Peculiar Institution: America’s Death Penalty in an Age of Abolition

GUEST: David Garland
AIR DATE: 04/09/2011
VTR: 12/16/2010

I’m Richard Heffner, your host on The Open Mind.

And what drew me to our conversation topic today was a major New York Times story by Adam Liptak, the paper’s Supreme Court correspondent…a story not primarily about my guest today, David Garland, Vanderbilt Professor of Law and Professor of Sociology at New York University, and about his truly compelling new Harvard University Press study of capital punishment in America, it’s title: Peculiar Institution – America’s Death Penalty In An Age Of Abolition.

Rather, the Adam Liptak story was about the quite favorable and also self-revealing New York Review of Books comments on Peculiar Institution by retired United States Supreme Court Justice John Paul Stevens.

And Justice Stevens ends his piece by noting, quote … “Two years ago … I wrote that the death penalty represents ‘the pointless and needless extinction of life, with only marginal contributions to any discernible social or public purposes.’

Well now Justice Stevens writes, “Professor Garland identifies arguably relevant purposes without expressly drawing the conclusion that I think they dictate. Perhaps he will tell us his real position in his next installment, which I look forward to reading when (and if) it arrives. In the meantime, I commend Peculiar Institution to participants in the political process.”

So that I would begin today by asking my guest just why he takes such pains to note that … quote, “The aim of [this] book is not to challenge the legitimacy of American capital punishment or to show the death penalty being botched, unfairly imposed, or unjustly administered.”

After all, hasn’t he, himself, noted that, and again I quote, “Occasionally someone will ask if Peculiar Institution isn’t the name that Southerners used to give to the institution of racialized slavery which Kenneth Stampp memorably described in his classic book of that name?”

And I can testify that when the late great historian Ken Stampp was my teacher sixty years ago and more at Berkeley, he had no problem pressing judgment … or passing judgment on that ‘peculiar institution’. Why do you?

GARLAND: I don’t have a problem as a citizen deciding where I stand on the death penalty. But the question I’m asking as a sociologist is really a rather different one.

Basically I think the problem in this country is that we talk about the death penalty as an abstract moral issue. “Are you for the death penalty? Yes or no?”.

When in fact the real policy question, for Americans in this country is “Given the death penalty that the Constitution now allows, and given the way it’s actually practiced, how do we feel about persisting with this?”

And the whole purpose of my book is to try and describe, first of all, the practice of the death penalty as it actually exists.

And to explain how it got to be that way in the parts of America where it still is. And I think that the, the job of the sociologist and the historian is to present that information and to analyze the institution and then the citizen’s perfectly capable of making up his or her own mind.
HEFFNER: Citizen … and I ask you as a citizen …

GARLAND: MmmHmm.

HEFFNER: … have you made up your mind?

GARLAND: I, I would say that it’s very hard to claim that there’s a good moral basis for the death penalty in the USA as currently administered.

I would say that, that it’s conceivable, it’s, it’s a plausible argument that people might make that under certain circumstances and certain kinds of nations at certain periods of development the death penalty plays a role in upholding the state. The state couldn’t perhaps persist without it.

Or it might even be one of the, the only effective mechanisms of controlling crime. I’m thinking of, of nations where they don’t have established police and prisons.

Where the law and order is not enforceable by the, the means that we use.

None of these circumstances apply today in the USA. So I, I would … I would say that the, the moral philosophy that explains and justifies a death penalty that’s basically used for political purposes, political … with a small “p” … partisan party purposes and for cultural entertainment for large numbers of people who engage with the death penalty as a drama. That moral philosophy has yet to be invented.

HEFFNER: What function does it perform here and now?

GARLAND: So, the, the death penalty … where it exists … remember the death penalty is, is a minority pursuit. In fact there’s only about a dozen states typically execute the death sentence, even if 35 of them still have it.

The, the functions it performs are various. It doesn’t, I would way, perform a function for the society as a whole. That’s how sociologists often think of functions of institutions.

I’d say the death penalty has no large scale societal function. We could certainly do without it. Most of the time we do without it.

There were 14,000 homicides last year. Exactly 52 executions. This is not a penalty that is being used to deal with homicide.

So the question is … if it’s not being used for society as a whole, who’s using the death penalty and how is it working for them?

And here there are a number of answers. The most morally serious of them, I would say, are jurors and victims of crime … victims of murder, the family members of the, the deceased, who regard the death penalty as the appropriate retribution, the appropriate punishment for heinous criminal offenses.

Aggravated murder being the only one for which it’s really available.

And, and one can understand using the death penalty to make a statement of that kind. And to express appropriate punishment.

However, that particular use is thwarted in practice because, even when a death sentence is imposed, typically it will be litigated and appealed and, and habeus reviewed for decades thereafter. Two thirds of these cases will be overturned and only a minority of people will eventually be sentenced to death and then executed and then in an average of 14 years later.

