By David Garland, the Belknap Press of Harvard University Press, Cambridge, Mass., 417 pages, $35
‘What is the use,” asked Alice, “of a book without pictures or conversations?” Those who agree should read no further.
“Peculiar Institution,” by David Garland of New York University contains not one illustration and not one word of dialogue. It does include a wealth of information and ideas on a subject about which everyone has an opinion but few have real knowledge.
The book shows that its author is a professor not only of law but of sociology as well. Sociological thinking and sociological terminology abound. Rarely if ever do they impede understanding. The author writes on the sensible premise that to understand capital punishment one must know something about the society that either imposes the practice, as do most U.S. states, or bans it, as do other Western nations.
Early in his study the author goes back to the formation of the nation state as a political entity around the 12th century. The execution of a criminal in that epoch satisfied a need to demonstrate to the citizenry the power and authority of the state. So the procedure took place in public. It was prolonged by torture before death and display of the corpse, often dismembered, afterwards.
This has changed. Today the death sentence is imposed in relative seclusion. Efforts are made, indeed must be made, to extinguish the culprit’s life quickly and painlessly. Concurrently with this change, which of course took place gradually over centuries, there developed “a series of social transformations that altered the character of the state in Western society.” The author identifies these transformations, each of which he analyzes in detail, as democracy, liberalism and humanitarianism. They overcame the need to prove the sovereignty of the state.
Not that widespread abolition of the death penalty has represented a democratic reform. On the contrary, it is a cultural and political elite, rather than the voice of the people, that has brought about abolition. “Wherever popular majorities rather than liberal elites control law and policy, the death penalty is more likely to persist.”
Therein, according to the author, lies one basic reason for the difference between the American experience with capital punishment and that of other Western nations. Here, in what the author calls “a radically local version of democracy,” criminal justice is administered, usually at the county level, by elected prosecutors and sometimes elected judges. In Europe and elsewhere, in contrast, career professionals enforce the criminal law as part of a centralized, national structure. Garland suggests that even in some countries that have abolished the death penalty, popular opinion might favor its restoration.
In about the middle of his book, Garland takes off his sociologist’s hat. For a chapter or so he talks like a lawyer. He discusses a series of U.S. Supreme Court cases, notably Furman v. Georgia, 408 U.S. 238 (1972), that held capital punishment as then administered unconstitutional. These decisions only suspended the death penalty. As the author puts it, they had “the effect of entrenching the institution rather than ending it.” State after state redrafted its capital-punishment statute to eliminate the constitutional flaws, essentially procedural, that the Court had pointed out. The death penalty, where it exists, remains alive and well.
Does it work? Does doing away with criminals, that is to say, further the goals of the criminal justice system? The author, citing authority, summarizes “the settled view of most experts” to the effect that “there is no persuasive empirical evidence to show that the deterrent effect of the death penalty for murder is any—or is not—more effective than that of life imprisonment.”
No, maintains Garland, capital punishment survives for reasons of which the traditional aims of “deterrent crime control and retributive justice” are not among the most important. Instead, he argues, the death penalty today serves “the private or professional purposes of specific actors and sectarian interests rather than more general social ends.”
As one of several examples, he cites the legal profession. A prosecutor having won the death sentence against the perpetrator of a heinous offense can, in seeking re-election or elevation to a higher office, boast of having proved himself or herself “tough on crime.” The news media, too, as another example, reap beneficial material from the sequence of events intended to culminate in an execution. These are but a couple of the interests who, Garland argues, benefit from the retention of the death penalty.
Any honest treatment of capital punishment cannot avoid the subject of race. Garland deals with it in several of his chapters. He leaves no doubt, as one point, that a black person, especially a male, convicted of a grievous crime against a white has always stood a greater chance of dying for his wrongdoing than has the guilty defendant in any other racial combination. At least until the Supreme Court intervened, he further asserts, capital punishment in some states amounted to “legal lynching.”
The part that emotion and other subjective elements play in the formation of opinions on the issue raises a question whether “Peculiar Institution” will change many minds, one way or the other.
One thing, however, is certain. Lawyers and others who make their way through Garland’s compelling arguments, necessarily abridged in this review, will, when discussing the matter, Alice to the contrary notwithstanding, know what they are talking about.
Walter Barthold is retired from the practice of law in New York City.