The cultural uses of capital punishment
| Author | David Garland |
| DOI | 10.1177/1462474502004004050 |
| Published date | 01 October 2002 |
| Date | 01 October 2002 |
Copyright © SAGE Publications
London, Thousand Oaks, CA
and New Delhi.
Vol 4(4): 459–487
[1462-4745(200210)4:4;459–487; 027050]
PUNISHMENT
& SOCIETY
The cultural uses of
capital punishment
DAVID GARLAND
New York University, USA
When the state kills: Capital punishment and the American condition, Austin Sarat.
Princeton, NJ: Princeton University Press, 2001. 324 pp. cloth $29.95. ISBN
0691007268.
The death penalty is accepted, even popular, in precisely the way that big-league baseball and
football are accepted and popular: as a spectator sport to the fans, and a competitive agon to
the players, and a logo of the American way to everybody. (Anthony Amsterdam, Keynote
address to the American Bar Association, 12 October 2000)
THE USA: ‘THE KILLING STATE’
At the start of the 21st century, the death penalty is embedded in the legal and political
fabric of American life to an extent that is hard to appreciate for the citizens of aboli-
tionist nations – which is to say for most of the democratic world.1 The USA is execut-
ing offenders at a rate not seen there since the 1950s. Recent acts of Congress, like recent
Supreme Court rulings, have extended the reach of capital punishment and speeded up
its implementation – a process encapsulated in the title of the Anti-Terrorism and Effec-
tive Death Penalty Act of 1996, which restricted habeas corpus appeals and created
several new capital offences. When the US government was preparing to put Timothy
McVeigh to death in June 2001, in the first federal execution since 1963, there was no
debate in the American media about whether McVeigh ought to be put to death: with
more than 80 percent of the public backing his execution, there was little to discuss.
Instead, commentators debated whether the execution ought to be televised; whether
lethal injection was adequate punishment given the atrocities of the crime; and how
much ‘closure’ the victims and survivors could expect to derive from McVeigh being put
to death.
It is true that there is considerable anti-death penalty sentiment in the USA; that more
than a dozen American states are abolitionist; that as recently as 1972 the Supreme Court
found the death penalty process to be unconstitutional; and that capital punishment
continues to constitute a fault-line in the culture wars.2 But during the last quarter-
century capital punishment has firmly re-established itself as a functioning, if still
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PUNISHMENT AND SOCIETY 4(4)
controversial, element of American criminal justice. In the 25 years since the reinstate-
ment of capital punishment in 1976 and Gary Gilmore’s execution the following year,
the frequency of executions has steeply increased, to the point where executions are a
more or less routine event, particularly in states such as Texas where they are carried out
every other week. Like the USA’s imprisonment rates, the execution rate rose dramati-
cally in the 1990s, with an increase of 158 percent in six years between 1993 and 1999.
Since 1976 there has been a total of 749 executions, with the peak year being 1999,
when 98 people were put to death. At the time of writing (January 2002), there are more
than 3700 inmates on death row, awaiting execution.3
It is also true that there have been stirrings of opposition and official disquiet in the
last few years. In January 2000, Governor Ryan of Illinois imposed a pro tem mora-
torium after reviewing evidence that more people on that state’s death row had been
shown to be innocent than had actually been put to death. According to the Death
Penalty Information Center (2001), between 1973 and 2001, 98 people in 22 states have
been sentenced to death and subsequently been found to be innocent. A study by James
Liebman and others found that between 1973 and 1995, the rate of prejudicial error in
the American capital punishment system was 68 percent, which is to say that courts
found serious, reversible error in nearly seven of every 10 of the thousands of capital
sentences that were fully reviewed during this time (Liebman et al., 2000). Opinion polls
since 1994 show a continuing decline in public support from a high of nearly 80 percent
in favour in the early 1990s to a present level of closer to 65 percent (Ellsworth and
Gross, 2001). Some prominent individuals who previously supported capital punish-
ment – including conservative commentator George Will and Christian Coalition presi-
dent Pat Robertson – have begun to express doubts about the penalty, and most recently,
Supreme Court Justice Sandra Day O’Connor has voiced serious misgivings about the
system, stating that ‘if statistics are any indication, the system may well be allowing some
innocent defendants to be executed’.4
Despite all of this, there seems little prospect that capital punishment will be abol-
ished by the USA’s legislatures or found unconstitutional by its courts any time soon.
