ALL BATHWATER, NO BABY: EXPRESSIVE THEORIES OF PUNISHMENT AND THE DEATH PENALTY.

• Author: Bandes, Susan A.
• Position: Book review

COURTING DEATH: THE SUPREME COURT AND CAPITAL PUNISHMENT. By Carol S. Steiker and Jordan M. Striker. Cambridge: The Belknap Press of Harvard University Press. 2016. Pp. 322. $29.95.

INTRODUCTION

The death penalty in the United States is rooted in two anachronistic traditions. The first is the Puritan ethic, which provides a respectable pedigree for a practice that today bears little connection to the concerns of the Puritan era. The public hangings of that era, for example, deployed the execution as a ritual that would cleanse the soul of the condemned and encourage god-fearing behavior from the assembled crowds. But executions are no longer public affairs. They no longer communicate, if they ever did, a collective message of redemption and moral education. They occur in quiet, closed chambers, more an antiseptic procedure than a shared public ritual. Capital punishment as practiced today is best understood not in light of its religious roots, but in light of its other U.S. precursors: slavery and the use of lynching to enforce a racial caste system after slavery was abolished.

Carol Steiker and Jordan Steiker (1) call the Court's refusal to acknowledge the role of race in capital punishment the "original sin" of U.S. death penalty jurisprudence (p. 3). In Courting Death: The Supreme Court and Capital Punishment, they take the measure of this jurisprudence, considering whether the Supreme Court is capable of reining in the arbitrariness and unfairness that characterize the U.S. capital system. It will surprise no one that the Steikers, (2) the "most influential legal scholars in the death penalty community," (3) have produced a fair-minded, richly textured account of the fraught relationship between capital punishment and the United States Supreme Court. The book will repay reading by both educated general readers and legal scholars--including knowledgeable scholars in the field. The Steikers are abolitionists and advocates, and they are straightforward about their commitments, but readers who don't share those commitments will not feel short-changed.

One irony of a fair-minded doctrinal analysis is this: it calls into question the limits of legal doctrinal tools for shedding light on the forces that shape and sustain capital punishment in the United States. As the authors explicitly recognize, capital punishment doctrine often serves as little more than window dressing, providing a false sense of coherence and legal legitimacy to prop up a regime that is both arbitrary and discriminatory. (4) And race is at the heart of this disconnect. It is the key to understanding the origins of U.S. death penalty and the formidable challenges to its fair implementation. (5) Yet the Court's increasingly elaborate doctrinal framework never confronts race directly. (6)

The Steikers argue for the importance of recognizing the uniqueness of the "novel third course" our Supreme Court has charted "between the options of retention and abolition" (p. 40). The United States came tantalizingly close to abolishing the death penalty in Furman v. Georgia in 1972. (7) But instead of finding the death penalty itself unconstitutional, the Court in Furman focused on the procedural flaws that produced an "arbitrary and capricious" death penalty. (8) This approach left a crack in the door, and the states rushed through with newly crafted statutes (9) that the Court approved just four years later in Gregg v. Georgia. (10) As a result, in the odd hybrid state that came to characterize U.S. death penalty jurisprudence, abolition was off the agenda, but detailed regulation was put in place with the goals of ensuring fairness and consistency. The Steikers argue that this regulatory regime has created the worst of both worlds: the appearance of careful or even overzealous scrutiny, but little actual constitutional protection for the rights of defendants. (11)

This book is clear-eyed and appropriately unsentimental about the politics of the death penalty. But the authors do hold out hope that a principled capital jurisprudence is possible. They seek to distinguish the factors that ought to animate the Court's jurisprudence from those that are illegitimate. For example, they argue that the current legal regime is distorted by electoral politics (and the effects of those politics on judges and prosecutors), (12) by intense emotions (such as collective outrage at shocking crimes, or selective empathy for some victims and their families), (13) and by racial prejudice. (14)

