The Death Penalty by Stuart Banner
The Death Penalty: An American History
by Stuart Banner
Harvard. 408 pp. $29.95
Is the death penalty on its way out in the United States? Given the recent successes of its opponents, one might begin to think so. Disturbing tales of narcoleptic defense counsel, or of death-row prisoners newly freed by DNA evidence, have become regular items in the press. Two years ago, the Republican governor of Illinois became so concerned about the number of death-row inmates exonerated by outside investigators that he imposed a moratorium on executions. This April, a commission appointed at his behest recommended either a radical overhaul of capital punishment in the state or outright repeal.
Still, death-penalty “abolitionists” (as they call themselves) have their work cut out for them. Some 65 percent of Americans support capital punishment, and over 80 percent endorsed the execution of the Oklahoma City bomber Timothy McVeigh. When the Justice Department recently announced it would seek the death penalty in the case of Zacarias Moussaoui, the man alleged to be the missing twentieth hijacker in the September 11 conspiracy, protest in the U.S. was almost non-existent.
As Stuart Banner demonstrates in The Death Penalty, there is nothing new about this kind of ebb and flow in the public standing of capital punishment. Throughout our history, critics have tried to brand the death penalty as the vestige of a more primitive age, a practice that an enlightened society would reject. And each time they have advanced their cause—but only so far.
Banner, a legal historian at Washington University, begins with the penal tradition that the early American colonists inherited from Britain. Execution was then the customary fate not only for convicted murderers and rapists but also for burglars, thieves, arsonists, and counterfeiters. Still, though the death penalty was uncontroversial, executions were viewed in this era as solemn, abhorrent events. At hangings, ministers delivered elaborate sermons that were often reproduced as commercial pamphlets. Convicts were expected to recite their crimes and discourage others from following in their path.
As for opposition to capital punishment, it was at first confined largely to Quaker communities, but became more mainstream in the mid-18th century—though only with regard to minor crimes. As the Georgia Gazette asked in 1767, “Who can avoid pitying poor young fellows, whose existence is cut off in the prime and vigor of life, for the paltry theft of a handkerchief, or of a watch, or for writing a few words on a slip of paper, with a fraudulent intention?” By the 1780’s, some newspapers were calling for an outright ban.
This development, Banner shows, could also be traced in part to a shift in the then-commonly held theories of human nature. Once seen as an autonomous moral agent, the criminal was increasingly cast as a dronelike product of his environment. Doctors were beginning to gain a primitive understanding of insanity as a medical condition, and some politicians began to link criminality with disease.
Calvinists, who traditionally emphasized the innate depravity of man and the necessity of retribution, were put on the defensive by these ideas, as well as by newly ascendant forms of evangelical Protestantism, with their focus on sympathy and forgiveness. As Banner writes, there was
a new faith in humanity and in the possibility of progress. If people were virtuous at birth, if evil was an intruder arriving from outside rather than a part of human nature, one might design institutions to disinfect the criminal, to restore him to moral health. In this light, the gallows seemed a product of ignorance and superstition.
Economic trends also contributed to strengthening the forces of resistance to capital punishment. Prior to the industrial revolution, prisons were an unaffordable option. The agrarian society of the early colonies simply did not produce enough surplus wealth to permit significant numbers of able-bodied men—whether guards or prisoners—to live economically unproductive lives at public expense. When machines made America rich, it could afford the luxury of not killing its criminals.
The reform movement stalled in the 1790’s, but in the Northern states picked up again a half-century later. By 1860, no Northern state imposed capital punishment for any crime other than murder or treason. Some went further: in 1846, Michigan became the first state to abolish the death penalty for murder, and Rhode Island and Wisconsin soon followed.
In the South, where life was more violent and there was a perceived need to keep slaves terrorized, change came more gradually. As late as the 1950’s, rape was punished with death in sixteen Southern states, and burglary in four. Even now a substantial geographic gap remains. Since 1976, the ten states of the former Confederacy have accounted for 75 percent of all U.S. executions.
In the closing chapters of this book, Banner provides a detailed analysis of the major capital-punishment cases of the mid-20th century. Here, as in other areas of constitutional law, the Justices of the Warren and Burger Courts proved willing over the years to substitute their own views for those of democratically elected state legislatures. The trend peaked with the 1972 decision in Furman v. Georgia, which had the effect of striking down every capital-punishment law in the country, principally on the theory that the death penalty, as then applied, was arbitrary and capricious.
The decision was hailed by abolitionists as an epochal triumph. In Arkansas, Banner notes, the electric chair was unplugged and used as a barber’s chair. In Pennsylvania the execution room was partitioned into offices. In New Hampshire, it was used to store vegetables.
Yet Furman did not put an end to capital punishment. It simply brought the death penalty under a new set of procedural restrictions. Within four years of the decision, 35 states and the federal government had enacted revamped death-penalty laws. In 1977, Utah executed Gary Gilmore by firing squad, making him the first American in a decade to suffer capital punishment. Despite the effort of defense lawyers to slow the process by endlessly litigating procedural issues, criminals were being put to death in the U.S. at the rate of about one per week by the 90’s.
One could not ask for a more dispassionate and comprehensive history of the death penalty in America than this book. Yet it suffers from the defects of its chief virtue, which is Banner’s almost clinical detachment from his material. This lack is most felt from the literary point of view. Though Banner has assembled an impressive array of primary sources, including diaries, sermons, and broadsheets, he generally draws on them only to illustrate the intellectual climate of past eras, and so we learn little about the colorful characters, brutal crimes, and high courtroom drama that capital cases inevitably involve. Readers with no special interest in the dry details of criminal law, early American history, or the physical mechanics of gallows and electric chairs will be left cold and, probably, bored.
Though Banner gives no indication of where he himself stands on capital punishment—another instance of the book’s sometimes maddening neutrality—the historical pattern he describes should give comfort to supporters of the death penalty. It suggests that our own era heralds not so much the twilight of capital punishment as a temporary rise in abolitionist sentiment, not unlike similar short-lived movements of the past. In the course of our history, activists have always been able to place limits—sometimes salutary ones—on the application of the death penalty, but they have repeatedly failed in their wider effort to end it altogether.
There is reason to think the result will be no different today. Despite all the recent agitation against the death penalty, Americans remain convinced that the overwhelming evil represented by capital crime calls for extraordinary punishment. In the words of Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit—whose moral urgency is seemingly not shared by Banner, his one-time law clerk—“Most of us continue to believe that those who show utter contempt for human life by committing remorseless, premeditated murder justly forfeit the right to their own life.”