Some Thoughts on the Death Penalty

In the second half of my Culture and Law seminar, each week we read a draft of a forthcoming article and submit questions to its author. Then the author presents the paper, and we discuss it. This week's paper is by David Garland, and it outlines the changes in capital punishment's forms and functions throughout history. Here are my questions:

1. What are the primary reasons for the modern cultural anxiety about the death penalty in the West? Since your article surveys an extensive time period, you understandably give very general answers to this question. For example: “The fading of capital punishment’s religious aspects”; “the contradiction between traditional conceptions of justice and the newer sense that state violence should be strictly limited and human life carefully preserved and protected”; “the death penalty’s use would be framed as a moral duty that treated individuals as ends, or a utilitarian deterrent that saved human lives....At the same time and for the same reasons, the institution comes increasingly to be surrounded by anxiety, embarrassment, and euphemism." Incidentally, I’m curious about the rationale (“for the same reasons”) of this last explanation. Why do “anxiety, embarrassment, and euphemism” follow from the death penalty being justified on criminological and humanitarian grounds? Suppose the death penalty were indeed effective in these regards; might people feel differently? That said, I’d like to know what specifically you think is responsible for the cultural shift away from capital punishment. Offhand, a few things come to mind. First, people may increasingly believe that all offenders deserve a chance at reform, even reform behind bars; people change (criminal tendencies decline sharply with age), and the state should not completely give up on anyone. Second, people may view the death penalty as inherently brutal (e.g., the violence of the electric chair, the possible pain and/or awareness of the lethally injected). Third, there’s the issue of capital punishment’s unique efficacy as a deterrent, which is dubious at best. Finally, there’s the problem of widespread systemic injustice – particularly, racially motivated death sentences and the executions of innocent people. Which, if any, of these concerns has weighed most heavily on the minds of the general public?

2. I can’t help but ask about “American exceptionalism” with respect to the developed world. What makes us an outlier? Does religion play a role? Is our culture more embracing of retribution? The modern death penalty is clearly not significant for most, if any, state criminal justice systems. Executions are rare, delayed, private, sanitized, and troubling events, reserved for the ugliest and most marginalized offenders. Nevertheless, voters seem to care.

3. How do you think the death penalty has, in turn, affected our culture? I often hear arguments along the lines of “capital punishment brutalizes society,” but they strike me as mostly rhetorical and emotional. Do you think the existence of the death penalty has made people more inclined to view criminals as animalistic, barbaric, and – despite the tension with the previous qualities – evil? Has capital punishment affected people’s general attitudes toward death?