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Copyright © SAGE Publications London, Thousand Oaks, CA and New Delhi. www.sagepublications.com 1462-4745; Vol 7(4): 347–376 DOI: 10.1177/1462474505057097 PUNISHMENT & SOCIETY

Capital punishment and American culture DAVID GARLAND New York University, USA

INTRODUCTION

This is an essay about capital punishment and American culture. Its point of departure is the recent publication of several books and articles suggesting that the USA’s retention of the death penalty is an expression of an underlying cultural tradition that creates an elective affinity between American society and the execution of criminal offenders. The implicit – and sometimes explicit – claim of this new literature is that today’s capital punishment system is an instance of ‘American exceptionalism’, an expression of a deep and abiding condition that has shaped the American nation from its formative years to the present. I want to take issue with this idea. I want to reject this culturalist version of American exceptionalism and to resist the notion that there is something deep and abiding about American culture that propels its judicial system towards capital punishment. In taking issue with these specific propositions and the books in which they are developed, I suggest an alternative way of understanding the continuation of capital punishment in the USA after 1972. In the course of this discussion, I also raise some more general issues about concepts of ‘culture’ and their use in the sociology of punishment.

AMERICAN EXCEPTIONALISM AND CAPITAL PUNISHMENT

Developments at home and abroad have recently given American capital punishment a distinctiveness that it did not previously possess. It has become distinctive in that no other western nation now retains capital punishment while in the USA, the death penalty is still imposed and offenders are still put to death. With regard to executions, the USA has been alone (among western nations) since 1977 when France executed offenders for the last time. With regard to law, its singular status dates from 1981 when the French Assembly abolished the penalty of judicial execution. Most western nations had stopped executing offenders for ordinary crimes by the 1960s, though it took until the 1990s for many of them to abolish it for special offences such as wartime offences and crimes against the state.1 The sense of the USA’s distinctiveness increased in the 1990s. In a period when many nations completely abolished the penalty, international conventions outlawed it2 and 347

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Europe finally became a death penalty-free zone, the USA moved rapidly in the opposite direction, increasing its annual number of executions (from one or two per year at the start of the 1980s to a peak of 98 in 1999), passing new capital punishment legislation, reducing the level of judicial review and regulation3 and consolidating an increasingly bipartisan political support for the institution. So, the USA is now on its own. There are other democratic nations that are retentionist: India, the world’s largest democracy, still executes offenders (though it does so more rarely than the USA and most often as the punishment for political assassination).4 And there are other advanced, fully developed industrialized nations that put offenders to death – Japan is an example. But if the comparison set is ‘western nations’ then the USA stands alone.5 This state of affairs – in which the USA is an outlier, an egregious exception to an established pattern – has recently prompted several scholars to invoke the sociological theory of ‘American exceptionalism’ as an explanatory resource.6 Tony Poveda (2000) and Carol Steiker (2002) explicitly develop this claim in recent articles – the first asserting it as part of a critique of the USA’s long history of using the death penalty in the furtherance of race and class oppression, the second exploring the theme in a tentative and non-committal way. Many other writers – e.g. Downes (2001), Braithwaite (2003) and Feeley (2003) – invoke the idea casually, as if the assertion is self-evident and needs no further argument. In 2003, two important books – one by Franklin E. Zimring and the other by James Q. Whitman – developed the same thesis, more or less explicitly, albeit with different claims about precisely what it is that marks American culture as ‘exceptional’ and how this culture gives rise to capital punishment.7 To invoke the idea of ‘American exceptionalism’ as a way of understanding the USA’s retention of capital punishment is to say more than that the USA is now ‘on its own’. The sociological language of ‘exceptionalism’ suggests that the USA’s current use of capital punishment is no transient phase of penal policy but is, instead, anchored in a kind of socio-cultural bedrock, a set of defining institutions and values that underlie the American nation and shape its historical choices. And indeed, both Zimring and Whitman make much of this embeddedness, suggesting that capital punishment is not a judicial sanction that might be ended by act of law so much as a cultural disposition that will persist until the American nation changes in some more fundamental way (Whitman, 2003: 207; Zimring, 2003: 127). The idea of American exceptionalism was first suggested by Tocqueville in the 1830s, but it was given its modern meaning by sociologists like Sombart, Hartz and Lipset who used it to explain the strength of ‘the liberal tradition’ and the weakness of working class radicalism in the United States.8 The theory is used today to explain distinctive features of contemporary America by reference to the nation’s ‘organizing principles’, especially its political and religious institutions which are taken to be ‘exceptional’ and qualitatively different from those of other western nations. What are the USA’s ‘exceptional’ characteristics? Lipset and Marks describe them as: its relatively high level of social egalitarianism, economic productivity, and social mobility . . ., alongside the strength of religion, the weakness of the central state, the earlier timing of electoral democracy, ethnic and racial diversity, and the absence of feudal remnants, especially fixed social classes. (2000: 16) 348

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These characteristics are said to have given rise to a distinctive and abiding value system, the ‘American Creed’, with its stress upon ‘liberty, egalitarianism, individualism, populism and laissez-faire’.9 Lipset claims that ‘Americans remain much more individualistic, meritocratic-oriented, and anti-statist than peoples elsewhere’ and are much more religious than the citizens of other western nations: ‘polls indicate that Americans are the most churchgoing in Protestantism and the most fundamentalist in Christendom’ (Lipset, 1996: 61). The implication of the legal scholarship that now invokes this idea – the work of Steiker, Poveda, Zimring, Whitman, etc. – is that there is an essential relationship of some kind between the USA’s culture and institutions on the one hand, and capital punishment on the other. The death penalty persists in the USA and nowhere else because the USA is different in some deep and continuing socio-cultural sense. One can see the appeal of this theoretical move. Invoking American exceptionalism is attractive to radicals and cultural critics because it broadens an attack on capital punishment to an attack on American culture as a whole. It also has intellectual appeal, appearing to offer a deep explanation that decouples capital punishment from the mundane world of penal policy and links it to the abiding social traits that compose the American character.10 Finally, an explanation phrased in terms of cultural commitments may seem appropriate to explain a practice that increasingly relies upon expressive rather than instrumental rationales. In my view, the theory of ‘American exceptionalism’ – and especially the culturalist versions of the theory that Zimring and Whitman develop – is an inappropriately deep and deterministic way to understand a difference in penal policy that is actually much more recent and much more contingent than this literature suggests. For all its rhetorical appeal, the argument that capital punishment is a product of American cultural exceptionalism is misconceived. The mistake is not in the identification of cultural supports for the practice – these are clearly involved. Indeed, capital punishment is largely an expressive measure today, held in place chiefly by emotionally charged political considerations rather than by more instrumental concerns such as deterrent crime control. The mistake is not the turn to culture but the invocation of cultural traditions that are supposedly unchanging constituents of the American way and assuming, without evidence, that this underlying culture somehow finds expression in legal statutes and judicial decisions. By invoking deep and relatively timeless explanations, these writers remove the institution of capital punishment from the specific history and political events that have produced it. As a theory, such an approach directs attention to the wrong historical period and the wrong historical processes. As I will try to show, the contemporary American death penalty and its ‘distinctiveness’ are a product of the last few decades, not the last few centuries. As an account of capital punishment’s conditions of existence, the theory gives too much weight to supposedly timeless cultural values and too little attention to the ways in which cultural meanings change over time, and interact in unplanned ways with political structures and legal decisions. If there is any value for the sociology of punishment in the American exceptionalism literature, it lies not in its account of US culture but in its identification of the USA’s distinctive governmental and legal institutions – institutions that structured the process of challenge, resistance and reform that constitute capital punishment’s recent 349

