Criminal law and criminology: a survey of recent books.

• Author: Ferrall, Bard R.

CAPITAL PUNISHMENT

STUART BANNER, THE DEATH PENALTY: AN AMERICAN HISTORY (Cambridge, MA, Harvard University Press, 2002) 385 pp.

Examining the death penalty's history from colonial times to the present, Banner discusses how various factors influenced evolution in the methods and procedures of execution, alteration in the number and types of capitally sanctioned crimes, and changes in the public debate over the death penalty. In colonial America, many offenses were punished by death. Methods of execution such as differing severity and treatment of the body after death recognized gradations of guilt. Execution was highly public and was regarded as a function performed by the people and the community. Crime was considered an act of free will, and failure of the people to punish it would spread guilt to the community. Detailed rituals surrounding execution legitimized it and promoted public awareness. Deterrence, retribution and encouragement of repentance were the rationales for the death penalty. The introduction of the prison in the early nineteenth century permitted finer calibration of punishment to each crime, resulting in fewer offenses capitally punished. (The prison alternative, however, generally failed to take hold in the antebellum South, in part, the author speculates, because incarceration was insufficiently worse than enslavement, and thus not an effective deterrent to control the black population. In contrast to the North, many offenses in southern states remained capitally punishable when committed by free whites; this may have seemed tolerable because even more offenses were punished by death when committed by slaves.) Philosophical, moral and religious arguments both for and against the death penalty had been advanced in colonial times, but imprisonment provided a practical alternative. Opponents began to advance utilitarian justifications for prisons, arguing that imprisonment was a greater deterrence than death, and that the certainty, rather than the severity, of punishment was the real deterrent. When the prison replaced the public square as the execution site, attendance was limited. Questions about the deterrence value grew, as public awareness of execution diminished, since those at whom deterrence was directed had only secondhand knowledge of an execution. Even fewer members of the public attended when electrocution and asphyxiation were used. These methods were adopted from humanitarian concerns, but the debate changed when it appeared that the death penalty was not an act of the community or the people as a whole, but rather was being administered in isolation by government technicians before a few carefully selected witnesses. Public participation in the criminal process grew in other aspects, however, such as awareness of important trials and clemency appeals. The retribution rationale also came under scrutiny, with the generation of new theories about criminal behavior. The number of executions peaked in the 1930's and fell in following decades. (The per capita ratio had been falling since the 1880's.) Application of the death penalty became a constitutional question with the 1972 Furman and 1976 Gregg decisions. The author gives the background to the "cruel and unusual" clause of the Eighth Amendment, the background to Furman, the subsequent suspension of the death penalty, and the return of the death penalty with Gregg. Judicial involvement in the death penalty is now extensive and detailed. An unhappy compromise seems to have been reached. On paper, the death penalty is potentially applicable to many crimes, but in practice is it imposed relatively rarely, and then only after prolonged litigation.

STEPHEN P. GARVEY, ED., BEYOND REPAIR? AMERICA'S DEATH PENALTY (Durham, NC: Duke University Press, 2003) 244 pp.

These essays deal with recent developments and ongoing issues in the death penalty debate. Support for capital punishment remains high, despite some indications of change. Recent opinion surveys are analyzed both to shed light on public support and for some expressions of doubt, and whether a trend exists. An essay on the writ of habeas corpus discusses the Rehnquist Court's restrictions on appeals in federal courts. After a brief history of the writ, this essay identifies several recent limitations by the Court. Most important is the Court's high standard for an ineffective assistance of counsel claim, despite indications that capital defendants often receive poor representation (and when better lawyers do come onto the case, it is often too late to have much effect). Other court decisions, and changes to the federal habeas statute, are criticized as unduly burdensome on the petitioner, too restrictive of full appellate deliberation before imposition of death, and creating too much risk that procedural requirements will prevent a proper hearing of claims of actual innocence. Another essay searches for reasons why capitally sentenced, but later exonerated prisoners were convicted in the first place. Important factors include poor representation at trial and the use of jailhouse informants. Suggestions for safeguards include minimum standards for capital defense attorneys, extensive access to prosecution materials for capital defendants, internal guidelines in the prosecutor's office regarding the pursuit of the death penalty in cases that rely on certain types of highly suspect evidence, allowing capital juries to consider "residual doubt" even when the "beyond reasonable doubt" standard has been met, and procedures permitting post-conviction presentation of strong exculpatory evidence. An essay on the problem of racial factors in capital sentencing argues societal stereotypes cannot be adequately countered in capital sentencing by judicial doctrines of race neutrality. Findings of the Capital Jury Project raise questions as to whether defendants are receiving adequate jury deliberation. Especially problematic are difficult-to-understand jury instructions and indications in mock trials that jurors would often vote differently if they understood the instructions. This raises doubts as to whether capital defendants are receiving the legal protection intended by jury instructions. A final essay argues that public support for the death penalty is based on the standards of both efficiency and protections against wrongful convictions, but the size of the American criminal justice system makes these standards unobtainable.

CONSTITUTIONAL CRIMINAL PROCEDURE

WELSH E. WHITE, MIRANDA'S WANING PROTECTIONS: POLICE INTERROGATION PRACTICES AFTER DICKERSON (Ann Arbor, MI, University of Michigan Press, 2001) 230 pp.

Although the Dickerson Court suggested that if now presented with the Miranda facts as a first impression, it would probably rule differently, the Court declined, over a strong dissent, a request to overrule Miranda. Stare decisis was the primary reason, although the Court was also concerned with the difficulty of police conformity with the suggested alternative of a due process voluntariness test based on the totality of the circumstances and the cost of the judicial inquiry that this test would require. The due process voluntariness test had been the pre-Miranda standard. The Court found that on balance, Miranda's cost to law enforcement was tolerable. Only a relatively few convictions have likely been lost due to Miranda. Police have become adept at obtaining Miranda waivers, and while due process voluntariness protections apply in principle to interrogation after waiver, the Dickerson Court noted that a defendant had little basis to challenge a confession obtained after proper warning and waiver. The author argues, however, that while Miranda warnings are necessary to inform the...