Politics of Death Penalty Research Paper

How are we to explain this and what are its consequences for the political system and the values and norms of the cultures which practice state killing? What judgments can we make about the political and cultural consequences of capital punishment?

It may be that the persistence of state killing in the USA is paradoxically a result of a deep attachment to popular sovereignty (Sarat 1995). Where sovereignty is most fragile, as it always is where its locus is in ‘the People,’ dramatic symbols of its presence, like capital punishment, may be most important. The maintenance of capital punishment is, one might argue, essential to the demonstration that sovereignty could reside in the people. If the sovereignty of the people is to be genuine, it has to mimic the sovereign power and prerogatives of the monarchical forms it displaced and about whose sovereignty there could be few doubts. The death penalty is miraculously transformed from an instrument of political terror used by ‘them’ against ‘us,’ to our instrument allegedly wielded consensually by some of us against others (Connolly 1999). Thus capital punishment may be a key to understanding modern mechanisms of consent (Aladjem 1990, Dumm 1987).

Not only does the USA cling tenaciously to capital punishment long after almost all other democratic nations have abandoned it, but both the number of people on death row and the number executed grows steadily. In addition, while for a brief period of time after Gregg . Georgia (428 US 153 1976) reinstated capital punishment there was tight legal supervision of the death penalty and great restraint in its use, that period is now long gone (Weisberg 1983). The pressure is on to move from merely sentencing people to death and then warehousing them to carrying out executions by reducing procedural protections and expediting the legal process (Amsterdam 1999).

As any American who lived through the 1970s, 1980s, and 1990s knows, the politics of law and order have been at center stage for a long time. From George Wallace’s ‘law and/order’ rhetoric to Bill Clinton’s pledge to represent people who ‘work hard and play by the rules,’ crime has become such an important issue that some now argue that we are being ‘governed through crime’ (Simon 1997). In the effort of politicians to show that they are tough on crime the symbolism of capital punishment has been crucial (Connolly 1999). It has also been crucial in the processes of demonizing young, black males (Tonry 1995) and using them in the pantheon of public enemies to replace the ‘evil empire.’ No US politician today wants to be caught on the wrong side of the death penalty debate.

The politics of capital punishment is crucial in an era of neoliberal withdrawal from other kinds of state intervention. It helps to shift the symbolic capital of the state to an area where, whatever one’s doubts about the capacity of government to govern effectively, there can be demonstrable results (Connolly 1999). As Aladjem (1992, p. 8) puts it, ‘It is significant that just when there is doubt as to whether rational democratic institutions can generate a public sense of justice, there has been a resurgence of pre-democratic retributivism and a renewed insistence that it is a ‘‘rational’’ response to an increase in violent crime.’ A state unable to execute those it condemns to die would seem too impotent to carry out almost any policy whatsoever (see Sarat 1997).

2. The Policy Agenda

Because the death penalty is the ultimate sanction, and because the maintenance and use of capital punishment in and by the criminal justice system has been so controversial, social scientists have long gravitated to it as a subject for policy relevant, empirical research. In an earlier era, much of the agenda of social science research on the death penalty was designed to speak to issues that were thought to be important in the ongoing campaign against capital punishment (see Munger 1993, pp. 5–6, Zimring 1993, pp. 10–11). Among the topics traditionally covered by death penalty re-searchers three have been most important, namely the question of whether the death penalty deters, whether it is compatible with contemporary standards of decency, and whether it has been administered in a racially neutral or in a discriminatory manner.

2.1 Deterrence

With respect to the first question, despite what commonsense suggests, most social science research on capital punishment finds no evidence that the death penalty deters (Klein et al. 1986). To say that there is little or no evidence that the death penalty deters may seem strange, but it becomes more comprehensible when one realizes that the comparison made in the deterrence calculus is between a death sentence and a sentence of life in prison, not between a death sentence and no punishment. Moreover, because many murders are crimes of passion they may not be deterrable through any criminal justice policy.

