David Garland could hardly have wished for better luck than to have his new book on capital punishment favorably written up in the New York Review of Books by no less than a retired Supreme Court justice, John Paul Stevens. And for Stevens, the unsolicited assignment from the magazine’s editors gave him the chance to elaborate on his reasoning in concluding two years ago that the death penalty as it operates in the United States today serves no good purpose and should be abolished.
Garland, a professor of law and sociology at New York University, is a little-known academic with a long list of titles on criminal law and sentencing. In Peculiar Institution: America’s Death Penalty in an Age of Abolition (Harvard University Press, 2010), the transplanted Scotsman seeks in part to explain the persistence of capital punishment in the United States at a time when the practice has been abolished in form or in practice in the rest of the West.
From Stevens’ account I have yet to read the book myself Garland scrupulously avoids offering his own personal conclusion about the wisdom or morality of the death penalty. But Stevens says that Garland’s account fortifies the justice’s own view that the death penalty is “unwise and unjustified.”
Garland’s book may profitably be read in tandem with an earlier work, The Death Penalty: An American History (Harvard University Press, 2002), by Stuart Banner, who is now a professor at UCLA Law School. Both depict capital punishment in the United States as infected with racism, historically and today, and beset these days with delays that all but negate the death penalty’s major stated purposes: deterrence and retribution.
Apparently more than Garland, however, Banner shows that along with the persistence of capital punishment, the United States has a long tradition of opposition to the death penalty. Even before independence, some Northern colonies had narrowed the list of capital offenses from those in England. Abolitionist sentiment also dates from colonial times and grew after independence.
Within the first years of the Republic, five states had abolished the death penalty for all crimes except murder. By the time of the Civil War, no Northern state provided capital punishment for any crime other than murder or treason. And Michigan in 1846 became the first state to abolish the death penalty altogether. Banner treats the decision as the start of a slowly emerging trend. Stevens faults Garland for treating it instead as idiosyncratic, the work of a few liberal reformers in the face of Michiganders’ general views.
The death penalty continued to recede for a full century after the Civil War. New methods of execution were designed to be more humane: first, the electric chair; then, the gas chamber (and, now, lethal injection). Public executions disappeared. The number of executions fell over time. By the 1960s, abolitionists could see their goal within sight.
The Supreme Court’s 1972 decision in Furman v. Georgia to invalidate all existing death sentences appeared to fulfill the abolitionists’ goal. As Garland relates, however, the backlash was strong and swift. By 1976, in Stevens’ first full year on the Supreme Court, two-thirds of the states had voted to reinstitute capital punishment.
Stevens provided the critical fifth vote to uphold state death penalty laws as long as death sentences were not mandatory and jurors (or judges) had full discretion to consider all aggravating and mitigating factors in imposing sentence. Stevens’ hopeful expectation of a rational and equitable system of capital punishment was dashed by the Supreme Court itself. After the retirement of his fellow moderate Republican Potter Stewart in 1981, the court began to retreat from careful policing of capital cases.
As examples, Stevens points to the court’s refusal in 1987 to act on the implications of a study showing death sentences imposed more often in cases with white victims than in those with victims of color. He faults the court for helping prosecutors block potential jurors with reservations about capital punishment. And he criticizes the court for reversing itself twice, in the span of only a few years, to allow the death penalty in felony-murder cases and to permit “victim impact” statements in capital sentencing hearings.
In 2008, Stevens went public with his frustrations in a separate opinion in the decision, Baze v. Rees, that upheld the current procedure for lethal injection executions. With no convincing evidence of deterrence, and no legitimate interest in retribution for its own sake, Stevens concluded that it was time for “a dispassionate, impartial comparison” of the “enormous” costs of the death penalty compared to its dubious benefits.
Garland casts doubt on the likelihood of such a debate. He views public support for the death penalty as a political and cultural phenomenon more than a considered legal policy choice in effect, one battle in a broader culture war. Risk-averse politicians burnish their law-enforcement credentials by siding with public opinion.
The Supreme Court has nibbled at the edges over the past decade by prohibiting the death penalty for juveniles or offenders with intellectual disabilities and in non-homicide cases. The rulings, two of them written by the moderate conservative Anthony M. Kennedy, hark to the previous tradition of narrowing capital punishment. But barring a further shift by Kennedy, the Roberts Court’s majority appears steadfast in giving states broad discretion to adopt what Garland provocatively calls this “peculiar institution.”