Vol. 13 No. 6 (June 2003)
THE CONTRADICTIONS OF AMERICAN CAPITAL PUNISHMENT by Franklin E. Zimring. New York: Oxford University Press, 2003. 258 pp. Cloth $30.00. ISBN: 0-19-515236-0.
Reviewed by Conrad P. Rutkowski, Institute for Applied Phenomenology, Spring Valley, New York and Spruce Head Island, Maine. E-mail: abmaphd@aol.com.
A visit to Amazon.com in February 1999 revealed 340 titles dealing with capital punishment. A visit in June of 2003 revealed 477 such titles. Is another book on this subject really necessary?
This particular book is one volume in the Oxford University Press Studies In Crime and Public Policy. Franklin Zimring is an avowed opponent of capital punishment. He is very straightforward as to why he has written a book about it:
[It] is my effort to resolve the puzzle of American capital punishment, to explain the contradiction in American culture that generates conflict over the death penalty and the changes that will be necessary to bring capital punishment to a peaceful end (p.ix).
His treatment of the subject matter is decidedly different from many of the books in print. It is anything but shrill or histrionic. It is neither a political tract nor propaganda. It is carefully researched and reasoned. The methodology for a greater part consists of dispassionate analysis and deductive reasoning. Should one accept the author’s initial premises, one would be faced with a compelling case for accepting his conclusions.
Zimring begins by providing a genealogy of sorts of capital punishment within the United States and Europe during a significant portion of the twentieth century. This shows how the practice and the underlying rationales within the United States diverged from those in Europe and the Commonwealth. The way capital punishment was seen and defined led to its abolition there. Primary attention and concern, thereafter, is devoted to the death penalty’s continued use in the United States.
Instead of focusing on its constitutional/legal context, the author sees the death penalty within the United States as a symbolic policy instrument. It is justified by appealing to basic values and the ends it presumably serves. The continued use of the death penalty is due in large part to successful shift in the debate from a focus on state power to concern for victims’ rights. This strategy also moves attention away from the issue of popular disdain for governmental power. Zimring, however, does not offer any real discussion of the political capital gained by some office holders in proclaiming their vigorous support for capital punishment. This omission may have been intentional. The author’s style of writing is one calculated not to offend or antagonize supporters of capital punishment.
The author points out that countries “with strong ties to Islamic fundamentalism . . . have a moral claim to execution as governmental policy” (p.38). This is in stark contrast to what he calls the “orthodox position” of all of the governments in Western Europe. The latter are in a position to claim “the high moral ground” simply because religion and state are distinct, while elsewhere the distinction is blurred or even absent.
The author continually raises the right questions about capital punishment, even though a few are left unanswered or are presently unanswerable. Since basic values are involved, one might choose to disagree with his answers. In addition, rather than avoid the key or thorny issues in the surrounding debate, he faces them head-on.
Zimring maintains that in the American debate what is most significant is that there is profound disagreement over precisely what the key questions actually are. Within the United States it is a question of criminal justice policy; while across Europe it is defined as a question of the nature of the social contract—viz., a country’s constitution or fundamental law. Moreover, governments are limited by a very specific acknowledgement of the existence of human rights.
Zimring cites the position of Attorney General John Ashcroft in the case of alleged terrorist Zacarias Moussaoui. Zimring maintains that Ashcroft elects to define the death penalty as one of many punishments available as a matter of criminal justice policy, where “the choice of punishments should be influenced by the harms inflicted by the crime and the culpability of the particular defendant” (p.44). In this way the really hard question relating to limits on government power is sidestepped.
The sidestepping of this issue did not begin with Ashcroft. When executions resumed in the United States in the mid ’70s, death penalty proponents moved away from the issue of governmental limits. Instead, they introduced through legislation a penalty phase during capital trials where the emphasis was upon providing a means of closure for the family and friends of the victim, while at the same time moving to clean up the machinery of death. They did so by devising a means of execution that could be termed both “humane and efficient.” Indeed, both the gas chamber and the electric chair were widely retired in favor of lethal injection. Zimring maintains that this “radical degovernmentalization of the death penalty was without important precedent in two centuries of prior American history” (p.52).