Studies of the deterrent effect of capital punishment have used many different methodologies. Some have examined murder rates before and after well-publicized executions; others have compared murder rates in adjoining states, one of which has capital punishment, the other of which does not (Sellin 1959). Some of the most controversial research on the deterrent effect of capital punishment was done in the 1970s by the economist Isaac Ehrlich (1975). This research was controversial because unlike most other scholarship it showed strong and statistically significant deterrent effects, and because it used sophisticated statistical techniques to control for other confounding variables. If Ehrlich was correct execution did indeed save lives. Indeed Ehrlich (1975, p. 398) claimed that ‘On the average the tradeoff between the execution of an offender and the potential victims it might have saved was on the order of magnitude of 1 to 8 for the period 1933–67 in the United States.’ But, since Ehrlich’s research was published it has been the object of sustained and rather persuasive criticism (see, e.g., Zeisel 1976, Glaser 1977, Lempert 1981, Klein et al. 1986), most of which has focused on the particular statistical techniques that he used. Today, despite Ehrlich’s research, few social scientists believe that the death penalty has distinct and discernible deterrent effects (see Gibbs 1986, p. 348). Thus if the justification for capital punishment is to be found it must be found elsewhere.

2.2 Public Opinion And Evolving Standards Of Decency

The most powerful alternative justification suggests that even if the death penalty does not deter it is justified on retributive grounds or as a way of expressing society’s legitimate moral condemnation of heinous criminality (see Berns 1979, Von den Haag 1975). Social science research has tried to tap into the retributive dimensions of capital punishment and to determine whether the death penalty is compatible with contemporary standards of decency through research on public opinion (see Vidmar and Ellsworth 1974). Does the public support the death penalty? Do people view it as a legitimate expression of society’s justifiable search for vengeance?

At first glance evidence on the first question seems to be quite clear. Social scientists have repeatedly documented strong public support for capital punishment (see, e.g., Bohm 1991, Fox et al. 1990–91). Moreover, support for the death penalty is highly correlated with retributive attitudes, suggesting that it is a particular view of justice rather than the death penalty’s utility that helps explain why it persists in the USA (Ellsworth and Gross 1994). Yet research has also demonstrated the malleability of this public embrace of capital punishment and its retributive justification.

In the 1970s Sarat and Vidmar (1976), taking up a hypothesis first advanced by Justice Marshall in Furman . Georgia (408 US 238 1972), found that the more that people know about the death penalty, such as how it works, and the evidence concerning deterrence, the less they support it. More recently Bowers (1993) has shown that public support for capital punishment decreases dramatically when respondents in surveys are presented with alternative forms of punishment and asked to choose which they prefer. Bowers (1993, also Steiner et al. 1999) found that people tend to accept the death penalty because they believe that currently available alternatives are insufficiently harsh or meaningful, but that when asked whether they preferred the death penalty or life without parole combined with a restitution requirement, ‘expressed death penalty support plummeted’ (Bowers 1993, p. 163).

2.3 Discrimination

The third area which traditionally has engaged the interest of social scientists is one which itself raises questions about the compatibility of capital punishment and democratic values. This area involves the question of the fairness of the way capital punishment is administered and more particularly whether it is administered in a racially discriminatory manner (see Zeisel 1981, Wolfgang and Riedel 1973). Prior to Furman, research tended to focus on race of the offender effects. In studies of rape cases (Wolfgang and Reidel 1975) and of homicide cases (see Gross and Mauro 1984), social scientists documented such effects, showing, for example, that between 1930 and 1967 almost 50 percent of those executed for murder were black (Gross and Mauro 1984, p. 38). Yet this early research was unable to disentangle the impact of race on capital sentencing from the impact of other ‘legitimate’ factors. Merely showing that the death penalty was more likely to be imposed on black defendants could not, in itself, establish that that difference was the result of racial discrimination.

