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CAPITAL PUNISHMENT AND THE CULTURE WARS: A Review of The Death Penalty: An American History


By DAVID C. LUNDSGAARD


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Friday, Jun. 28, 2002

Stuart Banner, The Death Penalty: An American History (Harvard University Press 2002)

Stuart Banner's The Death Penalty: An American History is a thoughtful work that will appeal to a wide range of readers. Banner's work - a history of the death penalty from colonial times to the present, not a partisan argument "for" or "against" - is highly engaging.

For those who have passionate opinions about the death penalty, whether pro or con, or who are professionally engaged in the "business of death," Banner's extensive history of capital punishment is a veritable must-read. Even for those (such as myself) who are merely interested in American legal history, it is a fascinating historical survey of a legal issue that has transfixed and divided the country for decades.

The Supreme Court's rulings in Ring and Atkins means that capital punishment has returned - at least briefly - to national attention. It is also plain that capital punishment will have the justice system's attention for quite a while, for numerous death sentences have been put into question by the holdings in Ring and Atkins. It is a perfect time to consider the history of the penalty itself in America.

Could the Death Penalty Possibly Be An Issue of Minor Importance?

One of the most intriguing aspects of Banner's survey of the death penalty is what it reveals about the place of capital punishment in the broader sweep of American politics and legal history. As Banner carefully documents, capital punishment is an issue that, by any objective standard, probably does not deserve the sound and fury - and resources - that it has received.

No more than 199 persons have been executed in the United States in any year since independence - even at the peak of death penalty application, in 1935. While the death penalty is obviously of enormous personal interest to those being executed, and to the families of the victims of the crimes that led to the executions, this is a startlingly small number in practical terms.

That number contrasts starkly with the millions whose health and even lives are affected when it comes to other great modern public policy issues, like tobacco, environmental risks, or even lengthy mandatory prison sentences for drug offenses. Yet we have expended as much time and social energy fighting about the death penalty as we have on these broader issues. Given the limited practical impact of the death penalty, Banner asks, why do we care so much?

The Death Penalty As A Proxy Issue For Cultural Divisions In America

Banner's answer to this puzzle is that the "death penalty" has served, throughout American history, as a proxy issue for a series of more fundamental political and social divisions. It is one of the principal battlefields for our cultural wars between liberalism/progressivism and conservatism. When you announce your position on the death penalty, Banner contends, you are taking sides in the American culture wars.

In the Nineteenth Century, for example, the death penalty served to divide those with faith in scientific "progress" from more conservative elements who doubted the ability of science to solve all of humanity's problems. If one favored "science," then one tended to believe that scientific advancements in psychology and criminology would allow criminals to be "cured." In this view, those who insisted on applying the death penalty were not merely cruel, they were "anti-scientific" and "opposed to progress" generally.

Banner's thesis about the use of the death penalty in the broader culture wars is persuasive - and not only as a historical matter. It also resonates with our present experience in the latter half of the 20th century, where we still use the death penalty as a proxy issue for our more general attitudes toward crime, criminals, and society.

Whose Side is He On? An Interesting Lack of Obvious Bias on Banner's Part

Regardless of which side of the culture wars you happen to be on, this book should still be highly accessible. Banner's presentation of his historical materials is largely objective, and his critiques are distributed evenly, without any apparent or overt favoritism. There is something for everyone here to latch onto, even if your only purpose in reading this book is to mine it for historical material upon which to build partisan arguments.

Indeed, one mildly diverting subtext of the book is trying to figure out where the author himself falls in the debate. Banner's basic position on the death penalty itself is, at most, implicit.

Most importantly, Banner's own views do not so transparently infect his scholarship as to undermine his credibility on the fundamental historical points he has to make. With very rare exceptions, there is never any sense that Banner might be slanting or selecting material to favor his own side of the debate; in the bulk of the book, he plainly is not.

The "Tragedy" of the Supreme Court's Eighth Amendment Jurisprudence

The one area in which Banner does stretch out and exhibit some passion is in expressing his obvious distaste, as a legal professional, for the Supreme Court's death penalty jurisprudence addressing the issue of when a particular application of the penalty violates the Eighth Amendment prohibition against "cruel and unusual punishment."

Banner alternately describes that jurisprudence as a "tragedy," a "sham," and "so unworkable that it satisfie[s] no one." In one particularly dark moment, he comments that: "Any pretense that this [is] a rational process of distinguishing degrees of culpability [is] long gone."

It is difficult to disagree with Banner's conclusion that our present legal framework for application of the death penalty is deeply unsatisfying. When the system works well, it is fearfully costly, and, all too frequently, it does not work well.

Even though we still (sometimes) execute those convicted of the most serious crimes, it is fair to describe the situation as essentially a stalemate between pro- and anti-capital punishment impulses. We are unwilling to completely abandon our desire to see the most heinous offenders put to death. However, the opposition to capital punishment is so strong that we only inflict this punishment after lengthy and excruciating examination. The resulting compromise is a process that "satisfie[s] no one."

Banner's Bleak Prognosis for the Future of the Death Penalty

Unfortunately, Banner does not hold out much hope for a resolution of the conflicts that have created this incoherent legal framework. Consistent with his view that the death penalty is a proxy issue for more fundamental cultural divisions over the nature of human personality and free will, Banner concludes that the status of the death penalty in America will not be finally resolved until our general social view of human nature changes.

This bleak prognosis is not a major feature of Banner's work. Nevertheless, it is the note on which he concludes, and I have to say I disagree.

Once upon a time - particularly at the end of the Nineteenth Century and the beginning of the Twentieth - it seemed possible that science would provide the definitive key to understanding and controlling human behavior. Science itself - supported by philosophy - has now put that possibility to rest. We "know" that there are aspects of human behavior and criminality that are understandable and controllable, and we know that there are aspects that are not.

Psychology and medicine have taken us far, but human behavior will always remain a complicated amalgam of genetics, psychology, environmental influences, and, even yet, free will.

Of course, this is not necessarily a bad thing. The complexity of human action can be frustrating and bewildering, but who among us would really have it any other way? Who would really want to live in a world where human behavior was as manageable as an automobile engine? Would it even qualify as "human"?

In any event, the possibility that our general view of human nature will change in a dramatic fashion seems highly remote at this stage. And, as a consequence, so does Banner's contention that its changing is the only chance for a true resolution to the death penalty debate.

How a Death Penalty Consensus Might Finally Be Reached

It seems to me the more likely path to abolition of the death penalty - if that is in fact the path the country takes, consonant with developments in most other Western nations - will be down a different road entirely.

These considerations, especially the specter of the death of innocent persons, should command all of our attention, whether we are benighted, bloody-minded conservatives or mealy-mouthed, weak-in-the-knees liberals. No one seeks to participate in a system under which wrongly accused innocents are condemned to death.

If anything is to create a consensus on the death penalty in America, it will be these considerations - not Banner's proposed changing views of human nature.


David C. Lundsgaard, a 1992 graduate of The Yale Law School, is a partner with the Seattle law firm of Graham & Dunn.

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