Path dependence, culture and state-level execution policy
| Author | Franklin E. Zimring |
| DOI | 10.1177/1462474505057110 |
| Published date | 01 October 2005 |
| Date | 01 October 2005 |
| Subject Matter | Articles |
02_zimring_057110 (jk-t) 2/9/05 9:10 am Page 377
Copyright © SAGE Publications
London, Thousand Oaks, CA
and New Delhi.
www.sagepublications.com
1462-4745; Vol 7(4): 377–384
DOI: 10.1177/1462474505057110
PUNISHMENT
& SOCIETY
Path dependence,
culture and state-level
execution policy
A reply to David Garland
FRANKLIN E. ZIMRING
University of California at Berkeley, USA
The career of capital punishment in the United States has only recently begun to receive
the attention from scholars of law and society that it has long deserved (see Sarat, 2001;
Banner, 2002; Whitman, 2003; Zimring, 2003). David Garland’s essay in this issue
adds to this boomlet, and my delight in his entry in the capital punishment sweepstakes
is only slightly diminished by our differences. There is much, particularly toward the
end of Garland’s essay, that I agree with (compare Zimring and Hawkins, 1986a and
Zimring, 2003), but those agreements are not the reasons the editors have invited my
comments. In his detailed criticism of my recent book, I think Professor Garland has
misinterpreted the available evidence on two key issues and misread the book on two
others. These matters are the focus of this note.
My response will be organized under three headings and a summary, beginning with
a quibble about the conclusion Garland ascribes to my book, then analyzing the Garland
and Zimring differences on ‘vigilante values’ and finally complaining about a small
assortment of Garland’s interpretation of parts of my book.
I
The theme that David Garland tells us he wishes to dispute is that of ‘American excep-
tionalism’:
The sociological language of ‘exceptionalism’ suggests that the USA’s current use of capital
punishment is no transient phase of penal policy but is, instead, anchored in a kind of socio-
cultural bedrock, a set of defining institutions and values that underlie the American nation
and shape its historical choices. And indeed, both Zimring and Whitman make much of this
embeddedness, suggesting that capital punishment is not a judicial sanction that might be
ended by an act of law so much as a cultural disposition that will persist until the American
nation changes in some more fundamental way . . . (Garland, this issue, p. 348; hereafter cited
as ‘Garland’)
377
02_zimring_057110 (jk-t) 2/9/05 9:10 am Page 378
PUNISHMENT AND SOCIETY 7(4)
To the charge of national-level exceptionalism, I must plead not guilty on two
accounts. First off, I have long argued that the US Supreme Court should have and
could have ended the death penalty in 1976 (Zimring and Hawkins, 1986b: ch. 8), and
will probably do so pretty soon (Zimring, 2003: ch. 8).
The newer book is explicit about the one change in position I adopted in 2003. I
do not now think the conflict free and low visibility aftermath of abolition observed in
European and Commonwealth nations is to be expected in the USA (Zimring, 2003:
ch. 6; hereafter cited as ‘Contradictions’). Cultural attachment to the death penalty in
parts of the South and the West would be expected to prolong the argument about
capital punishment and make the issue more visible than European precedent. But if
that is ‘socio-cultural bedrock’, how does Garland explain my abolitionist good cheer
in the book he is reviewing? My view is that it should come as no surprise to David
Garland that legal policies often have cultural roots (see Garland, 2001) but that does
not make the policies immutable.
The second reason I find it difficult to regard my book as a plea for any national-
level generalization about the United States is the focus in my book on the federal system
and on interstate variation as the key ingredients of the study. My nomination of state-
level powers over criminal justice as one of the two reasons for the continuation of
executions in the USA (2003: 65) and the emphasis of chapter 4 on the huge substan-
tive differences among American states seems to me a rather forceful debunking of any
theory of monolithic American exceptionalism. Chapters 4 and 5 of my book provide
more emphasis on cross-sectional differences in the USA and better evidence against a
single ‘national’ culture than Garland’s essay.
But with all this state-to-state variation, why should I conclude that there are attitude
differences in some parts of the contemporary American nation that create persistent
and long-standing support for death penalties and state executions? The evidence on
this is summarized at page 85 of the 2003 volume:
But while the difference between states and regions are great, the pattern over time is quite
stable . . . All the states that had abolished a death penalty by 1960 do not have a death penalty
in 2003. All of the top 12 executing states in the 1950s resumed executions in the 1970s and
1980s . . . This continuity of policy at the state level, which statisticians would call the ‘path
dependence’ of current death penalty policy on the historical record of a state, warns us that
the particular origins of...