The use of (and reasons for using) the death penalty clearly distinguishes the United States from the rest of the free world. In this regard, an overriding concern of the author is identifying the cultural factors that provide a basis for this country’s current embrace of the machinery of death.
To begin, our federal system provides for dual sovereign governments—both national and state in character, with the latter enjoying distinct and separate systems of criminal justice. Our history has been one where most criminal statutes originated and were enforced at the state level. Yet, over time, particularly with respect to death penalty cases, minimum federal constitutional standards have been imposed on the states. This sets the stage for possible review of verdicts and seemingly endless delays. The demand for justice, thus, competes with any given state’s insistence that it should decide when an execution should take place.
What has prevented capital punishment from being perceived as the raw exercise of government power? Zimring argues that the combination of a “mythology of local control” and our “historical traditions of vigilante violence” offer an explanation (p.89). He sees a correlation between capital punishment, as practiced in the latter part of the twentieth century, and the occurrence of lynching earlier in our history. He states:
Those parts of the United States where mob killings were repeatedly inflicted as crime control without government sanction are more likely now to view official executions as expressions of the will of the community rather than the power of a distant and alien government (p.89).
The current incidence of executions then follows from a combination of an area’s history of lynching and vigilantism, and statistical data on lynching by state and region support this claim. In Texas, which is listed as a “High-Lynching” state, records indicate that 150 men and two women were put to death during the six years George W. Bush served as governor. Alan Berlow, in discussing “The Texas Clemency Memos,” in THE ATLANTIC MONTHLY, points out that this is “a record unmatched by any other governor in modern American history” (Berlow, p.1).
The concluding part of the book outlines a number of interconnecting strategies for ringing the death knell for capital punishment in the United States. Zimring is convinced that in the conflict between our embrace of vigilante values and our thirst for genuine justice that the latter will prevail. He does not come across as a zealot. He engages deliberately in dispassionate discourse, and he refrains from attacking those who support the death penalty, while appealing to Americans’ sense of fair play and justice and paying significant tribute to our country’s basic belief in “due process of law.” Indeed, the balanced approach of this book may well lead to a wide audience.
Survey research “provides some important clues to contemporary American attitudes” (p.102). Much of it assesses the potency of vigilante sentiment, and there is continuing evidence today of the attitudinal contradictions regarding American capital punishment. Indeed, Gallup reported in May of 2003 that 77 percent of Americans support the death penalty, while 73 percent “believe an innocent person has been executed . . .[in] the last five years” (Dean, p.3).
The book will be embraced by those who share the author’s values. It remains to be seen whether it will receive serious consideration by those who see capital punishment as a keystone within their individual value systems. Even so, it is a most significant contribution to the literature, and it can serve as food for thought within the present day debate.
The book ought to constitute recommended reading for any and all who want to understand the various factors—historical and otherwise—that contribute to the nature of our criminal justice system, and equally importantly, our contradictory attachment to the death penalty and our sense of justice. Public officials and the many actors within and outside of our criminal justice system can only be served by this work. Discovering why many of us are transfixed by the death penalty can serve as a means for reassessing our most basic beliefs, attitudes and values and what we ought to hold truly sacred.
REFERENCES:
Berlow, Alan. 2003. “The Texas Clemency Memos,” THE ATLANTIC MONTHLY (July/August), in THE ATLANTIC ONLINE at http://www.theatlantic.com .
Dean, John W. 2003. “White House Counsel Alberto Gonzales’s Texas Execution Memos,” FINDLAW’S LEGAL COMMENTARY(Friday, June 20) online at http://findlaw.com/dean/20030620.html .
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Copyright 2003 by the author, Conrad P. Rutkowski.