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“The Death Penalty: An American History” by Stuart Banner Harvard University Press 385 pages; $29.95 Unable to think of an original topic for a class essay, Columbia College student Daniel Tompkins turned to a ready-made theme the night before his paper was due. He picked “the same old threadbare subject [of] capital punishment,” he confided, because “enough has been written by others to furnish us with materials for one side … and two or three lines at the top of the second page.” The date: 1793. More than 200 years later, the debate over the legitimacy and procedures of capital punishment continues to rage — most recently in June, with the U.S. Supreme Court’s controversial 6-3 decision in Atkins v. Virginia, holding the execution of retarded criminals unconstitutional. But Stuart Banner’s thesis isn’t plus �a change, plus c’est la m�me chose. Instead, “The Death Penalty” traces the social history of capital punishment against the tumultuous background of class, racial, religious and political conflict in America, from Colonial times to present. The meaning and practice of capital punishment — its function as civic ritual and communal act, as well as its status as legal problem and moral issue — has changed radically, from the 17th-century spectacles of public hangings for property crimes to our own offstage executions by injection for only the most heinous offenses. Banner, a professor of law at Washington University, has written two books in one. The first is the more ambitious but less successful of the two. It’s a long, detailed, meandering narrative of who got executed for what and how, from the founding of Jamestown to the present day, interwoven with analyses of the evolving social and political justifications and critiques of capital punishment. The “second” book — comprising the last two chapters — is more conventional, but more compelling than the first. Banner recounts the backstage history of the revolution and counterrevolution in death penalty jurisprudence from 1962 to 1976 and beyond. He traces the origins of the Supreme Court’s landmark 1972 ruling that the death penalty as then applied was unconstitutional ( Furman v. Georgia) and the resurgence of capital punishment in the wake of procedural reform that the Burger and Rehnquist Courts held would satisfy the Eighth Amendment’s bar on cruel and unusual punishment. First, book one. American Colonists brought the English penal code to the New World. English law imposed the death penalty for many crimes besides those most Americans think deserve it today (murder and treason), applying it to manslaughter and rape, as well as burglary, arson, counterfeiting, robbery and other property crimes. Why? Not because times were rude and life was cheap, nor because thought was constrained by now-outmoded religious and social prejudices. Instead, in the era before the invention of the prison, “the death penalty circa 1700 was the equivalent of prison today — the standard punishment for a wide range of serious crimes … . It fulfilled the moral expectations of most Colonial Americans most of the time, and that was enough” to justify its scope. Capital punishment served three crucial purposes in preindustrial society, Banner explains — each of which the modern penitentiary was able to supplant or recast. Death was the ultimate deterrent, especially when carried out as spectacle. It also served as the ultimate punishment. And it was the ultimate engine of penitence: The dramaturgy of public executions was designed to elicit repentance from the felon in a ritual to validate personal guilt and enact communal expiation. Hangings consisted of a parade through town, from jail to scaffold; hours of speeches and sermons; and a confession by the criminal to a usually huge crowd, including children. “The Death Penalty” maps changes in this moral and political landscape over the next 300 years against the constitutive polarities of American history: North/South; white/black/Indian; men/women; rich/poor; and urban/rural. According to Banner, the number of executions in U.S. history “is unknown, and probably unknowable.” The most reliable estimate is about 19,000. Slavery and Jim Crow, of course, created the biggest skew in the legislation and administration of capital punishment — both the formal kind and lynchings. (In Kentucky between 1865 and 1940, for example, 229 blacks were executed, but 353 were lynched.) The New England Colonies were more lenient concerning property crimes and crimes against the person than were the Southern Colonies. Conversely, the South both before and after the Civil War was much harder on property crimes generally and created an entire parallel universe of capital crimes for blacks only (whether slaves or freemen), ranging from preparing or administering medicine (which could be poison instead) to burning fields to striking a white person. By 1854, no Northern state imposed the death penalty for any crime other than murder, while in the South any activity that could conceivably fan discontent among blacks was a capital offense, and slaves were subject to death sentences for crimes that carried maximum prison terms of three years for whites. The contraction of the scope of the death penalty (for whites) by the Civil War era and the transformation of executions themselves from public spectacles to medical procedures were the results of a “broad change in sensibility” that accompanied modernization, Banner suggests. The triumph of the Enlightenment and the beginning of the industrial revolution made both the scope and legitimacy of capital punishment a bitterly contested issue by the 1790s, when Daniel Tompkins was able to base his term paper entirely on received ideas. From 1776 to 1778, Thomas Jefferson campaigned