Capital punishment: a century of discontinuous debate.

• Author: Steiker, Carol S.
• Position: Centennial Symposium: A Century of Criminal Justice

1. INTRODUCTION

   A little more than one hundred years ago, in 1909 (the same year as the founding conference for the Journal of Criminal Law and Criminology (1)), the U.S. Supreme Court held its first and thus far only full-blown criminal trial under its original jurisdiction. The defendants were a group of city officials and townspeople from Chattanooga, Tennessee, and the charges were criminal contempt. The charges arose from the lynching of Ed Johnson--a black man accused of raping a white woman--an act of defiance in response to the Supreme Court's assertion of jurisdiction to conduct federal habeas corpus review of his case. Johnson's state court trial began two weeks after the crime and concluded four days later; his lawyers had been allotted only ten days to prepare his defense. Johnson was convicted and sentenced to death by an all-white jury on extremely flimsy evidence (the victim and sole witness to the crime testified, "I will not swear that he is the man") in a hasty proceeding suffused with the threat of mob violence. The Tennessee Supreme Court denied Johnson's appeal, but Justice John Marshall Harlan (famous dissenter in Plessy v. Ferguson (2) thirteen years earlier), after consulting with his brethren, accepted habeas review of the case as the Circuit Justice hearing emergency appeals from

   the Sixth Circuit. The day following Justice Harlan's order, a mob removed Johnson from his cell with the tacit permission of jail officials and the county sheriff. The mob brought Johnson to the county bridge that spanned the Tennessee River, where they hanged him and also shot him more than fifty times. One of those involved was a deputy sheriff who fired five shots himself at point-blank range and left a note pinned to Johnson's body that read: "To Justice Harlan. Come get your n--r now." The Supreme Court, in an opinion by Justice Oliver Wendell Holmes, rejected vociferous defense arguments that the Court's assertion of jurisdiction over the case constituted an unlawful intervention in state processes and held instead that the violation of the Court's order, if willful, would constitute criminal contempt. (3) Ultimately, the sheriff, a deputy sheriff, and four leaders of the lynch mob were convicted of contempt at trial and given sentences ranging from sixty to ninety days in prison, though the sheriff was greeted as a hero in Chattanooga upon his early release by a crowd of 10,000 supporters. (4)

   No one doubts that death penalty litigation has changed a great deal in the past on hundred years, as this dramatic case illustrates. The authority of the United States Supreme Court and the federal courts more generally to review state capital and criminal convictions is now unquestioned, thanks in no small part to the Chattanooga contempt prosecutions. Moreover, starting in the decades following Johnson's lynching and accelerating during the constitutional criminal procedure revolution of the 1960s, the Supreme Court established a plethora of constitutional guarantees regarding state capital and criminal processes--including the rights to appointed counsel, representative juries, and insulation from the threat of mob violence, among many others. Ironically, Ed Johnson's lawyers raised all three of these claims in their representation of him, but to no avail. Indeed, it is clear that the recognition of these federal rights was driven in large part by trials like Johnson's--hasty, mob-driven capital trials of black defendants in state courts in the South that could be so perfunctory as to earn the sobriquet "legal lynchings." (5) The procedural world of Ed Johnson's trial is unrecognizable today and elicits amazed headshakes when presented to current law students studying the history of criminal procedure and federal habeas corpus.

   In contrast to the transformation of the legal process for capital trials, many assume that the nature of public discourse about capital punishment has remained relatively static, with the same old, well-worn arguments about the morality or wisdom of the death penalty recycled through the generations. There is a non-fanciful basis for this assumption, as some of the most familiar arguments in debates about the death penalty make a fairly unchanged appearance across the centuries. The leading scholarly work on the history of the American death penalty describes a college student at Columbia who, having left an essay until the last minute, sighs that time pressure forced him "to take refuge in some old thread bare subject as Capital punishment"--in 1793! (6) What was already "threadbare" at the time of our nation's founding has seen more than 200 years of further wear and tear. Any student of death penalty debates over the generations recognizes the timeless quality of certain approaches. For example, Cesare Beccaria's seminal 1764 essay Of Crimes and Punishments, (7) the first sustained attack on the death penalty in the modern West, argued that long-term incarceration is a better deterrent than death and that executions set a bad example for the populace, decrying the absurdity of the state killing in an attempt to demonstrate that killing is wrong. These arguments could be lifted and dropped into a contemporary state legislative session or high school debater's file without any change at all.

