When the State Kills: Capital Punishment and the American Condition.

• Author: Kaufman-Osborn, Timothy V.

When the State Kills: Capital Punishment and the American Condition. By Austin Sarat. * Princeton, N.J.: Princeton University Press, 2001. Pp. 324. $29.95.

For foes of the death penalty, these are the worst but also the best of times. In 1976, when the U.S. Supreme Court decided Gregg v. Georgia, (1) which effectively lifted the moratorium imposed four years earlier by Furman v. Georgia, (2) there were 420 persons on death row. Today, that number is approaching an even 4000. The rate of executions has risen with equal rapidity, climbing from one in 1977 to twenty-five a decade later and, in 1999, to just shy of one hundred. (3) Despite a recent slight dip, (4) there is little reason to think that we will see a dramatic drop in the number either of those sentenced to die or of those actually executed in the coming years. For close to two decades now, Congress and the Supreme Court, betraying mounting impatience with the due process requirements adopted in response to Furman's concerns about fairness, have made it ever more difficult for death row inmates to obtain federal habeas review of their convictions and sentences. (5) In addition, in close to half of the thirty-eight states that now authorize capital punishment, post-conviction defender programs and capital resource centers have been defunded, thus making it ever more difficult for inmates on death row to secure adequate legal representation. (6) Finally, the nearly universal adoption of lethal injection as a method of execution has sanitized the act of killing, thereby rendering it far more palatable than when we dispatched persons using gas, a rope, a bullet, or a lethal jolt of electricity.

For these reasons and many others, the gears of the machinery of death are now unusually well-greased. Yet it is simultaneously true that the question of capital punishment is disputed today in a way that it has not been since the 1970s. In 1997, the American Bar Association's House of Delegates adopted a resolution calling on states to halt executions until equal protection of the law was guaranteed to all. (7) In 1998, the execution of Karla Faye Tucker prompted a national debate, especially among members of the Christian right, about the morality of capital punishment. (8) The following year, the Nebraska legislature approved a two-year moratorium on executions, although this was later vetoed by the Governor. (9) In early 2000, after thirteen men on death row were exonerated by new evidence, Governor Ryan of Illinois suspended all executions pending a review of capital trials in that state. (10) Later that same year, although thwarted by another gubernatorial veto, the New Hampshire legislature voted to abolish the death penalty. (11) Still more recently, Columbia University issued a study indicating that of 4578 death sentence appeals conducted between 1973 and 1995, over two-thirds were successful in state or federal courts, whether because of incompetent defense counsel, mendacious police officers, or prosecutors whose zeal outstripped their fidelity to the law. (12) Shortly thereafter, the U.S. Department of Justice released another study indicating significant racial and geographical disparities in the federal death penalty system. (13) The cumulative effect of these and other developments was registered in a Washington Post-ABC poll conducted in April of 2001. Leaving aside what has come to be known as the "McVeigh exception," (14) this survey indicated that overall support for capital punishment has fallen from 80% to 63% since 1994, and that nearly half of all Americans would now abandon executions altogether if given a reliable option of life imprisonment without parole. (15)

On the basis of such evidence, it is tempting to predict, as Robert Jay Lifton and Greg Mitchell recently did, that "[b]efore long, the death penalty apparatus in our country will collapse under its own moral, psychological, and eventually political weight." (16) That prognostication, though, may be wishful thinking. If support for capital punishment has waned in recent years, this is not so much because new abolitionist arguments have been articulated and widely accepted, but because publicity has recently been lavished upon individualized stories of capital defendants represented by sleeping, intoxicated, or disbarred attorneys, of persons on death row proven innocent by undergraduate journalism students at Northwestern University, and of exonerations of the condemned on the basis of DNA testing. (17) Woven together, these stories have loosened the grip of conventional pro-death penalty narratives, which told of disingenuous lawyers manipulating legal technicalities in order to postpone indefinitely the execution of coddled criminals. In their stead, we often now hear a new, more skeptical narrative in which innocent persons are not infrequently hustled toward the death chamber by officials who, like all other government bureaucrats, are prone to corruption and slipshod work.

