Vol. 11 No. 6 (June 2001) pp. 292-295.

WHEN THE STATE KILLS: CAPITAL PUNISHMENT AND THE AMERICAN CONDITION by Austin Sarat. Princeton: Princeton University Press, 2001. 324 pp. Cloth $29.95. ISBN: 0-691-00726-8.

Reviewed by Barry Latzer, Department of Government, John Jay College of Criminal Justice.

Austin Sarat's WHEN THE STATE KILLS is a sophisticated and provocative anti-death penalty polemic. Without intending to, it raises anew the question: What accounts for the intensity of opposition to the death penalty in the academy? There are, to be sure, compelling arguments against, and equally strong (even stronger, in my view) points to be made in favor of capital punishment. However, at least among the professorate that publishes, the treatment of the death penalty tends to be emotional and almost totally one-sided.

Professor Sarat's book suggests that the explanation for this is ideological. The death penalty is based on a theory of personal responsibility that is fundamentally at odds with liberal orthodoxy. The liberal model of crime (and of society generally) downplays individual responsibility in favor of "contextual" explanations for criminality. For instance, in his discussion of capital trials (Chapter 4), Sarat finds,

"two different cultural narratives [that] compete for prominence. One turns crime and punishment into a simplifying and reassuring story of individual responsibility, of evil people doing evil deeds and calling down upon themselves a just and inevitable punishment. The other, while not denying that individuals can and should be held responsible, tries to contextualize crime by focusing on the social conditions that bring it about" (p. 88).

And in his analysis of recent movies about the death penalty (Chapter 8, one of his most interesting essays), he offers this version of the same point.

"Although in different ways, THE GREEN MILE joins LAST DANCE and DEAD MAN WALKING in providing cultural affirmation of the social necessity of responsibility against those who would blur the distinction between criminals and victims or those who would ask us to attend seriously to the conditions that breed crime. They refute broad narratives of responsibility that would implicate us all in the circumstances that produce crime and would undermine the moral and legal scaffolding on which the apparatus of punishment is built" (p. 232).

In the same vein, Chapter 5 criticizes capital jurors for refusing "to accept the picture of a social world of events governed by causes beyond human control; instead they constructed a moral world of free agents making choices for which they could be held to account" (p. 143). This remark was triggered by a jury's rejection of a proffered intoxication mitigator. Sarat

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quotes a juror as recounting how, when they deliberated, "it was brought up fairly often that the person was under the influence. However so what? I mean a lot of people get drunk, but they don't take guns and go shoot up the Jiffy Store." The role of intoxicants in criminal law is complex and ambiguous, but the juror's conclusion that drunkenness did not diminish responsibility is legally and socially sound. To deny that inebriates may be moral agents is to raise the specter of an intoxication defense to criminal charges, a perilous course in a world in which drunkenness is so strongly correlated with violent crime.

In Professor Sarat's view, however, it is only a "conservative cultural politics" (p. 213) that accepts "a tight link between crime and punishment such that those personally responsible for the former can be legitimately subject to the latter" (p. 212). Liberals, like Sarat, reject that "tight link." They focus on "racial injustice, poverty, and abuse that often shape the life of killers" (p. 91). To Sarat, the death penalty rests on a simplistic narrative of individual responsibility: anyone who intentionally and unjustifiably takes the life of another human being deserves to die. To reject this superficial conservative model, he urges us to break the link between crime and punishment and work instead toward "reconciliation and social reconstruction" (p. 15). Thus, Sarat's book suggests that the death penalty is hated so intensely by the liberal academy because it epitomizes the conservative archetype-the individual held responsible for his own misconduct.

However, can such a line of attack be sustained when confined to a discussion of the death penalty? Notice, that in the indented quotation above, it is the whole "apparatus of punishment," not just "capital punishment," that is Sarat's target. A slip? Perhaps. To be logically consistent, however, Sarat should be attacking the entire criminal justice system, because the very foundation of that system is personal responsibility. Capital punishment is only a tiny part of the personal responsibility superstructure-a sentencing option imposed perhaps 300 times a year in a nation with roughly 13.5 million annual prosecutions and 15,500 murders. To undercut the death penalty by attacking personal responsibility is to undercut the entire criminal law. To do so persuasively requires a serious alternative model of penology, a project well beyond the scope of this book.

