Abstract
The death penalty is the most extreme form of punishment known to man. Protagonists argue that the death penalty’s efficacy lies in its deterrent and retributive values, not only to discourage others from committing a similar offense but to also dispense punishment that is commensurate to the crime. Retribution is seen as integral to natural law and lex talionis, the ancient Mosaic principle of an eye for an eye, was required for victim healing and affirmation of social solidarity. In their book, The Death Penalty on the Ballot: American Democracy and the Fate of Capital Punishment, Austin Sarat, John Malague, and Sarah Wishloff made no secret of their support for the abolition of the death penalty from the American penal code. Sarat, a professor of jurisprudence and political science at Amherst College in Massachusetts, is an eminent scholar who has authored or edited more than 90 books. He has also written extensively on the death penalty. Some of his earlier publications on the subject matter include From Lynch Mobs to the Killing State: Race and the Death Penalty in America (2006), When Law Fails: Making Sense of Miscarriages of Justice (2009), and The Road to Abolition? The Future of Capital Punishment in the United States (2010) all of which he co-edited with Charles Ogletree. The co-authors of this book, Malague and Wishloff, were Dr. Sarat’s graduate students.
What sets this book apart from others on this subject matter is the authority and clarity with which the authors chronicled the history of the struggle to abolish the death penalty through the ballot. The book painstakingly explored the long, strenuous efforts to convince a skeptical American public about the need to repeal the death penalty amid the volatile political environment in which the century-long drama has played out. Divided into six chapters, Sarat, Malague, and Wishloff examined the nexus between American public attitudes and capital punishment and its consequences for public policy.
The authors observed that the United States is one of the few countries in the western world that still retains the death penalty in its criminal code, a status they opined befits only repressive regimes and Third World countries who generally use capital punishment to deal with a wide array of offenses. They argued that state execution is barbaric and produces no instrumental benefits beyond pointless retribution and symbolism. In addition, the authors examined the history of the death penalty in the United States, detailing the antideath penalty struggle since colonial days as the abolitionists tried to garner national public support. But at the brink of every breakthrough was all too often a publicized murder that create a setback, hardening the resolve of a skeptical public.
Frustrated by consistent public opposition to death penalty abrogation, Sarat and his co-authors expressed concern about the tyranny of the majority and suggested the use of direct legislation as a means of bypassing public opinion to abolish the death penalty. According to them, the framers of the American Constitution never wanted an overbearing majority to stand in the way of good judgment, rules of justice, and rights of the minority in public policy. Another option they suggested to circumvent the ballot on the death penalty is judicial intervention. This involves taking antideath penalty cases before sympathetic judges as a means of bringing an end to the death penalty. But emphasis on the preeminence of public opinion has often been difficult for death penalty abolitionists to swallow. For the authors, democracy entails more than pandering to public opinion. They argue that society should subscribe to higher ideals of human dignity and equality, including the repeal of any law that encourages the forfeiture of life. For the authors, murderers should get their just dessert in other ways such as life imprisonment without parole other than state execution and the huge but needless financial cost associated with it.
The historical struggle to abolish the death penalty has witnessed many twists and turns. In 1972, however, there was a breakthrough when the U.S. Supreme Court in a 5–4 decision declared that the death penalty laws in some states were unconstitutional and in violation of the Eighth and Fourteenth Amendments. The court based its decision on the arbitrary manner in which the death penalty laws had been implemented via three cases which are now known as the Furman cases—Furman v. Georgia (1972), Jackson v. Georgia (1972), and Branch v. Texas (1972). The court ruling led to a halt in state executions in the United States. The court suggested the need for new standardized guidelines to guide juries regarding the death penalty sentencing. The court decision encouraged states to modify the death penalty statutes and eliminate the deficiencies that had been pointed out.
In 1976, the Supreme Court revisited the issue. In Gregg v. Georgia (1976), Jurek v. Texas (1976), and Proffitt v. Florida (1976) collectively known as the Gregg decision, the Supreme Court ruled that the death penalty laws in Georgia, Florida, and Texas which had been amended met constitutional requirements, thus bringing back capital punishment (Delisi & Conis, 2019; Moore & Moore, 1984). The court acknowledged that progress had been made regarding jury guidelines. Besides, the court, based on the Gregg decision, provided new sentencing guidelines that narrowed the aggravating and mitigating requirements for the death penalty (Delisi & Conis, 2019). The new major criterion for the death penalty sentence requires a conviction for felony murder in conjunction with other serious felony crimes such as rape, child sexual assault, kidnapping, armed robbery, or additional homicides (Delisi & Conis, 2019).
Historically, the American public opinion has favored capital punishment and politicians that try to veer in the opposite direction were often labeled as being soft on crime and kept out of power. Gallup polling over more than 60 years, dating back to 1936 has shown that most Americans are in support of the death penalty (Jones, 2014). Contemporary American public attitude has not been different. In 2018, there was an uptick in support for the death penalty as 54% of Americans supported it, up from 49% in 2016 (Oliphant, 2018). This is a worrying development for the authors. Yet without public support, neither judicial activism nor legislative crusading can help the abolitionist agenda. Germany and France might have succeeded in abolishing the death penalty despite strong public approval of capital punishment, as the authors pointed out, but that is just not the American way of doing things. Legislators need votes to stay in office and unpopular laws can easily be upturned by ushering in a new set of lawmakers who understand the primacy of the ballot. Judges, despite their enormous judicial powers, still recognize that they cannot act in isolation of public goodwill. It is dangerous to encourage public officers to engage in their own in defiance of the public will. Having sworn oath to uphold the constitution and serve, public officers must walk a fine line between private agenda and public support.
The authors are however right about the substantial criminological evidence that has indicated the limited deterrent value of the death penalty even as public support for brutal retribution against society’s most vicious offenders has refused to go away (Delisi & Conis, 2019). Despite the continued presence of the capital punishment laws in some states, the use of the death penalty is on a gradual decline in the U.S. criminal justice system. Twenty-one states have abolished the death penalty. The 29 states that have retained it have generally been reluctant to execute offenders. In the last 5 years, less than 30 executions have been carried out and fewer than 50 were sentenced to death (Death Penalty Information Center, 2019; Garrett & Desai, 2018). An exhaustive judicial process has also slowed down state execution and individuals often wait on the death row for upward of 10 years before execution (Snell, 2017).
Racial disparity in death sentencing is, however, a troubling specter as the disproportionate number of minorities on death row indicate (Longmire, 2000). Research shows that black people are more likely to receive the death penalty when the victim is white than when whites murder blacks (Baldus et al., 1998; Donohoe, 2019; Kleck, 1981). The racial disparity in death sentence probably explains the lack of racial consensus for the death penalty and why blacks and other racial and ethnic groups are less likely to support capital punishment than whites (Cochran & Chamlin, 2006). But as much as the authors may bemoan the tyranny of the majority, the painful truth is that democracy and its essential principle of majority rule remain the best form of government known to man. The death penalty may not have been completely abolished across the United States, but progress is being made. With only 29 out of the 50 states still retaining the death penalty, the American public is slowly being swayed toward abolition. Whether there will be an overwhelming public change of attitude against the death penalty in the future however remain to be seen.
