Final Justice

The Contradictions of American Capital Punishmentby By Franklin E. ZimringOxford Univ. Press. 272p $30

The United States Supreme Court seems to have settled on the view that our Constitution limits, regulates, but in the end still permits the death penalty. So what Franklin Zimring calls the contradictions of American capital punishment will likely be resolved, if ever, through dialogue and debate in the courts of public opinion, not litigation in the courts of law.

The debate is as livelyand as searingas ever. Our views have been both challenged and confirmed recently by wrongful convictions and incompetent defense lawyers, by the terrorist attacks of Sept. 11, 2001, and the D.C. sniper killings, by the powerful witness of Pope John Paul II and Sister Helen Prejean and by the media frenzy around the executions of Karla Faye Tucker and Timothy McVeigh. Still, many reasonable and morally serious people believe that capital punishment is sometimes warranted and can be justified. It appears that those of us who hope for its abolition through persuasion and evangelization, rather than by judicial fiat, still have work to do.

Stuart Banner’s The Death Penalty: An American History is indispensable for the task. It is clear, engaging andin the accurate words of Judge Richard Posner’s blurb on the dust-jacketrefreshingly free of the tendentiousness and sensationalism that the subject invites. Banner, a U.C.L.A. law professor, is never patronizing, demeaning or self-righteous.

His work is not a partisan tract, nor, thankfully, does he subject the reader to painful, technical tours through the morass of the Supreme Court’s decisions on capital punishment. Instead he invites and rewards our attention to what Garry Wills has called the dramaturgy of death and to the close connections between the meanings, rituals and cultural contexts of executions.

Banner describes, for example, how public executions once served not only as emphatic display[s] of power, but also as occasions for pious meditation on the universality of sin. They were less macabre spectacles staged for a bloodthirsty crowd than didactic, dramatic portrayal[s] of justice, human and divine. Thus the execution of certain miserable Persons could prompt Cotton Mather with deep Humiliation [to] reflect on the Vileness of my own Heart, and to recall, I have the Seed of all Corruption in me.

But as Puritan premises about total depravity gave way to Enlightenment optimism and Romantic myths about our original virtue, the meaning, message and dramaturgy of punishment changed as well. After all, 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. A century later, the social meaning of executions changed again, as deterministic ideologies emphasized biology, environments and managerial expertise rather than reason, free will and the social contract. In this context, proponents of retributive policies and arguments became as much anachronisms, morally, culturally and scientifically...as if they were to champion magic, bloodletting or crusades against witches.

One of many provocative themes running through Banner’s book is the extent to which disagreement about the death penalty has tracked other social divisions and public arguments (about racism, urban violence, judicial activism, etc.) In the years before the Civil War, for example, a yawning cultural gap opened between North and South, exacerbating the already deep divisions caused by Southern slavery. In this context, reservations about the death penalty were linked in Southern minds with Northern arrogance, while slavery’s opponents painted death-penalty supporters as people afraid of all change, the sort who had defended every evil practice from the slave trade to the divine right of kings, for no other reason than a terror of the new. Then as now, the conflict over the death penalty has been one battle in a larger sectarian struggle, a larger war between two fundamentally different ways of understanding human nature and the world.

As the 19th century wore on, public executions became further embroiled in issues of class and taste. Newfound genteel sensibilities and increasing class consciousness prompted many among the elite to contrast the vulgarity of the execution crowd with the superior taste they found in themselves, and to demand the removal of executions to the confines of prison yards, so the well bred and wise could view executions without offense.

But as executions moved from the public square to the jail yard and the death house; and as moral condemnation was delegated to invisible functionaries, it became harder to think of the executioner as the community’s agent. That is, changes in the attitudes toward the dramaturgy of the capital punishment thus subtly undermined part of its very purpose, and changing tastes...about how death should be displayed thus began changing capital punishment itself.

Banner’s study provides a solid foundation for Franklin Zimring’s question, Why does the United States execute when every other developed Western nation has ceased to use the taking of life as a legal punishment? Until the early 1970’s, the United States and Europe were proceeding steadily and together down the path toward abolition. That process stalled here, after the Supreme Court’s unexpected intervention in Furman v. Georgia prompted a swift, overwhelming backlash. In Europe, however, although the end of the death penalty was engineered by governing elites in the teeth of public opinion, a stand against capital punishment is now an orthodoxy[,] a moral imperative believed necessary to the status of any civilized modern state.