to limit executions in Virginia to cases of murder and treason, on the basis that punishment should be “proportioned to the injury.” While his bill was defeated, Jefferson’s report to the legislature is a model of the emerging utilitarian argument against capital punishment and in favor of the newfangled penitentiary. Incarceration, forced labor and severe discipline would be stronger deterrents, more appropriate punishments and more effective engines for repentance — permitting rehabilitation in this life rather than pursuing expiation in preparation for the next. That technocratic goal dovetailed with other political and social trends that transformed American penology. Over the next 100 years, the death penalty became the “battleground in a larger war between two fundamentally different ways of understanding human nature and the world,” Banner contends. By the 1830s, the movement for the abolition of the death penalty was flourishing in parallel with the movement for the abolition of slavery. Moral pessimism about man’s intractable sinfulness warred with Enlightenment faith in progress and human perfectibility. Secular models of criminality as socially or genetically determined undermined traditional retributive rationales for capital punishment that were based on Calvinist notions of man’s inherent depravity and criminals’ personal responsibility for their failure to restrain natural impulses. And social science research called into question whether capital punishment had any deterrent effect. Social mores changed apace with available technology. By the Civil War, the states had moved executions into prison yards from public squares and limited attendance to small groups of witnesses. Professional executioners began to supplant amateur sheriffs, and officials turned to industrial entrepreneurs for more efficient, less painful forms of killing than often-protracted and stomach-turning hangings. By the late 1880s, Thomas Edison was promoting the electric chair. But, according to Banner’s grisly but entertaining electrocutioners’ song, it wasn’t because Edison thought that the chair was a humane alternative to hanging. Instead, Edison funded its development as part of his overall attack on rival electricity mogul George Westinghouse. Westinghouse backed alternating-current-based electrical distribution systems, which threatened the adoption of Edison’s direct-current model. So Edison sponsored tests showcasing AC-based electrocutions of animals as more efficient than ones using DC, and lobbied state officials to use an AC-based electric chair. If alternating current was used to electrocute people, Edison reasoned, it would help convince the public that Westinghouse’s AC appliances were lethally dangerous. Despite Westinghouse Electric’s campaign to block its adoption, New York became the first state to use an electric chair, executing the murderer William Kemmler in 1890. The electric chair, and later the gas chamber, displaced hanging in all but a handful of states by 1955, despite horrifically botched executions that repeatedly called into question the claim that either was quick or painless. When executions resumed in the late 1970s, the gas chamber and electric chair were supplanted by lethal injection. A silent, automated execution on a padded gurney can be seen as the ironic triumph of the Enlightenment dream of rational penology: a painless, clean and scientific death, a demonic parody of today’s lifesaving medical technology. The narrative thread of Banner’s “first” book is often hard to follow, as statistics, regional comparisons and bits of local color jump around from century to century in successive paragraphs. And, while Banner amply quotes from contemporary descriptions of various executions and the ongoing literature of the capital punishment debate, “The Death Penalty” as social history would be much stronger if it attended to the representations of crime and punishment in popular culture. So, on to book two. What has become of the other strains of the secular critique of capital punishment — that it is a barbaric remnant of the past that cannot be justified on any basis, or that its inherent finality makes it impossible to administer fairly and consistently? The last two chapters of “The Death Penalty” brilliantly recount the bleak course of American death penalty jurisprudence. Given the original understanding of the Eighth Amendment’s ban on cruel and unusual punishment — as intended to preclude barbaric methods or procedural abuses, not execution itself — no constitutional challenge was even brought until the late 19th century, and all challenges failed. As recently as 1962, when the Supreme Court expressly held for the first time that the Eighth Amendment was binding on the states, the era’s leading constitutional scholar, Alexander Bickel, wrote that it was “unthinkable” for the Supreme Court even to address the constitutionality of capital punishment itself, let alone overturn it. But a revolution was brewing. Public opinion had shifted for the first time against capital punishment by the early 1960s, fueled in part by the emerging civil rights movement’s foregrounding of grotesque racial disparities in levying and carrying out death sentences. Equal protection and due process-based attacks on capital punishment mounted by the NAACP Legal Defense and Education Fund and the ACLU failed nationwide, but “then an astonishing event changed everything,” Banner recounts. When Arthur Goldberg joined the Supreme Court in 1962, he was disturbed by the mounting backlog of capital cases, which seemed to demonstrate “arbitrary, capricious, haphazard, and discriminatory” practice (all euphemisms for racial bias). The following year, he instructed his law clerk, Alan Dershowitz, to write a memo on the constitutional