Institutionalizing the Culture of Control

Published date01 December 2014
Date01 December 2014
Subject MatterArticles
Institutionalizing the Culture
of Control: Modeling the
Changing Dynamics of U.S.
Supreme Court Death
Penalty Decisions
Simon Zschirnt
and Blake M. Randol
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
crime control policy, death penalty, partisanship, political regimes, U.S. Supreme Court
Department of Public Affairs & Social Research, Texas A&M International University, Laredo, TX, USA
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.
International CriminalJustice Review
2014, Vol. 24(4) 319-344
ª2014 Georgia State University
Reprints and permission:
DOI: 10.1177/1057567714551094
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)

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