So I would say that the retributive purpose, that some people can seriously hold to as a moral … a morally respectable undertaking is a thwarted one.

The other uses are much less morally serious. So politicians use the death penalty as, as a gesture to suggest that they’re crowd pleasing and tough on crime. Even if they know, as most of them do, the death penalty will never be enforced and in any case, doesn’t begin to touch the, the vast majority of crimes in this country.

HEFFNER: Not a frivolous reason.

GARLAND: Ah, it’s not a frivolous … it, it … I would, I would say it’s a disingenuous reason, in fact.

If, if a politician knows … for example in New York State when the death penalty was introduced in 1995, after 18 years of, of attempting to introduce the death penalty, but having a governor … two, two governors in sequence who always vetoed the legislation … the New York State Assembly passed the new capital punishment law.

But I would say it was apparent to many of the legislators at the time that it was a law that would be on the books, that may result in death sentences being passed, but that no one would be executed in the State. And that’s exactly what happened.

And ten years later, the, the Court of Appeals, the highest court in the State invalidated the, the punishment.

So death sentences … death penalty acts are often introduced as a gesture that doesn’t, in the end, result in action in terms of, of the town’s crime control or even retribution.

Other people who use the death penalty include prosecutors who typically are undertaking it for a number of reasons, partly because it advantages them in terms of pursuing a murder case.

If you can death qualify a jury, which means when a capital charge is being brought, the jury in the … the , the capital trial has to be selected or can be selected, is selected on the basis of jurors who are comfortable imposing sentences of death.

And excluding jurors who’ve got, in principle, an objection to capital pumishment.

The effect of that, of course, is to exclude African Americans and, and women, many of who hold these views and make the death penalty … death qualified jury rather more pro prosecution than pro conviction.

So prosecutors can get some advantage there. They’re also politicians, in a way, that they’re often elected, they’ll often run for political office thereafter.

And I think bringing a high profile capital punishment case is often responsive to community sentiment and headline generating. So prosecutors, too, can benefit from the death penalty being available.

And finally, one has to say that the, the media …I would say benefit from the existence of the death penalty in this kind of way … that in the USA in the, in the late 20th, now the 21st century the sentence of imprisonment and the sentence of very lengthy terms of imprisonment is utilized routinely in a way that no other country in the world uses it.

In other words, if a serious offender is convicted and is given a lengthy sentence of imprisonment, there is no story. On the other hand, if there’s a possibility they might have a death sentence imposed, if there’s a possibility that they might actually be executed, suddenly there’s a drama, suddenly there’s a suspense, suddenly it’s a life and death matter.

And I think that the media respond to that story and that drama and I think that their readers do, too.

HEFFNER: Let me ask, though … I, I have no doubt, in my own mind, that you’re quite correct with what you say about the media. But do we know for a fact that media people, in terms of policy, in terms of editorial policy will look at the death penalty in the same way.

GARLAND: Well one, one thing’s for sure … the death penalty is always a controversial issue. It’s always an issue in which sides are taken and it’s an issue that can be engaged with, with seriousness in an informed way. Or in a sensational, prurient way.

And the media in this country … and I mean different kinds of newspapers, different positions in the market, different regional newspapers … different local community response in this by editors. All lead to … the complete variation of positions for and against … serious and thoughtful as opposed to sensational and, and merely headline grabbing … so the, the media is as varied and differentiated as are journalists with respect to the death penalty, as is the American population itself.

HEFFNER: Well, it’s so interesting … in Peculiar Institution you do make the point that we, as outliers, we as very peculiar in the Western world at least in terms of our attitudes toward capital punishment …that in fact in other countries the abolition of capital punishment has come from the top down …

GARLAND: Right.

HEFFNER: … what does that tell us about what we at the bottom are like …

GARLAND: Like …

HEFFNER: … in this country. What’s … where’s the blood lust come from?

GARLAND: Well, you know, it tells us something that’s common across most nations at most times, including today, which is this … that when the public are asked about aggravated, heinous murderers and, and the question is “How should they be treated? What’s the proper punishment?”

The death penalty which is an ancient, traditional wide-ranging punishment … well, punishment that up until 200 years ago was a cultural universal …every single nation on the earth had it.

And indeed up until about 40 or 50 years ago most nations still used it to a degree. So, when the public are asked, what do you think is the right punishment? The death penalty comes immediately to mind.

So the American public which is … majority in favor of the death penalty … 60 or 70, sometimes even 80% of people respond that way in public opinion polls … the American public is no different in that respect than the publics of most of the European nations, Canadians, Australians, New Zelanders … all of whom, when asked … show also a majority support for the death penalty.

