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