Abstract
David Garland, Peculiar Institution: America’s Death Penalty in an Age of Abolition, Belknap Press of Harvard University Press: Cambridge, MA, 2010; 432 pp. including index
Like his previous volumes, David Garland’s Peculiar Institution is exemplary, generating new ways of thinking about capital punishment within and well beyond criminology – no small feat in such tired terrain. Garland is systematic, comprehensive, and insightful as he builds on his familiar themes of punishment, culture, history, and sociology alongside the relatively new elements of race and death. The volume begins conventionally enough with what Garland calls ‘a best-case illustration for the institution of capital punishment’; the case of Danny Rolling, the notorious Gainesville serial killer (p. 5). Here, he neatly ticks off the familiar list of generic arguments for and against capital punishment only, in less conventional fashion, to push them all aside and insist upon a sociological approach capable of treating the implementation of death as a ‘social fact’ ‘from a distance’ (p. 13). In much of the beginning of Peculiar Institution Garland lays out his reasoning for this decision as he makes a case for the non-partisan essentials at the heart of sociology and why those capital punishment scholars who have openly sided against the death penalty and held the USA accountable in its exceptionalism, its anachronism, and its bloodlust (what Garland calls ‘mostly half-truths that are partial in their perceptions and partisan in their judgments’ (p. 17)) have failed to achieve a ‘clear-eyed description and objective analysis’ (p. 13). Sociology, he concludes, is not the realm of ‘ethical critique or moral assessment’ (p. 14).
This approach, Garland insists, allows Peculiar Institution to display the historical structures and processes at the heart of US governance that sustain the ‘for’ or ‘against’ polemic and the infrequent application of death, even as capital punishment has become ‘a story of a legal norm combined with its widespread evasion’ (p. 11). Increasingly restrained, the death penalty in the USA remains a peculiar practice insofar as it is the last in the West, it demonstrates a poor relationship to the goals of criminal justice, and, most importantly, it is inseparable from the legacy of slavery and racial violence in the American South. We are in an era, consequently, where American capital punishment, riven with deep cultural contradictions, has been problematically remade and adapted to late modernity. Garland lays this claim out through a small history of the western world, including a fascinating map of the decline of the otherwise longstanding, widespread practice of capital punishment by way of the western push toward abolition through the discourse of human rights. In a series of chapters that give priority to the role of state formation in shaping capital punishment he demonstrates how the USA, by valorizing populist sentiment, anti-elitist tendencies, states’ rights, and democratic ‘majority’ rule, has often sidelined practices fully committed to equality and fairness. Similarly, because US governance, unlike European state formations, depends upon a radical local democracy, it has fostered state-by-state variation and divergent regional trajectories, particularly in the South where capital punishment has retained a powerful political hold. For these reasons and more, the USA ultimately failed to create ‘the constitutional mechanism that produced final-stage nationwide abolition in other Western nations’ (p. 184).
Nowhere is this failure more apparent than in the chapters dedicated to a scathing critique of the High Court. In what Garland calls ‘a series of fateful decisions’, the US Supreme Court, he argues, ‘has repeatedly returned the power of life and death to the environment most prone to demand the execution of offenders .… the populist, localistic, democratic ethos of the American polity’ (p. 191). The outcome are states with underdeveloped governments (what Garland refers to as an immature ‘due process’ culture), high homicide rates, large black minorities, and hostile group relations are more likely to execute with a higher frequency – death, effectively deregulated (p. 200).
The Court’s privileging of the principles of federalism and stare decisis had its most formidable impact, Garland writes, in Furman v. Georgia, ‘a mixed verdict that invited other political authorities to reverse its effect’ and mobilized death penalty advocates amid a broader politics of reaction and law and order efforts (p. 228). Since then, the Court has assembled a confusing and contradictory ‘complex legal scaffolding of procedures, prohibitions, and permissions’ (p. 263), culling from various kinds of oppositional jurisprudential reasoning to form the principle that ‘“The state shalt not kill, unless …”’ (p. 261). In this self-appointed legal limbo, the Court ‘strengthened the retributive forces at work in the capital trial’ (p. 273), ‘refused to take charge’ over life and death decisions (p. 275), ‘divested itself of a burdensome responsibility and set up local decision-makers as the arbiters of life and death’ (p. 276), refused ‘to engage with evidence of systematic racism’ (p. 281), and ultimately descended into a ‘weary resignation’ (p. 283). Consequently, Garland argues, contemporary capital punishment is ambivalent, restrained, embarrassed, and contingent, but also a powerful politicized, symbolic expression of ‘public will’ and ‘democracy’; a new and primary means in the USA through which ‘to express racial and cultural attitudes that had become otherwise unsayable in respectable public settings’ (p. 252).
Garland weaves these various accounts together in a manner that powerfully explains why capital punishment is ultimately inseparable from race, the legacy of slavery, and, specifically, lynching – the book’s most formidable accomplishment. In bullet-like prose, he lays out the haunting, undeniable similarities between lynching and capital punishment: The death penalty continues to be concentrated in the South. It continues to be driven by local politics and populist politicians. It continues to be imposed by lay people. It continues to target blacks whose victims were white. It continues to produce false accusations and impose unwarranted punishments. And it continues to be an occasion for political mobilization around demands for local sovereignty, traditional values, and popular justice. Distinct echoes remain. (p. 280)
In a final set of chapters, Garland quickly introduces ‘death’ itself – a discussion that seems underdeveloped and disconnected from the book’s otherwise consistent trajectory. Invoking the emotional power of killing and death at the level of cultural fantasy and discourse, Garland finds death, in its invisibility, to be ‘neurotically charged and hypersignificant in American culture’ (p. 304) and capital punishment an opportunity to ‘put death into discourse for edification and entertainment’ (p. 296). It is a fascinating and intriguing assertion, worthy of much more consideration but given little here. The strongest contribution of the volume remains Garland’s unswerving attention to historical processes and structures of governance that have made capital punishment the racialized cultural adaptation that it is in the age of abolition.
In contrast, the early claims to a sociology devoid of the subjective, value-laden heart of inquiry ring hollow. Garland’s approach is no less strategic than the scholars and justice actors he critiques; his passions no less apparent. The claim to a sociological objectivity that rises above the rest is distracting, leading even former Supreme Court Justice John Paul Stevens, among others, to spend a good deal of time wondering about Garland’s personal stance on capital punishment (Stevens, 2010). These diversions should not direct us away from the obvious: in Peculiar Institution, Garland has mounted quite possibly the strongest anti-death penalty defense in contemporary social science.