The Death Penalty

by John Paul Stevens

Peculiar Institution: America’s Death Penalty in an Age of Abolition
by David Garland
Belknap Press/Harvard University Press, 417 pp., $35.00


David Garland is a well-respected sociologist and legal scholar who taught courses on crime and punishment at the University of Edinburgh before relocating to the United States over a decade ago. His recent Peculiar Institution: America’s Death Penalty in an Age of Abolition is the product of his attempt to learn “why the United States is such an outlier in the severity of its criminal sentencing.” Thus, while the book primarily concerns the death penalty, it also illuminates the broader, dramatic differences between American and Western European prison sentences.

Describing his study, Garland explains:

When I talk to people about my book on capital punishment, the first thing they inevitably ask is, “Is your book for it or against it?” The answer, I tell them, is neither.
In fact, despite its ostensible amorality, his work makes a powerful argument that will persuade many readers that the death penalty is unwise and unjustified.

His explanation of why the United States retains capital punishment is based, in part, on the greater importance of local decision-making as compared with the more centralized European governments with which he was familiar before moving to New York. Some of his eminently readable prose reminds me of Alexis de Tocqueville’s nineteenth-century narrative about his visit to America; it has the objective, thought-provoking quality of an astute observer rather than that of an interested participant in American politics.

As is typical of many Supreme Court opinions rejecting legal arguments advanced by defendants in capital cases, Garland’s prologue begins with a detailed description of a horrible crime that will persuade many readers that the defendant not only deserves the death penalty but also should be subjected to the kind of torture that was common in sixteenth-century England. Garland also describes such torture in detail. This “emotional appeal” of the death penalty, Garland declares, is an important topic in his study.


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His first chapter then includes a graphic description of the 1757 execution in Paris, France, of Robert Damiens, who tried to assassinate Louis XV, and an even more graphic description of the 1893 lynching of Henry Smith in Paris, Texas. Each was a gruesome public spectacle witnessed by a large, enthusiastic crowd. Of the latter, Garland writes:

between three and four hundred spectacle lynchings of this kind took place in the South between 1890 and 1940, along with several thousand other lynchings that proceeded with less cruelty, smaller crowds, and little ceremony.
Garland uses the “archetypal Southern lynching scene,” another gruesome execution, and chilling murders to orient his study. Not until page 36 does he pose the question that had already occurred to me: Would his analysis differ if he had initially discussed Michigan’s pathbreaking 1846 decision to abolish capital punishment for crimes besides treason? In 1846, Michigan had not executed anyone for fifteen years. Its legislature regarded the death penalty as a “dead letter,” quite inessential to crime control. Shortly before, two innocent men—one in Canada and one in New York—had been executed. Unsurprisingly, the committee report stressed the “fallibility” of the punishment. Even though Wisconsin and Rhode Island soon followed Michigan’s abolition, Garland seems to discount its importance, seeing it as the work of a small group of liberal reformers with New England backgrounds that, in his view, may not have reflected most Michiganders’ views.

Had Garland made the Michigan abolition his starting point, I suspect that readers might have been inclined to disagree with the death penalty. Execution of innocents is disturbing, both to many today and, I presume, to Michigan voters then willing to endorse their leaders’ reasoned abolitionist positions. Readers will presumably have a similar reaction to his observation that exonerations, “whereby condemned individuals are found to be innocent and are released from custody,” have “become a recurring feature of the system; indeed, since 1973, more than 130 people have been exonerated and freed from death row,” a number on the basis of DNA evidence.

Garland’s argument is historical and contemporary. Chapters 2–6 situate the modern American death penalty within US and European histories of capital punishment. On both continents, capital punishment has roots in gruesome and public spectacles: unspeakable torture and postmortem desecrations of offenders’ remains designed, respectively, to maximize suffering and exalt the omnipotence of the sovereign. In Europe, the greater availability both of deportation and of prisons led to reductions in executions, and new techniques like the guillotine made executions somewhat more humane. Eventually, in the modern period, where it survives, fundamental changes in the timing and character of executions have profoundly altered its retributive and deterrent potential.

A “lengthy and elaborate legal process has become a central feature of American capital punishment.” As a result, several executions have occurred after a delay of more than twenty years,

and some prisoners currently have been awaiting their executions for more than three decades…. Such delays do not just undermine the death penalty’s deterrent effect; they also spoil its capacity for satisfying retribution.
Changes designed to avoid needless infliction of pain have had the same effect. What once was a frightening public spectacle now resembles painless administration of preoperative anesthesia in the presence of few witnesses. American officials do not enjoy executions; “they seem, in short, embarrassed, as if caught in a transgression.”

