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The Death Penalty: An American History
Stuart Banner
Cambridge, Massachusetts: Harvard University Press, 2002.
$29.95, 385 pages, ISBN 0674007514.

Philippe Chassaigne
Université de Tours

Stuart Banner’s book opens and closes with the narrative of an execution. The first one, which took place in 1821, was that of 16-year old Stephen Clark, found guilty of setting fire to a building at night a few weeks before, and accordingly sentenced to be hanged, since arson was a capital crime in his home state of Massachusetts, as in many other American states at the time. In spite of a vigorous opinion campaign for having his sentence commuted to imprisonment, he was hanged in front of a crowd numbering hundreds of people, which was of common occurrence at the time (some even totalled many thousands and were, all in all, fashionable social gatherings). Instead of putting on a brave face, as many convicted criminals did, he nearly fainted and was unable to perform his ‘last dying speech’ (the moralising speech the condemned was expected to deliver before his execution, warning people, especially younger ones, not to follow his example), which had to be read by the minister who had attended him on his way from the prison. The rope was then tied around his neck and he was ‘launched into eternity’ as the contemporaries used to say. The second narrative is that of A.J. Bannister’s execution, in 1997. He had been sentenced to death 15 years earlier for a murder which might have been a contract killing; it is however difficult to be sure, since his court-appointed lawyer performed a below-average job and was unable to even check the validity of Bannister’s defence (that the gun had discharged accidentally during a fight). The following 15 years were spent going from one appeal court to another, up to the US Supreme Court, to obtain Bannister’s reprieve. All in vain. In the meantime, Bannister had become something of a media star: he had written an autobiographical book, given interviews to various media, and a host of human rights associations rallied in his favour. He was executed by an injection of lethal chemicals in his arm in front of a small assembly of witnesses, both state officials and relatives of his victim, while a handful of demonstrators camped outside the state prison where the execution was performed. His last words were that the state of Missouri was committing a premeditated murder far graver than his own crime.

The confrontation between the two stories says it all, or almost: in two centuries, the death penalty has been increasingly removed from public view; delays between the pronouncing of the sentence and its implementation tend to grow longer and longer, because of protracted litigation, appeals, etc. The actual method of taking a criminal’s life has been thought over and over again, in order to make it as ‘civilized’ and painless as possible, considering that putting an end to his life was the penalty, not making him suffer on top of it (‘him’, or ‘his’, because—this has not changed—historically men have always outnumbered women on Death Row). Instead of accepting their fate as a just reward for their crime, and making it public, criminals sentenced to death now challenge the right for the justice system to take their life… and make it public.

Stuart Banner’s book is a clear and straightforward account of what happened in the meantime. Very much like a textbook, but with carefully chosen, and highly relevant incursions into cultural history. It is highly significant that the bulk of the book (8 out of 10 chapters) deals with the pre-1950 period: Banner’s aim is obviously to convey what capital punishment meant to the early Americans, since, obviously, the pros and cons of capital punishment have hardly changed ever since. In fact, the ‘American History’ depicted here is less that of the death penalty in the US than that of the debate about capital punishment in the US. Right from the start, i.e. since the independence, there have been opponents to the death penalty as a remnant from the ‘Ancien Regime’, when the US were the Thirteen Colonies of a mother country whose penal code numbered an apparently ever-increasing number of capital crimes. They, however, were originally very few, since capital punishment was considered as the standard penalty for most crimes, something that not only pertained to retribution, but also gave the criminal a possibility for achieving last minute salvation. Hence the ceremonial surrounding an execution, or the emphasis put on the ‘last dying speech’ urging the people attending the execution to mend their ways. Such was the strength of conformity that most of the criminals executed wanted to deliver a speech that would impress those (the hundreds or thousands) who were to hear it. Banner offers here a wide range of evidence providing many insights into the minds of the contemporaries, and their perception of the death penalty as a part of the things-that-be.

