A Tale of Two Nations: Implementation of the Death Penalty in "Executing" versus "Symbolic" States in the United States

I. Introduction In his recent history of capital punishment in America, Stuart Banner describes a little-remembered feature of colonial justice.1 The death penalty, of course, was a ubiquitous practice. Indeed, execution was, as Banner observes, the "base point" of punishment as virtually all serious crimes were punishable-and in many cases punished-by death.2 Yet in some cases throughout the seventeenth and eighteenth centuries, offenders were not sentenced to actual death but to the ceremony of execution. Banner describes a woman who had killed her child in 1677 and who was subsequently sentenced to a simulated hanging-to "stand a full ½ houre on the gallowes with a halter about her neck. "3 Other offenders, Banner reports, were not informed that they would be spared death until the last moment, giving the simulation greater drama and terror.4 Banner speculates that simulated executions and last-minute reprieves permitted officials to "reap much of the benefit of the death penalty without actually having to kill. "5 Perhaps by rehearsing the steps of a real execution and by simultaneously demonstrating the state's power and restraint, officials could deter crime and yet ameliorate the harsh effects of a criminal justice system that did not have incarceration as a realistic alternative to death. As Banner notes, pardons also played a significant role in the United States prior to the modern (post-1972) era in reducing the deadly toll of capital verdicts.6 In England, too, the vast reach of the death penalty in the eighteenth century (applicable to over 200 offenses) was cabined by discretionary grants of mercy at all stages of the process. Douglas Hay, observing the gap between those eligible for the death penalty and those spared, argued that England's frequent exercises of mercy helped promote an "ideology of justice" that reduced class tensions and tended to stabilize the social order overall.7 Today, in the United States, we no longer have simulated executions, and we rarely have pardons or commutations. But a vast percentage of those sentenced to death have not been executed and appear to face no realistic risk of execution in the near future. Pronouncements of death sentences far exceed real executions. Unlike the case of the woman sentenced to a simulated hanging, though, the death penalty today operates as a symbol not as a result of deliberate, transparent decisions, but by a confluence of complicated, poorly understood forces that produce long-term delay and in some cases defeat of the imposition of the death penalty. The international community views the United States as monolithic and anomalous in its retention of the death penalty.8 Whereas virtually all democracies-and certainly all Western industrialized ones-have repudiated the death penalty as unnecessary or even a violation of basic human rights, the United States continues to sentence offenders to death to punish ordinary (non-treasonous) crimes.9 Indeed, over the past forty years, as the international community has increasingly repudiated capital punishment, the size of the death-row population in this country has increased dramatically.10 The contrast, however, between the United States and the rest of the Western democratic world obscures the extent to which the United States is not monolithic in its death penalty practices. The United States now houses three sorts of jurisdictions: states without the death penalty by law ("abolitionist states"), states with the death penalty but insignificant numbers of executions ("symbolic states"),11 and states with both the death penalty in law and in practice-states actively carrying out executions ("executing states"). These jurisdictions roughly correspond to geographic regions, with the abolitionist states distributed primarily in the Northeast and Midwest, and the executing states confined almost exclusively to the South and its borders. Most of the scholarly and popular attention to the "execution gap" between the South and the rest of the country tends to focus on the question of Southern exceptionalism: What aspects of Southern politics and culture account for the region's continued robust use of the death penalty? …