Europeans abolished the death penalty in the decades after World War II. History, Garland contends, explains much of this transatlantic difference. In Europe,

the sequence of events was first, the formation, extension, and consolidation of state power; second, the emergence of bureaucratic rationalization; and third, the growth of popular participation.
In the United States, Garland argues, the sequence was reversed. As a result, criminal justice bureaucrats and national parties in Europe—once they became motivated to do so—imposed abolition despite popular opposition. In the United States, abolitionists found the more politicized bureaucracy and the relatively weak national parties inadequate to the task of overriding public support.

Having established that US death penalty policy is largely set locally, Garland turns to describing why and in what ways the United States retains capital punishment. In Chapter 7 he cites a tradition of community-level executions dating to colonial times, frontier beliefs in meeting violence with violence, and pluralism that inhibits solidarity with victims. Chapter 8 reviews the Legal Defense Fund’s litigation, which in 1972 produced, in Furman v. Georgia, a moratorium on executions in the forty-two jurisdictions that authorized them. The backlash was swift, as the following chapter shows in detail. Thirty-four states enacted new death penalty laws before the decade was out. One—Oregon—had not previously authorized capital punishment.

Attacks on Furman, like the related vigorous and continuing criticism of liberal Warren Court decisions protecting the rights of criminal defendants and minority voters, were an important part of the Republican Party’s “Southern strategy.” The history of racism in the South partly explains the appeal of the “states’ rights” arguments that helped move the “solid South” from the Democratic to the Republican column in national elections.

After Furman, Garland argues in Chapter 10, the Supreme Court focused on transforming capital punishment, requiring new procedural protections, reducing the cruelty of executions, and devolving power to “the people” at the local level. The concern with local policymaking that Garland emphasizes, however, has not prevented Supreme Court decisions from eliminating categories of defendants (juveniles and the mentally retarded) and offenses (rape and unintentional killings) from exposure to capital punishment nationwide.

For Garland, the death penalty is “a strange social fact that stands in need of explanation.” He approaches it and debates around it “with the sorts of questions and concepts that anthropologists bring to bear on the exotic cultural practices of a foreign society they are struggling to understand.” In his view, an important reason Americans retain capital punishment is their fascination with death. While neither the glamour nor the gore that used to attend public executions remains today, he observes, capital cases still generate extensive commentary about victims’ deaths and potential deaths of defendants. Great works of literature, like best-selling paperbacks, attract readers by discussing killings and revenge. Garland suggests that the popularity of the mystery story is part of the culture that keeps capital punishment alive. As he explains in Chapter 11, current discourse about death reflects how the purposes that American capital punishment serves have changed over the years.

Garland concludes that capital punishment today is “reasonably well adapted to the purposes that it serves, but deterrent crime control and retributive justice are not prominent among them.” Instead, the death penalty promotes “gratifications,” of “professional and political users, of the mass media, and of its public audience.” In particular, he contends, capital punishment derives “its emotional power, its popular interest, and its perennial appeal” from five types of “death penalty discourse.” They are: (1) political exploitation of the gap between the Furman decision and popular opinion; (2) adversarial legal proceedings featuring cultural tensions between capital punishment and liberal humanism; (3) the political association of capital punishment with larger political and cultural issues, such as civil rights, states’ rights, and crime control; (4) demands for revenge; and (5) the emotional power of imagining killing and death. He concludes that “the American death penalty has been transformed from a penal instrument that puts persons to death to a peculiar institution that puts death into discourse for political and cultural purposes.”

Notably, Garland all but denies that the death penalty serves significant deterrent purposes. Death penalty states, after all, have generally higher crime rates than “abolitionist” ones. For Garland, this differential helps—by eliminating one possibility—to explain the people’s decisions; it tells us nothing about the wisdom of those decisions.

To illustrate how political and cultural purposes of the death penalty have replaced penal purposes, he writes:

Support for death penalty laws allows politicians to show that they support law enforcement…. California Senator Barbara Boxer bragged that she voted 100 times for the death penalty. And George W. Bush first ran for president in a year when, as governor of Texas, he had presided over the largest number of state executions ever carried out in a single twelve-month period—a total of forty in the year 2000.
Similarly, local elections affect decisions of state prosecutors to seek the death penalty and of state judges to impose it. “In states where judges were until recently empowered to override jury sentences,” Garland explains, “elected judges typically used this power to impose death rather than life. In Alabama the death-to-life ratio of these judicial overrides was ten to one.” In Delaware, where judges are not elected, such decisions favored defendants. The “tight connection between legal decision-making and local politics produces…an obvious risk of bias in capital cases.” Popular opinion has less effect on criminal justice in Europe. European judges and prosecutors are typically tenured civil servants. Popular opinion thus has less sway over individual trials. This difference provides a powerful argument for opponents of judicial elections.