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Will Capital Punishment Ever Die?
A Review of The Contradictions of American Capital Punishment
By ELAINE CASSEL
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Friday, August 1, 2003

Franklin E. Zimring, The Contradictions of American Capital Punishment

In The Contradictions of American Capital Punishment, Boalt Hall Professor of Law Franklin E. Zimring attempts to resolve several major conundrums about the death penalty in the United States.

Zimring does a laudable job of answering these lingering, troubling questions. He also suggests that U.S. death penalty support is waning, but explains why true abolitionism here - commonplace in Western Europe - may be long in coming to America.

Two major questions Zimring addresses are these: Why is the U.S. the only developed Western nation to currently have the death penalty? And, what is it about our history and culture that supports our affinity for this ultimate use of government power?

Western European countries have rejected capital punishment as a matter of fundamental political belief - the deeply-held belief that no civilized state should execute its citizens. To these countries, execution is now as unthinkable as slavery or cannibalism.

In contrast, capital punishment is ensconced firmly in the American tradition. Of the 50 states, a strong majority of 38 has chosen to have the death penalty.

Nevertheless, in practice, three-quarters of executions occur in the South and in Arizona. Moreover, a handful of southern states account for most of these executions - withTexas, Virginia, and South Carolina leading the pack.

Zimring suggests that the reason for the predominantly Southern character of the American death penalty is cultural. The death penalty culture of the contemporary South, he argues, comes from the same culture of vigilante justice that once led to lynchings.

To prove his point, Zimring offers an appendix that shows a strong, direct correlation between a state's rank in number of lynchings, and number of executions. His statistics should give pause to anyone who believes that the death penalty is somehow the product of reasoned deliberation, rather than simple mob vengeance.

What Will Happen to the Death Penalty in America?

Zimring also asks this further question: What is the future of the death penalty in the U.S.?

In Gregg v. Georgia, in 1976, the Supreme Court laid down guidelines for imposition of capital punishment. Ironically, however, in the states where the death penalty is strong, there have been more, not fewer, executions since then.

Nevertheless, despite these developments, Zimring suggests that overall, the American people's approval for the death penalty is waning. The main reason for this, Zimring suggests, has been recent findings that innocent people were on death row awaiting execution - and the companion realization that in the past, many who should have been exonerated, must have been executed instead.

According to data maintained by the American Civil Liberties Union, between 1973 and 2003, 110 death row inmates in 25 states were found to be innocent and released from death row. More than half of these exonerations occurred in the last 10 years. The advent of DNA testing has also been helpful in convincing the public that the execution of innocents is a reality, and that this atrocity is actually shockingly common. Notably, it was this concern that led former Illinois Governor Jim Ryan to commute the death sentences of all the condemned men in Illinois.

An Administration Far Out of Step with U.S. and World Death Penalty Opinion

Meanwhile, however, we have a President and Attorney General who are obsessed with the death penalty, and thus out of sync with the evolving trend. One sign of this is that since 2001, while Attorney General Ashcroft has sought the death penalty in 18 cases (often against the wishes of his prosecutors), the sentence has actually been handed down in only a single case.

While governor of Texas, Bush presided over a staggering 152 executions. He has assures us that he never signed the death warrant for an innocent person. But records of communications between Bush and his now-White House Counsel, and then-State House counsel Alberto Gonzales, indicate that Bush engaged in only perfunctory (if that) review of death sentences, as FindLaw Columnist John Dean has discussed.

In light of this revelation, the chance that Bush never allowed the execution of an innocent person - or one whose trial process was grossly deficient - seems slim indeed. And Bush's casual review of life-or-death decisions seems to betoken an extremely casual attitude about the death penalty. During the 2000 presidential campaign, Bush even ridiculed the clemency plea of death row inmate Karla Faye Tucker.

Bush's attitude is far different from that of the American people, who are concerned about death penalty injustices, and that of U.S. allies. Moreover, foreign leaders - as Zimring notes - are increasingly willing to criticize and stigmatize the U.S.'s devotion to the death penalty.

Recently, British Prime Minister Tony Blair demanded that two British subjects held on Guantanamo Bay as enemy combatants not be considered death-eligible in their military tribunal trials. Bush capitulated.

In addition, Germany and France - which have cooperated greatly with the U.S. in hunting down and capturing Al Qaeda operatives - have sought to ensure that the information they provide the U.S. cannot be used to seek a death sentence for terrorists brought to trial in the U.S.. France sought such a concession in the case of Zacarias Moussaoui.

Some progress has also been made in the U.S. Supreme Court, but it has been limited. In its recent decision in Atkins v. Virginia, which I discussed in a column for this site, the Court held that the mentally retarded cannot constitutionally be executed. Justice O'Connor wrote the Atkins decision, and also was heard to remark in 2001, that "if statistics are any indication, the system may well be allowing some innocent defendants to be executed."

In the upcoming October Term 2003, the Court will confront the question of whether it is constitutional to execute the mentally ill - and may well reach a similar conclusion. But the future is less hopeful. The Court may well become even more rightward-leaning if Bush is re-elected and Justices retire, as several are expected to do. If O'Connor, one possible retiree, is replaced by a strongly pro-death-penalty Justice, the Court's death penalty jurisprudence might even worsen.

With virtually, and perhaps literally, no chance of the Court striking down all - or even most - death penalty applications, States will still be able to apply the penalty if they so choose. And even if America continues to undergo a sea change in death penalty opinion, if that change does not reach the death-happy Southern states that are most prone to apply the penalty, it may do little practical good. Death row inmates were laudably freed in Illinois - but when, if ever, will they be freed in Texas?

Chipping Away at the Death Penalty, But Not Abolishing It

Overall, Zimring's findings indicate that public and judicial sentiments remain focused on what are perceived to be the most egregious death penalty abuses, and not on the abolition of the penalty itself. Yet the death penalty is inherently flawed, not simply problematic.

Condoleezza Rice called slavery the "birth defect" of the American republic. The death penalty is likewise a congenital deformity. There is a cure, but it will require a continuing shift in public opinion. We are likely to be living with the death penalty for the foreseeable future.


Elaine Cassel practices law in Virginia and the District of Columbia and teaches law and psychology. She is the chair of the American Bar Association's Behavioral Science Committee of the Science and Technology Law Section, and authors a web log, Civil Liberties Watch.