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history. As will become apparent, the idea of ‘American exceptionalism’ bundles together a cluster of different elements – the nation’s historical foundations and formative struggles, governmental structures and institutions, social demographics and geographic facts, cultural values and traditions, etc. Each of these elements has a specific historicity and a continuing impact that is quite variable. While some features – such as the Constitution and the federal structure of the American polity – continue to structure contemporary action and events, there is no reason to suppose that all factors in this cluster are equally enduring. American exceptionalism is a theory developed to explain certain features of the polity that are historic, persistent and widespread – the presence of a powerful liberalism, the absence of a socialist party and a strong labour movement, and the failure to create a solidaristic welfare state. The retention of a once-conventional and near-universal criminal penalty during two or three decades when others have abolished it is not a social phenomenon of that scale and magnitude. The continued existence of the death penalty is certainly an affront to American liberals, an international human rights scandal and a moral outrage to people who have conscientious objections to killing offenders. But we ought not to confuse moral salience with sociological significance. Sociological explanations of punishment need to avoid the twin fallacies of misplaced depth and cultural determinism. In respect of capital punishment at least, it is rather more plausible to interpret the continued existence of the practice as the contingent (and perhaps temporary) outcome of a series of political and legal decisions. To the extent that these decisions were shaped by structural constraints, the structures in question were political and legal ones, and had little to do with any peculiarly American value-system or distinctive underlying culture. Let me turn now to Franklin E. Zimring’s The contradictions of American capital punishment and James Q. Whitman’s Harsh justice: Criminal punishment and the widening divide between America and Europe. In order to explain the death penalty’s persistence in the USA, Zimring asks ‘What elements of American history and culture create an affinity for state executions?’ The answer he develops reaches back to the 19th century and points to a ‘strong tradition of vigilante values’, concentrated in the southern states: a cultural current that previously manifested itself in lynchings, and that now produces state executions. Zimring does not explicitly invoke ‘American exceptionalism’. He prefers to use terms like ‘America’s Particularity’ (2003: 126) or America’s ‘uniqueness’ (2003: 128) and to talk of ‘a peculiar characteristic in American culture’ (2003: 48). But his analysis is squarely in the Exceptionalist tradition. His explanatory strategy is to contrast the USA with ‘Europe’ broadly defined, to find that the USA deviates from the historical norm of 20th-century abolition, and then to explain this anomaly by reference to long-standing and distinctive cultural traditions. Zimring’s notion of a ‘culture of vigilantism’ is actually quite original (and, I will suggest, mistaken) but this notion draws upon notions like American populism, local republicanism and anti-statism that are staples of the American exceptionalism literature. Whitman’s Harsh justice – the subject of which is the comparative harshness of American punishment, with capital punishment being a prime example – explains the growing divergence between the USA and Europe by reaching back even further, to the 18th century, but his analysis is also a ‘culturalist’ one.11 Whitman argues that the anti-aristocratic revolutions in France and Germany established in Europe an acute 350

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status-consciousness and a pronounced concern for the dignity of the citizen – cultural traits that have continued there ever since and that now ensure that European offenders are subjected to mild punishments that respect their dignity. This state of affairs stands in contrast to the USA, where no such tradition took hold, and where, as a consequence, unrestrained degradation is a constitutive part of American penal institutions. Like American exceptionalism theorists, Whitman returns to the founding moment of the American nation to explain contemporary features. America’s Protestant egalitarianism, its republican resistance to state power and, above all, the absence of an aristocracy or a sharply drawn hierarchy of ranks and privileges meant that American law and society did not have a long-term engagement with status differentials, or a revolutionary reaction against them. The levelling-up that Whitman points to in Europe – as ordinary offenders were gradually accorded the kinds of treatment formerly reserved for elite offenders and political prisoners – is largely absent in the USA. Americans ‘have not learned to think of humiliation and degradation, in the way that Europeans do, as inegalitarian practices’ (2003: 11). Consequently, levelling-down occurs instead. Whitman’s thesis, reduced to its central claim, is a reworked version of Louis Hartz’s famous formula, ‘no feudalism, no socialism’ except that the ‘absence’ being explained is not socialism but mildness in punishment and respect for offenders. These two books are important and original contributions, offering insights and observations that will change the way we think about capital punishment and punishment in general. My discussion of them here will address their claims only insofar as they bear upon the death penalty and its grounding in a distinctive American culture – a focus that omits much that is worthwhile in both books. My critique is not intended to deny their general merits but rather to show how fallacies about the role of culture – essentialist understandings of what ‘culture’ is, ahistorical accounts of its unchanging nature and unevidenced assumptions about culture’s relation to action – can undermine even the most insightful or learned accounts of punishment’s social roots.

ZIMRING AND THE VIGILANTE TRADITION

Zimring’s book is a smart, insightful account of the American system of capital punishment that focuses on the system’s ambivalences and contradictions and uses comparisons with Europe to highlight the USA’s distinctiveness. Zimring points, for example, to a contrast between the European and American abolitionist discourse: the former invoking the language of human rights and the need to limit governmental power, the latter tending to focus more upon moral or criminal justice arguments.12 He offers a biting critique of the new language of ‘closure’ and victim satisfaction that are increasingly offered as justifications for capital punishment in the USA. He points tellingly to distinctive features of the American system, such as the ambivalence involved in amassing a death row with more than 3500 condemned prisoners, of whom only 70 or 80 are annually executed, often following a wait of more than 10 years. He also analyses the geographical disparities that occur in the rate at which death sentences are converted into executions, with some states executing a much higher proportion of sentences than others in the period between 1976 and the present. The book’s central thesis, however, has to do with his identification of a ‘vigilante tradition’ which he claims is uniquely well established in American culture and to which 351

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he attributes the continuing propensity of Americans, particularly in the South, to put criminals to death. It is with this thesis about an underlying cultural tradition and its shaping role in contemporary penal policy that I want to take issue. At the core of Zimring’s argument is a statistical correlation between patterns of lynching in the 1890s and patterns of executions in the 1990s. In Zimring’s analysis, it turns out that the states that had high rates of (illegal) lynching in the 1890s have high rates of (legal) executions in the 1990s, and those that had low rates of lynching then, have low rates of execution now. It is important to note that this correlation is not between 19th-century high-rate lynching states and states that have capital punishment laws or in which capital sentences are now frequently imposed – there is no correlation between these groups. The statistical relationship Zimring describes relates to execution behaviour, not sentencing behaviour or legislative enactments. The contemporary phenomenon that is said to correlate with 19th-century lynching patterns is the execution of death sentences – the early and frequent conversion of court orders into administrative killings. Armed with this correlation, Zimring proceeds to consider what underlying cause could possibly produce both lynchings and executions. The answer he comes up with is ‘vigilante values’ – a ‘deeply held American belief in violent social justice’ (Zimring, 2003: cover). It is this ‘vigilante tradition’ – ‘deeply imbedded in the culture and experience of the United States’ (Zimring, 2003: 123) – that explains why the USA deploys a penalty that the rest of the western world finds abhorrent. Zimring’s correlation between lynching locales and executing states – with its explicit assertion of historical continuity and its more implicit implication of moral equivalence – has a plausibility and a rhetorical power that are sure to appeal to capital punishment’s critics.13 But there are several problems with Zimring’s argument that make his interpretation less persuasive than it at first appears. •

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The correlation between lynching states and executing states is strong but not comprehensive. States like Virginia (high execution, low lynching) and Mississippi (high lynching, low execution) confound the pattern. It is also somewhat timedependent: it may disappear in a few years as other states ‘convert’ more death sentences into executions. Zimring provides no evidence to support his assertion that vigilantism and vigilante values are, or were, better established in the USA than elsewhere, and the claim does not withstand empirical scrutiny.14 Nor does he provide independent evidence to show that vigilante values are still a strong current in the relevant states.15 Most devastatingly, neither lynchings in the 1890s nor executions today can be properly described as ‘vigilante’ events. Frontier lynchings in the mid-19th century were typically instances of vigilantism, but by the 1890s, most southern lynchings were not. Vigilante justice occurs where official criminal justice is perceived to be absent or ineffective, but these southern lynchings took place despite the operation of an effective criminal justice system. Indeed, in a majority of recorded cases the lynch-victim was in the custody of law-officers when he was seized by the mob (Brundage, 1993). Whatever these lynchings were – aggressive displays of racial control, political theatres of white supremacy, communal rituals of sovereign power – they were not simple vigilantism (Garland, 2005a).

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Nor does it make sense to describe contemporary executions as expressions of vigilante values. Today’s executions are state-sanctioned, bureaucratically administered, judicial punishments. To describe them as ‘vigilante’ behaviour strains credulity. Zimring contrives to make them appear as such only by means of a circuitous argument – to do with their representation as victim satisfaction and a form of personal service for the victim’s survivors.16 This idea – which, as far as we know has never been entertained by anyone other than Zimring – makes the mistake of confounding a rationale for a practice (one among many) with a description of that practice. For Zimring’s thesis to be plausible, we would have to accept that an execution by lethal injection, carried out in private hundreds of miles away from the scene of the crime, after a delay of many years, and following multiple processes of state and federal judicial review, is an expression of vigilante values. Not even Zimring can persuade us of this. Finally, even if this putative vigilante tradition did exist, Zimring does not show how it affects the outcome that he is discussing.17 As I will discuss in more detail later, the processes that most affect the conversion of death sentences into executions are legal ones, to do with the nature and speed of post-conviction procedure. Zimring does not discuss these procedures in any detail, nor does he explain how vigilante values have a bearing upon them.