Opposition to the death penalty came in fact from a variety of angles: some considered it as the remnant of a bygone age, incompatible with the US status as an egalitarian Republic devoted to progress and the pursuit of happiness; others were no doubt influenced by the reforms undertaken in late-eighteenth- and early-nineteenth-century Europe, where the death penalty, if rarely altogether abolished, was confined to an increasingly restricted number of crimes (murder, treason…). Most important, in Bannister’s view, was the change in sensibility which made large parts of the public increasingly sensitive to the spectacle of other people’s suffering—be they criminals convicted of particularly heinous crimes. In fact, the abolitionist movement developed in pace with the anti-slavery movement and the campaign against cruelty to animals. Hence, the end of the barbarous treatments sometimes inflicted to the criminals’ dead bodies, such as quartering, disembowelling, etc.

And what about the rise of utilitarianism? It is widely remembered that in the view of Michel Foucault and his disciples (see his Discipline and Punish [1977], or Michael Ignatieff’s A Just Measure of Pain [1979]) the search for a more efficient way of punishment, one that moreover would be compatible with the principles of the new, capitalism-based society that was emerging at the time, and not humanitarian feeling, was the driving force behind the judiciary reforms of the early nineteenth century; thus, instead of being put to death, most criminals were given up to a reformed prison system and when possible used as a cheap workforce by local industrialists. For the ‘New Left’ inspired school of ‘revisionist’ historians, most prominent from the late 1960s to the 1980s, the judicial reforms of the early nineteenth century, with a reduction in the number of capital crimes and the rise of the prison as the standard method of punishment, were a clever device from the rising middle classes to impose not less, but better punishment, and to enforce the new economic system of capitalism on the working classes. Without denying the importance of utilitarianism, Banner displays enough evidence to silence those who would interpret these reforms as first and foremost a ‘rulers’ conjuration’. One is in fact struck by the importance given to moral considerations, by the recurrence of words such as ‘humanity’, or ‘progress’, under the pen of those who were fighting against capital punishment.

The pace, however, was uneven. First, the abolitionist movement did not gain any substantial strength until the 1820s. It was stronger in the North than in the South, for obvious reasons: in a society based on the ‘peculiar institution’, the death penalty was considered as the ultimate guarantee of the social order and, indeed, such verdicts were far more frequently passed against coloured than non-coloured people. However, even in the North, the abolitionist movement failed to reach its ultimate objective. Banner offers a clear and extremely detailed account of the arguments used by each side in the debate, and of the piecemeal way state legislatures progressively, but not regularly, nor consistently, abolished the death penalty for crimes other than murder and, sometimes, treason.

Executions continued while the debates were going on, yet in different ways. A major change came in the second third of the nineteenth century, when executions were progressively withdrawn from public view to be performed inside the jail yard. This aimed at putting an end to what was then seen as morbid voyeurism—an interesting change in mentalities, when one thinks that until then, the spectacle of an execution was supposed to improve the morality of those who attended it and to put them back on the right path. Of course, this was a gradual process, which, again, originated in the North (Connecticut, 1830) and slowly spread to the South. A second major change was the search for better—i.e. less painful—ways of executing criminals than hanging. Banner finely documents the rising concern about executions which were not cleanly performed, leading to terrible scenes of criminals suffocating for long minutes before actually dying (while the working principle of execution by hanging is to administer instant death by breaking the criminal’s neck); another cause for concern was to make sure that the condemned person was dead, since there were plenty of stories of criminals being resuscitated and enjoying a peaceful life after their ‘execution’. Since the nineteenth century was that of science, science did have its way: the electric chair was invented at the end of the 1880s and came in use early in the following decade, first in New York, then in Ohio, Massachusetts, New Jersey, etc. It rapidly gained popularity as a less painful and less repulsive to watch way of administering death. Other devices were also resorted to: in the Mormon state of Utah, criminals were shot by a firing squad; execution by gas was adopted in Nevada in 1921, followed by 10 other states, all of them westerners or southerners, i.e. the parts of the US where hanging was still popular and where the electric chair had failed to gain popularity (there is clearly here an interesting point of cultural history that would deserve better treatment).