In The Contradictions of American Capital Punishment, Zimring, professor of law at the University of California at Berkeley, explores the apparent contradiction between the survival of capital punishment and Americans’ longstanding embrace of limited-government principles and due-process values (the same principles and values, he notes, that supply the foundation for the new European orthodoxy). We distrust government power, yet we accept a death penalty that, as the political writer George F. Will has observed, increasingly resembles yet another failed big-government program.

In Zimring’s view (which resonates with Banner’s account), the death penalty has survived in the United States, notwithstanding our generally libertarian ideology, because of its symbolic transformation. Executions are now framed in terms of personal service to victims rather than coercive state power. (Given that vengeance is an anachronism with bad press, the discovery of the evocative term closure’ was a public relations godsend.) The de-governmentalization of capital punishment, the author argues, was essential to its retention, because we are uncomfortable watching governments kill to achieve solely government purposes. Rather, we prefer to imagine the executioner as the personal servant of homicide survivors....

This symbolic transformation, in turn, was facilitated by a mythology of local control that appears to be linked to historical traditions of vigilante violenceand, of course, to racial oppressionand that serves as a counterweight to the strongly held attachment to due process of law and to distrust of governmental power. Put differently, it is Zimring’s contention that the death penalty is a kind of proxy war between the due process and vigilante values. (To be clear, the claim is not simply that the Southern, death-penalty states that once tolerated lynching and mob violence are now operating under an inherited enthusiasm for killing as a form of social control. It is that viewing punishment as a community rather than state response should leave a citizen less worried and conflicted about executions even though his or her general view of governmental power may be distrustful.)

One upshot, Zimring warns, of this proxy war is that the death penalty is so hard-wired into our national identity and institutions that abolition will require fundamental, radical changes in our culture and perhaps in our constitutional structure: The cessation of conflict will mean that we are living in a different country. And if, as the author appears to expect, these changes are to be imposed by a judicial and bureaucratic vanguard on an unconvinced or objecting public, then so be it. The further unpleasantness that must be endured will be well worth its social cost.

Some who share Zimring’s opposition to capital punishment will nonetheless wonder if the cost of this unpleasantness really is offsetthat is, if undemocratic or elitist means are justifiedby the justice of the desired end. Others might regret his call for abolitionists to wage a war of negative stereotyping against death-penalty supporters by portraying them as bloodthirsty version[s] of Archie Bunker. After all, America is the world capital of mixed feelings about the death penalty, and perhaps the more appropriate response to these feelings is respectful persuasion, and even faithful witness.

The Death Penalty closes on a provocative note. In the past, Banner observes, changes in public opinion followed better understandings of the extent to which crime is a consequence of the criminal’s free will. Perhaps, he imagines, deterministic explanations of crime will return to favor for some other reason. This suggestion poses a challenge to engaged Christian abolitionists, who should hope that the wholesale embrace of a reductionist and dehumanizing ideology is not a prerequisite for the end of capital punishment. At the same time, it is a reminder that every moral claim and every moral argument ultimately depends on foundational premises about what it meanswhat it really meansto be a human being.

The British economist R. H. Tawney once observed that [t]he essence of all morality is this: to believe that every human being is of infinite importance, and therefore that no consideration of expediency can justify the oppression of one by another. But to believe this it is necessary to believe in God.

As the conversation continues, then, perhaps what is needed from Christians is not so much our policy prescriptions on crime control or constitutional law, but rather a moral anthropology that can serve as the foundation for our moral argument.

It is fitting, then, that Zimring concludes his book by urging activists not to rely solely on empirical, procedural and efficiency-based arguments about deterrence, ineffective lawyers and the expense of capital trials, but rather to emphasize morally centered objections to execution. They might propose, for example, as Pope John Paul II has done, that the greatness of human beings is founded precisely in their being creatures of a loving God, from which it follows that the person is a good towards which the only proper and adequate attitude is love.

That sounds like a good start.