WHITMAN ON DIGNITY AND STATUS CONSCIOUSNESS

Whitman’s book is a major work of comparative legal and cultural history, full of fascinating material and original argument. Its outline of the contrasting histories of penal law in France and Germany (‘the land of beheading’) and the USA (‘the land of hanging’) contains much that is interesting, not least his account of political prisoners and high-status offenders who were treated as a separate, privileged class in Europe’s prisons but were afforded no official recognition or special treatment in the USA. Whitman’s analysis of the role of degradation in punishment is an important theoretical contribution in its own right. After Harsh justice, no writer in this area ought ever again to neglect this aspect of penal practice, and his discussion of Gustav Radbruch’s work should ensure that this important German thinker is no longer ignored in Anglophone discussions of punishment. But Whitman’s specific thesis – that a distinctively American attitude towards status, forged in the 18th century and reproduced ever since, explains the USA’s contemporary punitiveness and its retention of the death penalty – fails to convince for the following reasons: •

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Whitman’s account neglects the history of penological individualization and correctionalism in the USA (see Garland, 2001). Whatever their problems and ambiguities, these ‘rehabilitative’ practices – which were in widespread use up until the 1970s – were, at least in part, a means of recognizing the dignity of the individual offender and his or her claim to decent treatment.18 Similarly, Whitman gives no significance to the fact that, for a period in the 1960s and 1970s, the American federal courts were more liable than were their European counterparts to recognize prisoners’ rights and intervene to uphold the constitutional claims of inmates (Feeley and Rubin, 1998). 353

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Whitman understates the importance of variation within the USA and within Europe, and over time in both places.19 (Indeed, he repeatedly refers to ‘Europe’ when his data relate only to Germany and to France.) This is typical of American Exceptionalist analyses which tend to essentialize the contrasting terms, suppressing the extent to which each is differentiated internally and undergoes change over time (Foner, 2002). In order to maximize the contrast, he tends to compare the worst of American practice with the best of European ideals, and to downplay the importance of periods and practices that do not fit this schema (Skolnick, 2003). In fact the internal variation in the USA tends to cut against Whitman’s thesis. One would expect that the north-eastern states (which formed the crucible of American democracy and egalitarianism) would be harshest, while those in the South (which were more honour-and-status-conscious, and had a sharply defined status system, differentiating slave and free, black and white) would be most like Europe. The opposite is in fact the case.20 A problem for Whitman’s account is the experience of slavery, and the racially based status differentials that followed in its wake. This caste system, together with the related phenomenon of a southern culture of honour, persisted into the 20th century with consequences for all aspects of social, economic and legal status. For many commentators, the fact that today’s penal sentencing is disproportionately focused on African Americans explains why it has become so degrading and punitive: the low status and perceived worth of poor blacks – as compared to whites – being a key part of US penality. Whitman argues that the long-term cultural impact of slavery in the USA is very different from the cultural legacy of the ancien regime in Europe because the former never produced a focus on the dignity of the citizen: there was no legacy of low-status abasement and degradation that ordinary (white) citizens had to struggle to overcome (2003: 198). But a more critical interpretation would suggest that a race-based, two-status system has persisted in the USA and is visible in a variety of settings, of which the penal and welfare systems are the most egregious.21 Finally, we might simply note that Whitman’s reading of the USA’s cultural legacy in regard to questions of status and dignity is by no means the only way to understand American attitudes. Gitlin, for example, describes it rather differently: We cultivate egalitarian irreverence. Our culture, to be sure, has its conformist side, but one thing it conforms to is the presumption that no one is so high as to be above scrutiny, and no one so low as to be beneath dignity. (1995: 43)

These are very different books, coming at the subject of American punishment from different angles using different methodologies and materials. But their explanations share a common structure, arguing that an historically embedded cultural trait keeps American capital punishment firmly in place. For Zimring, the death penalty exists in the USA today – despite contradictory pressure from due process values – because of the continuing influence of an age-old vigilante tradition. For Whitman, the USA’s resort to harsh punishments and the death penalty is a consequence of the culture’s propensity to degrade its deviants, caring little for their dignity: a propensity that has been there since the Puritan beginning. 354

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The problem with these arguments is that the operation of the purported cause does not match the appearance of the purported effect. A claim that capital punishment is kept in place by force of underlying and long-standing cultural commitments would have to explain why these determinants slackened their hold for most of the 20th century, ceased entirely for a decade after 1967 and then reasserted themselves with renewed and increasing vigour in the two decades after 1977. Both Zimring and Whitman interpret the period from 1977 to 2003 as the era in which the USA’s exceptional commitment to the death penalty was first revealed – it having been present all along but only made fully visible when the other nations abolished capital punishment. But it would be simpler and more accurate to see the USA as being the last nation in its peer group to abolish the penalty – its place in the series being determined not by long-standing cultural differences, but by proximate causes acting in the time period during which the divergence actually occurred.22

THE USA’S DEATH PENALTY IN LONG-TERM PERSPECTIVE

Viewed in the long term, the historical trajectory of the American institution looks remarkably similar to that of other western nations.23 At the beginning of the modern period capital punishment was in widespread use everywhere, enjoying unquestioned legitimacy, imposed in simple and aggravated forms, drawing upon religious as well as secular rationales, targeting many kinds of offence and offender, and undertaken in public. From the 17th century onwards, the institution underwent a slow process of modification, diminution and abolition. Historians have described the key stages of this decline as follows: (1) a reduced range of capital offences and eligible offenders; (2) the abolition of aggravated death sentences; (3) the removal of executions from the public gaze; (4) the adoption of technologies designed to speed death and reduce pain; (5) the emergence of a normative discourse challenging the institution; (6) the appearance of sharp divisions in public attitudes towards the penalty’s propriety; (7) the development of more formalized legal procedures and safeguards; (8) a secular decline in the frequency of executions; and finally, (9) the movement to partial then complete abolition, first de facto, then finally, de jure.24 This trajectory of decline, with minor variations, occurred in the USA just as it did throughout the western world (Banner, 2002). Throughout the 19th and 20th centuries, the USA appeared to be firmly on the abolitionist trajectory and not in the least exceptional. States such as Michigan, Wisconsin and Rhode Island were in the vanguard of that movement: abolishing the death penalty in the 1840s and 1850s, long before most European nations considered doing so.25 In 20th-century USA, the number of executions steadily declined from a peak of 199 per year in 1933 to a handful per year in the 1960s and eventually to zero in 1967. During the period from 1967 to 1976 no one was put to death and it was during this period that the 1972 Furman decision struck down all of the states’ capital punishment statutes as unconstitutional. It is only in the last three decades, from 1976 to the present, that the USA looks significantly different. Nor is there anything especially anomalous about the American death penalty other than the fact that it is still in use. In its form, its targets, its techniques, its staging and its rationales, the institution is not outside the modern western mainstream. It is true, of course, that the legal and administrative system that imposes and delivers capital 355

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punishments in the USA reflects the distinctive pattern of institutional structure, legislation, criminal procedure and case law that has produced it: in that restricted sense, there is a distinctively ‘American way of death’. But this distinctiveness of detail – which is a characteristic of every legal system, each of which imposes and inflicts penalties in its own unique way (Sarat and Boulanger, 2005) – does not detract from the broad similarities that have linked the USA and other western nations. Unlike Saudi Arabia or the Sudan where beheadings are staged in public, often for moral offences, sometimes at the hands of crime victims or their survivors, the American way of death is recognizably modern and western. Indeed the widespread use of lethal injections designed to minimize pain (or at least the appearance thereof ), and the elaborate framework of legal procedures and appellate reviews designed to minimize arbitrariness and mistake (or at least the appearance thereof ) confirm that the American death penalty is shaped by the same kinds of values and sensibilities that operated in other nations that ultimately became abolitionist. Opinion poll data suggest that public support for the death penalty is no more extensive or intense in the USA than in several European nations – indeed, in an earlier book, Zimring emphasized that public opinion poll findings in the USA are broadly comparable to those reported elsewhere, even in nations that have long been abolitionist (Zimring and Hawkins, 1986).26 Nor is there any evidence that justifications for its use in the USA are significantly different than those that were standardly used in Western Europe until recently.27 In short, when we examine actual data about American attitudes to capital punishment there is no direct evidence of any cultural predisposition. The only evidence we have of ‘American exceptionalism’ is that the penalty is still used: claims about exceptional cultural attitudes are inferential rather than direct. Nor is the post-Furman death penalty a new kind of sanction, except insofar as it is more carefully regulated and more closely restricted than before. The USA did not, as Zimring puts it, ‘reinvent’ the death penalty.28 Such a description overstates US distinctiveness. Rather the Supreme Court and three dozen state legislatures engaged in a legislative dance, back and forth, which eventually reformed the penalty and its administration, permitting it to survive the constitutional scrutiny that had earlier suspended its use. After a decade-long moratorium and a round of legislative activity the Court permitted capital punishment to continue in (what it claimed was) a more circumscribed, less arbitrary, more closely regulated manner.29 Whatever people thought at the time, the court cases of the 1970s amounted to a process of reform rather than abolition: a reform that served to postpone abolition, create new political conflicts and give the institution an extended lease of life. Capital punishment in the USA today is a residual continuation of a penalty that was once standard in every western nation. The ‘distinctiveness’ that scholars set out to explain relates entirely to the pace and completeness of the process of abolition: a matter of timing not trajectory.30 What this means is that the appropriate dependent variable in these analyses is not the death penalty itself, but rather the date of its abolition. When regarded in these terms, the issue looks quite different. Every distribution has outliers. Every series has a first and a last – and the fact that American states have been the first as well as the last in this historical series ought to discourage hasty generalization. American tardiness in enacting full legal abolition is the real issue here, not deeperthan-normal American commitment to the institution. 356

