WHEN THE STATE KILLS: CAPITAL PUNISHMENT AND THE AMERICAN CONDITION. By Austin Sarat. Princeton: Princeton University Press. 2001. Pp. xii, 324. Cloth, $29.95.
For opponents of capital punishment, these would appear promising times. Not since 1972, when the Supreme Court invalidated the death penalty as then administered, has there been such palpable concern over its use, (1) reflected in the lowest levels of public opinion support evidenced in some time. (2) This concern is mirrored in the American Bar Association's recently recommended moratorium on use of the death penalty, (3) the consideration of or actual imposition of moratoria in several states, (4) and even increasing doubts voiced by high-profile political conservatives. (5) An array of troubling empirical realities has accompanied this shift: persistent evidence of racial bias in the use of the death penalty; (6) inadequate capital defense counsel; (7) gross geographic variations in death sentence imposition rates, both between and within death penalty jurisdictions; (8) America's solitary status among major democratic nations as an endorsee of executions; (9) and, perhaps most influentially, evidence that factually innocent persons have been condemned to death (10) and that the capital process itself is "broken." (11) Concern has also arisen over the execution of particular death row sub-populations, including the mentally retarded, (12) teenagers, (13) and inmates who have been "reformed" (e.g., Karla Faye Tucker in Texas). (14)
It is hard to identify precisely why this reexamination is occurring at this point in America's lengthy relationship with capital punishment. Concerns over the unfair application of the death penalty due to race (15) and socio-economic background, (16) and the fallibility of the capital process, including the execution of the factually innocent, (17) have been around for decades. So, too, has been skepticism over a core historic justification of the death penalty--its supposed deterrent value--what Clarence Darrow long ago aptly dismissed as an "ancient superstition." (18) At the same time, public support for the other core historic rationale, retribution, remains strong despite decades of criticism and counter-argument, today constituting the most common basis of support among death penalty advocates. (19) Nor can the increasing skepticism be attributed to judicial critique, given that the courts, with the Supreme Court in the lead, have essentially withdrawn from the death penalty debate. The Court, in Justice Blackmun's words, resolved some time ago to merely "tinker with the machinery of death," (20) rather than question the constitutionality of capital punishment in any fundamental way.
While recent public concern over the demonstrated flaws of the capital system is a cause for rejoicing among abolitionists, it is apparent that the concern relates more to the "machinery" of death--how death decisions are reached--rather than the "machine" itself. In his new book, Austin Sarat (21) addresses this latter concern, focusing on the system's broader effects on American law, culture and politics. In When the State Kills: Capital Punishment and the American Condition, Professor Sarat explores "what the death penalty does to us, not just what it does for US." (22) An unabashed abolitionist and prolific death penalty scholar, (23) Sarat is respectful of the historic impregnability of the traditional retributivist-based justifications of the death penalty. (24) True to his pragmatic orientation, he studiously eschews defense of the likes of Timothy McVeigh, whose case he calls the "ultimate trump card" of pro-death penalty forces; to Sarat, McVeigh's case is both unrepresentative in empirical terms, (25) and, in a political sense, a dead-end for abolitionists. (26)
When the State Kills thus avoids a "frontal assault" on the philosophical and moral justifications of capital punishment; instead, Sarat endeavors to provide a comprehensive and nuanced analysis of the many practical ways the death penalty affects the texture and substance of American life. The book, Sarat suggests at the outset, brings
a broadened perspective to the study of the death penalty.... It points the way toward a new abolitionist politics in which the focus is not on the immorality or injustice of the death penalty as a response to killing, but is, instead, on the ways that the persistence of capital punishment affects our politics, law, and culture. (p. 16) Importantly, Sarat is not alone in his highly pragmatic orientation; his position is increasingly being voiced by death penalty opponents, (27) which marks an important tactical development in the history of American abolitionism. In the following pages, I will sketch the contours of Sarat's "new abolitionism," consider its place in the evolution of the death penalty debate, and offer some thoughts on its potential consequences and prospects for success.
