Abstract
For years, scholars have wrestled with the issue of American death penalty exceptionalism, asking why the United States and Europe—which had seemed to follow such similar patterns of death penalty utilization and reform for such a long period of time, diverged so dramatically during the 1970s.
Why, these scholars have asked, did the United States retain the use of the death penalty while comparable European nations abandoned it? Germany conducted its last execution in 1948; Ireland, in 1954; England, in 1969; and France, in 1977. Today, these nations (and the other nations in the European Union) remain strictly abolitionist. Yet, while the United States appeared to follow the same path to abolition when it struck down capital punishment in the 1972 case of Furman v. Georgia (408 U.S. 238), it reinstated the death penalty just 4 years later with the Supreme Court’s 1976 decision of Gregg v. Georgia (428 U.S. 153). Why? Some have suggested the difference between the United States (retentionist) and European (abolitionist) nations can be traced to the federalist structure of the U.S. judiciary, to issues of race and racism, to our tradition of violence, or to religious fundamentalism. The authors of America’s Death Penalty: Between Past and Present, however, argue that the death penalty should not be understood in terms of a simple abolitionist/retentionist dichotomy; rather, they claim, the history of the death penalty is a complex and nuanced subject, and one about which we should endeavor to ask more sophisticated questions.
Published in 2011 by New York University Press, America’s Death Penalty is a collection of seven interrelated essays, penned by six leading scholars on the topic of capital punishment. The first of these essays, by historian Randall McGowan, is a well-written introduction that provides an engaging background to the subject and clearly identifies the structure of the book. I have only one criticism: While McGowan’s introduction contrasts the essays within America’s Death Penalty against an ongoing death penalty debate that “casts a brilliant light upon a singular moment of punishment, treating it in stark isolation from other penal arrangements, and presenting it as a simple but ominous choice for a society” (p. 20), there is little discussion of this other, external literature. A survey of the literature on American death penalty exceptionalism, either as part of McGowan’s introduction or as a stand-alone chapter, would be a useful addition for readers with limited exposure to death penalty scholarship.
The first three of the remaining six essays adopt a general and long-range view of the death penalty. Sociologist David Garland argues that around the world, the death penalty has followed a distinct developmental pattern; transformed from a spectacular demonstration of state power, it has declined in frequency of use as it became associated with penal (rather than state) power, and eventually has been abolished. Historian Michael Meranze then draws upon the writings of Michel Foucault, employing Foucault’s concept of the “biopolitical” to understand the rationalities at work in capital punishment. Randall McGowan’s essay, “Through the Wrong End of the Telescope” indicates that simple narratives about the death penalty (e.g., capital punishment is an archaic relic of a less enlightened era) are often wrong. Using engaging historic accounts, McGowan reveals that the shift from retentionism to abolition is neither simple nor smooth, but treacherous and riddled with contradictions.
The three remaining essays are more narrowly focused. Legal historian Douglas Hay uses data from 18th- and 19th-century English cases to trace the pattern of executions and to compare these to the American experience. Lawyer Jonathan Simon considers the ways in which the politics of interposition (exercised by Southern governors who claimed authority to block federal desegregation orders during the 1960s) have also been employed by populist politicians within the debates about American capital punishment. Finally, historian Rebecca McLennan considers the legacy of the 19th-century legal concept of “civil death.” She argues very persuasively that social burial via prison walls, rituals of incarceration, and felon disenfranchisement laws may operate as modern analogues of civil death.
While each of the seven essays has its own unique voice, perspective, and focus (Hay’s essay is really about English executions, not American capital punishment, and McLennan’s essay has more to do with noncapital punishment than the death penalty), they do reinforce each other and do contribute to a shared understanding of the development of the death penalty in America. The result is a powerful contribution to the ever-expanding body of literature about capital punishment in America.
The book, America’s Death Penalty, is cross listed as a law/sociology/history title and, to be sure, it does draw upon the sociological tradition: writers such as Beccaria, Bentham, Durkheim, and Foucault all appear within the book’s pages. Similarly, legal cases are cited and discussed, including historic English cases, seminal death penalty cases like Furman and Gregg, and more contemporary cases such as Atkins v. Virginia (536 U.S. 304, 2002: prohibiting execution of the mentally retarded), Roper v. Simmons (543 U.S. 551, 2005: prohibiting execution of juveniles), Baze v. Rees (553 U.S. 35, 2008: upholding the use of chemical cocktails for lethal injection), and Kennedy v. Louisiana (554 U.S. 407, 2008: prohibiting execution of a child rapist). But America’s Death Penalty is fundamentally a book about history. Readers looking for a sociological analysis of life on death row will not find it here and readers looking for a discussion of the traditional philosophical debates about capital penology will be disappointed. Instead, in America’s Death Penalty, readers will discover a smart and engaging piece of historical scholarship that significantly advances the state of our understanding of capital punishment.