In the mid-1980s Professor David Baldus and his colleagues (1990) undertook research in Georgia which was designed to remedy this defect. Using sophisticated multiple regression techniques and a large data set, they set out to isolate the effects of race on capital sentencing. They found several things that were highly illuminating about the question of fairness and whether capital punishment is compatible with democratic values. First they found no evidence of discrimination against black defendants because of their race, in the period after Furman. On the other hand, they found strong race of the victim effects. Taking over two hundred variables into account Baldus concluded that someone who killed a white victim was 4.3 times more likely to receive the death penalty than the killer of a black victim. Juries, or so it seemed, even after the sustained efforts of the Supreme Court to prevent arbitrariness or racial discrimination in capital sentencing, still valued white life more highly than the lives of nonwhites and were, as a result, more likely to sentence some killers to die on the basis of illegitimate considerations of race (see also Baldus et al. 1999, Paternoster 1983, Gross 1985).

3. Beyond The Policy Agenda

The Baldus study was in some sense the highpoint of policy-relevant, empirically rigorous social science research on capital punishment. It spoke directly to issues which the Supreme Court had put at the heart of its death penalty jurisprudence, and it did so using the best social science methods and expertise. However, it did not move the Court. While the Court accepted the validity of the Baldus study, it concluded that such statistical evidence could not prove discrimination in any individual case (McCleskey . Kemp, 481 US 279 1987). This rejection stunned those who believed that social science could help shape policy in the area of capital sentencing. Following McCleskey, the Court has moved in an increasingly conservative direction, embracing with ever greater intensity the death penalty and rejecting what in earlier years would have seemed to be persuasive challenges rooted in social science research. The result has been that ‘after more than two decades of conducting research guided by the hope of influencing the Supreme Court’s death penalty decisions, the change signaled by … McCleskey has forced scholars to chart new courses. … scholars have responded with research that is more deeply critical, more theoretically informed, and more broadly concerned about the culture and politics of the death penalty’ (Munger 1993, p. 6).

3.1 The Death Penalty Process

Some of this new research has been focused on analyzing the processing of capital cases, with special attention being given to the effort to explain how and why actors in the death penalty process behave as they do. Among the most important actors in that process are jurors in capital cases, the ordinary citizens who must decide not only questions of guilt or innocence, but whether those who are found guilty of capital murder should be sentenced to life in prison or to the death penalty. Research on jurors in capital cases has examin how they process the information that is provided to them (Haney et al. 1994, Bowers and Steiner 1999), how they understand their responsibilities in capital cases (Eisenberg and Wells 1993, Hoffman 1995, Haney and Lynch 1997), how they function in an atmosphere surrounded by the fact of violence (Sarat 1995), and how they balance their folk knowledge with the legal requirements in capital cases (Steiner et al. 1999).

Other research recently has been focused on lawyers and the lawyering process in capital cases (Sarat 1998), with special attention being given to the use of stories as persuasive devices and to the narrative strategies deployed in capital cases (Doyle 1996, Sarat 1996). Still other work has examined capital trials as events in which law attempts to put violence into discourse and to differentiate its violence from the extralegal violence which it opposes (Sarat 1993).

3.2 ‘The Culture And Politics Of The Death Penalty’

But as Munger (1993, p. 6) points out, research on capital punishment has in recent years been broadened to examine ‘the culture and politics of the death penalty,’ in particular its compatibility with democratic politics and culture. Scholars have increasingly been asking about the political meaning of state killing in a democracy. Does it strengthen or weaken the values on which democratic deliberation depends?

