Abstract
While there is much good criminological work on various facets of capital punishment, ranging from the deterrent effects of capital punishment to the relative persuasiveness of various arguments against the death penalty, Peculiar Institution belongs to a different genre. It is a comprehensive book that endeavors to examine and explain American capital punishment as a whole. There are already, of course, several other such books, and Peculiar Institution will surely take its place among them, as one of the best-written, most thoroughly researched, and most thoughtful, nuanced, and complete accounts of US capital punishment.
Peculiar Institution might be characterized as a sort of Foucauldian genealogy turned upside down: rather than tracing the gradual birth of the prison, David Garland traces the slow death of the death penalty. As have other scholars before him, Garland portrays the death penalty as a product of historical contingency (e.g. Banner, 2002), fraught with contradiction (e.g. Zimring, 2003), and ultimately a symbolic institution (e.g. Sarat, 2001). Peculiar Institution differs from prior work, however, in its ambition to use a ‘theoretical framework’ rooted in sociology that can explain both ‘The death penalty’s distribution and use within the United States’ and ‘the international pattern’ (p. 192).
For example, Garland explains why Furman v. Georgia, the 1972 case in which the US Supreme Court ruled capital punishment as then practiced in the United States unconstitutional, failed to stick. Many interpreted this decision (incorrectly as it turned out) as the de facto end of capital punishment in the USA, much as it had been in Europe as the population ‘learned that it could live without’ capital punishment. Peculiar Institution generally embraces the well-known ‘populism’ explanation for the failure of Furman to accomplish this. The USA retains capital punishment, while Europe does not, because of a number of ways in which our political system differs from most European systems: more individualistic elections versus party lists; single-issue politics; regular, frequent elections; more populism and less elitism in our politics in general, and so on.
Garland makes a convincing argument that it was, in retrospect, perhaps foolish to view Furman as analogous to the retreat from capital punishment by European legislatures. The US Supreme Court is a quite different institution than a European legislature, and Furman succeeded only in politicizing the issue. It turned the Court into a target of conservative opprobrium, and it furnished proponents of capital punishment with a compelling narrative in which ordinary law-abiding citizens became ‘victims’ of an elitist Court. This narrative was able to invoke democracy and states’ rights and to link itself to other issues, such as racial segregation, in which the Court was seen as defying the will of the people, especially, in this case, the South. Garland writes: Capital punishment soon became caught up in a series of political and cultural conflicts that altered its meaning. What had previously been a rarely used penal sanction dogged by moral controversy was rapidly transformed into a hot-button political issue with multiple meanings, all of them highly charged and deeply contested. The death penalty in 1970s America came to be seen as a litmus test in the politics of crime control, a powerful symbol of states’ rights, and a prominent part of a conservative backlash against civil rights. (p. 186) … Death penalty discourse became infused with powerful currents of race and class resentment and with white fears of black violence. (p. 244) … Arguments for the death penalty, thereafter, became arguments for democracy. (p. 248)
To make matters worse, ‘an unintended effect of these court challenges and the Supreme Court rulings they have produced has been to enhance the perceived lawfulness and legitimacy of capital punishment and thus act as a force for its conservation’ (p. 191). And thus, the ‘great displacement’ that moved death from the political and moral arena to the constitutional realm would in subsequent decades come to have the effect of entrenching the institution rather than ending it. (p. 219) … When other Western nations abolished capital punishment they did so by means of decisive acts of sovereign power. America’s abolition came in the form of a mixed verdict that invited other political authorities to reverse its effect. (p. 228)
Garland views US capital punishment as thoroughly—and primarily—symbolic. Thus, he argues that unnamed other commentators who call the modern US death penalty ‘“irrational” or “senseless”’ (p. 68) and ‘dysfunctional … miss … the mark’ (p. 286) and ‘misunderstand … the nature of symbolic communication as well as the effectiveness of modern death penalty discourse’ (p. 20). Instead, Garland argues that ‘Today’s capital punishment complex is, in fact, functional, meaningful, and effective’ (p. 286). It is ‘functional’, according to Garland, because its purpose is no longer to deter or avenge; its function is symbolic, as well as to serve the ends of certain social actors, such as politicians, the mass media, and what Garland calls ‘public audiences’ (p. 286). To use politicians as an example, the function of capital punishment is to allow politicians to portray themselves and their constituents as aggrieved because the death penalty is so dysfunctional, thus allowing themselves to indulge in the politics of victimhood, which seems to be such an indispensible feature of contemporary US politics. In short the ‘function’ of capital punishment is to be ‘dysfunctional’ and thus to allow social actors to decry its dysfunction.
This argument is well made, well taken, compelling, and surely correct. And yet, it illustrates a certain tension between structure and contingency that seems to pervade the book. As noted above, Garland comes close to arguing that Furman could not have abolished capital punishment and that we were foolish to ever believe that it could have. But, there was, famously, a great deal of contingency surrounding Furman, including rapid, highly contingent changes in personnel and the fragmenting of the Furman majority into separate opinions. It seems plausible that, in different circumstances, the Court could have ended capital punishment with Furman, as the Court did with de jure racial segregation in Brown v. Board of Education. Peculiar Institution veers close to denying this possibility.
At times Peculiar Institution emphasizes that capital punishment’s ‘survival is to some extent a matter of contingent historical events’ (p. 18) and that developments were ‘contingent and event-driven’ (p. 254). Elsewhere, however, it argues that these same developments were ‘overdetermined’ (p. 254). Garland asserts that ‘none of … the distinctive forms’ of capital punishment ‘is accidental or arbitrary’ and yet also that ‘They emerged out of a specific history’ (p. 69).
Relatedly, there is the curious use of evolutionary or ecological language in Peculiar Institution’s characterization of capital punishment, in its effort to emphasize that contemporary capital punishment is a different thing than historical forms of capital punishment. Thus, quoting Thomas Lacquer, Garland writes that capital punishment ‘is like an endangered species brought back from the brink of extinction, a creature from an earlier age making its way in a very different time from when it ruled the earth’. Garland himself then writes that capital punishment ‘adapted to its late-modern American environment’ (p. 19). Elsewhere, capital punishment ‘adapted to its new context and purposes’ (p. 92). And again, that ‘Late-modern capital punishment is … reasonably well adapted to the purposes that it serves’ (p. 286), but those purposes, Garland asserts, are not deterrence or retribution but rather symbolism and politics. This language, of course, makes for a nice metaphor, but for anthropomorphic evolutionary theory. Capital punishment is not a ‘thing’ with a ‘will’ to adapt to changing ecologies and survive another day. In biological evolution, the species (or, in this case, the institution) does not seek to adapt; rather, adaptation occurs through natural selection which occurs through individual organisms driven to reproduce. It is not clear what mechanism would enable capital punishment to ‘adapt’ in this way. It might be argued that it is the human exploiters of capital punishment—the politicians who, as Garland shows in brilliant detail, cynically engaged in death penalty discourse ‘not because they were persuaded of capital punishment’s penological efficacy, but because they were certain of its political benefits’ (p. 245)—who provide this mechanism, but this, it seems, is to impute to these actors rather too much intentionality, foresight, and control over historically contingent events. Perhaps this is all just a metaphor, but it seems symptomatic of the way Peculiar Institution seeks to argue, in what may strike some readers as an overly structuralist or teleological way, that we have a capital punishment system perfectly adapted to our politics and culture.