Copyright © SAGE Publications
London, Thousand Oaks, CA
and New Delhi.
www.sagepublications.com
1462-4745; Vol 7(4): 377–384
DOI: 10.1177/1462474505057110
PUNISHMENT
& SOCIETY
Path dependence,
culture and state-level
execution policy
A reply to David Garland
FRANKLIN E. ZIMRING
University of California at Berkeley, USA
The career of capital punishment in the United States has only recently begun to receive
the attention from scholars of law and society that it has long deserved (see Sarat, 2001;
Banner, 2002; Whitman, 2003; Zimring, 2003). David Garland’s essay in this issue
adds to this boomlet, and my delight in his entry in the capital punishment sweepstakes
is only slightly diminished by our differences. There is much, particularly toward the
end of Garland’s essay, that I agree with (compare Zimring and Hawkins, 1986a and
Zimring, 2003), but those agreements are not the reasons the editors have invited my
comments. In his detailed criticism of my recent book, I think Professor Garland has
misinterpreted the available evidence on two key issues and misread the book on two
others. These matters are the focus of this note.
My response will be organized under three headings and a summary, beginning with
a quibble about the conclusion Garland ascribes to my book, then analyzing the Garland
and Zimring differences on ‘vigilante values’ and finally complaining about a small
assortment of Garland’s interpretation of parts of my book.
I
The theme that David Garland tells us he wishes to dispute is that of ‘American excep-
tionalism’:
The sociological language of ‘exceptionalism’ suggests that the USA’s current use of capital
punishment is no transient phase of penal policy but is, instead, anchored in a kind of socio-
cultural bedrock, a set of defining institutions and values that underlie the American nation
and shape its historical choices. And indeed, both Zimring and Whitman make much of this
embeddedness, suggesting that capital punishment is not a judicial sanction that might be
ended by an act of law so much as a cultural disposition that will persist until the American
nation changes in some more fundamental way . . . (Garland, this issue, p. 348; hereafter cited
as ‘Garland’)
377
02_zimring_057110 (jk-t) 2/9/05 9:10 am Page 378
PUNISHMENT AND SOCIETY 7(4)
To the charge of national-level exceptionalism, I must plead not guilty on two
accounts. First off, I have long argued that the US Supreme Court should have and
could have ended the death penalty in 1976 (Zimring and Hawkins, 1986b: ch. 8), and
will probably do so pretty soon (Zimring, 2003: ch. 8).
The newer book is explicit about the one change in position I adopted in 2003. I
do not now think the conflict free and low visibility aftermath of abolition observed in
European and Commonwealth nations is to be expected in the USA (Zimring, 2003:
ch. 6; hereafter cited as ‘Contradictions’). Cultural attachment to the death penalty in
parts of the South and the West would be expected to prolong the argument about
capital punishment and make the issue more visible than European precedent. But if
that is ‘socio-cultural bedrock’, how does Garland explain my abolitionist good cheer
in the book he is reviewing? My view is that it should come as no surprise to David
Garland that legal policies often have cultural roots (see Garland, 2001) but that does
not make the policies immutable.
The second reason I find it difficult to regard my book as a plea for any national-
level generalization about the United States is the focus in my book on the federal system
and on interstate variation as the key ingredients of the study. My nomination of state-
level powers over criminal justice as one of the two reasons for the continuation of
executions in the USA (2003: 65) and the emphasis of chapter 4 on the huge substan-
tive differences among American states seems to me a rather forceful debunking of any
theory of monolithic American exceptionalism. Chapters 4 and 5 of my book provide
more emphasis on cross-sectional differences in the USA and better evidence against a
single ‘national’ culture than Garland’s essay.
But with all this state-to-state variation, why should I conclude that there are attitude
differences in some parts of the contemporary American nation that create persistent
and long-standing support for death penalties and state executions? The evidence on
this is summarized at page 85 of the 2003 volume:
But while the difference between states and regions are great, the pattern over time is quite
stable . . . All the states that had abolished a death penalty by 1960 do not have a death penalty
in 2003. All of the top 12 executing states in the 1950s resumed executions in the 1970s and
1980s . . . This continuity of policy at the state level, which statisticians would call the ‘path
dependence’ of current death penalty policy on the historical record of a state, warns us that
the particular origins of...
To continue reading
Request your trial