issues surrounding the death penalty that could serve as the basis for an opinion. The memo argued that capital punishment failed as a deterrent, precluded rehabilitation and risked executing the innocent, and was thus cruel and unusual in the context of evolving standards of decency. Dershowitz’s work was circulated to the other chambers, where it garnered support from Justices William Douglas and William Brennan Jr., and ended up as the basis for the three justices’ dissent from the Court’s refusal to hear Rudolph v. Alabama (the appeal of a death sentence for rape). “Goldberg’s dissent rang like an alarm clock in the offices of civil rights lawyers,” Banner writes. The NAACP’s capital defense team helped drive a series of cases onto the Court’s docket that effectively halted executions after 1968 and culminated with an apparently stunning victory for the abolitionists. In August 1972 the Court ruled 5 to 4 (in five separate concurring opinions plus four separate dissents) that the states’ current capital punishment practices were cruel and unusual ( Furman v. Georgia). The majority’s rationales ranged from Justice Thurgood Marshall’s blunt assertion that the death penalty was immoral, to Justice Douglas’ sweeping conclusion that any death sentence based on racial, religious and class prejudices, or imposed under a procedure that enabled the free play of such prejudices, was inherently unconstitutional, to Justice Potter Stewart’s narrow opinion that the specific sentences at issue were too random, hence cruel and unusual “in the same way that being struck by lightning is cruel and unusual.” Furman was decided at the high-water mark of the liberalization that began under the Warren Court. The concurring opinions reflect the three main themes of this process: faith in law as an instrument of social change, the demand for standardized criminal procedure and confidence in the Court’s ability to combat the effects of racism. The flood tide was soon to pass, however. Both Stewart’s concurrence and the Furman dissents provided a road map for how to make capital punishment pass constitutional muster. Over the next four years, the states rewrote their statutes to comply with the Court’s guidance. New statutes eliminated jury discretion altogether — mandating death sentences for specific crimes or providing standards that juries had to consistently apply in deciding life or death. The latter approach followed the Model Penal Code’s definition of aggravating and mitigating factors that jurors were to consider in “penalty” phases of trials uncoupled from the “guilt” phase, and was followed by most jurisdictions. Meantime, crime rates skyrocketed, and public opinion shifted decisively back to support of the death penalty. In 1976 in Gregg v. Georgia, the Court found that mandatory death sentences were not permissible under Furman, but that sentencing schemes that required juries to weigh aggravating and mitigating factors were. The death penalty was back. Six months later, Gary Gilmore was put to death under the new rules, and executions have flourished ever since. In the quarter century since Gregg was decided, the Supreme Court has devoted a significant portion of its caseload to capital cases, creating “a complex and ever-shifting body of law,” Banner laments. (Indeed, the Court considered two cases this term, one seeking to establish the burden of proof for a jury to find aggravating factors exist, and the other to clarify when death row defendants can raise new issues on appeal.) Banner’s criticism of the Court’s efforts is devastating: “The tragedy of the Court’s Eighth Amendment jurisprudence was that all the complexity served scarcely any purpose … .[T]he process of distinguishing the murderers who would be executed from those who would be sent to prison seemed no less haphazard than it had been before … . Whether a defendant was charged with capital or noncapital murder depended largely on whether the prosecutor was up for reelection, whether the county had enough left in the year’s budget for an expensive capital trial, whether the local newspapers were publicizing the case, whether the victim’s family wanted the prosecutor to seek death (and, if so, how much influence they had), whether the defense lawyer was sophisticated enough to badger the prosecutor with pretrial motions, and a host of other factors that could be found in no statute … . This was precisely the unguided discretion that had prompted the Court to intervene in the first place.” Banner identifies two ways out of this morass, but “The Death Penalty” concludes that neither is likely to be followed. The Supreme Court could dismantle its rococo procedural structure and revert to letting states have their simpler way with death. But that would presumably lead back to the inconsistent, unfair results that started the whole Eighth Amendment revolution in the first place. The other route would be for the states to abolish the death penalty. But that would require a huge, sustained shift in public opinion and grassroots agitation to move the state legislatures to action. That’s very unlikely now, as the domestic “war” against terrorism preoccupies us and has already led to a precipitous erosion of civil liberties. There are now more than 3,500 inmates on death row in America, many hundreds of death sentences are being imposed annually, and roughly 100 executions a year have taken place in the last decade. The United States is currently fourth worldwide in the number of people it puts to death, trailing only China, Iraq and Congo, and seems destined to remain in their company for the foreseeable future. Michael Stern, a former reporter and English professor, is the head of Cooley Godward’s technology transactions group.

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