However, the debates were not over. There were still people advocating that electrocution and gas were methods of punishment which were just as horrible and inhumane as hanging; in fact, the mere spectacle of scientists grappling to find a more humane way of administering death offered a field day to opponents who argued that the thus indirectly avowed inhumanity of capital punishment was a sufficient cause for abolishing it altogether. At the same time the decline in the number of executions actually perpetrated did not seem to foster an increase in the crime rate; and more and more scientists began to question whether criminal behaviour was a product of deliberate action or the result of personality traits developed by the interaction of the criminal’s heredity and his environment, thus removing the very basis of capital punishment, that the criminal was responsible for what he had done; so, an increasing number of state legislatures decided to abolish capital punishment. Michigan had been the first as early as 1846, but only 4 states had done so by 1875; some did it only to restore it a few years later (e.g. Iowa, where the death penalty was abolished in 1872 only to be reinstated in 1878). The pace quickened in the early twentieth century, generally in states where no executions had taken place for a long time: 8 legislatures (Kansas, Washington, Oregon, Arizona…) decided against capital punishment between 1907 and 1917, and, in a bunch of other states (Connecticut, Ohio, California…), abolitionists came fairly close to victory. The peculiar setting of the interwar years, with the rise of organised crime, the Red Scare, prohibition, Christian fundamentalism, stopped this evolution for a while and many abolitionist states returned to the death penalty, but it was more an option offered to the juries than a sentence they actually resorted to, and the number of executions kept on declining consistently.

Seen in such a light, the Supreme Court’s decision of 1972, ruling the death penalty unconstitutional, as ‘cruel and unusual punishment’ in violation of the Eighth Amendment, and the reversal of its decision in 1976, will appear less inconsistent this side of the Atlantic (as we often consider all things American). The first date may have been the high tide of liberalism, and the second may have heralded a switch to the conservatism that was to dominate American politics from the 1980s on. Above all, it reproduced at the federal level the fluctuating attitudes towards capital punishment that happened many times before at a more local level. The arguments used by the Supreme Court were hardly innovative: the fact that capital punishment was ‘cruel and unusual’ was a staple of the abolitionist discourse right from the early nineteenth century. The Court also pointed out that the death penalty was distributed at random, varying from one jury to another, something which again had been criticised by generations of abolitionists. However, the death penalty had been ruled unconstitutional on a technicality (jury discretion made it randomly administered), not on a substantive argument. Consequently, as soon as the Court’s decision was published, a significant number of states had the death penalty re-enacted with the right provisions to abide by the new rules. They also switched to a new method of execution, through the injection of lethal chemicals (a method now used by the overwhelming majority of the states with capital punishment), clearly the less ‘cruel and inhuman’ method of administering death. Opinion polls showed that the population, regardless of colour, class, gender or region, was stronger than ever before in favour of the death penalty. In the 1990s, the number of executions was more or less on a par with that of the 1950s (above the 90 mark), and the number of inmates on Death Row—reached an all-time high with over 3,000 people. It must be stressed, however, that due to the rise in population that had occurred in the meantime, the rate of execution was necessarily lower. Moreover, it would be interesting to compare these figures, located at the very end of the judicial process, with those of the people tried and sentenced, to get a broader picture—which Banner fails to do. He succeeds better when he tries to figure out why capital punishment is so much back in favour, putting the US on equal footing with such authoritarian states as China, Iran, or Saudi Arabia, making them an exception among fellow Western states and exposing them to international criticisms from organizations like Amnesty International. The question of the death penalty deterring crime is today of less importance, even though this was its original purpose: the statistical evidence is unclear, and varies from one criminologist to another. In fact, supporting capital punishment has become first a way of reacting against the feeling of insecurity which, up to recently, was fuelled by rising crime statistics, but also something of a moral statement, a way of saying that real dangerous criminals had to expiate their deed instead of being rehabilitated. It happens however that a fraction of those waiting on Death Row across the country are in fact innocent, the victims of judicial errors, as regularly found out by stubborn lawyers and investigative journalists. Here now lies the haphazard bit (it now depends on the skills of lawyers and/or the mobilisation of public opinion) that prompted the Supreme Court to rule capital punishment unconstitutional in 1972; it may be today the most potent argument in favour of its abolition.

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