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...OF KILLING IV. THE LONG DEBATE
INTRODUCTION
The history of capital punishment in the United States has seen more than its share of ironic twists and turns. The new states that made up the infant American Republic were, at the beginning of the nineteenth century, among the first jurisdictions in the world to limit the use of the death penalty and to substitute imprisonment for execution. (1) Yet today, at the beginning of the twenty-first century, the United States remains the singular holdout among western nations, the lone practitioner of capital punishment and a quite vigorous practitioner at that. (2) Smart Banner's The Death Penalty: An American History takes us through the social and legal history of the American death penalty from its colonial origins as the central focal point of the seventeenth-and eighteenth-century world of crime and punishment to its troubled and troubling existence in modern America. He chronicles the ultimate punishment's near-death experience in Furman v. Georgia, (3) its resurrection in Gregg v. Georgia, (4) and its prominence in state and national politics in the last two decades. (5) Along the way, Banner introduces us to a comprehensive array of topics detailing the cultural history of crime and execution in the evolution of the American nation. Banner tells us about public hangings and execution sermons. He takes us into the execution chamber with discussions of the technological history of execution devices, including valuable discussions on the ironic and frustrating search for ways to humanize the machinery of death. The Death Penalty is especially rich in detailing the procedures and rituals that have accompanied executions throughout American history. Most importantly, Banner covers the enduring debate over the death penalty, a debate that began in postrevolutionary America and continues into the twenty-first century. In covering that debate, Banner reminds us how longlasting some of the issues have been, deterrence, retribution, the possibility of error, the role of racism in capital punishment, and the issue of the moral responsibility of offenders, to name but a few. The Death Penalty introduces us to a broader societal ambivalence about the ultimate sanction, an ambivalence in many ways belied by the advocacy and practice of executions. Although the American nation has not lacked its share of executions in its history, the practice of killing offenders has often been an uneasy one with a shaky consensus often contingent on a complex variety of racial, cultural, and criminological considerations. Banner's study points us to that complex and difficult discussion.
Throughout The Death Penalty Banner remains true to his original aim, to bring us a history of the death penalty that informs us of capital punishment's evolving cultural significance in American history. As Banner recognizes, the death penalty has had deep symbolic and ritualistic meanings, some obvious, some latent. Banner is at his best in placing the practice of execution in a broad social and cultural context allowing the reader to recognize that the death penalty, and ultimately the modern debate over the death penalty, implicates societal concerns that extend way beyond simple criminological calculations. The Death Penalty provides us with a comprehensive history of capital punishment in the United States, and Banner does an excellent job weaving together the cultural, political, and legal history of executions in American life. At points the reviewer would have appreciated a more comparative discussion locating the history of the American death penalty within the context of the history of capital punishment in western nations more generally, but that is less a criticism of Banner's discussion than a recognition that his study, with its interweaving of legal and cultural history, inevitably raises critical questions for future inquiry.
This Book Review will be concerned with pointing out some of those questions and is divided into four parts. Part I, "A Communitarian Exercise: The Execution as Town Meeting in Colonial America," looks at Banner's discussion of the death penalty in colonial America. This Part raises some questions about what Banner sees as a seeming consensus in support of capital punishment before the American Revolution. Part II, "No Longer Certain: Life and Death in Nineteenth Century America," examines Banner's treatment of the development of organized opposition to capital punishment. Part III, "The Practice of Killing," discusses The Death Penalty's look at the evolving technology of executions in American history and argues that the ironic and frustrating search for humane methods of execution that Banner details reflects a more fundamental unease over capital punishment itself. The last Part, "The Long Debate," examines Banner's treatment of the modern debate over capital punishment and discusses some of the reasons for the failure of the modern movement against the death penalty.
I. A COMMUNITARIAN EXERCISE: THE EXECUTION AS TOWN MEETING IN COLONIAL AMERICA
Banner's discussion of the death penalty in the colonial era is part of a larger, relatively recent conversation among historians concerned with retrieving often hidden cultural and social meaning in early American life. (6) Part of this conversation is concerned with the processes that led to the creation of communities out of the small English settlements that would ultimately form the American Union. Community formation then, as in other settings, was often a curious amalgam of natural and coercive methods. Socio-legal historians have informed us that the small, tightly knit, often homogenous New England communities of the seventeenth and early eighteenth centuries frequently relied on congregationally based mediation and persuasion to settle civil disputes in preference to more formal legal procedures. (7) Yet we also know that such communities could be quite harsh to those who disturbed the reigning consensus and quite insistent that outsiders conform to the dominant community culture. (8)
Banner plunges us into a colonial American world where executions were a ritualistic exercise designed in part to punish crime, but perhaps more significantly, staged to reaffirm the moral and social order and the place of the members of the community in that order. We knew, of course, before Banner's work, that executions were public in the Anglo-American world, and indeed elsewhere, in the seventeenth and eighteenth centuries. Douglas Hay, V.A.C. Gatrell, and others had previously introduced us to the public hanging as spectacle in eighteenth century English life. (9) But few, if any, have introduced us to the execution as ritual in early American communities in quite the way Banner has. Banner shows us the execution as morality play in the colonial townships of the seventeenth and eighteenth centuries. It was a morality play in which all, particularly the condemned, played their parts. Executions were attended by a pomp and pageantry which belied their grim purpose. Executions would begin with a parade of the execution party, the condemned (usually) man, the sheriff, and his deputies publicly going from the jail to the place where the public hanging, or if the condemned were really unfortunate, burning, was to occur. (10) After arrival came the execution sermon, an oration by the local clergymen impressing on the gathered multitude, sometimes numbering in the thousands, that the soon to be performed execution would be vivid reminder of the wages of sin. Parents brought their children so that the proffered morality lesson would not be lost on the next generation.
