The Killing State: Capital Punishment in Law, Politics, and Culture.

JurisdictionUnited States
AuthorBienen, Leigh B.
Date22 December 1999

THE KILLING STATE: CAPITAL PUNISHMENT IN LAW, POLITICS, AND CULTURE (Austin Sarat ed., Oxford University Press, 1999) 263 PP.

  1. INTRODUCTION

    These new books focusing on capital punishment issues come at a time when if there is not renewed interest in the death penalty, there is at least some surprise, among advocates, academics, and toilers in the criminal justice system, that we find ourselves where we are at the end of the millennium. Capital punishment is here to stay for the foreseeable future; thirty eight states have reenacted capital statutes.(1) The number of those executed since 1976 has passed 500.(2) Over 3,000 people, mostly men, who are disproportionately from the ranks of the poor and ethnic minorities, await execution on state death rows.(3) That there are so many on death row, and that the technicalities of executions--as opposed to technicalities of law or constitutional guarantees of due process--preoccupy the courts at present, is part of the surprise.

    Where is the debate over the death penalty? America is the only western country, some would say the only democracy, where capital punishment is still practiced.(4) Public executions are periodic demonstrations of state authority in China, Nigeria, Iraq and Pakistan.(5) Some argue that if the United States is to retain capital punishment, the practice of the State killing people under the authority of the law, then our executions also should be public, as they were until well into this century.(6)

    Opponents of the death penalty argue that if `the public'--whoever that is--`really knew'--whatever that means--how capital punishment in America was practiced, they would insist their law makers get rid of it.(7) Proponents of the death penalty also argue that the public should `really know' what the death penalty is. Others address the issue laterally--by describing some aspect of what the death penalty means in practice in the United States today.(8) Gregg v. Georgia ushered in the new capital punishment era in 1976,(9) and the execution of Gary Gilmore by firing squad in January of 1977 announced that the new capital punishment really had arrived.(10) The era of the United States Supreme Court's emphasis in Gregg and its companion cases upon the due process protections for defendants ensured by the structure of the new capital statutes, with jurors making explicit findings on statutory aggravating and mitigating factors, shifted empirical academic research to jury decision making.(11)

    Several of the books reviewed here engage in these arguments: what is capital punishment in America at the end of the twentieth century? Why do we still have it? Who is affected by it, and what does it cost? Who is informed about it, and what role does it play in elections? Where is there an open and honest discussion about it, and who are the participants? The books reviewed here raise other nontrivial questions: For whom are they written? What difference do they make, or can they make? The capital punishment engine seems to have its own driving force and momentum. Perhaps it is enough that these authors tell us some part of the story of where we are now in terms of capital punishment in the United States, and how we got there.

  2. PUBLISHING IN THE LEGAL PROFESSION AND THE RELEVANCE OF BOOKS ON THE DEATH PENALTY TO THE APPLICATION OF THE DEATH PENALTY

    The legal profession almost exclusively carries on its professional debates in the three hundred and some law reviews, published by law schools, where publication is relatively quick, and the law student editor,,; offer free and almost limitless editorial services, inserting a reference to the latest appellate case, or a legislative amendment, up to a few weeks before publication. These publications are immediately available on line to all members of the academic legal community, students, faculty, and librarians, to every state and federal appellate court, and to tens of thousands of commercial subscribers. In these journals, facts and the technicalities of procedures, and the existence of other legal commentary, can be checked and rechecked to a point of obsessive accuracy up to a few weeks before publication, under the theory that if a court, a judgment, perhaps a judgment of death, is to rely upon the arguments and information in the journal, its pinpoint accuracy must be unassailable.

    The journals used to be a form of training for the preparation for publication of briefs, especially briefs to the United States Supreme Court. Briefs in most courts are now not printed, in part because of the delay introduced by printing and the high quality of low cost photocopying. Some courts even accept filings on line. By contrast, the publishers of legal treatises and textbooks price their products high, issue new editions with glacial speed, publish expensive pocket parts and updates, and can make a profit by selling less than a thousand copies a year. Does the existence of a variety of professional publications, such as law reviews and legal treatises, preempt the market for trade books about legal issues such as capital punishment, at least for a professional audience? Do judges and lawyers read scholarly books, books with empirical research about the death penalty, books with dense philosophical arguments?

    The professional culture surrounding law reviews, what they publish, who is being published and where, and what being an editor means for the enhancement of the careers of law students and law teachers alike has recently been the subject of extensive discussion in that professional literature itself.(12) The down side to the much vaunted accuracy of the student cite checking and reference is that what you write is subject to be being preempted by next month's or next year's publication on the same subject, also instantaneously available to every court, law library and law school.

    If practicing lawyers and judges rely upon a journal literature and commercial on line research services for information and opinion, then who is the audience for books on a subject such as capital punishment? The production of books is basically an academic exercise. Most of the books reviewed here are published by a university press. The academic presses have been able to step into the gap left as large commercial publishers have become preoccupied with blockbuster books and surviving corporate transformations. Twenty years ago several of the books reviewed here might have comfortably rested in the mid list of a commercial publishing house.(13) Twenty five years ago a book on a topic of general interest, such as capital punishment, might have sold 10,000 copies. A commercial publisher now considers 20,000 to be the minimum to justify their corporate overheads.(14)

    Yet many, too many some would say, are writing and publishing books on subjects which range through and across the academic disciplines, subjects such as capital punishment and the death penalty, in part because the principal criterion for granting tenure at universities remains whether or not the candidate has published a book with an academic press. Furthermore, if the changing economics of universities and commercial publishing were not enough, both book publishers and the authors of books live within the revolution introduced by electronic publishing and the immediate availability of immense amounts of information and discussion, much of it virtually free, about topics such as capital punishment which were formerly the province of academic books and professional journals. Books which used to remain on library or office shelves for decades with the security of being kept as repositories of background information are now subject to removal and replacement by data from a web page before the books are even catalogued.(15) Furthermore, capital punishment as a topic appropriately belongs to everyone: to sociologists, criminologists, psychologists, the humanities, the moral philosophers, religious leaders, as well as the public which watches and participates in capital trials, and avidly reads about all aspects of the law in their newspapers.

    Is there then a market for books such as those reviewed here with the general reader: the curious, the mentally agile, the skeptical and verbally acute high school student, the retired person with interests in the world, the person sidelined or temporarily taking time off who is reading, the old or young woman or man, getting a book or two from the lending library every week? Are there thousands of general readers who haven't allowed television to predigest or dictate what they think or feel, people who want to inform themselves about what is, for better or worse, surprisingly or predictably, sadly or inevitably, one of the great moral issues of our time.(16) After all, one of the tenets of the public policy debate is that public opinion supports the death penalty, and that one of the few things voters care about is capital punishment. Perhaps then, the general reader as voter will be influenced by scholarly, or serious books about the death penalty.

    The popular thirst for stories about murder keeps alive some of the general public's interest in academic books about capital punishment. Murder mysteries, fantasies of murder, sanitized representations of killings, and dramatizations of capital punishment have long been staples of popular literature and entertainment, and this leads a few to a more serious literature. Capital cases dominate the newspaper headlines and evening news not just because journalists are ghoulish or exploitative, but because people want to know about them. This has been true since the time of Socrates. Before Dickens, the nineteenth century novel had criminal trials, murder, and its punishments as a central subject. However, is this audience going to buy and read books with hundreds of citations to cases where the text is interlarded with statistics, charts, and graphs?

    With more than a million-and-a-half of...

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