Institutionalizing the Culture of Control

• Published date: 01 December 2014
• Author: Blake M. Randol,Simon Zschirnt
• Date: 01 December 2014
• DOI: 10.1177/1057567714551094
• Subject Matter: Articles

Article

Institutionalizing the Culture

of Control: Modeling the

Changing Dynamics of U.S.

Supreme Court Death

Penalty Decisions

Simon Zschirnt

1

and Blake M. Randol

2

Abstract

The turn away from ‘‘penal welfarism’’ and toward a more punitive approach to crime control policy

that began in the late 1960s has been the product of a deeply rooted social and political transfor-

mation, one giving rise to what Garland (2001) has termed a ‘‘culture of control.’’ Perhaps the most

emblematic manifestation of this culture has been the reemergence of the death penalty as a crime

control tool, a reemergence facilitated by a Supreme Court that has generally acted to limit or

remove constitutional and legal obstacles to carrying out death sentences. This article analyzes the

Court’s role in deregulating the death penalty from a ‘‘politicalregimes’’ perspective. Using a data set

of all of the votes cast in every death penalty case decided by the Court since 1969, it demonstrates

the importance of regime cohort in understanding death penalty jurisprudence. Specifically, it

demonstrates that the construction of the ‘‘New Right’’ political regime, which spearheaded the

punitive trend in crime control policy, represents the critical turning point in terms of justices’

attitudes toward the death penalty. Justices appointed after 1968, even when controlling for

background, ideology, partisanship, public opinion, and a variety of legal factors, were significantly

more likely to vote to affirm death sentences than justices appointed prior to 1968. Moreover, this

turning point also marked a reversal in the relationship between partisanship and death penalty

jurisprudence. While post-1968 Republican appointees were more supportive of the death penalty

than post-1968 Democratic appointees, this pattern was notably reversed among pre-1968

appointees.

Keywords

crime control policy, death penalty, partisanship, political regimes, U.S. Supreme Court

1

Department of Public Affairs & Social Research, Texas A&M International University, Laredo, TX, USA

2

Department of Criminal Justice, University of Wisconsin at Milwaukee, Milwaukee, WI, USA

Corresponding Author:

Blake M. Randol, Department of Criminal Justice, University of Wisconsin at Milwaukee, 1141 Enderis Hall, Milwaukee, WI

53201, USA.

Email: randol@uwm.edu

International CriminalJustice Review

2014, Vol. 24(4) 319-344

ª2014 Georgia State University

Reprints and permission:

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DOI: 10.1177/1057567714551094

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Nominations to the U.S. Supreme Court arguably reached their high point in political salience

during the 1968 presidential election, which saw Republican nominee Richard Nixon feature as a

central theme of his campaign opposition to many of the landmark decisions of the Warren Court

and a promise to appoint ‘‘strict constructionists’’ to the Court (see, e.g., Chester, Hodgson, & Page,

1969; Clayton & Pickerill, 2006; Edsall & Edsall, 1991). This conservative opposition to the Warren

Court’s revolutionary constitutional jurisprudence was broadly based and motivated by the Court’s

decisions in a number of areas of varying political prominence, from its establishment clause deci-

sions removing prayer and other religious displays from the public square to its speech clause deci-

sions narrowing the definition of obscenity to its privacy decisions finding new constitutional rights

in amorphous ‘‘penumbras’’ of constitutional text. However, it was the Warren Court’s criminal pro-

cedure jurisprudence that was the focus of the harshest criticism by and garnered the most political

capital for the emerging ‘‘New Right’’ political regime.

Promulgated during a time of rising crime rates, widespread civil unrest, and growing public

concern over security, this jurisprudence had become increasingly unpopular. Embodying the

crime control philosophy of ‘‘penal welfarism,’’w hich combined the major crime control innova-

tions of the 20th century (the rehabilitative ideal, individualized treatment, and indeterminate sen-

tencing) with older ideals of ‘‘liberal legalism’’ (due process and proportionate punishment), it

significantly expanded the rights of criminal defendants at a time when public opinion was moving

decisively in the opposite direction (Garland, 2001). This shift in public opinion away from the

rehabilitative ideal and toward a more punitive approach to crime control, one that emphasized

deterrence, incapacitation, and retribution, reflected a deeply rooted cultural transformation that

has given rise to what Garland terms a ‘‘culture of control’’ (2001). This transformation resulted

from the disruptive economic and social changes associated with ‘‘late modernity,’’ the shared

postwar experience of post–industrial Western societies (particularly the Unit ed States and Great

Britain) that has seen these societies lose faith in the welfare state and social democratic policies

and move to varying degrees toward a new synthesis of neoliberalism and neoconservatism (2001,

193). This synthesis has been characterized by an emphasis on deregulation and marketization on

one hand and on greater social order and control on the other hand (2001). As a r esult of this phe-

nomenon, the Democratic Party’s continued embrace of criminal justice policies reflecting penal

welfarism and the Warren Court’s jurisprudence, which reflected this continued embrace, increas-

ingly became anachronistic political liabilities that contributed to the Republican Party’s post-

1968 dominance of presidential elections.

Prior to this period, crime control policy had not constituted a cleavage issue and there were no

perceptible differences between the two parties’ positions on the issue (Clayton & Pickerill, 2006).

However, this would change with the emergence subsequent to 1968 of the New Right political

regime, whichwas reflected in the aforementionedRepublican dominancein presidential electionsand

in Congress being controlled for most of this period by either an informal coalition of conservative

Democrats and Republicans or by the Republican Party outright. A defining characteristicof the New

Right regime was its punitive posture with regard to crime control policy, resulting in debates over

crime control issues becoming a major feature of the national political environment and of political

campaigns, a phenomenon that Simon (2007) refers to as ‘‘governing through crime.’’ According to

Simon, through this process, political elites have used the insecurity and vulnerability felt by Amer-

icans in responseto rising crime rates to expandtheir power and justify ever moreintrusive social con-

trols. Perhapsmost significantly, thisgrowing emphasis on securityin political discourse has degraded

the quality of Americandemocracy insofar as it has presented ‘‘crime victims as a dominant model of

the citizen ...whose needs and capacities define the mission of representative government’’ (2007, 7).

The increased political salience of crime control policy and the general process of governing

through crime have consistently been reflected in the Supreme Court appointments made by both

Republican and Democratic presidents. In particular, justices appointed to the Court by Republican

320 International Criminal Justice Review 24(4)