As the twenty-first century began, capital punishment was an
emotionally charged political issue administered within a legal framework so
unworkable that it satisfied no one. Supporters and opponents of the death
penalty had fought to a stalemate . . . . Mercy had been banished from the
system, replaced by an arcane set of rules that haphazardly selected who would
live and who would die. Americans were stuck with a compromise between adopting
and abolishing the death penalty that embodied the worst of both options. Yet
the issue was so important that neither side would budge.
It's strange reading my review of this book from almost
eight (eight!) years ago, when I read this book for a law school course and had
no idea that the death penalty would encompass my professional life. I devote
no more attention to this book than the others lumped into the review,
ostensibly with no inkling whatsoever of my future.
It was also strange to be
re-reading this book, now with a more focused interest. Where before I
read the book as being an interesting history of an interesting topic, now I
read the book looking for clues, hoping the past might present insight into the, well, present.
And that is, I guess, what I
got. Stuart Banner's book is a thorough history of the death penalty, starting in the
seventeenth century and continuing through to the beginning of this one. This is a history of a death penalty adapting to an increasingly modern society.
For the colonies, deterrence,
retribution, and penitence were the purposes of the death penalty and the
death penalty was much more common It applied to a plethora of crimes that we
would never execute for today (horse thievery, for example), though, the
sentences were not always completely carried out.
To
emphasize these three purposes, the death penalty was highly ceremonial. It was a long morality play with rituals cultivated to be "a powerful symbolic
statement of the gravity of the crime and its consequences." Being
public, the execution deterred others, it displayed the awesome power of the
government to take away life; it also served penitence because the prisoners would often give speeches about the error of their ways.
Opposition
to the death penalty began to form because, as modern thought took off, people
began wondering if we could punish crimes better. The Enlightenment brought modernity to penal theories and scrutiny of the death
penalty. Did the death penalty actually deter? Did it serve retribution or
penitence any better than other forms of punishment? Some thinkers started to argue that the death penalty was a relic
of a barbaric past to be left behind like so many other unscientific practices.
Notably, this debate took different paths in the north and south because of
slavery and the perceived necessity of the death penalty to maintain slavery.
During the 1800s executions
moved from the public square to the prison yard. The elite political classes
began to shun the public display of governmental might. In contrast, the common
attendees to an execution tended to be rowdy and sympathetic to the prisoner. Rather
than a ceremony emphasizing respect for the government, executions started to
motivate disrespect. So executions were moved and became hidden.
This move meant the professionalization of executions because, now,
fewer people were conducting all the executions. With a burgeoning professional
class of executors, the idea that executions should be painless developed.
Hanging a person, it turned out, is not simple. In its ideal form,
the prisoner's neck would snap and death would be instantaneous. In its less
ideal form, however, the prisoner suffered as he slowly suffocated to death. As
the twentieth century lurched forward, new technologies of execution--the
electric chair, the gas chamber, and then lethal injection--were meant to solve
this problem by offering scientific approaches to death: quick, painless, and
problem free. However, none of these solutions were perfect: stories abounded
of imperfect electrocutions or gas chambers.
The twentieth century also brought
changing views of crime. As sociological causes began to be emphasized more
strongly, the justifications of deterrence and retribution were undermined. If
crime is caused by sociological factors--and not individual choice--how can
deterrence or retribution support use of the death penalty? This debate
gradually undermined the use of the death penalty leading to a steep
decline-except in the south, where the death penalty was still perceived as
required to sustain racist power structures.
Finally in 1972, the Supreme
Court abolished the death penalty, only to bring it back in 1976, leading to a
new strengthened emphasis on constitutional law for the death penalty.
Gradually, federal courts would become the most important arbiters in regulating
who would and would not get executed, taking roles formerly held by governors,
juries, and trial courts, bringing us to today’s death penalty.
That was a mouthful.
That was a mouthful.
Banner’s book is heavy; I’ve been reading this book on and off for
almost twelve months. (At 311 pages, it’s not exactly War and Peace so it's not the length that made it take so long). That said, it’s also comprehensive, and fully
supported with citations to sources. The book aspires to be no more than
what its title promises, an American history, and in that it is highly
successful. I'd recommend this book to anyone with a professional or academic interest in the death penalty in the United States.
3 comments:
Ok, so I'm neither professional or academic, but this sounds really fascinating. Do you think it would be accessible to the ignorant layperson (I've only read a few James Patterson books so far)?
Accessible, yes. There's nothing about the writing itself that makes it difficult. I think it's just that the topic, with the academic rigor of Banner's writing, can feel very dry at times. But that's more the topic than anything else; I think if you're still interested in the topic after reading this review, there's a good chance you'd enjoy the book.
I'll add it to the infinite list.
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