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A Very Popular Penalty

1.

Not all Americans approve of the death penalty, but apparently most of them do. Prosecuting attorneys, state and federal, score points by showing their zeal for it, as they did when it was announced that the two alleged snipers who terrorized the Washington area—John Allen Muhammad and John Lee Malvo—had been apprehended. In the tussle for jurisdiction that followed between Virginia and Maryland, a Justice Department official assured the public that getting the death penalty would be “a major factor in deciding where to hold the trial.” When a Maryland prosecutor was the first to file charges, Virginians asserted their claim for jurisdiction on the ground that Maryland did not execute minors, the suspect Malvo being only seventeen. In Virginia, by contrast, Muhammad and Malvo “would both be eligible for the death penalty.”

Moreover, while Maryland had conducted a mere three executions since 1976, Virginia could boast of eighty-seven. Maryland countered by sending agents as far as Jamaica to turn up evidence that Malvo was actually eighteen, in which case “Maryland could seek the death penalty against him as well.” The United States Department of Justice got into the act by proposing to try the case as a violation of a federal statute against extortion, but relinquished control in favor of Virginia where, John Ashcroft was pleased to say, “the likelihood of obtaining death sentences was greatest.”

If anyone has ever deserved to die for his crimes, Muhammad and Malvo do. But in the words of Clint Eastwood as he shot Gene Hackman to death in Unforgiven, “deserve’s got nuthin’ to do with it.” Politics and culture have everything to do with it. And as Stuart Banner points out in this remarkable book, support for capital punishment has become an identifying tag for zeal against criminals. To oppose executing murderers and other hard-core felons is to be soft on crime. That sentiment has not been checked by the many recent instances where credible new confessions and DNA testing have proved that persons already sentenced to death were innocent of the crimes for which they were convicted.

In Banner’s careful assessment of various polls it is apparent “that a large majority of Americans still supported capital punishment even on the assumption that a tenth of those condemned had committed no crime.” The scramble of state prosecutors for jurisdiction in the sniper case was a race to scoop the credit for general toughness on crime that death sentences would confer. Toughness on crime wins votes in a political system where prosecutors and judges, not to mention senators, congressmen, governors, and presidents, have to run for office. As the presidential primaries approach, Democratic aspirants hasten to assure the public that they, too, believe in killing killers, as if presidents of the United States could play any significant role in the outcomes of state criminal proceedings.

It was not always so, as Banner demonstrates. In the nineteenth and early twentieth centuries Americans led the way against capital punishment. Before the Civil War three states had abolished it. By 1917 twelve more had done so. Between 1968 and 1978 there was not a single execution in the United States. By then European countries were catching up. At the end of the twentieth century the death penalty was gone in the United Kingdom and the countries of Western Europe, as well as Canada, Australia, and New Zealand. Of the major democratic nations Japan alone has retained capital punishment. (And Japan carries out death sentences in an atmosphere of utmost secrecy, with the intention of ruthlessly shaming those executed, and without any pretense of consideration for the dignity of those under sentence or their families.)

Against this background of unanimous Western European abolition, something else has happened in the United States since 1976. Capital punishment is the law in thirty-eight states. There were ninety-eight executions in 1999. By October 1, 2000, there were 3,703 residents on death rows throughout the United States. The numbers went down a little in 2001 and probably in 2002, but polls still showed an overwhelming majority in favor of capital punishment. The world’s greatest democracy was suddenly left in the company of Japan and of autocratic regimes that employ the penalty to eliminate opposition.

How we arrived at this position is a long story, full of ironies that Banner narrates with extraordinary objectivity and insight. Not the least of the ironies is the loss of community values that accompanied the decline of the death penalty before 1978. Banner begins with the seventeenth century, when hanging was the standard mode of execution in the North American colonies. Hangings were solemn public convocations, attended by hundreds and even thousands. They held the fascination and excitement that any kind of killing holds for the living. But we cannot conclude that these were occasions for the bloody-minded and the voyeuristic to slake their appetites. Public executions were ceremonies designed to achieve far more than the demise of the victim.

Trial, sentencing, and execution followed the apprehension of the criminal in rapid succession, a matter of days or weeks, before public memory of the crime could fade. The ritual on the day of the hanging began with a trip through the streets from the jailhouse to the gallows. Stouthearted or ornery felons who had made up their minds to “die game” might dress in their finest (or don rags to cheat the hangman of their garments), comporting themselves with dignity or chippiness according to their sense of the occasion. The gallows would be erected for the event as near as possible to the scene of the crime, in an open space large enough to hold a crowd of spectators from all ranks in the community. A minister would deliver a sermon, and the condemned—if so inclined—would make a dying statement, repenting his sins, or protesting his innocence, or defying his captors and calling down maledictions on the spectators.