MAPPING THE CAMPAIGN TO ABOLISH THE DEATH PENALTY
Like environmentalism, feminism, and other modern social change movements, the American anti-death penalty movement owes much to the strategic vision of the civil rights movement of the 1950s and 1960s. Indeed, although death penalty abolitionist efforts can be traced back to the nation's origins, (28) the cause first took substantial root in the post-civil rights era, bearing the unmistakable earmarks of the NAACP's orchestrated campaign to dismantle state-sponsored segregation. Like the civil rights activists, the abolitionists sought recourse in the courts in the hope of achieving wholesale constitutional invalidation, in lieu of piecemeal and possibly ephemeral legislative victories.
The first inkling of judicial receptivity came in 1963 with Justice Goldberg's dissent (accompanied by Justices Brennan and Douglas) from a denial of certiorari in two cases contending that the death penalty was disproportionate when imposed for rape. (29) Taking the dissent as a signal, and mindful that the Court was not yet likely to impose a constitutional ban, abolitionist lawyers working under the auspices of the NAACP Legal Defense and Educational Fund crafted a "moratorium strategy," dedicated to attacking the procedures used in capital trials. (30) Because "death is different" from other penalties, the lawyers argued, capital trials should be characterized by greater procedural protections and rights for the accused. (31) Invoking this mantra, from 1963-1972 the campaign achieved a de facto if not de jure cessation of capital punishment, as legal challenges to then-common features of the capital system created a "logjam" and brought executions to a virtual stop. (32)
In 1972, in Furman v. Georgia, (33) by a 5-4 vote the Court invalidated capital punishment as then practiced. Although only two justices (Brennan and Marshall) categorically condemned use of the death penalty, (34) the prevailing sentiment of the three other members of the Furman majority was that the lack of sentencing guidance in state death regimes risked unfair and "capricious" executions in violation of the Eighth and Fourteenth Amendments. (35) Furman's upshot was sweeping: the death sentences of over 600 individuals were invalidated, and the capital laws of some 40 jurisdictions were rendered constitutionally suspect. (36)
With Furman, abolitionists succeeded in setting the death penalty on constitutional terrain, much as civil rights activists had done with racial segregation in Brown v. Board of Education. The legal victory, as in Brown, suggested that the movement's tactical decision to focus on judicial relief, as opposed to battling the death penalty on the legislative and public opinion fronts, was wise. Nonetheless, because Furman focused only on the methods of capital schemes, not the per se constitutionality of capital punishment, abolitionists braced themselves for a resurgence of state capital laws. To this end, they endeavored to prepare empirical studies focusing on various aspects of capital punishment, providing, if not an ironclad rationale to invalidate the death penalty, then supporting bases for judicial rulings favorable to the abolitionist cause. (37)
When these new capital laws in fact materialized, they assumed one of two basic forms: those making death mandatory for certain prescribed offenses and those affording enhanced guidance to sentencers combined with heightened procedural requirements. In 1976, the Court addressed the respective approaches: in Woodson v. North Carolina (38) and Roberts v. Louisiana (39) the Court invalidated mandatory death sentences, and in Gregg v. Georgia, (40) the Court upheld a guided discretion approach marked by sentencing standards, bifurcated trials, and rights to appeal. (41)
With Gregg, the Court (by a 7-2 margin) placed its imprimatur on capital punishment, locking the abolitionist cause into a twenty-five year effort to at least improve, if not abolish, the capital system. Having cast their lot with the courts, abolitionists were obliged to live with the consequences of the Court's adverse decisions, and there have been many through the years. (42)
To make matters worse, even apparent judicial victories have often ultimately had untoward results for abolitionism. The successful effort to have the Court recognize that "death is different" is illustrative. Initially invoked by Justice Brennan in his Furman concurrence as a basis to outlaw capital punishment, (43) over time this recognition has actually served to shore up faith in the capital system. Starting with Gregg in 1976, (44) the Court has invoked the mantra to justify an increasingly complex procedural regime affording the impression of "heightened reliability" in the capital process. (45) In due course, this impression has provided a "false aura of rationality," (46) serving to allay anxiety among citizens (47) and justice system actors alike. (48) This constitutional cover, in turn, has afforded...