The Death Penalty: An American History by Stuart Banner

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.

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.