But we need to pause about that and say this … when we talk about public opinion, we really mean an answer to a single question posed over the telephone or by an interviewer along with dozens of other questions about other topics.

And its very easy to say “Yes, I’m in favor of the death penalty”. But, of course, again that’s rather an abstraction.

People aren’t being asked, “Are you in favor of the death penalty when you have life imprisonment without parole as an alternative, when most murders will never be sentenced this way, where innocent people will probably be convicted and may or may not be exonerated. And where it probably will be racially discriminatory and class discriminatory in its application.

Under these circumstances my guess is that the opinion polls would show a different kind of result.

HEFFNER: If you turn from opinion polls to what people actually do, do you as a sociologist find that the appeal of the prosecutor who is seeking re-election, of the local legislator who is seeing re-election … that their positions … “pro” positions on the issue of capital punishment … help them at the polls?

GARLAND: Well, you know, they, they certainly help them to be in line with the median voter and to be in line with, with community opinion, and so to that degree it’s been, it’s basically been a required position for candidates for election in most states, most of the time in the last 20 or 30 years.

One of the things that’s changed recently is this … up until the 1980’s there, there were two positions on the death penalty.

The, the position of the Democratic Party … really national candidates up until Michael Dukakis I would say … often was a position who had questions about the death penalty or was opposed to the death penalty.

And, the, the same was true in gubernatorial election and elections of state assemblies and so on.

Under these circumstances it was hugely advantageous for the candidate who lined up his or her opinions with the majority for the death penalty because it was an election issue that divided the parties … that ceased being true in the 1980’s.

Basically, the, the Democratic Party at the national level particularly with Bill Clinton who was notably in, in favor of the death penalty, although in his first term as Governor in Arkansas he’d been opposed to it, actually. But he, he learned from his mistakes … and when he was …

HEFFNER: His political mistakes.

GARLAND: His political mistakes. He was first defeated in Arkansas when he ran again and then when he was re-elected a subsequent time … he undertook that he wouldn’t in future, be opposed to the death penalty. And, and indeed, when he was running for Presidential office later in the 1990’s, he interrupted his primary campaign to return to Arkansas where he was still then Governor and to preside over, over an execution there.

So at that time basically what happened is that the, the death penalty was sort of taken off the table electorally … it was no longer something that divided the parties and doesn’t divide many of the candidates. You, you find that even … and this is a kind of political peculiarity … you find that even Liberal Democrats, someone like John Kerry, for example … will say that they’re “for” the death penalty … and then you ask “really” and they say “Yes, but only for terrorists”.

Well, it doesn’t work for terrorism. But “I’m for the death penalty”, so that it’s really a kind of position taking … I think often at odds with their own personal preferences.

But that has been deemed necessary because a majority of the public … up until quite recently were fervently for it.

This was particularly true in the 1990’s and the 1980’s when homicide rates were increasing …

HEFFNER: MmmHmm.

GARLAND: And people were very concerned about out of control crime. I would say that all of that … less true now.

And the reason for that is first of all homicide rates have been decreasing in this country quite markedly for much of the last ten or 15 years. Homicide rates in the city, for example, are about a quarter of what they were in 1990.

So for many citizens, for many members of the public the, the question about crime and especially homicide and murder is no longer so urgent.

And the sense that one needs the worst kind of punishment to … either to contain this or perhaps even just to retaliate against this … that’s no longer quite so prominent as it was 10 or 15 years ago. And one sees this that the death penalty … the number of sentences being passed, is declining. The number of executions is declining.

And actually there are a number of states, including New Jersey in 2007 and New Mexico in 2009 that have actually taken the steps of abolishing the death penalty because even though a majority of the public there still say they support it … most of the, the governing authorities, most of the, the representatives know that actually it’s an expensive non-event.

That they have capital punishment in New Jersey … they had it … they had it in New Mexico … but actually, despite the great expense and the great trouble and the great time … no one was being executed.

So rather than waste the scarce taxpayer’s resources, they abolished it.

HEFFNER: And our high court? What do you see as happening there?

GARLAND: Well, the, the Supreme Court’s really not likely to entertain any systematic challenge to the death penalty, any time soon.

There, there are questions really of, of a technical character. For example, the lethal injection … is it conceivably being administered in a way that endangers the, the individual … at least runs the risk of causing pain for the individual. And, and there’s been some …

HEFFNER: Death is all right … but pain isn’t.

GARLAND: Death, death is acceptable, but humane, civilized death is the kind that’s preferred.

But I would say is this … about the Supreme Court … although that currently the, the Court is not likely to over, overturn the death penalty … in fact some of the, the Justices have indicated that even were someone to be shown to have been innocent … and executed that wouldn’t cause them to re-think the Constitutionality of the death penalty.