Capital punishment, some suggest (see Connolly 1999), is the ultimate assertion of righteous indignation, of power pretending to its own infallibility. By definition it leaves no room for reversibility. In so doing it expresses either a ‘we don’t care’ anger or an unjustified confidence in our capacity to recognize and respond to evil with wisdom and propriety (see Connolly 1999). Moreover, increasingly capital punishment has been used as a kind of constituency politics, with new capital offenses being added to existing legislation in a manner designed to convey symbolic recognition on various social groups (Simon and Spaulding 1999). Democracy, scholars argue, cannot well coexist either with such anger or with the cavalier attitude toward human life conveyed by the recent use of capital punishment for narrow political purposes. For democracy to thrive it demands a different context, one marked by a spirit of openness, of reversibility, of revision quite at odds with the confidence and commitment necessary to dispose of human life in a cold and deliberate way (see, e.g., Burt 1994).

Moreover, ‘The death penalty,’ as Terry Aladjem (1990, p. 36) writes, ‘strains an unspoken premise of the democratic state,’ that may variously be named respect for the equal moral worth or equal dignity of all persons. Democratically administered capital punishment, punishment in which citizens act in an official capacity to approve the deliberate killing of other citizens, contradicts and diminishes the respect for the worth or dignity of all persons that is the enlivening value of democratic politics. And a death penalty democratically administered, a death penalty that enlists citizens to do the work of dealing death to other citizens, implicates us all as agents of state killing.

But beyond its impact on democratic values, recent research on capital punishment has tried to examine its pedagogical effects, or its broader effects on the culture at large. Here scholars have been influenced by Garland’s (1991, p. 193) argument that ‘Punishment helps shape the overarching culture and contributes to the generation and regeneration of its terms.’ Punishment, Garland (1991, p. 195) notes, is a set of signifying practices that ‘teaches, clarifies, dramatizes and authoritatively enacts some of the most basic moral-political categories and distinctions which help shape our symbolic universe.’ Punishment teaches us how to think about categories like intention, responsibility, and injury, and it models the socially appropriate ways of responding to injury done to us. And what is true of punishment in general is particularly true for the death penalty.

Punishment, in general, and the death penalty in particular, lives in culture as a set of images, as a marvelous spectacle of condemnation (see Sarat 1999 a). The semiotics of punishment is all around us, not just in the architecture of the prison, or the speeches made by judges as they send someone to the penal colony, but in both ‘high’ and ‘popular’ culture iconography, in novels, television, and film. Punishment has traditionally been one of the great subjects of cultural production, suggesting the powerful allure of the fall and of our prospects for redemption. But perhaps the word ‘our’ is inaccurate here since Durkheim (1933) and Mead (1917), among others, remind us that it is through practices of punishment that cultural boundaries are drawn, that solidarity is created through acts of marking difference between self and other, though disidentification as much as imagined connection.

Traditionally the public execution was one of the great spectacles of power and instruction in the mysteries of responsibility and retribution (Madow 1995). Yet the privatization of execution has not ended the pedagogy of the scaffold: it has redirected it into the medium of the capital trial. Execution itself, the moment of state killing, is still today an occasion for rich symbolization, for the production of public images of evil or of an unruly freedom whose only containment is in a state-imposed death, and for fictive recreations of the scene of death in popular culture (Sarat 1999 a).

The cultural politics of state killing has focused on shoring up of status distinctions and distinguishing particular ways of life from others. Thus it is not surprising today that the death penalty marks an important fault line in our contemporary culture wars (Connolly 1999). To be in favor of capital punishment is to be a defender of traditional morality against rampant permissivism; it is to be a defender of the rights of the innocent over the rights of the guilty; it is to be a defender of state power against its anarchic critics. To oppose it is to carry the burden of explaining why the state should not kill the killers, of producing a new theory of responsibility and of responsible punishment, and of humanizing inhuman deeds (Sarat 1999 b).

Yet all of this may miss the deepest cultural significance of state killing. As Baudrillard suggests (1993, p. 169), in regard to capital punishment ‘the thought of the right (hysterical reaction) and the thought of the left (rational humanism) are both equally removed from the symbolic configuration where crime, madness and death are modalities of exchange ….’ In this symbolic configuration, research on capital punishment is essential if we are to understand not only what capital punishment does for the societies in which it continues to be used but also what it does to them and to democratic values.

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