Vol. 4 No. 5 (May, 1994) pp. 64-66
THE ROPE, THE CHAIR, AND THE NEEDLE: CAPITAL PUNISHMENT IN TEXAS,
1923-1990 by James Marquart, Sheldon Ekland-Olson and Jonathan
Sorensen. Austin: University of Texas, 1994. 275 pp.
Reviewed by Austin Sarat, Department of Law, Jurisprudence &
Social Thought, Amherst College.
THE ROPE, THE CHAIR, AND THE NEEDLE is a useful contribution to
the debate over capital punishment in the United States. While
its analysis is limited to one state, Texas, the issues raised in
this careful historical treatment, are of general relevance. What
David Baldus and his colleagues did for Georgia, Marquart,
Ekland-Olson, and Sorensen do for Texas, namely analyze what
might be called the "demography of death." They do so
by reconstructing the administration of capital punishment over a
more than fifty year period from a large data set on the Texas
prisons and combining it with lively anecdotal information about
the crimes that have given rise to death sentences and the
criminals who have received it. By attending to the question of
what kinds of persons are selected for prosecution, sentencing,
and execution, Marquart, Ekland-Olson, and Sorensen, contribute
to an understanding of the way social factors play themselves out
in the criminal justice system and to the work of determining
whether the death penalty is, or can be, administered in a non-
discriminatory fashion. While these authors claim to be agnostic
about the death penalty itself; "[I]t is important to note
that our account is neither an indictment of, nor a rallying
point for, capital punishment. We have simply tried to do what
social scientists are trained to do -- provide dispassionate
analysis" (p. xii), their "dispassionate analysis"
shows that while progress has been made, over a fifty year
period, in reducing he racially discriminatory aspects of capital
punishment in Texas, race, and social marginality continue to be
important factors in capital punishment.
This analysis of the administration of the death penalty is
welcome at a time when the debate about the death penalty is
moving away from an almost exclusive focus on the punishment
itself, its morality and its efficacy, to encompass a growing
concern for the fairness and legality of the process through
which it is administered. Now the question to which lawyers,
judges and scholars who oppose the death penalty address
themselves is as likely to involve questions of discretion and
discrimination in the prosecution, sentencing and execution of
those accused of capital crimes as whether it is moral for the
state to take the lives of any of its citizens or whether the
death penalty deters. The "new abolitionism" treats the
death penalty as an issue of civil rights rather than of criminal
justice policy.
This position was perhaps most clearly on display in Justice
Blackmun's recent widely noted dissent from a denial of
certiorari in CALLINS V. COLLINS (February 22, 1994). In that
dissent Blackmun said,
"From this day forward, I no longer shall tinker with the
machinery of death. For more than twenty years I have
endeavored...along with a majority of this Court, to develop
procedural and substantive rules that would lend more than the
mere appearance of fairness to the death penalty endeavor. Rather
than continue to coddle the Court's delusion that the desired
level of fairness has been achieved and the need for regulation
eviscerated, I feel morally and intellectually obligated simply
to concede that the death penalty experiment has failed. It is
virtually self-evident to me now that no combination of
procedural rules or substantive regulations ever can save the
death penalty from its inherent constitutional
deficiencies."
There are two deficiencies to which Blackmun was alluding in this
opinion, the discriminatory application of the death penalty and
the problem of the "inevitability of factual, legal, and
moral error" which results in the execution of the innocent.
THE ROPE, THE CHAIR, AND THE NEEDLE provides important
information about the former set of concerns. What it argues will
be of use to those who, like Blackmun, believe that the death
penalty can not be administered in a constitutional fashion,
those who believe that
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FURMAN V. GEORGIA and its progeny have made substantial progress
toward taking taken care of all reasonable constitutional
concerns will also find support in this book. As Marquart,
Ekland-Olson, and Sorensen conclude, "[I]t is clear that
blatant racism at the sentencing stage of the proceedings is no
longer a major factor. On the other hand, it appears that
prosecutorial decisions remain tainted with the remnants of the
racially biased system...." (p. 184) The locus of
discrimination has been, in their view, narrowed by procedural
reforms which in Texas have effectively constrained, though not
eliminated, jury discretion in sentencing.