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If the thing to be explained is the persistence of American capital punishment laws and sentencing in the last 30 years, or even the increased number of executions in the USA in the last two decades, then reaching back into previous centuries is unnecessary and inappropriate. We do not need to seek for long-term cultural traditions that might explain present-day practices – traditions that would have had to have been switched on and off at various points, and to be more powerful at the end of the 20th century than they were in the middle. Instead we need to look at recent history – at the political and legal struggles that shaped events, at the choices and decisions made by key actors and the political, legal and cultural circumstances that shaped these decisions. If we wish to understand today’s capital punishment – the public attitudes that support it, the values to which it is linked, and the symbolic meanings that it conveys – the history we most need to understand is not that of the 18th or the 19th century, but the history of the last 30 years. That history unfolded within a context that was structured and constrained by the USA’s distinctive political institutions of federalism, popular democracy and constitutional review – to that extent, the American exceptionalism literature has something important to teach us. But the events that mattered, and that made the difference between retention and abolition, were shaped by political choices of a contingent nature rather than by any deep-seated determinism or essentialism. And to the extent that cultural values played a part in shaping these political choices – and they did – it was not the ‘vigilante culture’ of the 19th century, or the status-blind egalitarianism of the 18th century, but rather a new cultural formation that emerged in the 1970s around issues of crime, social change and social order: a cultural formation that I have elsewhere termed the ‘crime complex’ of late 20th-century USA.31 At its core, capital punishment has a denotative meaning that is relatively stable over time and place – offenders are put to death, somehow, somewhere, by someone, at the order of a court, as a penalty for criminal acts (Lofland, 1977). And the institution has acquired an accretion of historical associations that dimly echo in contemporary discussions – from the crucifixion of Christ to the lynching of southern blacks to the execution of Ethel and Julius Rosenberg. But for most people, most of the time, these historical meanings are less important than the connotations that have been created by recent events, and it is these popular and political connotations that shape current debates and patterns of support. The values that have come to attach to capital punishment in the last 30 years, the symbolic meanings it has taken on and the cultural lenses through which these meanings are interpreted, are not timeless, deep-rooted and essentially American. They are the product of a particular historical conjuncture, and they express cultural sentiments characteristic of that period and political reactions to specific events that took place in these years. Some of that meaning was shaped by the conservative backlash against Furman, a decision that was viewed by critics as an unjustifiable exercise of power by a Court that was liberal, elitist and out of touch with popular sentiment.32 Some of it grew out of punitive attitudes shaped by fears about rising rates of crime and violence. Much of it was overlaid and exacerbated by social divisions based on race, class and religion that fed into other highly charged cultural conflicts, such as the struggle over abortion, or affirmative action, or welfare reform. An alternative account of American capital punishment would focus upon this particular conjuncture and the events that transformed the institution’s legal status and 357

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political meaning. Such an account would emphasize how specific forms of action (such as the abolitionist campaign of federal litigation) interacted with specific features of the American polity (constitutional law, the separation of powers between legislatures and courts; the local nature of criminal law jurisdiction; the elected nature of criminal justice officials; the political character of criminal justice decision making) and specific cultural circumstances (the ‘crime complex’ of the 1970s, the backlash against the Court’s liberal activism, the conservative reaction against civil rights gains and the ‘urban breakdown’ and ‘moral decay’ of the 1960s) to produce the reform and retention of the death penalty. As with any political or legal development of this kind, the contingencies of choice and unintended consequence are a central part of the story. The decision – by the NAACP Legal Defence and Educational Fund, and later by the ACLU – to challenge capital punishment by litigation in the courts, rather than by political campaigns in state legislatures, was a fateful one. So was the adoption by these lawyers of a litigation strategy that focused argument upon 14th-Amendment issues of equal protection, procedural irregularity and arbitrary application – a tactic that produced the Furman victory but also opened the way for the regulatory reform effort that followed. The Supreme Court’s decision to hear the Furman cases in 1972 need not have occurred. Indeed, many informed observers – including Supreme Court Justice William Brennan – believed that the Court’s decision in McGautha v. California the previous year marked ‘the end of any hope that the Court would hold capital punishment to be unconstitutional’ (Brennan, 1986–7: 321). Had the litigation involved different cases, or been heard by a different group of justices, or argued in a different political climate, the decision might have been different. As it was, the Furman Court could have handed down a more definitive opinion declaring capital punishment unconstitutional simpliciter, and resisted subsequent political pressure – as it did in respect of abortion bans the following year in Roe v. Wade. Had it done so, political reaction against the decision would have had to have taken the form of a federal constitutional amendment, with finely balanced prospects of success, rather than a wave of legislative action in the states, where prospects for reenactment were very much greater.33 Even after Furman, the subsequent course of history was by no means settled. The Gregg Court in its death penalty decisions of 1976 could have struck down all of the new state statutes, rather than just some of them,34 and resolved – as some of the individual Justices on that Court subsequently did – that there are no circumstances in which capital punishment can be administered fairly and without arbitrariness. Ten years later, the evidence of systematic racial bias produced in McCleskey v. Kemp (1987) could have prompted the Court to reconsider. Indeed the Justice who delivered that opinion for the Court subsequently regretted that the case had been wrongly decided.35 As it turned out, the specific nature of the Furman decision invited reform of the state capital punishment procedures – an invitation that was quickly taken up in many state legislatures. The 1972 decision was handed down at a time when a strong anticourt, anti-liberal sentiment was emerging in parts of the country, reinforced by a powerfully rising concern about high crime rates and urban violence. In this context, the decision energized a conservative backlash, mobilizing a strong pressure for reenactment in the state legislatures, particularly in the South. Faced with the results of 358

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this backlash – 35 states passing new capital statutes within a couple of years – the Court in Gregg v. Georgia backed down. It abandoned the claim that ‘evolving standards’ had led to Eighth Amendment issues, accepted that the new Georgia statute (which was based on the Model Penal Code36) had lowered the risk of equal protection violations and permitted the new death penalty sentences to stand. An apparent breakthrough for abolitionists had been turned into a more solid victory for proponents of capital punishment. If anything seems clear from this episode, it is that the outcome was by no means predetermined or inevitable.37 By opening the door to procedural reform, the Furman ruling was crucial in shaping subsequent legislation and case-law. But the case was also important in a broader political sense. To committed supporters of capital punishment – but also to political conservatives and proponents of states’ rights – it appeared that an unelected, unrepresentative court was unjustifiably interfering in the business of the states and abolishing a punishment that was supported by a majority of the public and their representatives.38 Criticism of the Court’s liberal activism – already strong as a result of the decisions such as Brown (1954), Mapp (1961), Miranda (1966) and later Roe (1973) – objections to federal court meddling in state affairs, conservative concerns that the civil rights movement was being carried too far and bitter resentment of policies that appeared soft on crime, combined to give the Furman decision a significance that reached well beyond matters of penal policy. Furman’s unintended effect was to mobilize a retentionist backlash, give new salience to the issue of capital punishment and transform the political connotations of the institution. After 1972, the death penalty ceased to be a matter of penal policy and became a symbolic battlefield in the post-1960’s culture wars, functioning alongside issues like abortion, welfare rights, defendants’ rights and affirmative action as a litmus test of political affiliation and social values. Support for the death penalty became a marker of respect for states’ rights and traditional authority, a respectable (that is to say, not openly racist) means of asserting that the civil rights movement had gone too far, a vehicle for southern resentment about interference by northern liberals and, above all, a short-hand for tough-on-crime attitudes. If there were doubts about the political importance of this new understanding, the 1988 presidential debate between Bush and Dukakis and the subsequent pro-death positioning of Democratic candidate Bill Clinton in 1992, put an end to them (Anderson, 1995). These new symbolic meanings were not inevitable. Supporters of the death penalty have always been more conservative than liberal, more concerned with public safety than individual rights, more alive to man’s evil than his perfectibility (Banner, 2002) and these attitudinal differences continued to matter (Kahan, 1999).39 But the abolitionist campaigns of the 1960s, the groups that led them, the arguments they made, the specific context in which they occurred and, above all, the specific reactions that these actions produced, helped create a new layer of meanings for capital punishment.40 By the mid-1970s, the liberals for whom Furman was a victory were already being blamed for the rise in crime, the expansion of welfare rolls, the worsening of race relations, the collapse of the family, the decline of personal responsibility and the general crisis of traditional authority.41 In these circumstances, support for the death penalty came to mean opposition to ‘moral decay’ and the social legacy of the 1960s. By the early 1990s – after another decade of high crime rates, record homicide rates and declining 359

