America's Death Penalty: Between Past and Present

3 The Death Penalty: Between Law, Sovereignty, and Biopolitics

72 | 3 The Death Penalty Between Law, Sovereignty, and Biopolitics Michael Meranze For several decades the penal practices and policies of the United States and the countries of Western Europe have diverged in surprising and notable ways. With the relative exception of Great Britain, none of the European countries has taken so strenuously the path of mass imprisonment. Nor have any European countries continued to deploy the death penalty. Indeed, the European Union now makes the abolition of the death penalty a condition of membership and officers of the Union press for the extension of abolition throughout the world. In the realm of common penality at least, European identity has turned on claims to human rights in matters of punishment and to the restoration of some sense of dignity to offenders.1 In the United States, on the other hand, American politicians, states, counties, and cities have vied with one another to prove that they were the toughest on crime, the most committed to punitive treatment in criminal justice, and the least sympathetic to the claims of convicts. The reach of the criminal justice system in the United States has consistently expanded: whole communities have been fractured by the experience of incarceration; the line between adult and juvenile offenders is increasingly blurred; and public shaming penalties have, albeit sporadically, reemerged as an active penal option. Capital punishment, in many states, remains entrenched, and the effort of both political parties and the Supreme Court to speed up the process of judicial review has exacerbated the problematic character of death penalty counsel and jurisprudence.2 Under the Bush administration, efforts were made to centralize the decision making, and expand the practice, of the federal death penalty.3 Among these disparities, the death penalty has emerged as a flashpoint of domestic and international controversy. Europe redefined itself as a death penalty–free zone and seventy countries around the globe abolished the death penalty since 1976, whereas the United States not only reinstated capi- Law, Sovereignty, and Biopolitics | 73 tal punishment but thirty-six states and the federal government expanded its use and provenance.4 In so doing, the United States appears to have broken with a nearly two-hundred-year trajectory of the gradual overcoming of capital punishment and the lessening of state punishment more generally. Given the United States’ traditional self-perception as leader in the realms of human rights and penal reform, these growing gaps between Europe and the United States, indeed between the United States and most of its leading allies (with the notable exception of Japan), have triggered intense debate and denunciation. Between “abolitionist” and “retentionist” countries internationally and between anti– and pro–death penalty individuals and groups domestically, a huge, seemingly insurmountable, moral gap has emerged. Not surprisingly, the transformation of the American penal system in general and its redeployment of the death penalty in particular have stimulated a wide range of analyses. Scholars and scholar-activists have offered interpretations rooted in deep structural conditions to understand the disparity between the United States and most of the other advanced liberal democracies .5 Others have stressed either the contingencies or the structural components of recent political and social developments.6 Unfortunately neither of these approaches can explain both the continuities and the discontinuities in the entangled penal histories of Europe and the United States. Moreover, these interpretations suffer from interconnected flaws beginning with their historical vision, moving through their theoretical frames, and ending with the political and moral implications of their analyses. First, they treat recent European history as a norm modeled on the successful eighteenth - and nineteenth-century struggles against slavery and the slave trade; second, they interpret that norm through the lens of a totalizing historical sociology; and, finally, they draw from these positions a sense of the vestigial character of the death penalty. These analytical assumptions remain trapped within the present structure of death penalty politics; mistaking opposition for critique, critics end up replicating only one side in the ongoing arguments within and about the rationality of the death penalty. They do away with the particularity and contingency of history while overlooking their own historical rootedness. It is as if they were writing from a future where Europe set the terms and controlled the history of the death penalty. I proceed here in a different manner. Rather than privileging Europe and the trope of abolition, I argue that we need to consider the death penalty as one among many highly complex and dispersed fields of practices...