Recent events might suggest that there is no greater gulf between the United States and its erstwhile allies than on how to conduct the war on terror. But that suggestion would be wrong if Franklin Zimring is right. Zimring, the William G. Simon Professor of Law at the University of California, Berkley, argues that our biggest divide is actually over capital punishment, where the United States differs from Western Europe and the British Commonwealth, not "on the answers to a common question…but on what the key questions are that should determine whether governments should be allowed to kill citizens intentionally as a criminal punishment." This is true not only for the usual suspects like France and Canada, but also for more reliable friends like Britain and Australia. The persistence of capital punishment in the United States at the same time that it has disappeared in other democracies is only one of the contradictions that occupies this book.
Franklin Zimring wants to see capital punishment abolished in the United States. In fact, he argues that abolition is inevitable because American capital punishment cannot sustain itself much longer against the stresses caused by its inherent contradictions. These contradictions, as Zimring sees them, are many: between the "disadvantages of procedural regularity" and the reality of "unprincipled and arbitrary outcomes"; between Northern jurisdictions, where "there is no longer a clear and proximate relationship between death sentences and executions," and the South, where 80 percent of executions occur; between criminal punishment as state vindication of the moral order and punishment as psychological therapy for victims' families; between efficiency and fairness; between a general distrust of government and faith in the state's ability to execute justly; and, finally, between vigilantism and due process. His book is an exploration of these contradictions, capped off by an abolitionist manifesto describing the outlines of the final campaign "to end the death penalty in the United States."
Why is the United States the only developed democracy, except Japan, to retain capital punishment? According to Zimring, this question is all the more puzzling for two reasons. First, like its Western European counterparts, the United States was drifting towards at least de facto abolition until the 1970s. As Zimring points out, the number of executions carried out annually in the U.S. fell from more than 100 in 1951 to fewer than 10 in 1965. With actual executions becoming increasingly rare, de jure abolition might have occurred in the late 1960s, as it did in Great Britain and Canada. Second, public support for capital punishment is not appreciably higher in the United States than in these abolitionist countries. Support for capital punishment at the time of abolition in Canada, Britain, and Australia, for example, was about twice as high as opposition.
Zimring offers two explanations for this American exceptionalism. The first is the particular nature of American federalism (although he doesn't mention that abolitionist nations either have unitary governments or are federations where responsibility for criminal justice policy is assigned to the national government); and the second is America's "vigilante tradition," especially in the South. Together they make the intensity of public support for capital punishment much higher in the United States, so that for most Americans capital punishment is simply a question of criminal justice policy rather than a human rights issue.
Unfortunately, Zimring skates around a third explanation: judicial meddling. In all of the European and Commonwealth countries to which he refers, abolition occurred democratically. By contrast, the parallel decline of capital punishment in the United States from 1950 until the mid-1960s suffered the sudden shock of the Supreme Court's botched 1972 attempt to end, or at least severely curtail, capital punishment prematurely. Zimring understands that "the Court has fashioned a Frankenstein's monster out of death penalty cases" since the 1970s, but he fails to consider the degree to which the entrenchment of pro-capital punishment sentiment might be a counter-reaction against judicial arrogance. Just as the Court's final solutions for slavery and abortion failed miserably, so too might the Court bear the blame for the state of affairs Zimring finds so distressing.
In any event, Zimring's mission is to persuade the United States to get with the program and join other democracies in understanding that "policy on the death penalty should not be governed by national prerogatives but by adherence to international human rights minimum standards." In making his case, he attempts to link contemporary capital punishment policy to some of the darkest episodes in American history, specifically to lynching, trying to demonstrate a strong overlap between a region's lynching history and its contemporary execution rate. Of course, this becomes largely an attack against the South. "Racism, vigilantism, and high levels of punishment," Zimring writes, "were concurrent traditions in the South when high levels of punishment came to characterize the region." As Zimring sees it, " The larger willingness to punish was a function of the particular targets [my emphasis]…so that…vigilante values are not only a cause of willingness to execute but may also be a contributing cause also of the broader enthusiasm for harsh treatment of offenders in the South." Criminal justice policy in the South turns out to be the pursuit of white supremacy by other means.
One difficulty with this analysis is that it doesn't account for the observable pattern of executions from 1950 to 1965. If racially-motivated vigilantism explains at least part of the contemporary difference between the United States and other developed democracies, then how does one explain the similarities in the earlier period? Presumably, if contemporary "vigilante values" can be traced back to nineteenth century lynchings, then they must have been present during the earlier period. Yet the number of executions decreased more or less in the same pattern then as in other countries. Moreover, if capital punishment really were an instrument of Southern white supremacy, then one might expect it to have been used most heavily during the period when racial tensions were at their highest. Zimring wants to discredit capital punishment as much as possible, and he knows that linking it to a justifiably reviled past will have the greatest impact.
Given his analysis of American exceptionalism, it is hardly surprising that Zimring admits that the "ultimate goal of abolitionists is to change not merely American policy but American culture." In fact, the "United States will not be at peace with the absence of capital punishment until it has become a better nation." Abolition of capital punishment "will end a practice that is barbaric and inconsistent with high principles of legality and clear limits on government use of individuals." Oddly enough, Zimring never provides an argument to defend this characterization of capital punishment. Indeed, the closest he comes to an argument against the death penalty per se is to assert that "no death penalty can function where there is zero tolerance for a risk of false execution."
Capital punishment is a rarely imposed and infrequently executed sentence. So why bother retaining it? One answer to the question, which Zimring correctly criticizes, is to provide closure for victims' families. As he points out, there has been a "symbolic transformation" of death penalty trials "into a private competition between the claims of those hurt by murder and appeals for mercy for the murderers." While the focus on victims' families and the need for closure may enhance the short-term palatability of capital punishment, it may be counterproductive in the long-term because it obscures the real purposes of this punishment.
The purposes of capital punishment are distinctively non-utilitarian. It doesn't rehabilitate, and its value for deterrence and incapacitation is only marginally higher than the next most serious punishment. The value of capital punishment is completely self-contained: it makes a statement about the moral quality of the act for which it is imposed. Contrary to Zimring's argument, it does not signal a nation's barbarity (after all, France would hardly concede that it only became civilized in 1981 when it abolished capital punishment four years after using the guillotine for the last time). Capital punishment signals that there are some acts that are so morally heinoussome ways in which humans treat other humansthat they deserve the most serious punishment a society can inflict.
This does not mean that citizens should uncritically accept the practice of capital punishment in those states that retain it. Such a use of state power deserves serious reflection. By depicting contemporary American capital punishment as the legacy of a racist past, The Contradictions of American Capital Punishment, despite some useful insights, falls short.