The Killing State: Capital Punishment in Law, Politics, and Culture (review)

The Killing State: Capital Punishment in Law, Politics, and Culture, edited by Austin Sarat (Oxford: Oxford University Press, 1999).

On the twenty-fifth anniversary of the Supreme Court's decision in Furman v. Georgia, ¹ Professor Austin Sarat convened a conference at Amherst College to consider how state killing affects law, politics, and culture. Participants contributed ten chapters for a volume that indicts capital punishment on all counts--with one exception. In a provocative analysis, Anne Norton approves of revolutionary violence against tyrants, but disapproves of executions conducted by democratic majorities against individuals from disfavored powerless groups. ²

Professor Hugo Adam Bedau, a well-known death penalty abolitionist, offers a substantive due process legal analysis as an alternative to the moral and policy arguments generally offered by allies in the movement. ³ He acknowledges that US Supreme Court Justice Harry A. Blackmun explained his conversion to the abolitionist position in terms of due process and equal protection. Bedau conducts a thorough critique of classical philosophers and post-war human rights norms that approve of execution in cases of serial, multiple, or recidivist killers. His absolute opposition to capital punishment rests on a conviction that the state should use no more force than necessary to achieve legitimate objectives. Rejecting vicarious revenge as an unacceptable motive for punishment under law, Bedau asserts that society can achieve public safety through means less invasive and less violent than executions.

Bedau and Sarat both consider fairness the most promising argument for persuading conservatives to the abolitionist position. Indeed, the American Bar Association has called for a moratorium on executions until trial procedures that disadvantage racial minorities and the poor can be reformed.

Professor Jonathan Simon and Public Defender Christina Spaulding convincingly demonstrate how identity politics dictate legislators' addition of new aggravating factors to justify execution. ⁴ Since the Supreme Court deregulated death penalty statutes, state lawmakers have gone far beyond the core list of aggravating factors identified by the elites who drafted the Model Penal Code. Hype about gangs and drive-by shootings, elderly Floridians' vulnerability, gay bashing, racially motivated hate crimes, and domestic violence has privatized public policy in a system of "governing through crime." ⁵ Interest group politics of the scaffold generates new aggravators to protect special victims.

Professor Franklin E. Zimring examines inconsistencies in Supreme Court precedents that expedite capital punishment. ⁶ He concludes that the Justices' efforts to limit prolonged appellate review have sacrificed due process and equal protection with unjust results for both the innocent and mentally retarded.

Advocate Anthony Amsterdam denounces in quite personal terms the Supreme Court's haste to execute, deriding the professed goals of efficiency and finality as a pretext. ⁷ He castigates those Justices who charge abolitionist lawyers with political manipulation through abuse of writs of habeas corpus and eleventh hour technicalities. Amsterdam then applies a "Toy King thesis" to Justices whose calls for executions have been frustrated: "they have killed and killed again just to buy themselves false comfort." ⁸ Amsterdam's name calling and ridicule of the Court's "delusion" detracts from a critique that could, with less rhetorical excess, more effectively discredit the flawed death penalty case law. The NAACP Legal Defense Fund and other abolitionist advocacy groups that sponsored appeals, litigated so well by Amsterdam, were obviously pursuing a political strategy in addition to representing clients. Rather than rage at an unresponsive Supreme Court, it may be wiser for realists in the abolitionist movement to invest more extensively in political reform.

Professor William E. Connolly attributes support for capital punishment in America's latest culture war to classical doctrines of free will and accountability. ⁹ He argues that individuals who feel personally vulnerable resent the loss of national sovereignty resulting from global interdependence and seek to preserve the state's power to execute in the name of the people. European democracies subject to the same globalization process have abolished capital punishment, thus Connolly's generalizations may...