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social indicators – to be opposed to capital punishment was to be perceived to be soft on crime and out of touch with popular sentiment. After the Dukakis debacle of 1988, few national politicians ever again took that risk, and a firm political consensus emerged. Today, serious opposition to capital punishment is largely confined to lawyers and activists who are outside of mainstream politics, or who, like Governor Ryan of Illinois or former Justices Blackmun and Powell, are not about to run for office. We should note that this new conventional wisdom is about the death penalty’s political meaning, not about its penological effectiveness or cultural necessity. There is no widespread agreement that capital punishment is necessary for crime-control – in contrast to the sanction of imprisonment, which is universally regarded as a necessary penalty, despite sharp disagreements about the scale of its use. Still less is there any agreement that the death penalty is intrinsically part of ‘the American way’: of all the justifications offered for capital punishment, this is not one of them. Like all institutions and social practices, the death penalty means different things to different people. While some regard it as an issue of deep moral significance or an evocation of troubling historical memories, for many others it is merely an event in the news, associated with a particular crime or a particular criminal. For supporters and for opponents, many of whom are highly mobilized and care deeply about the issue, capital punishment stands for a set of political and social values, and expresses an underlying sensibility. For these groups, beneath the surface of policy debate and moral disagreement, there are deep differences of identity and attitude in which ‘authoritarianism clashe[s] with egalitarianism, righteousness with tolerance, southernness and westernness with easternness, compassion for victims of crime with compassion for victims of social deprivation’ (Kahan, 1999: 450). In political terms, however, neither committed supporters nor committed opponents are sufficiently numerous to prevail on the issue. It is, instead, the soft middle of undecided voters – people who are unsure, ambivalent or indifferent on the issue – who create majority opinion, and have the numerical power to shape political outcomes.42 Political movement will tend to occur when this uncommitted, ambivalent group can be mobilized against the punishment – a process that will depend not on the difficult task of changing deep convictions, religious faith or emotional sensibilities, but instead on the vicissitudes of events, the popular narratives of mass media reporting, the pragmatics of electoral politics and the practical political meanings that emerge from these processes. The popular meaning of capital punishment, at least on a surface level of media discussion and political connotation, is heavily influenced by high-visibility events – the Innocence Project and its DNA exculpations, the press photographs of 100 wrongly convicted individuals released from death row, the Illinois moratorium, the execution of Timothy McVeigh, the religious appeals of Karla Faye Tucker, the political fall-out of Willie Horton.43 These meanings and associations are recent not ancient, constructed not inherent. As such, they can change.44 For many uncommitted people in Britain in the 1950s and 1960s, the death penalty came to mean Timothy Evans – an innocent man who was put to death for murdering his family on the strength of the testimony of the real killer (Morris, 1989). In the 1980s, two decades after abolition, it came to mean that innocent victims of corrupt prosecutions – like the Birmingham Six and the Guildford Four – could be released from prison rather than exonerated posthumously. 360

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What this should tell us is that the political meaning of the death penalty – the meaning that shapes the decisions of leading political actors, which in the USA includes the courts as well as elected officials – is open to change, and sometimes quite rapid change at that. This political meaning is much more malleable than the emotional and cultural attitudes that underlie the commitment of core supporters and opponents – and much less anchored in institutional habits and cultural values than Zimring and Whitman would have us believe. Political assumptions and connotations can fade almost as quickly as they were formed, particularly where they relate to institutions that have only a marginal impact on the daily lives or pocket books of voters. For all its symbolic significance and moral weight, capital punishment is hardly a major institution in contemporary society. It plays no structural role in social organization, creates few vested interests and – with the important though numerically small exception of the people on death row, their families, lawyers and custodians – shapes none of the routines of everyday life. Despite all the clamour, it is now a highly unusual penal sentence, imposed upon fewer than 160 offenders a year, in a nation that has an annual average of 15,000 homicides and a general population of more than 290 million. Compared to imprisonment, probation and parole, which now supervise 6.5 million individuals on a daily basis, it is a sanction with a miniscule impact and disproportionately high costs. Its importance is political and symbolic, not social or structural, and so it is liable to be more open to change than are other, more essential institutions.45 Homicide rates declined substantially during the 1990s and fear of crime is less salient now than previously. Public opinion is becoming attuned to the idea that life without parole is an alternative, cheaper way to deal with murderers (Gross and Ellsworth, 2003). In the mass media, the leading story about capital punishment is often a story about innocent men being released from death row, high error rates in capital proceedings and international disapproval of the USA’s retention. The most recent Supreme Court decisions – Atkins v. Virginia (2002) ending capital punishment for the mentally retarded, Roper v. Simmons (2005) ending it for juveniles, and Ring v. Arizona (2002) requiring juries rather than judges to make the fact findings necessary to impose a sentence of death – further narrowed the circumstances in which capital punishment is constitutionally permitted. The most vivid political event of recent years – Governor Ryan’s declaration of an execution moratorium in the state of Illinois, followed by his act of executive clemency that commuted the capital sentences of everyone on the state’s death row – has drawn widespread commentary and heightened awareness of the possibility of error, as have the findings of the Innocence Project and the ‘Broken System’ reports (Dwyer et al., 2000; Liebman, 2000; Sarat and Hussain, 2004). These developments, together with opinion polls that show a decline in pro-death penalty support, and the fact that the 159 death sentences imposed in 2002 was the lowest number since 1973, all strongly suggest that the slow process of abolition has in fact resumed in the USA.46 That serving members of the Supreme Court are now joining their retired colleagues in expressing doubts about the penalty, suggests that the Court may yet prove to be the governmental organ that will bring about national abolition.47

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CULTURE AND ITS POLITICAL EXPRESSION

My concern in this essay has been to challenge the claim that the USA’s retention of capital punishment is an expression of deep, abiding or exceptional cultural traits. Against this view, I have maintained that the USA has no peculiar cultural commitment to the death penalty, that its history strongly suggests that it is on the same abolitionist trajectory as other western nations and that the continued existence of the penalty today is a contingent outcome of political, legal and cultural developments that occurred in the last 30 years. Readers of this critique might well ask if there is a more positive account to put in place of the ‘culturalist’ explanation that I criticize here. Even if they accept my claim that the USA is ‘exceptional’ only in the weak sense that it is the last nation in its reference group to achieve total abolition, they may still want to know how to explain the lateness of the USA’s abolition movement, as compared to other nations. Readers of Whitman’s book may well accept my critique of his thesis in respect of capital punishment yet still wonder how to explain the USA’s current tendency to be harsher than comparable western nations in its choice of criminal penalties.48 And finally, readers who share my doubts about the plausibility of Zimring’s claims about a ‘vigilante tradition’ may still ask how we should account for his observation that some states are much more prone to execute death sentences than are others? In this concluding section, I want to sketch out some preliminary answers to these questions. The USA is the last western nation to complete the abolition process not because of any peculiarly punitive attitudes or any deep-seated cultural commitment but because the political mechanisms for nation-wide abolition do not exist there in the form that they exist in other nations. Widespread public support for capital punishment exists in nations that have long since abolished the death penalty, as do fear of crime, hatred of heinous criminals, racist attitudes and an uncaring contempt for marginalized groups and ‘underclasses’. But governments in other nations have been willing and able to abolish capital punishment despite these circumstances (Hood, 2002; Zimring, 2003: 22ff.). They could do so because in these nations, political elites who controlled the national legislature had the legal capacity and political opportunity to pass laws that abolished the practice once and for all.49 They had the legal capacity because, unlike in the USA, the enactment of criminal penalties is within the sovereign jurisdiction of the national parliament. And they had the political opportunity because, again unlike in the USA, popular support for capital punishment did not find direct expression in the electoral system or other forms of political accountability. For the most part, the repeal of capital punishment in these other nations was regarded as a vote of conscience, proceeding outside of partisan electoral politics. Rather than put the matter to the people, political leaders took the step of abolishing the penalty, relying upon bipartisan support from social elites and governmental officials that enabled them to disregard majority public sentiment. They were able to do so either because bipartisan agreements (supported by effective party discipline) kept the matter outside of electoral competition, or else because abolition was a single item on a party platform that also contained more substantive economic and social issues that could win political support. Popular dissatisfaction about the decision to abandon the death penalty existed and continues to exist in many abolitionist countries but, in contrast to the USA, it has not been able to find effective political expression there. 362