The major political parties are both fully committed to its retention and no presidential
candidate has expressed opposition to the penalty since Michael Dukkakis did so to his
detriment in 1988. The death penalty now appears to be deeply etched in the American
political consciousness. It is a fact of political life, an American institution, to which
political officials solemnly swear allegiance, particularly when they are running for
elective office. And whatever Justice O’Connor now believes, it is an institution that has
been deregulated, relegitimated, shored up and speeded up, by the Supreme Court on
which she serves.5 As things currently stand, the prospects for abolitionism in the USA
look very dim indeed. Whatever else the events of 11 September may have altered, they
have not changed that.
SARAT ON ‘THE CULTURAL LIFE OF CAPITAL PUNISHMENT’
It is against this background that Austin Sarat has written a book that aims to change
how we think about capital punishment. Instead of addressing the death penalty’s
morality, or its supposed utility for crime control and victim satisfaction, Sarat asks us
to consider the legal and cultural consequences of maintaining a ‘killing state’. When
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GARLAND
The cultural uses of capital punishment
we reflect upon capital punishment he asks us to question its cultural as well as its crim-
inological consequences, paying heed to the ways in which the death penalty affects
citizens and their common sense as well as criminals and their crimes. Starting from the
premise that penal institutions help shape the culture of which they are a part, Sarat asks
how the persistence of juridical killing has affected the USA’s democracy and what he
calls ‘the American condition’. His concern is with the ways in which the practices of
state killing – and the images, ideas and sensibilities that surround these practices –
function to shape Americans’ attitudes towards authority, towards responsibility and
towards those social and racial groups from whom capital offenders are most often
drawn. We should consider, he says, ‘what the death penalty does to us, not just what it
does for us’ (p. 14, emphases in original).
This shift of perspective opens up a series of far-reaching empirical questions, several
of which are pursued in the book. ‘What impulses does state killing nurture in our
responses to grievous wrong? What demands does it place on our legal institutions?
How is the death penalty represented in our culture?’ (pp. 13–14). Sarat’s bottom-line
answer to these questions is that state killing is a profoundly illiberal undertaking that
jeopardizes the USA’s legal ideals and threatens its democratic institutions. As I will
suggest below, the singularity of this finding is a little disconcerting – particularly if
one regards cultural analysis as an empirical undertaking rather than a normative one
– since it gives the impression that the capital punishment’s cultural detriment was
never really in doubt. Such an unrelievedly negative account of capital punishment’s
meaning will test the patience of readers who are committed supporters of the death
penalty, and will prompt scholarly debates about what a cultural analysis should be.
But for those who harbour doubts about the propriety of state killing, or who remain
willing to re-examine their commitments, Sarat offers new ways to think about an all-
too-familiar issue. His careful use of interview material, ethnographic observations and
legal analysis gives a solidity to his descriptions and a power to his arguments, so that
readers who do not begin by sharing his abolitionism may yet be disturbed by what he
has to say.
Sarat’s central claim is that the death penalty depends for its moral force and popular
legitimacy upon a specific cultural representation. Capital cases are repeatedly
represented – in trials, in media reports, in films – as set-piece morality plays in which
a dangerous, guilty offender is seen to pay the ultimate penalty for a freely willed, evil
act. This stark juxtaposition of good and evil is, according to Sarat, a dramatic device of
such compelling simplicity that it is hard to avoid. But compelling or not, this way of
posing the issues is a simplifying distraction that prevents the USA from addressing the
complex issues involved in containing crime and doing justice. ‘State killing distracts’,
he says. ‘It encourages the quest for revenge rather than efforts at reconciliation and
social reconstruction’ (p. 15).
This argument, and Sarat’s insistence that state killing ‘leaves America angrier,...
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