While the impact of these stories in shaping public opinion should not be minimized, it may be that these tales are better suited to generate support for a moratorium on the death penalty than for its wholesale abolition. "There is no inconsistency," write Samuel Gross and Phoebe Ellsworth, "in the fact that sixty-four percent of the population favors a moratorium (at least when DNA is mentioned), and about the same number favors the death penalty." (18) Though attractive as a way of breaking the rhetorical impasse that materializes when persons, absent a third alternative, feel compelled to choose between unvarnished support for and opposition to capital punishment, a moratorium is ultimately a strategy of deferral. As such, it may simply elicit additional efforts to do what the courts have been trying (unsuccessfully) to do since 1972, namely, to rationalize the administration of capital punishment in a way that rectifies its most troubling and glaring defects. And, if this is so, then it is not inconceivable that, in the long run, the moratorium movement may play into the hands of those who now exploit the gains secured by the Federal Death Penalty Act of 1994, (19) which made some sixty additional categories of crime, such as major narcotics trafficking, subject to the federal death penalty, and, far more important, by the Antiterrorism and Effective Death Penalty Act of 1996, which reduced the power of federal courts to review the fairness of state capital prosecutions. (20) In addition, support for a moratorium may vanish as quickly as it has arisen, especially should the American economy experience a significant downturn or should crime rates take a marked upturn, in which case a reinvigorated commitment to capital punishment might prove politically useful in deflecting attention from more systemic ills.

Such skepticism aside, the fact remains that we now stand at a remarkably volatile moment in the history of capital punishment in America. Whereas just five or six years ago, the death penalty appeared so firmly entrenched that it required no explicit defense against its marginalized opponents, today it appears vulnerable and thus in need of justification. Given this context, it is all the more surprising that the case against capital punishment appears oddly stalled, so much so that Gross and Ellsworth can contend, with considerable plausibility, that "the last new argument against the death penalty may have been made by Cesare di Beccaria, in 1764." (21) The conventional arguments against capital punishment fall effortlessly off the tongue: The death penalty has no demonstrable deterrent effect; it is morally impermissible to risk the execution of an innocent; capital punishment is unfair because it discriminates against the poor as well as against persons of color; it is less expensive to incarcerate persons for life than to execute them; and so forth. Although I do not mean to reject these arguments, especially since they are all true, I do want to suggest that none responds effectively to the passion for vengeance that explains the stubborn fidelity of so many Americans to the death penalty even after its systemic failings have been repeatedly exposed; (22) and that, therefore, opponents of capital punishment should welcome any effort to expand the terms of their discourse.

That is precisely what Austin Sarat offers in his When the State Kills. (23) Sarat exhorts us to move beyond the conventions of "moral argument and policy debate" (24) and shows us how we might begin to do so by asking what role capital punishment has played, and continues to play, in fashioning the collective identity of our nation. Should we situate the death penalty within this more comprehensive context, he argues, we will come to see that "[s]tate killing damages us all, calling into question the extent of the difference between the killing done in our name and the killing that all of us would like to stop and, in the process, weakening, not strengthening, democratic political institutions." (25) That conclusion, in turn, invites a shift to what Sarat, in his final chapter, calls a "new abolitionism." (26) What is novel about such abolitionism is its refusal to accept the burden of responding to those who invoke an unvarnished retributivist justification of capital punishment and seek to put their opponents in the position of pleading on behalf of the despicable. Once one is thrust into that rhetorical box, in order "to be against the death penalty one has ... to defend the life of Timothy McVeigh." (27) Instead, Sarat seeks to change the subject: "As we think about capital punishment, the faces we should be looking at are our own. The question to be asked about state killing is not what it does for us, but what it does to us." (28) Once we regard the death penalty as a sort of mirror held before our nation's face, we begin to see that

[s]tate killing contributes to some of the most dangerous features of...