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The political and governmental structure of the USA makes elite action of this kind very much more difficult.50 Since the USA’s constitution allocates jurisdiction in criminal matters to the states rather than the federal government, it is not possible for the United States Congress to abolish capital punishment by any means short of a constitutional amendment – a measure that would require support from three-quarters of the states and that would entail not just the end of particular punishment but also a shift in the balance of power between the national government and state governments. The abolitionist mechanism used by most other western nations simply is not available to the American government. At the state level, there are several features of government that make it more likely that popular sentiment about crime and punishment will be translated into official action in the USA than is true elsewhere.51 The absence of strong party discipline means that national parties are less capable of controlling the political agenda and restricting the issues that become part of electoral competition (King, 1997). The existence in many states of populist political mechanisms (such as voter ballot initiatives, referenda and recall provisions) exerts pressure on elected officials not to take positions that are unpopular with the electorate, particularly on high-profile populist matters such as the punishment of serious offenders. Finally, the distinctively American system of electing state criminal justice officials (prosecutors, judges, sheriffs and governors) in popular elections, and subjecting them to recall and re-election, ensures that these decision-makers are much more closely attuned to public opinion and organized interest groups than are equivalent officials elsewhere, who are typically career civil servants or government appointees with life tenure.52 The effects of these populist political structures of criminal justice have been amplified in the last few decades as crime and punishment have come to have more public salience and a greater emotional charge.53 As I noted earlier, the ‘crime complex’ of the last few decades has prompted the politicization of law and order issues, and has prompted individuals running for office to take populist stands on penal policy, typically seeking to outdo their opponents in the pursuit of harsh policies. The results of these developments – the war on drugs, mandatory sentencing, truth-in-sentencing and increased sentencing levels – have, in the last three decades, produced a drift to mass imprisonment and the growing intensity of American punishment.54 This same politicization of punishment and fostering of populist policies have helped sustain support for the death penalty. It has done so quite visibly by producing death penalty legislation at the state and national level, but it has also done so, less directly, by exerting a background pressure on the courts, making it more costly for them to challenge what is seen to be the clearly expressed will of the people. Given the federal structure of American government, the Supreme Court is the institution best placed to bring about a nation-wide cessation of capital punishment, which it could do by declaring the penalty unconstitutional. As we have seen, the Court came close to taking such a step in 1972 but then drew back in 1976 and again in 1987 under political pressure from state legislatures and popular opinion. It remains to be seen how the Court will act in the future, particularly if crime rates continue to decline and some of these background political pressures begin to ease.

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DEATH SENTENCES AND EXECUTIONS: THE DISPARITY IN RATES OF CONVERSION

If today’s capital punishment system is a consequence of recent history and institutional arrangements rather than deep and abiding culture, how are we to account for the correlation that Zimring has discovered between executing states and lynching states? Or rather, since that correlation is somewhat misleading, how are we to explain the fact that certain states are much more liable than others to convert death sentences into actual executions? In approaching this question, we must again take care to adjust the explanatory framework to the phenomenon being explained. To understand why some states execute sentences more often and more rapidly than others, we should first focus upon the factors that directly produce these differential outcomes. This means looking not at background ‘culture’ – whether long-term or recent – but at post-conviction legal and administrative procedure. Conversion rates are not primarily a matter of differential culture: they are a matter of legal procedure and judicial administration. We ought to look, in the first instance at least, at the legal actors who make the key decisions and at the reasoning, rules and resources that shape these decisions. We lack good empirical studies of these processes, but the following factors are probably among the most important in transforming capital sentences into actual executions:55 •

• • •

Local procedural conventions (which may be statutory or judge-created or merely a matter of local practice) that seek to process post-conviction proceedings quickly from initial filing to final disposition. A prosecutorial ethic that values the aggressive pursuit of prompt executions. A lack of well-qualified defence lawyers willing to represent death-sentenced inmates in post-conviction proceedings. A high percentage of state and federal judges who are temperamentally disposed to uphold death sentences, to reject claims of error or to rigorously enforce procedural rules restricting plenary review of claims that have not been properly preserved at trial and at the initial appeal stages (Amsterdam, 2003, personal communication).56

In the absence of better evidence, these factors would seem to be the immediate and proximate causes of higher than average conversion rates, a claim that can be illustrated by specific examples. In the state of Virginia, for instance, where the appeals process is ‘extremely truncated’ (Stevenson, 2003, personal communication) there is a comparatively high rate of executions. In Mississippi and Tennessee, on the other hand, the postconviction process is relatively slow, and federal courts have further delayed the pace of executions by finding conditions on death row to be unconstitutional. The result is a low level of ‘conversion’ and infrequent executions, despite the relative popularity of the penalty in these states and the frequency of its imposition.57 It is, of course, true that these legal and administrative arrangements are not randomly distributed or unconditioned by broader social processes. Access to well-qualified legal defence for mostly indigent defendants varies with the extent of social services and welfare state provision, and with the levels of professionalization of the state bar. The death penalty attitudes of elected prosecutors and judges may reflect the views of the local electorate and the social and racial divisions that they embody. And even the 364

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non-elected, appointed-for-life judges who sit on federal courts and appeals courts may have been selected because they have political views that broadly conform to the circuit on which they serve. These background circumstances of conservative local politics, low taxes, low welfare provision, low levels of legal professionalism and minimal legal aid for indigent clients, would help explain why some – but not all – southern states process capital cases quickly and successfully, while states elsewhere, such as California or Pennsylvania, have a large death row but many fewer executions.58

CONCLUSION: CULTURE, POLITICS AND CONTINGENCY

In conclusion, I want briefly to return to some of the conceptual issues with which I began, especially those concerning the role of culture in the practice of punishment. When thinking about ‘culture’ we need to pay more attention to culture’s different dimensions, taking care not to confuse deep with shallow, transient with abiding or local with national. We need to study how these cultural elements interact with political structures and events, how they shape attitudes and choices and how their meanings and associations vary across space and change over time (Garland, 2005c). Relevant social attitudes such as ‘punitiveness’ or ‘racism’ are not unchanging cultural legacies, passed from generation to generation. They are dispositions that are created, reproduced or transformed in the context of ongoing group relations – relations that change as the structures of economic competition and political conflict change, and which are affected by specific events and struggles.59 The probability that these public attitudes or ‘cultures’ will influence the state’s penal policy is conditioned not just by their intensity or salience but also by the extent to which the political process permits their expression and facilitates their translation into legal action. Zimring and Whitman appear to think of culture as a fixed predisposition, like a DNA strand present in each social cell, programming social behaviour whenever it is switched on. But culture is not social DNA. It is a set of meanings, values and recipes for choice and action, some of which are grounded in ways of life – institutional rituals and routines, group norms and expectations, socialization practices, habits of mind and body – and others of which are more fleeting, existing as mental associations and references, grounded in little more than the memory of recent events or media headlines. Without institutionalized grounding, cultural meanings are ephemeral currents – associations, connotations and linked images that can be rapidly replaced by others. Even established cultural commitments have a history: a change in the institutions upon which they depend will tend to loosen the connection between practical experience and common sense. Cultural determinism is no more convincing than determinisms of any other kind: in denying the role of agency and of contingency it ends up denying the very history that it tries to explain. That the USA – or rather 38 of its states together with the federal government – still deploys capital punishment is not the result of a deep, long-standing and unchanging culture. Capital punishment is not a cultural disposition or a traditional ethos. It is a state-imposed criminal penalty, used by some states and not by others, sustained by a particular kind of politics and the peculiarities of the USA’s governmental structure. Talk of ‘American exceptionalism’ is inappropriate here, as is talk of an essentially American ‘temper’ or ‘condition’ that finds expression in the practice of sentencing 365

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criminals to death. Framing matters in this way produces claims that the abolition of capital punishment will occur only where there is a ‘change in grand cultural traditions’ (Whitman, 2003: 207) or when the USA becomes a different nation (Zimring, 2003: 15, 127 and 141). To talk this way is to essentialize ‘America’ and the nation’s cultural character – an implausible move at any time but altogether unfitted for a legal institution with more than 50 jurisdictional variants. It is also to accord capital punishment an importance in constituting the nation and its culture that it does not actually possess. To show an interpretation to be false, is not, however, to show it to be powerless. One can see why this notion has now emerged and also the damage that it can do. Meaning is created, in part, by a network of differences. That the death penalty no longer exists elsewhere will tend to change the meaning of capital punishment in the USA, at least for those who have a sense of the international scene. As a result, the American death penalty communicates meanings today that were not part of its former connotations – meanings that are a product of changes elsewhere, rather than value commitments at home. One might say, in that sense, that it now conveys rather more than it intends, and signifies more than it expresses. Modern capital punishment has always been more of an expressive, symbolic gesture than a functional instrument of crime control, with men and women being put to death in order that particular powers and values might be seen to prevail. But the continued existence of capital punishment in a context where all comparable nations have disavowed its use ensures that the institution takes on a new symbolic dimension, communicating meanings that neither proponent nor opponent controls. For the first time in its history, the American death penalty has become a comparative anomaly. At the same moment, and for the same reasons, it has become an international human rights scandal – a scandal that feeds anti-American sentiment at home and abroad and which may have the ironic effect of diminishing the USA’s capacity to pursue its national security interests.60 I have argued in this essay that the American death penalty is not an essential expression of any distinctively American cultural commitment – but that will not stop people assuming that this is so. That people at home and abroad now understand the practice of killing offenders to be an essential characteristic of the American nation would seem to be a new factor to be considered in normative assessments of the institution. Acknowledgements