But I think that all of that changes if you can imagine a situation ten or 15 or even 20 years from now when a number of states … or it … remember in this country we have 35 states that have capital punishment on the books.

But most of them, especially the ones outside the South don’t actually use it in a serious way. They don’t execute the individuals whom they’ve sentenced to death.

And you could imagine many of these Northern states, Midwestern states deciding that “the game’s not worth the candle” and doing what New Jersey and New Mexico have done … and abolishing their death penalty, which after all was only a symbolic death penalty anyway.

Where that the case and if the magic number of 25 or 26 states that had abolished were to be in the background … I think at that stage the Supreme Court might well look at the death penalty … where a new case to come up to challenge it and say, “Look, this is a declining social phenomenon. The emergent national consensus is against the death penalty and given its problematic character … the problems that Justice Stevens was alluding to, then perhaps it’s become unconstitutional and the time has come to say so. That, that’s a scenario one can imagine.

HEFFNER: Would the unusual nature of actual application of the punishment play a role in the court’s decision, do you think?

GARLAND: It really does. I mean the, the, the fact that the death penalty has long since … in this country … ceased to be a routine punishment for crime … and instead become a very unusual and a very rare penalty that’s imposed on a group of offenders who couldn’t be predicted in advance … so for example, last year there were 14,000 homicides and exactly 106 death sentences.

So the vast majority of murderers are never sentenced to death. And the ones who are … the unlucky 106 … they perhaps … the plan was … perhaps the design that Justice Stevens talks about way back in 1976 was to focus only on the worst of the worst. And insure that a procedurally proper death penalty was administered and targeted on that small group.

But actually the way that the, the death sentence process works in localities in different counties in different parts of the country … responding to unpopular criminals, with juries who decide the death sentences required there … we have no way of being assured that only the worst of the worst … mostly it’s the most unpopular defendants or the ones who are least well defended at trial who end being sentenced to death.

And that, that kind of arrangement doesn’t seem to be the one that the court wished to uphold.

HEFFNER: In particular, the level of defense, the quality of defense … has that entered into the court’s consideration?

GARLAND: Well, actually, it has. One, one of the big problems in this country is that the, the capital trial is a very complex two stage undertaking.

First of all there’s the question of guilt or innocence. Is, is the jury persuaded that the, the defendant actually did murder the, the deceased.

But then there’s a whole other trial that follows on … call the penalty phase …

HEFFNER: MmmHmm.

GARLAND: … and the question there is … does the convicted murderer deserve to be sentenced to death or not?

And that’s a question where the jury is invited to take into account all sorts of circumstances that aggravate the crime or mitigate the, the guilt and mitigate the character of the defendant.

Now, to put on a proper death penalty defense, with proper mitigation evidence … should it be available … is really a large scale expert undertaking. It required lots of inquiries into the, the offenders background … social circumstances, psychology, brain patterns, the whole, whole panoply of possible mitigation.

Most trial counsel lack the funding to do this. Many of them also lack the expertise. One of the things that happens in a death penalty trial is you have to be prepared for a 10 or 12 or 20 year post-conviction process where what happened in the trial is then reviewed by the Courts of Appeal and the Federal courts.

It takes real expertise as well as real resources to be able to do this at the trial level. And, in fact, most indigent defendants who are charged with murder rely on state funded assistance of counsel in trial. And the, the State funding for that in many of our states is very meager and very limited. So, what we find is and this is kind of characteristic of the USA … we don’t like to spend money providing people with … as it were … welfare needs or legal assistance at the trial stage … but decades later, the Constitution requires that we spend huge amounts of money in the Federal courts looking at curing the errors that were caused at the earlier stage.

HEFFNER: I’m so interested that you find that typically American.

GARLAND: There, there’s a real reluctance, I think, in this country to, to transfer taxpayer funds to the needy if the needy are regarded as undeserving. So, for example legal aid to individuals charged with murder and individuals who face a death penalty case is typically provided only in a very limited way and, and historically was provided only because the Supreme Court required it to be.

The, the notion of funding for … taxpayer funding for the, the fancy defense of accused murderers is not something that’s appealed to politicians around the country.

Some, some states are very different from others. Some states do provide decent funding. But by and large it’s very limited and, and the reason for that is very similar to why we don’t wish, as a country, to have universal health care or to ensure that the funding of income support for the unemployed.

HEFFNER: I thought that that would be something that you would take, take note of. Professor Garland … Peculiar Institution is such a fascinating book … America’s Death Penalty In An Age of Abolition but you’ve explained the relationship between abolition elsewhere and the nature of our own politics.

GARLAND: Fine.

HEFFNER: I appreciate you’re joining me here today.

GARLAND: Thank you very much.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. Meanwhile, as an old friend used to say, “Good night and good luck.” And do visit The Open Mind website at www.thirteen.org/openmind

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.