During the 1970s, the heyday of liberal influence on criminal justice, there was a serious debate over the role of "rotten social background" (RSB) in criminal culpability. Judge David Bazelon (1979) suggested that a defendant's social and economic history should be a defense to criminal charges. Though he seemed to allow for detaining violent RSB defendants who successfully interposed the defense, Bazelon thought that the ultimate solution to our crime problem lay in income redistribution and other social reforms. In a rebuttal, Professor Stephen Morse (1979) pointed out that environmental adversity rarely eliminates completely a person's power of choice, that poor people may experience more pressure to commit crime, but most resist the temptation, and that therefore when they do yield, the criminal law may justifiably punish them.

The country never took Judge Bazelon's proposals seriously, and in the 1980s, in the face of an enormous rise in violent crime, America seemed to repudiate altogether liberal approaches to penology. Ironically, the contemporary death penalty trial offers one of the few opportunities for injecting RSB into a criminal proceeding. During the

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penalty phase, the Supreme Court has allowed virtually any evidence that might convince the jury to spare the life of the defendant they just convicted. (LOCKETT v. OHIO (1978) permits "any aspect of a defendant's character or record" to be presented to the sentencing jury.) Consequently, defense lawyers will present all sorts of troubled background testimony, what Sarat calls "a narrative about violence that the defendant himself had endured" (p. 107).

Although death penalty proceedings would seem to satisfy his demand for a context-sensitive criminal trial, Sarat is very critical of them. Chapter 2, for instance, is devoted to a critique of victim-impact statements, the sentencing hearing testimony of the family of the murder victim. Sarat considers this mere vengeance in disguise, although one could validly claim that the impact of the murder on the victim's family also "contextualizes" the crime.

Sarat takes scant notice of Chief Justice Rehnquist's defense of victim- impact statements in PAYNE v. TENNESSEE (1991) in which he argued that fairness, or at least symmetry, demands that the State be permitted to offer "'a quick glimpse of the life' which a defendant 'chose to extinguish'" as a counterweight to the virtually unlimited mitigating evidence permitted the defense.

Sarat also dismisses the Rehnquist-Scalia contention that the harm caused by the defendant as a result of the crime "has understandably been an important concern of the criminal law" in determining punishment, even though the extent of the harm may be unrelated to a defendant's blameworthiness. (Ironically, the PAYNE Court here cites an earlier work co-authored by Sarat in support of its position.) As Scalia pointed out, the bank robber who aims his gun and fires at the security guard may be executed if the bullet kills the target, but the bank robber who aims, fires and misses--while just as morally blameworthy--cannot be sentenced so harshly. The criminal law is filled with instances of differential treatment based on harm (the entire law of inchoate crimes is an example). To reject the calibration of punishment to harm, as Sarat does in his attack on victim impact testimony, is to reject huge swaths of the criminal law itself.

WHEN THE STATE KILLS is idiosyncratic, as is often the case with books that draw on previously published articles. Thus, there is a chapter on methods of execution (painless methods, such as lethal injection, are designed to "differentiate state killing from murder" p. 65). Also, a chapter on televising executions (which the author favors because it "would reveal the sadism that is at the heart of the state's tenacious attachment to capital punishment" p. 208) There is even a chapter on death penalty appeals, which Sarat sees as vehicles for presenting compelling narratives--"a source of consolation in a world that knows violence and pain" (p. 161). This is Sarat's weakest essay, and his encomium to defense lawyers ("part of an ongoing political struggle to ensure fairness to the poor, the downtrodden, the dispossessed") (p. 161) verges on idolization.

A concluding chapter recommends that abolitionists seek to redirect public discourse from unhelpful debates over the merits of "killing the killers" to more fruitful discussions of "the imperatives of due process," i.e., procedural fairness (p. 253). Sarat thinks that death penalty opponents can win this one because, in his view, capital punishment is not (and perhaps cannot be) fairly administered. However, once again,

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to persuade the impartial, he will have to prove more than he bargained for. The evidence suggests that death penalty cases are, on the whole, the fairest, most carefully conducted, most scrupulously reviewed prosecutions in the entire criminal justice system. If they don't meet due process requirements, then what can be said for the legitimacy of the rest of the justice structure?

REFERENCES:

Bazelon, David. 1976. "The Morality Of The Criminal Law," SOUTHERN CALIFORNIA LAW REVIEW 49: 385.

Morse, Stephen. 1976. "The Twilight Of Welfare Criminology: A Reply To Judge Bazelon," SOUTHERN CALIFORNIA LAW REVIEW 49: 1247.

CASE REFERENCES:

LOCKETT v. OHIO, 438 U.S. 586 (1978).

PAYNE v. TENNESSEE, 501 U.S. 808 (1991).