I am grateful to the following friends and colleagues for their help with this article: Tony Amsterdam, Vanessa Barker, Patrick Barrett, Alvin Bronstein, Gretchen Feltes, Barry Friedman, David Greenberg, James B. Jacobs and Bryan Stevenson. Notes

1 Belgium for example, became fully abolitionist in 1996, but its last execution was in 1950; and so with Canada (full abolition 1998, abolition for ordinary crimes 1976, last execution 1962), Britain (full abolition 1998, abolition for ordinary crimes 1965, last execution 1964) and Australia (full abolition in 1985, last execution 1967). For international data about abolition and retention, see Hood (2002). 2 Article 1 of Protocol 6 to the European Convention on Human Rights (1983) provides for the abolition of the death penalty in peacetime. Article 1 of the Second 366

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Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), adopted in 1989 by the United Nations General Assembly, states that ‘No one in the jurisdiction of a State party to the present Optional Protocol shall be executed’ (Hood, 2002: 15). The Council of Europe’s ‘Strasbourg Declaration’ of 2001 called for a world-wide moratorium and steps towards abolition. See, for instance, the Anti-Terrorism and Effective Death Penalty Act of 1996. For an early account of the Court’s shift away from the project of closely regulating the states’ capital punishment systems, see Weisberg (1983). On this USA–Europe contrast, see Zimring (2003). When considering the judicial killings in India, we should bear in mind the many reported cases of suspects who are killed by police in ‘encounter killings’. Critics allege that these ‘exchange of fire’ incidents are actually fake encounters in which the police ambush and kill suspects. See Eckert (2005: 198). Eckert estimates that as many as 50 executions occur each year, though there are no publicly available official figures. ‘Western’ seems like the right comparison group here – since it connects nations that have common values, a shared history, similar political institutions and legal traditions, etc. But note that it is the right comparison only because we have already assumed that the issue is one that is culturally rather than criminologically determined. If we were to assume that punishment is, in some important sense, determined by patterns of crime, we might want to compare the USA to other ‘high-crime’ societies. At the present time, retentionist nations are concentrated in the Middle East, North Africa and the continent of Asia (Hood, 2002: 14). American exceptionalism (this time in matters of international law and human rights) was also the subject of a recent high-profile lecture series at Harvard’s Kennedy School organized by Michael Ignatieff. Jarvis (2004) also links US penality directly to US culture. For a review and critique of his account, see Garland (2005b). See Tocqueville (1948), Hartz (1955); Sombart (1906/1976); Lipset (1996) and Lipset and Marks (2000). Frederick Jackson Turner’s (1920) account of the impact of the frontier experience on ‘the American character’ added a further element to this tradition of thought. For a critical review of ‘American Exceptionalist’ accounts of the welfare state, see Orloff and Skocpol (1984). Lipset (1996: 22) notes that the Great Depression and Second World War changed the USA, increasing Americans’ reliance upon the state and the acceptance of welfare policies, but thereafter post-war prosperity prompted a return to more conservative (i.e. libertarian) patterns. Sarat (2001) was doing something of this kind, though in reverse. His argument is that the death penalty increasingly shapes the American condition. For a discussion of this claim, see Garland (2002). As he puts it, ‘there is something in American idiom, something in American culture, that is driving us towards harsh punishment’ (Whitman, 2003: 6). Unlike Zimring, who develops an ‘exceptionalism’ argument of his own, Whitman explicitly invokes and reworks the arguments of Tocqueville, Sombart, Hartz and Lipset. See Whitman (2003: 6 and 191). Zimring’s claim that there is no American equivalent of the human rights discourse 367

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that now dominates European discussions of the death penalty strikes me as doubtful. American debates – on this subject, as in many others – are often framed in the language of constitutional rights. Contra to Zimring’s assertions, organizations like Amnesty International USA do mobilize appeals to international law and human rights, but these do not carry much weight in US politics and constitutional proceedings. See the review of Zimring’s book in The Economist (31 May 2003). For evidence of vigilantism elsewhere, see Huggins (1991), Senechal de la Roche (1997) and Godoy (2002). Zimring states that ‘[t]here is no strong vigilante tradition to press for execution as an expression of community will in the more than 100 nations where executions have disappeared’ (2003: 121). This is highly unlikely. A cursory search of the data suggests that lynchings and vigilante killings continue to flourish in many nations such as Brazil and Mexico, where capital punishment has been abolished. Zimring does not discuss the literature on vigilantism abroad, nor does he cite the key texts on vigilantes in the USA. See, for instance, Brown (1975) and Moses (1997) both of which dispute the attribution of the term ‘vigilante’ to the lynchings of the 1890s. He considers survey evidence about self-defence killing, shall-carry gun laws and rates of self-defence killings, but, as he admits, none of these data offer credible or relevant supporting evidence. Zimring argues that current talk of ‘closure’ and victim satisfaction is ‘an attempt to reimagine executions as a service that the government provides to relatives of crime victims rather than a manifestation of the power of the state’ (2003: 14). This, together with his claim that certain communities in the South regard the executioner as a ‘friend of the family’ (2003: 110) is the basis for his argument that executions are, or are regarded as, an expression of vigilante values. Zimring acknowledges that such a perception is entirely false (2003: 113), but insists (without much evidence) that such a view is widespread and that its effects account for the distribution of executions. Nor does he show why ‘vigilanteism’ prefers lethal injection to life imprisonment. The preference for more punishment or for capital punishment is not the same as the preference for privately administered punishment. On the deepest level, American criminal justice displays a resistance to considering the very personhood of offenders. This is a resistance that shows in the triumph of determinate sentencing in America, and it is a resistance that is absent in Europe. (Whitman, 2003: 9)

If determinate sentencing exhibits this exceptional cultural trait, presumably indeterminate sentencing, which was the characteristic American approach prior to the mid-1970s, does not. 19 Banner (2002) says that, in the mid-19th century, European visitors like Tocqueville regarded the USA as milder in its penal policy, especially where the death penalty was concerned. Whitman is careful to document the harshness of US policies, but he overstates the ‘mildness’ of Europe’s penalties. 20 Zimring (2003) supplies data on state and regional variation in respect of capital punishment. For variation in state imprisonment rates, see Maguire (2000). 368

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21 On the contrast between the culture of honour in the South and the rather different emphasis upon individual dignity in the North, see Ayers (1984). On colourcoded status differences in welfare institutions, see Lieberman (1998). On race and criminal justice, see Cole (2000). For an early discussion of the links between slavery, degradation and American penality, see Sellin (1976). 22 What accounts for this gross discrepancy . . . between the United States and the rest . . .? The answer to this question must be found primarily in the events of the last three decades or so, for it is only during this time period that America’s use of capital punishment has diverged widely from that of Western Europe. (Steiker, 2002: 97)

23 As Zimring himself pointed out in an earlier work of his – see Zimring and Hawkins (1986). 24 For accounts of capital punishment’s long-term history, see Radzinowicz (1948), Spierenburg (1984), Beattie (1986, 2001), McGowen (1987), Gatrell (1994), Evans (1996) and Banner (2002). Council of Europe (1999) and Hood (2002) give excellent overviews of the recent history of abolition. 25 Portugal abolished the death penalty in 1867 (Hood, 2002: 10). 26 For comparative data on public attitudes to capital punishment, see Zimring and Hawkins (1986), Roberts and Stalans (1997: 227), Zimring (2003: 10) and Sarat and Boulanger (2005). The Death Penalty Information Center reports 1995 survey findings that show 69 per cent support in Canada and 76 per cent in the UK. It goes on to note that more recent polls show declining support, as is also the case in the USA. See http://www.deathpenaltyinfo.org/. Nye (2003: 225) notes that, on the eve of legislative abolition in France in 1981, opinion polls showed 73 per cent of the population in favour of retention for particularly heinous crimes. 27 The ‘victim satisfaction’ rationale is much less novel than the term ‘closure’ through which it is now expressed. The emphasis upon victim satisfaction is indeed greater than before, but it has not displaced other purposes, such as deterrence and just deserts retribution. Public opinion polls consistently find that retribution is the most common justification cited by the public (Roberts and Stalans, 1997: 229). 28 ‘[W]hy do Americans reinvent what other developed nations abolish?’ (Zimring, 2003: x). 29 The success of this regulatory effort has, of course, been challenged; most notably by one of its former proponents, Justice Harry Blackmun in his dissent in Callins v. Collins (1994). 30 A different – and, I think, more valid – research project would be to show how the specific form of the USA’s capital punishment system has been shaped by, and in turn reflects, the characteristics arrangements of American law, culture and society. The American way of imposing death exhibits many distinctive American traits: constitutionalism; federalism; proceduralism; racial and class bias; variation across states and between regions; the politics of populist democracy; meagre social provision that ultimately leads to high levels of remedial expenditure; religiously and racially inflected cultural conflicts; weak states that lay claim to symbols of sovereignty, and so on. This is the focus of my current research. 369