   Our purpose in this essay is to challenge the easy (because partially true) assumption that there is nothing new under the sun in death penalty discourse. Rather, we contend that debates about capital punishment have been as much discontinuous as continuous over the past century. Some arguments that were made in the past have been entirely discredited or even forgotten today, while our current debates contain arguments that would be utterly foreign to denizens of earlier decades, despite the fact that they cared deeply about the issue of capital punishment in their own times. We address two "lost" arguments from the past in favor of the retention of capital punishment: the contention that capital punishment was a necessary antidote to extrajudicial lynchings and the defense of capital punishment as part of a larger program of eugenics endorsed by many progressive leaders of the late nineteenth and early twentieth centuries. We also explore two "new" abolitionist arguments from the present: the fiscal argument about the greater cost of capital punishment even in comparison to life imprisonment and the concerns raised about the suffering of those awaiting execution for lengthy periods (so-called Death Row Phenomenon). We hope to show not only that death penalty discourse has not been as static as is often assumed, but also that the debates of each era provide a window onto both the nature of the actual practice of the death penalty in different times and the broader social contexts in which that practice has operated.

2. TWO FORGOTTEN ARGUMENTS FOR THE RETENTION OF CAPITAL PUNISHMENT

   Consider the following thought experiment. Imagine asking the members of any current audience in the United States to give the two strongest arguments they can think of in favor of the retention of capital punishment. The audience members would doubtless disagree and produce a varied list of considerations, but it is highly unlikely that such a list would contain arguments about either the prevention of lynchings or the promotion of a program of eugenics. Yet these two considerations were powerfully present in the lively debates about capital punishment that took place a century ago. Not everyone who supported capital punishment in the early twentieth century found either or both of these arguments persuasive, and not everyone concerned about lynchings or enthusiastic about the eugenics movement supported capital punishment. Yet everyone familiar with public discourse about the death penalty at the time would have recognized the relevance of these considerations to the debate and, indeed, their sometimes decisive impact on policy. In what follows, we hope to recapture a flavor of the significance of these issues to early twentieth-century debates about the death penalty and explore what light this significance sheds on the changing role of capital punishment as a social practice over the past century.

   1. THE DEATH PENALTY AS A NECESSARY ANTIDOTE TO LYNCHING

      Our country's shameful history of lynchings--extrajudicial executions mostly of black men suspected of criminal acts against whites--has been well-documented. During the Reconstruction Era in the South, freed blacks were frequently the target of lethal violence even in the absence of any suspicion of criminal wrongdoing, merely as part of "the wave of counterrevolutionary terror that swept over large parts of the South" after the Civil War. (8) But the practice of lynching continued robustly well past Reconstruction and into the twentieth century, primarily in the South, claiming the lives of 4,708 people between the years of 1882 (when the Tuskegee Institute first began keeping such records) and 1944 (after which lynchings declined steeply). (9) The vast majority of these victims were black men, and while statistically, the most commonly cited motivation for lynching was the suspected murder of a white person by a black man, the "most emotionally potent excuse" was the claim that a black man had raped a white woman. (10) Historians of lynching in the South find it difficult to overstate the centrality of the fear of black rapists to the practice of lynching: "Black men were lynched for other crimes, but rape was always the key." (11) Even high-level elected officials in the South publicly endorsed lynching as the only "suitable punishment" for black men who raped white women. (12) Lynching was so entrenched a practice that in the most intense period of lynchings in American history, 1889-1893, (13) considerably more people were lynched than executed nationwide--921 to 556, by one count. (14)

      The practice of lynching had some obvious implications for...