THE ROPE, THE CHAIR, AND THE NEEDLE, despite its title, focuses
less on the technologies of execution than on three stages in the
evolution of execution in Texas. The first involved the effort of
the state of Texas to displace lynching. This effort succeeded
though its success was in one sense incomplete. Here Marquart,
Ekland-Olson, and Sorensen note that the forces which supported
lynching, what they call a "culture of exclusion" (p.
17), still persist, though they believe with diminishing
intensity, linking the vestiges of slavery with present day
policy. Yet their book reminds us that the achievement of state
control over the means of punitive violence is in itself an
achievement not to be gainsaid.
In the second stage of Texas' twentieth century history of the
death penalty, the stage from 1924 when the state centralized the
administration of the death penalty to 1972, the date of FURMAN,
Marquart, Ekland-Olson, and Sorensen show a growth in the
percentage of the death row population composed of whites, such
that by the end of the 1960s, 50% of those on death row were
white. Racial differences persisted, however, in two areas.
First, black defendants were much more likely to be sentenced to
death in interracial rapes than were white rapists. Here the
linkage of racial prejudice and sexual politics could not be
clearer. And, even today, according to the data presented in this
book, black murderers who rape their victims before killing them
are the most likely of any group to receive the death penalty.
Second, through an unusual and interesting analysis of
commutations, Marquart, Ekland-Olson, and Sorensen show that
throughout the pre-FURMAN period blacks on death row were much
more likely actually to be executed. The rate of execution
remained 20% higher for blacks than it was for whites.
In the most recent, post-FURMAN period, the authors argue that
the administration of the death penalty has become somewhat less
arbitrary and capricious. There has been a significant shift away
from what they refer to as "defendant focused racism."
As in the Baldus study, the racial differences that remain tend
to revolve around the race of the offender. As Marquart, Ekland-
Olson, and Sorensen show, "in no case (in the post-FURMAN
period in Texas) was an Anglo offender who killed an
African-American victim charged with and convicted of capital
murder." (p. 169) In their words, "the post-FURMAN
remnants of racism are most apparent in cases involving black
defendants and white victims." (p. 184) Finally, throughout
the post-FURMAN period those most likely to end up on death row,
whether white or black, come from the most disadvantaged segments
of the population. Rarely do murderers from privileged
backgrounds receive death sentences.
THE ROPE, THE CHAIR, AND THE NEEDLE is, in the end, a compelling
story of progress, but, more disturbingly, of the limits of
progress and the continuing failure of capital punishment to
comport with the minimum requirements of the Constitution and the
highest aspirations of our law. How much pleasure can we take
from the fact that Marquart, Ekland-Olson, and Sorensen are able
to conclude that the extent and form of racism and racial bias in
the administration of the death penalty has been reduced and that
the locus of discrimination has been "narrowed" but not
eliminated? While their data do not meet the "exceptionally
clear proof" requirement set forth by the Supreme Court in
MCCLESKEY V. KEMP for demonstrating unconstitutional
discrimination in the death penalty, they do show that, at least
in Texas, law continues to fail to administer the death penalty
in such a way as to insure that errors are
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not made, that innocent people are not executed, and that racial
minorities are not unfairly singled out to receive law's ultimate
sanction. This failure is not, as Blackmun notes, a failure of
will or of effort.
After two decades of trying, it is now clear, thanks to research
like that reported in THE ROPE, THE CHAIR, AND THE NEEDLE, that
we cannot have fairness and racially neutral consistency in the
administration of capital punishment. In this continuing failure
law's legitimacy is undermined. Is it better to have
arbitrariness, caprice and discrimination, no matter how narrowed
and concentrated, inside law itself, or to renounce a punishment,
which, however popular, endangers law itself? Surely Justice
Blackmun is right when he suggests that in the face of such a
lethal danger to the cherished values of our Constitutional
order, one should "no longer tinker with the machinery of
death." Renouncing capital punishment is a small price to
pay to preserve America's idea of legality.
REFERENCES
CALLINS V. COLLINS, 93-7054 (February 22, 1994)
FURMAN V. GEORGIA 408 U.S. 238 (1972)
MCCLESKEY V. KEMP 481 U.S. 279 (1987)
Copyright 1994