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31 For detailed historical accounts of the politics of crime control since the 1970s, see Garland (2001); Gest (2001); and Ruth and Reitz (2003). 32 This backlash had a specific regional and racial aspect. As Klarman (2000) describes, each decision by the Court that advanced the cause of civil rights for blacks in the American South tended to produce a conservative political reaction there. Also see Rosenberg (1991). 33 A constitutional amendment requires that both halves of the national legislature pass the bill by a two-thirds majority and that the bill be subsequently approved by three-quarters of the states. I am grateful to David Greenberg for his discussion of this scenario. 34 The Court upheld new sentencing statutes in Gregg v. Georgia, Jurek v. Texas and Profitt v. Florida. In Roberts v. Louisiana and Profitt v. Florida it rejected statutes that made death mandatory for certain offences. 35 In a 1994 biography, Justice Powell revealed that since leaving the Court he had become convinced that capital punishment is unworkable. If he had it to do over, Powell said, he would vote against the death penalty in any case that came before him, including McCleskey v. Kemp. (Haines, 1996: 78)

36 The Georgia statute was in turn the model for many other states. 37 For historical accounts of the abolitionist campaign, see Meltsner (1973); Dershowitz (1982) and Haines (1996). 38 Opinion polls reported declining support for capital punishment in the 1960s, with support reaching its lowest level in 1965. By 1973, support had rebounded, and a clear majority of the public favoured its use (source: Harris Interactive Polls, as reported in the Sourcebook of Criminal Statistics, 1995). 39 As Kahan remarks, ‘individuals do not so much form opinions as choose sides’ (1999: 436). He continues: Death penalty proponents are more likely to value obedience to authority, to believe more fervently in the power of individual will, and to accept the permanence of warfare. They are more likely to see morality as absolute, whereas death penalty opponents are more likely to see it as contextual and relative to persons or communities. Death penalty proponents are less tolerant of social deviance. They trust their fellow citizens less. Death penalty opponents are more likely to care about racial equality. These attitudinal variables furnish the most powerful predictors of death penalty opinion. (1999: 439–40)

And again: The social meaning of Willie Horton and the death penalty constructed a conflict between two fundamentally opposed cultural styles. Authoritarianism clashed with egalitarianism, righteousness with tolerance, southernness and westernness with easternness, compassion for victims of crime with compassion for victims of social deprivation. (Kahan, 1999: 450)

See also Tyler and Weber (1982). 40 In Europe, the death penalty, and its abolition, came to mean different things in different nations, depending upon their historical experiences. As Zimring points out, only in recent years has there been a pan-European discourse on this topic. 370

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41 Banner notes that Solicitor General Robert Bork, who argued the Gregg case for the federal government ‘viewed opposition to capital punishment as a sign of moral decay’ (2002: 271). 42 ‘Between one third and two-fifths of the public have weak attitudes towards the death penalty and are open to change through rational persuasion’ (Roberts and Stalans, 1997: 241). See also Lifton and Mitchell (2002) and Gross and Ellsworth (2003). 43 Note though that the Horton case drew upon deeper folk prejudices and fears – a black criminal man raping a white woman is a powerful and long-standing symbol, reviving lynch mob attitudes. Meaning, especially for a resonant issue that has a long history, is multi-layered – see Wills (2001). On the Willie Horton episode, see Anderson (1995). 44 As Zimring himself suggests, the death penalty means something very different in nations that abolished it when they overthrew authoritarian regimes, or that gave it up in order to gain membership of the European Union, or ended it when it was shown that innocent people had been put to death, etc. Zimring also notes that the US death penalty conveys a new meaning – a victims’ rights expression, a therapeutic form of closure for survivors. This is a new meaning, but he grounds it in the distant past, calling it a form of vigilantism. 45 One should bear in mind that capital punishment could yet be ended at a stroke – by a single decision of the Supreme Court and the transfer of all death row inmates to the general prison population. The dismantling of the USA’s institutions of mass imprisonment and the massive decarceration that it would entail pose a much greater political and logistical challenge. 46 For details, see http://www.deathpenaltyinfo.org/ 47 On 2 July 2001, Justice O’Connor remarked that, ‘If statistics are any indication, the system may well be allowing some innocent defendants to be executed’ (quoted in Zimring, 2003: 164). 48 For a detailed assessment of American penalties in comparative perspective, see Lynch (2002). 49 Savelsberg (1994) develops this contrast, showing how punitive sentiments and fear of crime are more rapidly and more extensively translated into political action in the USA’s populist democracy than is true in Germany’s more corporatist one. 50 Though they focus on what they see as the USA’s cultural distinctiveness, both Zimring and Whitman are well aware of the role of the USA’s governmental structure in shaping penal politics. See Zimring’s comment about ‘the distinctive political structure that exists to translate sentiment into political action at the state level’ (2003: 136) and also chapter 4, where he discusses the impact of American federalism on death penalty politics. Whitman notes that ‘there is, in fact, an intimate nexus between the politics of mass mobilization, unchecked by bureaucracy, and the making of harshness in criminal punishment’ (2003: 15) and later, ‘What sets America apart is the relatively easy translation of majority sentiment into policy’ (2003: 200). 51 To say this is not to imply that the US democratic system gives ‘the public’ what it wants or always translates popular sentiment into law. ‘The public’ and ‘public opinion’ are diverse, conflicted entities that only exist through representational 371

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forms that distort even as they ‘represent’. A populist system of democracy is prey to money, media and limited public information. Voter ballot initiatives, referenda and recalls, are prone to be hijacked by highly mobilized, well-financed interest groups. The lack of a strong government often means that government gives the public what is least costly to it politically, not what works best. Low levels of trust in government produce populist policies. Apart from the USA, where 38 states elect their supreme court judges and most of their other judges, only Japan and Switzerland elect judges, and these two countries narrowly limit the scope of elections (Shugerman, 2004). In contrast to most state judges, US federal judges are appointed, and serve for life. On the politics of criminal law in the USA, see Garland (2001), Gest (2001) and Stuntz (2001). In the last two decades, a ‘crime complex’ and law and order politics have begun to appear in other nations, notably the UK, and have led to pressure for enhanced punishment and the return of the death penalty. But elected officials in Europe are much less exposed to pressure of public sentiment, and consequently much less responsive to it. This may explain why, despite parallel shifts in the forms and objectives of penal policy, the USA has implemented these measures in more intensely punitive ways (Garland, 2001). This section leans heavily on information provided to the author by Tony Amsterdam and Bryan Stevenson. The timing of executions within high-execution states appears to be affected by election cycles. Kubik and Moran (2003) provide evidence to the effect that states are 24 per cent more likely to conduct executions in gubernatorial election years than in other years. On 1 July 2003, inmates on death row numbered 29 in Virginia, 69 in Mississippi and 105 in Tennessee. The number of executions carried out in these states since 1976 were 89 in Virginia, 6 in Mississippi and 1 in Tennessee (source: http://www. deathpenaltyinfo.org/). Some of the same features – particularly underdeveloped government institutions and low levels of legal professionalism – might have facilitated the conversion of racial hatred and punitive passions into the lynchings that occurred in many southern counties at the end of the 19th century. But to identify ‘vigilantism’ as the operative cause in both ‘conversion’ processes seems to misunderstand the processes involved. For an explanation of changes in American race relations grounded in shifts in structures of economic and political competition, see Wilson (1978). American diplomats have testified about the way in which the USA’s retention of capital punishment undermines their advocacy of human rights abroad: see the statement Amicus Curiae of International Law Professors filed in the case of Breard v. Greene, 118 S. Ct. 1352 (1998). As for security, there have already been cases in which friendly nations have refused to extradite suspected terrorists to the USA because they might face the death penalty there.

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Atkins v. Virginia 536 US 304 (2002). Breard v. Greene 523 US 371 (1998). Brown v. Board of Education 349 US 294 (1954). Callins v. Collins 510 US 1141 (1994). Furman v. Georgia 408 US 238 (1972). Gregg v. Georgia 428 US 153 (1976). Jurek v. Texas 428 US 262 (1976). McCleskey v. Kemp 481 US 279 (1987). McGautha v. California 402 US 183 (1971). Mapp v. Ohio 367 US 643 (1961). Miranda v. Arizona 384 US 436 (1966). Proffitt v. Florida 428 US 242 (1976). Ring v. Arizona 536 US 584 (2002). Roberts v. Louisiana 431 US 633 (1976). Roe v. Wade 410 US 113 (1973). Roper v. Simmons 543 US (2005). Woodson v. North Carolina 428 US 280 (1976). DAVID GARLAND is Arthur T. Vanderbilt Professor of Law and Professor of Sociology at New York University. He is the author of The culture of control and a founding editor of Punishment & Society.

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