Not wiser after 35 years of contemplating the death penalty

• DOI: https://doi.org/10.1016/S1059-4337(07)00404-8
• Date: 18 January 2008
• Pages: 91-133
• Published date: 18 January 2008
• Author: Leigh B. Bienen

NOT WISER AFTER 35 YEARS OF

CONTEMPLATING THE DEATH

PENALTY

Leigh B. Bienen

ABSTRACT

Is the death penalty dying? This autobiographical essay offers observa-

tions on the application of capital punishment in three very different legal

jurisdictions at three different time periods when – partially by

happenstance and partially by design – she was a homicide researcher,

a participant and an observer of profound changes in the jurisdiction’s

application of the death penalty.

The first illustrative case is Nigeria in the early 1970s when the federal

government’s authority and credibility had been badly damaged by a recent

civil war. In Nigeria the military government created a parallel legal system

to the ordinary criminal justice system. That parallel legal system could and

did order especially harsh and summary penalties, including public

executions. Public executions were a visible and highly symbolic way for

the State to announce it had established civil rule. There was no public

debate and little or no public dissent expressed or allowed.

The second example is New Jersey in the 1980s when capital punishment was

reenacted by the legislature in 1982 after decades of its absence. The Supreme

Special Issue: Is the Death Penalty Dying?

Studies in Law, Politics, and Society, Volume 42, 91–133

Copyright r2008 by Elsevier Ltd.

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1016/S1059-4337(07)00404-8

91

Court of New Jersey responded to the legislative reimposition of capital

punishment by establishing new, highly detailed and technically complex due

process procedures, the result of which was: no executions have occurred in

New Jersey as of November 2006, and few persons have been sentenced to

death or have had their death sentences upheld by the state high court.

The third illustrative example is the extraordinary commutation of 167

death sentences and four pardons, the emptying of the Illinois death row, by

departing Governor George Ryan in January 2003. That dramatic and

unprecedented commutation did not happen in a political vacuum. Prior to

the commutations, a set of unpredictable cases, some long in preparation

and others not, revealed in a relatively compressed time period that 13 men

on death row in Illinois were innocent, or wrongfully convicted, or both.

And finally these illustrative cases are compared with the surprisingly

successful, recent, live challenges to the entire system for implementing

capital punishment in the United States: the lethal injection cases. This

procedural challenge crosses federal and state jurisdictional lines and

threatens to bring to a halt all executions in the United States without

raising any legal challenges to the death penalty itself with regard to the

manner or constitutionality of its imposition.

INTRODUCTION

This is an autobiographical essay provoked by the question – Is the death

penalty dying? Four illustrative case studies from my experience as a

researcher on homicide and capital punishment over the past 35 years are an

occasion to reflect upon my experience with capital punishment in very

different circumstances over what seems like a long period of time. One theme

is common to all these examples: that is, how inextricable the law, both

decisional law and statutory law, is from the larger, surrounding politics of

time and place. If the death penalty is dying in the United States, individuals

will play a decisive and pivotal role, but there must be a political moment, an

opportunity, a confluence of forces, whichmay be fleeting, for that to happen.

In the description of the death penalty case studies that follows, the

pattern which emerges, if there is one, is a pattern of particularity and

individuality. New Jersey and Illinois have never had similar legal

institutions. It would be hard to imagine a New Jersey Governor acting

as George Ryan did when he emptied death row in Illinois, and equally

impossible to imagine the Supreme Court of Illinois taking the course

chosen by the Supreme Court of New Jersey in the 1980s. Nigeria is offered

LEIGH B. BIENEN92

as an example of a regime using capital punishment as a tool for different

objectives. The lethal injection cases, popping up all over the country after

2002, are an example of the unpredictability of legal outcomes in a system

with thousands of actors and adjudicators when the political climate

changes every moment and then momentum is established.

ILLUSTRATIVE CASE NO. 1 – NIGERIA AND THE

ARMED ROBBERY TRIBUNAL IN 1972–1973

My first experience with capital punishment was in the Western State of

Nigeria in 1971 when I was looking for a research project to earn six

academic credits while on leave of absence after my first year of law school.

The truth was I had found the first year of legal education so devoid of

intellectual and personal rewards that I had no commitment to continue.

I had always loved research, and I was looking for a project to while away

the time. This research on capital punishment in Nigeria, now so distant in

time and place, and its methodology, so simple, continues to resonate with

my present work on capital punishment 35 years later. Perhaps the

commonality is the interplay between the law’s overarching, studied

formality, its seeming objectivity, and the deep human irrationality of its

application in the particular. This juxtaposition, so striking in the many

manifestations of capital punishment, makes the study of the death penalty

endlessly seductive. Just when understanding seems imminent, a new

conundrum, a fresh contradiction presents itself.

While reading through all of the books in English on African Law in the

University of Ibadan Library in 1970, I came across Paul Bohannan’s

African Homicide and Suicide (1960), a series of commissioned essays from

the 1950s, mostly by British colonial officers who later became anthro-

pologists, about patterns in homicide and suicide in their colonial districts.

These anthropologists were careful observers, and this was the beginning of

the academic study of homicide, coming into its own with the publication of

Marvin Wolfgang’s Patterns in Criminal Homicide (Wolfgang, 1958), just as

quantitative sociology was transforming the discipline. One droll aspect of

doing research on homicide in Nigeria in the 1970s was the repeated, solemn

observation by British and American academics that the expected rates and

patterns of homicide in Nigeria would resemble those of blacks in

Philadelphia, because Wolfgang’s study differentiated between blacks and

whites. While this suggestion was absurd, the association of the study of

Not Wiser After 35 Years of Contemplating the Death Penalty 93