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“The Death Penalty” by Stuart Banner (Harvard University Press, 385 pages, $29.95) In 1821, authorities in Salem, Mass., hanged 16-year-old Stephen Clark, who had been convicted of arson. A sizable crowd surrounded the gallows. Stuart Banner, a law professor at Washington University in St. Louis, opens his book “The Death Penalty” with the Clark hanging in order to make some points about the evolution of capital punishment. Writes Banner:
Executions are very different today. No one is hanged for arson. In fact, no one is hanged for any crime — even most of our murderers are sent to prison, and for those we execute, the usual method is lethal injection. The execution does not come within months after the crime, but only after a decade or more of litigation over whether the trial was conducted in accordance with the Constitution. The crowds don’t number in the thousands or even the hundreds, but rather around twenty or so, all that will fit into the small drab concrete-block rooms deep within the state prison. No children watch. There may be a minister, but the condition of the condemned person’s soul and his chances of entering heaven are not among the government’s major concerns. There are no afternoon sermons or speeches — just a group of grim prison employees, shortly after midnight, trying to finish the job as quickly as they can.

In other words, executions are almost invisible today compared with 1821. But the issue of capital punishment is more visible than ever, even though capital punishment itself is far less prevalent than in centuries past, when it served as standard punishment for nonviolent crimes as well as violent acts. Before moving to a century-by-century history of capital punishment in the United States of America (and, to a lesser extent, elsewhere in the world), Banner returns briefly to the hanging of Clark. In 1836, when the Massachusetts House of Representatives recommended abolition of the death penalty, Clark became exhibit one to demonstrate its cruelty. A decade later, Clark emerged again as a symbol of overkill. “Had Clark been imprisoned for his fire, no one would have remembered him a year later,” Banner writes. “But because of his death sentence, Clark dangled in public memory far longer than he had lived on earth, as an image invested with meanings of which he himself could never have dreamed. He was not the first person converted into a debating point after having been punished with death, and he would certainly not be the last.” Some of the debate has centered around technology, such as the best way to kill a condemned prisoner. Readers with a low tolerance for gory details might especially want to avoid Banner’s chapter entitled “Technological Cures.” But most of the book should not be skipped. Lawyers and lay readers alike will find portions revelatory, such as Banner’s account of the discussion within the U.S. Supreme Court that led to the 1972 decision in Furman v. Georgia. The justices’ nine opinions, consuming 233 pages of the official reports, pretty much halted state executions. Equally educational is Banner’s extended discussion of how the death penalty made such a quick comeback in so many states despite U.S. Supreme Court reservations. Despite the gruesome nature of the book’s topic, it is difficult to stop reading. Banner’s research is fascinating, his writing style compelling. Given the emotional nature of the subject (few people known to me are wishy-washy about whether the death penalty is moral or immoral), Banner walks the line of neutrality skillfully, without seeming evasive. The death penalty has been the frequent subject of a revised policy debate during the past five years as it becomes increasingly clear that convictions of innocent defendants — not to mention trials that are obviously unfair even when the defendant is guilty — are more common than previously acknowledged. As is now well-known, the twin phenomena of wrongful convictions and unfair trials led the governor of Illinois to halt state executions. Still, many prosecutors and others inside the criminal justice system maintain that no innocent person has ever been executed by a state anywhere in the United States. That seems highly unlikely based on the research of numerous journalists, academics and death penalty opponents and on the statements of jurors, a few brave, outspoken judges and witnesses who originally perjured themselves only to recant. As might be expected from his overall neutrality, Banner does not take sides on the question of whether innocents have been executed. He notes, however, that despite the popularity of the death penalty as measured by public opinion polls within the United States, “The prospect of killing an innocent person seemed to be the one thing that could cause people to rethink their support for capital punishment.” Sometimes the death penalty seems unwarranted despite even the guilt of the convicted individual. In the epilogue to “The Death Penalty,” Banner recalls Missouri’s 1997 execution of A.J. Bannister. Bannister said at trial that his fatal shooting of Darrell Ruestman was an accident. Prosecutors described Bannister as a contract killer. Banner says that, regardless of which version is true, Bannister had received inadequate legal representation from his court-appointed lawyer. In the 15 years since the killing, Bannister had improved his mind and his overall outlook while incarcerated, and had, in fact, become an international cause c�l�bre because of two British documentaries about his plight. After all, most nations do not practice state executions, and millions of the world’s citizens consider the practice in many U.S. states to be barbaric. The ambiguity of the Bannister execution, and the death penalty itself, is captured in a quotation from Ruestman’s brother. “We think [the execution] should have been a lot sooner than this,” he said. “We are glad this is over, but you can’t call us happy. There are too many victims here.” Steve Weinberg is a journalist in Columbia, Mo. He is leading a national study of prosecutorial conduct that will be published by the Center for Public Integrity in Washington, D.C.

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