that the matter is "problematic," and "reveal a process self-consciously freed from the dictates of substantive Supreme Court review."

The authors identify the various aggravating factors adopted by each of the 50 states. There is provision for mitigating factors as well, but the authors warn that "a politics that makes executions the very stuff of political authority is a clear and present danger to the persistence of the republican form of government."

In the sixth essay entitled "‘Always More To Do’: Capital Punishment and the (De)Composition of Law," Peter Fitzpatrick engages in a philosophical exegesis of the relationship between law and the death penalty. He concludes that "law cannot accommodate either the general decision to have capital punishment or the particular decision to kill someone. Death, in this argument, marks a limit of the law." The reader is visited with scenes of execution in an attempt to show that law fails to affect capital punishment in any way. He then takes issue with those who would do away with capital punishment arguing that what they say does not really address the issue at hand. He suggests that an analysis of court decisions dealing with the death penalty reveals law’s failure while simultaneously reading as if there is no real conflict between law and the death penalty.

In the seventh essay entitled "The Executioner’s Dissonant Song: on Capital Punishment and American Legal Values," Franklin Zimring takes Fitzpatrick’s findings further by showing that there is a conflict between the legal values and the death penalty at three levels. The death penalty obviously flies in the face of "substantive principles of human dignity." Secondly, judicial attempts to reduce or end delays in executions actually undermine the very legal process that judges claim to be shielding. Finally, the constitutional protection afforded by the due process clause is undermined by compromises that are engaged in to hasten executions.

Zimring concludes that there is a real conflict in the United States between those who seek an efficient death penalty and those who seek to make it fair. He goes on to say that it "can only be principled if it is not efficient; it can only be expeditious if it is morally and procedurally arbitrary."

In the eighth essay entitled "Selling a Quick Fill For Boot Hill: The Myth of Justice Delayed in Death Cases," Anthony Amsterdam examines Supreme Court decisions that in his mind "offend humanity and reason." Through cases studies he wants to show that the High Court is undermining the very legal process that it claims it is trying to safeguard.

The cases that are chosen to make this point are those in which the Supreme Court vacates a stay of execution granted by an inferior federal court for the purpose of considering a claim made by a death row inmate. Amsterdam maintains that the High Court in its opinions presupposes a conspiracy of sorts among lawyers handling death penalty cases. This myth making among the majority justices, Amsterdam contends, justifies their action by giving them "comfort." He adds that this myth provides the justices with someone to blame for what is happening. As a consequence killing is made easier for them. He also argues that the majority’s use of the alleged conspiracy as their focal point avoids their having to deal with the fact that the issues faced by the lower courts involved "close calls" in judgment. Finally, notwithstanding their best efforts the majority justices are faced with only a few death sentences actually being carried out. They attribute this to the conspiracy as well.

The ninth essay, entitled "The Will, Capital Punishment, and Cultural War," by William Connolly examines the human will and the degree to which it can be termed free if at all. He takes particular exception to the nature of man’s will as defined by James Q. Wilson and Richard J. Herrnstein. Connolly argues that their analysis leads to the assumption that criminal acts "are judged to be deserving of retribution [because they treat] them as if they were the product of the free will of the agent prior to acculturation."

Connolly argues that the death penalty solves nothing. It creates a "culture of resentment." He makes the point that we need to reaffirm life, and "join political movements that speak to those economic, educational, and social circumstances that encourage so many to resent their place in a democratic culture."

In the tenth essay entitled "Beyond Intention: A Critique of ‘Normal’ Criminal Agency, Responsibility, and Punishment in American Death Penalty Jurisprudence," Jennifer Culbert examines the case of Tison v. Arizona, 481 U.S. 137 (1987). She contends that it is a case where "a person may be sentenced to death for a crime he or she neither committed nor intended to commit."

In focusing on this case she argues a number of points. First, the Supreme Court formulated a new standard in death penalty cases: "reckless indifference to the value of human life." A number of assumptions are involved here as to what constitutes being normal. Second, the High Court exploits one of the definitions of normal in order to give legitimacy to its decision. Finally, by relying on its construct of what constitutes a normal person the limitations of such use is made readily apparent.

In the final essay the book’s editor, Austin Sarat, uses two films, Dead Man Walking and Last Dance, to explore the concepts of responsibility and representation. Sarat is attempting to answer a number of questions relating to what he calls the "cultural politics" of these films. These questions are: (1) "How is the death penalty represented in these films," (2) "what connections do they forge among death, spectatorship, and the constitution of legal subjectivity," and "[w]hat do they suggest about the legitimacy of state killing?"

Both of these movies concern themselves with personal responsibility. Sarat’s concern is how the death penalty is represented to us. In these movies the kind of representation that is involved allows the viewer to believe that he or she can truly know the kind of crime that warrants the death penalty. But rather than serving as visual evidence for ending the reliance on the death penalty, Sarat suggests that they give legitimacy to its practice. He concludes by saying that these movies underwrite the legitimacy of capital punishment by focusing on the issue of responsibility to the exclusion of all other factors.

Sarat also states that the way in which the death penalty is represented on the screen serves to convince those who view it that they indeed now know the "reality of death" and as a consequence can judge its "proportionality."

Copyright 1995