The Peculiar Forms of American Capital Punishment

David Garland The Peculiar Forms of American Capital Punishment T H E R E ARE T W O PUZZLES T H A T C O N F R O N T OBSERVERS OF A M E R IC A N capital punishm ent at th e start of the tw enty-first century.' One concerns the legal and adm inistrative arrangem ents through which it is enacted, which strike m any com m entators as irrational, or at least poorly adapted to the traditional ends of crim inal justice. The other concerns the persistence o f capital punishm ent in the United States during a period w hen comparable nations have decisively abandoned its use. In this essay, I will address both of these two questions, begin­ ning w ith the first and offering conclusions that bear upon the second. How are we to explain America’s retention of capital punishm ent in this new century w hen m any other liberal democracies have abol­ ished it? The conventional way to think about this is to pose a simple opposition betw een abolition and retention—Europe (or “the W est”) 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: “Am ericans” 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 im portant distinctions, for example, betw een states such as Michigan, which has been abolitionist since 1846, and others such as Texas, which is respon­ sible for one-third of America’s executions in the post-Furman period. social research Vol 74 : No 2 : Summer 2007 435 Or between European nations such as Portugal, which abolished capital punishm ent in 1867 and France, which did not get around to doing so until 1981. The opposition between American retention and European aboli­ tion also collapses historical time, relying upon a snapshot comparison at a particular moment. How does this mislead? Well, consider how the same com parison would have looked in 1972, w hen the US Supreme Court ruled all existing capital statutes unconstitutional and the French authorities decapitated Claude Buffet and Roger Bontems in the court­ yard of the Sante prison (Foucault, 2000). Or consider that “abolition” typically occurs, w hen it does, not as the abrupt cessation of an unques­ tioned policy of frequent executions, but instead as the final stage of a long-term historical process stretching over two or m ore centuries in w hich the death penalty is increm entally narrow ed, restricted, restrained, and increasingly replaced by alternative penalties such as life im prisonm ent. W hen 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 com m on developmental path. Finally, there is a certain m isperception involved in the juxtaposi­ tion of “abolition” and “retention,” a too stark opposition that prom pts us to think of the American institution as the opposite of W estern aboli­ tion, as if America were on a par w ith Saudi Arabia and its public beheadings, or w ith Singapore and its high-frequency use of executions for a variety of offences. But if the US system of capital punishm ent is viewed historically and comparatively on a continuum of death penalty practices that ranges from the m ost elaborate, intense and widespread to the m ost restricted, reformed, and restrained, then the United States is closer to the European situation than is typically assumed. American states still perm it the death penalty—an egregious m oral 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 m atter of ongoing legal and political controver­ sy—and these are facts that ought not to escape our attention either. So although the polarizing rhetoric of normative debate prom pts us to 436 social research regard the US situation as diam etrically opposed to that of Europe, a...