The condemned man also had a speaking part in this colonial morality play. The convicted criminal was not expected to merely be a silent observer to the proceedings, awaiting the end of the sermon, the reading of the sentence and his own execution. Instead the condemned man was expected to contribute to the morality lesson through a speech of his own, often authored by an amanuensis, expressing his sincere repentance, and warning others, particularly children, against following his unfortunate example. Banner rightly sees the preexecution speech by the condemned man as a way for the offender to achieve a moral reintegration into the community, a reintegration that would permit a rejoining of the community in the afterlife if not the present one. (11)
Of course, as Banner informs us, sometimes the condemned's execution speech had the possibility of a more earthly reward. In a discussion brimming with psychological and ethnological possibilities, Banner also introduces us to the phenomenon of symbolic execution in colonial America. Symbolic executions involved individuals condemned to death who were believed to be redeemable. Usually their crimes were relatively minor. The appearance of sincere repentance, of which the execution speech was a part, could bring commutations by colonial governors. In such cases there were at times secret commutations known only to the sheriff. The condemned were not informed. Execution ceremonies proceeded according to the prescribed ritual, processions, executions sermons, repentant speech by the condemned, the placing of the rope around the condemned individual's neck. At the last minute the sheriff who knew of the commutation stopped the execution, informing one and all, including the condemned, that the sentence was commuted, the life spared. The public was thus impressed with both the power and mercy of the state. (12)
Banner confirms our previous understandings of colonial America as a society not only comfortable with executions, but where seemingly the very idea of capital punishment was essentially unchallenged. The Anglo-American world of the seventeenth and eighteenth centuries was one in which an increasing number of crimes, some of them quite petty or trivial, were punishable by death. (13) The formal law was harsh. Its concern was with deterrence not proportionality. There was a brutal calculus in this world and indeed elsewhere in the western world that demanded that crime be stopped whatever the cost. If that meant hanging a petty thief, so be it. If that petty thief was a child, so be it still. (14) That brutal calculus was doubtless helped along in the Anglo-American world because of the large-scale enclosure of land in seventeenth and eighteenth century England that drove many poor from their traditional homes in the English countryside to the dangerous streets of London and other cities and the settling of American colonies. (15) As the American colonies were settled, they became inhabited by dangerous classes of uprooted strangers. (16) The English settlement of North America brought large numbers of poor Englishmen to labor as indentured servants in the new colonies. It also brought large numbers of Africans to toil as slaves. (17) Enclosure, transportation of the poor and outcast members of British society, and the trans-Atlantic slave trade all served to create a different world from that of the more homogenous communities of premodern England. The stated law's increased harshness reflected in large measure a greater willingness to deal more strictly with those perceived as both dangerous and different. And, of course, the more different the offenders appeared, the more it increased the perception of their dangerousness.
And yet even in this unsympathetic world of crime and punishment, the law as applied was often quite different from the law as stated. The law of England had long maintained a gap between its formally harsh doctrine and its more lenient application. Traditionally the common law had specified the death penalty for all felonies. (18) Yet the number of actual executions in England seems to have been relatively small, certainly smaller than the number of felonies committed. Legal historian Joel Samaha's research indicates that in Elizabethan England, a combination of "the rigid rules of procedure, the standards of legal proof, and the devices readily available to aid convicted criminals saved most of them from the death penalty." (19) Samaha's research indicates that rigorous adherence to the rules of evidence saved many accused felons from the hangmen's noose. He also indicates that devices like benefit of clergy and liberal use of the pardon provided substantial postconviction relief. (20)
This gap between the law's formal strictness and the more relaxed realities of actual practice would continue beyond the Tudor Age. Douglas Hay indicates that despite the severity of England's eighteenth century penal code, relatively few executions actually took place. (21) Indeed Hay indicates that despite the increased harshness of the code, the population increase, and increases in theft, extensive use of the pardon and commutation powers spared most offenders from the gallows, particularly those convicted of theft crimes. (22)
Banner's history also indicates ambivalence in the world of death and justice in colonial America. As was the case in England, the stated law was harsh. Death was deemed an appropriate punishment for a wide array of crimes, including minor property crimes. (23) Executions were vigorously supported on grounds of both deterrence and retribution. (24) Whole communities took part in executions and appeared to value them both for their criminological and their didactic functions. Yet despite this support, even the seventeenth and eighteenth century minds seemed to recognize that the law perhaps had gone too far.
Banner's discussions of symbolic executions and benefit of clergy give us another more complex dimension of capital law in colonial America. (25) As is often the case in human affairs, there was a desire to have one's cake and eat it too. Death could be declared the appropriate punishment for a wide array of crimes and yet relatively few people, only the most unregenerate, would be executed at least for the lesser offenses. Again the moral tradition that the wages of sin are death--a critical understanding in the congregationally oriented communities of the seventeenth and early eighteenth century--could be confirmed while restricting actual executions to a small number deemed the most reprehensible.
Despite a superb historical discussion of the role of executions in colonial American culture, Banner's portrait, of necessity, is incomplete. In The Death Penalty, Banner is able to show us the cultural significance of executions from the point of view of political and religious leaders. Political leaders supported executions as a vehicle for social control, as a means to reign in the dangerous classes, to deter crime and to demonstrate the majesty, and occasionally the mercy of the law. Clergymen believed the execution to be the occasion for a vivid reaffirmation of the Biblical themes of sin and redemption, themes that were important for all, but particularly vital to the large unfree populations of slaves and servants, often only tenuously connected to the larger society, who inhabited the American colonies.
It is harder, perhaps impossible, to assess the cultural and social significance of the death penalty for the masses in pre-Revolutionary America. Was the public as supportive of the death penalty as the mass...
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