...traditional criminal justice. The other concerns the persistence of capital punishment in the United States during a period when comparable nations have decisively abandoned its use. In this essay, I will address both of these two questions, beginning with the first and offering conclusions that bear upon the second.

How are we to explain America's retention of capital punishment in this new century when many other liberal democracies have abolished it? The conventional way to think about this is to pose a simple opposition between abolition and retention--Europe (or "the West") has abolished the death penalty, while America has retained it. The trouble is that if you pose a simplified, binary question, you tend to produce a simplified, binary answer: "Americans" are punitive and "Europeans" are not. Or Americans are Puritan, or vigilante, or racist and Europeans are not.

But these simplifications are misleading. They collapse important distinctions, for example, between states such as Michigan, which has been abolitionist since 1846, and others such as Texas, which is responsible for one-third of America's executions in the post-Furman period. Or between European nations such as Portugal, which abolished capital punishment in 1867 and France, which did not get around to doing so until 1981.

The opposition between American retention and European abolition also collapses historical time, relying upon a snapshot comparison at a particular moment. How does this mislead? Well, consider how the same comparison would have looked in 1972, when the US Supreme Court ruled all existing capital statutes unconstitutional and the French authorities decapitated Claude Buffet and Roger Bontems in the courtyard of the Sante prison (Foucault, 2000). Or consider that "abolition" typically occurs, when it does, not as the abrupt cessation of an unquestioned policy of frequent executions, but instead as the final stage of a long-term historical process stretching over two or more centuries in which the death penalty is incrementally narrowed, restricted, restrained, and increasingly replaced by alternative penalties such as life imprisonment. When America's practice is viewed in the light of this long-term process, it appears that the United States has traveled a considerable way along this common developmental path.

Finally, there is a certain misperception involved in the juxtaposition of "abolition" and "retention," a too stark opposition that prompts us to think of the American institution as the opposite of Western abolition, as if America were on a par with Saudi Arabia and its public beheadings, or with Singapore and its high-frequency use of executions for a variety of offences. But if the US system of capital punishment is viewed historically and comparatively on a continuum of death penalty practices that ranges from the most elaborate, intense and widespread to the most restricted, reformed, and restrained, then the United States is closer to the European situation than is typically assumed. American states still permit the death penalty--an egregious moral and political fact that properly commands our attention. But the actual execution of this penalty is comparatively infrequent, is subject to close regulation and restraint, and is a matter of ongoing legal and political controversy--and these are facts that ought not to escape our attention either. So although the polarizing rhetoric of normative debate prompts us to regard the US situation as diametrically opposed to that of Europe, a more nuanced, historical perspective suggests that, in many important respects, the two continents are not so far apart.

AGAINST AMERICAN EXCEPTIONALISM

In the Western world, contemporary America is an outlier in terms of the death penalty as well as on several other dimensions of criminal sentencing and penal policy. There are other Western nations, most notably the United Kingdom, that share the punitive trajectory and culture of control that emerged in late twentieth-century America (Garland, 2005a), but no other Western nation has generated the harsh sentencing tariffs or levels of mass imprisonment that now characterize the United States (Garland, 2000; Whitman, 2003; Western, 2006; Council of Europe, 2007). So America is, in important respects, different from comparable Western nations, and a central aim of current research is to explain these differences. But how best to frame this question?

In my opinion, the conventional resort to notions of "American Exceptionalism" is unhelpful here (for a full discussion, see Garland, 2005a). First, America is not a single place for penological purposes, any more than is "Europe" or "the West." As I will document below, there are major state-level differences within the United States that make talk of "American" capital punishment altogether misleading. Until recently there were also major differences between the capital punishment policies and practices of the European nations, though the fact that all of them are now abolitionist has obliterated these contrasts. The abolitionist present hides a variety of different histories: each of the European nations was previously "retentionist" and each traveled its own distinctive path to abolition.

Second, and in comparative terms, there is no international standard against which the United States is an "exception," no single norm from which America deviates. Nor is there a constant difference between America and the rest that persists through time. If the comparisons were made in the 1830s (Banner, 2000), the late 1930s (Evans, 1996), or even the early 1970s, the ratios would look quite different. Instead there are commonalities and differences, generic developments and distinctive variants. America is in historical motion, as are the European nations to which it is being compared, and its relationship to them varies, growing now closer, now further apart. Depending on the period chosen and the vantage point adopted, the comparative story can be one of convergence or of divergence. No single description always fits.

Third, American Exceptionalism is an analytical account developed to explain a long-term, widespread and persistent phenomenon--classically, the weakness of the American labour movement and socialist parties (Lipset, 1997; Shafer, 1991)--by reference to structural and cultural features of the American nation that are similarly long term and persistent. An analytical framework of that kind cannot be plausibly applied to a phenomenon (America's retention of the death penalty following abolition in all other Western nations) that is less than 30 years old, is unevenly distributed across the nation's states and regions, and may yet prove to be transient rather than persistent.

This point also has implications for our thinking about historical causality. If America is altogether different from the rest of the West, if it is exceptional, differently constituted, made of different stuff, then one might suppose that the death penalty is present here and absent there because different causal processes are at work in the two settings. (Perhaps America's Puritanism, or its vigilanteism, or its populist punitiveness, etc.). But if we insist on seeing the comparisons in more nuanced, variable ways, and if we replace our crude binary conception (capital punishment retained/capital punishment abolished) with a more refined sense of variation along a reform continuum, then it becomes likely that the causal processes that brought about death penalty abolition in Europe are much the same as those that brought about death penalty reform in America--except that the American anti-death penalty movement, the social forces that propel it, and the political processes that give it legal expression, were somehow weakened, countered, or constrained in their operation. This approach also has implications for our understanding of the conditionality of the present. It suggests that the difference between the United States and Europe with regard to the death penalty ought to be viewed as contingent, not essential, a matter of actions and outcomes, not of inevitability. But for specific events and decisions--above all the Furman, Gregg, and McCleskey decisions--which could have unfolded differently, the United States could well have been in the abolitionist camp today (Garland 2005a). (1)

FRAMING THE INQUIRY

There is no one "right way" to think historically and comparatively about capital punishment (or about any other subject for that matter). There are multiple vantage points, multiple perspectives, and multiple interpretations, each of which is more or less useful, more or less appropriate, more or less persuasive. The choice of perspective depends on the stakes and the purposes involved. How we think about capital punishment depends on how we contextualize it. Significance depends on context; comparison depends on the choice of comparison group. We conventionally compare the United States to other developed Western nations, or to liberal democracies, but it might also make sense to compare it to other federated nations, or to states with very large populations, or to high-crime societies, or to postcolonial societies, or to nations characterized by fundamentalist religious belief. Each of these comparisons would alter our sense of where America stands on the...

NOTE: All illustrations and photos have been removed from this article.




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