The Review proceeds in three Parts. Part I describes the book's main arguments. Part II explores the implicit question underlying the Steikers' critique: Is there a path toward a principled capital jurisprudence? Part III focuses on so-called "expressive" theories of punishment, which emphasize the symbolic, communicative importance of the death penalty. (15) It argues that expressive theories often cloud rather than clarify punishment discourse. It then returns to the topic of Part II, exploring the difficulty of distinguishing "off-limits" or "extralegal" political, emotional, and prejudicial influences from appropriate legal influences on the death penalty debate. This Review will question whether, once all these arguably illegitimate influences are stripped away, a coherent, principled doctrinal capital punishment doctrine is possible. In other words, is there any baby, or is it all bathwater? (16)

1. A DEVASTATING ACCOUNT

   The flash point for Courting Death is the four years that began with the Supreme Court's "bold abolition" of the death penalty in 1972 and ended with its "chastened reauthorization" in 1976 (p. 3). In the 1972 case of Furman v. Georgia, the Court was faced with a penalty that was "so wantonly and freakishly imposed" that it was "cruel and unusual in the same way that being struck by lightning is cruel and unusual." (17) When Gregg v. Georgia reauthorized the death penalty four years later, the Court began its "effort to reform and rationalize the practice ... through top-down, constitutional regulation" (p. 3). The goal of Courting Death is to analyze the success or failure of this "experiment" (18) and what it means for the future (p. 5). The Steikers, in accord with most scholars, pronounce the experiment a failure at its intended goals of reining in arbitrariness and discrimination. (19)

   As the Steikers show, the experiment has also had a number of unintended effects. These include a regime of hyperregulation that, in their view, has produced little substantive protection for capital defendants, and yet has convinced the populace that these defendants now receive too much protection (p. 155). Ironically, another unintended effect has been to build in yet another source of arbitrariness. On some death rows, stays of several decades have become commonplace. (20) On most others, "confined almost exclusively to the South and its borders," execution is much swifter. (21) The Furman Court attempted to address arbitrary and capricious imposition of death sentences. Today it is not only the sentencing stage that looks like a lottery; it is also the execution stage. (22)

   In their first chapter, the Steikers deftly disentangle the death penalty's religious roots from its roots in Southern colonies, where lynching, and then capital punishment, were used to protect the slave economy (pp. 19-20). They illustrate the legacy of both influences. (23) It is fair to say that the legacy of slavery holds much more powerful sway today than the religious legacy. We no longer prosecute Puritan-influenced crimes against religious purity, but the use of the criminal law to police racial boundaries persists. The authors emphasize the strong link between execution use today and the history of lynch mob activity over a century ago (p. 17). As they underline, this history extended well beyond slavery: "[O]ne of the functions of the death penalty ... was to create race-, to segregate the myriad social positions of the New World into hard and fast categories of white and black, free and enslaved." (24) They hold both legacies responsible, however, for two crucial aspects of our current day death penalty: the fact that it is largely a matter of local and state control, and the fact that the officials who control death penalty practices (prosecutors, governors, legislators) come from the political branches of government (p. 8). (25)

   Time and again, the Court has endeavored to avoid confronting the death penalty's racially discriminatory history and application. (26) The authors recount that the Warren Court, already embroiled in controversy over the school desegregation decisions, believed procedural justice would be a more politically acceptable focus than racial justice. (27) But by focusing on procedural deficits, the Court created the false impression that the greatest failings of the death penalty system amounted to discrete, isolated problems like death-qualified juries, (28) inadequacy of counsel, or the absence of statutory standards. (29) In this account, the Court's choice to focus on process was pragmatic but also idealistic: a reflection of its reluctance to confront the fact that constitutional intervention could not erase institutionalized racism (p. 105). Subsequent courts continued the tradition of ignoring race (pp. 111-15). Consequently, "the unjust influence of race in the capital punishment process continues unchecked." (30)

   The next several chapters take a hard look at the death penalty as it operates today. Currently a few Southern states carry out the vast majority of executions (p. 118). The authors make the important point that what really separates the Southern states from the rest of the country is not so much the number of death sentences they impose, but the alacrity with which they carry them out. (31) Outside of these former slave states, executions are rare (pp. 118-20), and in some states--chiefly California (32)--capital punishment's...