A thriving literary genre, the execution sermon, served to memorial-ize these events by depicting sinners brought to repentance or monsters of depravity persisting in their evil courses to the very moment of reckoning. The purpose of the public assembly and the public discourse was not only to frighten potential delinquents but to purify the community by testifying to the standards that held it together, restoring its order by eliminating violators in a fashion that expressed abhorrence of their deeds and the certainty of swift retribution, on earth and in the life to come.

Colonial justice nevertheless made considerable allowance for mitigating circumstances, good character, youth, and other factors surrounding a criminal’s act. In the absence of appellate courts, executive clemency, now very rare in American criminal justice, was regularly used to rescue from the gallows men and women whom harsh laws and zealous judges placed there. When Angelica Barnett, a free black woman, was convicted of killing the white man who had attempted to whip her, a majority of the Richmond, Virginia, bar petitioned on her behalf. She was duly pardoned.

The affirmation of community solidarity gave to public hangings and merciful pardons a rationale that began to disappear in the aftermath of the American Revolution. The architects of the new republican government took pride in eliminating the death penalty for the multitude of lesser property crimes to which English law had attached it. In 1778, for example, Thomas Jefferson drafted his “Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital,” with a preamble that brought together the key arguments from Enlightenment thought concerning capital punishment, most of them utilitarian. Many of the new states reserved it for murder. The publication of the Italian jurist Cesare Beccaria’s treatise On Crimes and Punishments in 1764, widely distributed in its English translation, offered a rationale for abolition, arguing that life imprisonment was a greater deterrent to crime than death. Reformers pressed the argument and went further: a few ardent republicans, like Benjamin Rush, went on to advocate its total abolition. “It is in my opinion,” Rush said, “murder to punish murder by death.”

None of the new state governments agreed: they all kept the death penalty for murder, and many kept it for a number of other major offenses, such as rape, arson, and burglary. Southern states enlarged the number for crimes by slaves as the ultimate sanction for maintaining their total subjection. Over decades of debate, no clear-cut consensus emerged on either side. Retentionists were more apt to be found among orthodox Christians than among Quakers or Unitarians and Universalists, who were often in the front rank of death penalty abolitionists. This latter group, on the other hand, like so many American enthusiasts of social renovation, diffused their intellectual and organizational energies to oppose the death penalty as only one evil among many, generally giving priority to the eradication of slavery.

But at least in the North, the retributive function of all punishments began to give way to a utilitarian view of punishment as a means of rehabilitating criminals. The building of prisons made it possible to proportion the length of terms to the gravity of different crimes and to treat punishment as a mode of reform. Hence the name “penitentiary” for the place where criminals repented their deeds and came out cured of their vicious propensities. The penitentiary isolated criminals from the society they had offended. In the nineteenth century, increasingly, the irredeemable felons for whom capital punishment was retained received execution out of public view in the enclosed prison yard, where the only witnesses were officials and a few chosen notables. Refinements of cruelty, such as exhibiting executed corpses (“hanging in chains”), were also deemed unsuitable.

These changes were prompted not by any opposition to capital punishment as such, but by changes in taste and sensibility that spared the genteel from contact with the jostling bottom feeders that any big public occasion attracts. A growing aversion to the physical realities of death and dying doubtless contributed to this shrinking from the shadow of the gallows tree. A crowd still foregathered outside the prison, but simply to hear officials announce that the act was consummated. Newspapers and mass-circulation tracts reported it in detail. But, as Banner sees it,

Executions lost much of their symbolic meaning. The community no longer gathered to make its statement of condemnation. There was no more ritual to reinforce communal norms proscribing crime, no more ceremony at which to display one’s participation in a collective moral order.

This sequestering of executions increased still further with the advent of the electric chair. Executions moved from the prison yard to a small death chamber housing the lethal instrument, a device so costly in itself that one was made to serve a whole state. Spectators were reduced to a handful, those required to be present by reason of office or by invitation. Where executions had once been visibly an act of the community, performed by the local sheriff, they were now an act of the state government. When the chair (and the gas chamber) were supplanted by lethal injection in the 1980s, though the act could presumably have been performed anywhere, executions continued to be held in a single prison room while a handful of witnesses, sometimes including relatives of the victim, looked on from an adjoining room.

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