Tue, Jul 17, 2012 page12

• Book review: Peculiar Institution: America’s Death Penalty in an Age of Abolition

  David Garland’s book offers a thorough and even-handed account of the death penalty in modern America

  • By Bradley Winterton / Contributing reporter
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  Democracy can kill. This is one of the conclusions of a distinguished professor of both law and sociology, David Garland of New York University, in a magnificently thorough and even-handed book on the death penalty in modern America.

  What he means is part of his answer as to why most of the US states retain the death penalty, when all the other mature Western nations abolished it 30 years ago. It is, he says, because the US is democratic at a grass-roots level, and most people in most countries, even those who’ve abolished judicial executions, believe in capital punishment. In Western Europe, for example, the death penalty was abolished “from the top down” — in other words well-educated liberals high up in government made sure it was prohibited. But in the US, politicians in the 35 states that retain the death penalty know that if they came out against the punishment they would lose considerable support in their constituencies. So they keep quiet, and the supreme penalty is as a result enacted today with, in Professor Garland’s words, “an awkwardness, an anxiety, and sometimes a palpable embarrassment”.

  The fascination, albeit at times grisly, of this book lies in the details. Garland’s general position is that the US is not more barbarous than its European counterparts, but is instead traveling along the same abolitionist path they traveled, if more slowly. All executions were banned in 1968, for example, but then the practice was revived nine years later.

  

  Peculiar Institution: America’s Death Penalty in an Age of Abolition, by David Garland.

  Executions remain commonest in the south, and the parallel with lynchings is considered at length. Those horrific acts of unpunished popular retribution, committed by whites against black males suspected of rapes of white women, make one of the ugliest episodes in US history. Many thousands occurred between 1890 and 1940. Legal trials in the same situations were not much better, Garland remarks, with the same whites often in charge on both occasions. But statistics do not entirely support comparisons with modern execution. Even though poorly-represented blacks accused of atrocious crimes against whites are most likely to be sentenced to death, and a disproportionate number of blacks are executed in proportion to their overall numbers, most serial killers (for instance) are nevertheless in fact white.

  The figures are that around 60 executions are carried out in the US every year — 20th century highs were 98 in 1999, and 199 in 1935. Since the reintroduction of judicial killing in 1976, there have been 1,193 executions, over a third of them in Texas.

  Michigan abolished the practice entirely in 1846. Of the 35 states that retain the penalty, a third rarely or never use it, a third have large death-row populations but relatively few actual executions, and a third regularly impose death sentences and regularly carry them out.

  Elsewhere, a few advanced industrialized countries still retain the penalty, including Taiwan, Japan and India. But most have abolished it — Portugal in 1867, followed by Norway, Sweden, the Netherlands and Belgium. Today, no country can be an EU member if it retains capital punishment.

  Generally European history displays an increasing humanity. Judicial torture was extensively banned in the later 18th century, the exhibition of executed bodies in the early 19th, and public executions in the mid-19th, though France continued guillotining in public until 1939. The last public execution in the UK was in 1868, and in the US (in Missouri) in 1937.

  The US remains exceptional in other ways, however. Its murder rate is extraordinarily high at some 14,000 annually, 65 percent of killers using guns (as opposed to 9 percent in England and Wales). Its prison population is currently a quarter of all prisoners in the entire world, making it all in all one of the most punitive societies on earth. But this is a separate issue, considered in depth by Garland in a recent issue of the TLS and available for free online at http://www.thetls.co.uk/tls/public/article1049248.ece.

  Today, lethal injection in private, with only a few witnesses, is standard in all US states retaining the death penalty. In older times public display was central to executions, in order to terrorize populations. That the genitals were cut off and burnt in the UK’s hanging, drawing and quartering rituals is perhaps not as well-known as it should be, but is confirmed by Garland in the sentence given to the Gunpowder Plot culprits in 1605.

  For the rest, jury sentencing in the US has been found to routinely favor whites against blacks (if you allow the jury to give the sentence they will often sentence blacks to death, but whites less often). Judicial election (the electing of judges) has a similar result, favoring judges who believe in the death sentence.

  Things were not always like this. In the early 19th century both Dickens and Tocqueville commented on the general mildness of American judicial punishments. And today, a protracted judicial process, with many appeals, has become a central feature of the US system, in contrast to past times when, in 1906, only 50 minutes elapsed in one southern case between the jury being sworn and the prisoner being hanged.

  In conclusion, David Garland ends what is surely going to be for many years the key work on the death penalty in the US by calling the whole business in 21st century America a “deeply troubled institution.”

  My own opinion, for what it’s worth, is almost entirely abolitionist. But I do sometimes wake up thinking that in the case of the Norwegian mass-killer of 77 people, mostly teenagers, the penalty could be revived, the culprit executed and the penalty then abolished again the following morning.
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