American Exceptionalism and the Death Penalty

In historical context, the worldwide abandonment of capital punishment marks an overwhelming repudiation of the death penalty as an atavistic barbarism.... It is an extreme and mindless act of savagery, practiced on an outcast few (Bowers, Pierce, and McDevitt, 1984: 67). -- NAACP Legal Defense Fund brief in Aikens v. California (1972) IT HAS BEEN NEARLY 30 YEARS SINCE NAACP LEGAL DEFENSE FUND ATTORNEYS argued, in the above brief, before the U.S. Supreme Court that the death penalty is a "cruel and unusual" punishment. Since that time, the United States [1] has maintained the death penalty, both in law and practice -- alone among Western industrial nations. [2] At the turn of the 21st century, the retention of capital punishment in American criminal justice remains a seeming anachronism in a nation that otherwise prides itself on democratic values and its place among "civilized" nations. Although others have noted this peculiarity of American criminal justice (Currie, 1985: 41; Kappeler, Blumberg, and Potter, 1996: 290- 291), few have offered explanations (Bowers et al., 1984: 131-167) [3] This essay is an attempt to fill that void, seeking to decipher what is distinctive about American society -- compared to other Western democracies with advanced economies -- and how that distinctiveness is related to crime control and, notably, the conti nued execution of criminal offenders. The Abandonment of Capital Punishment in the West The origin of the movement to abolish the death penalty is generally traced to Cesare Beccaria's writings [4] in the 18th century and to the broader influence of the European Enlightenment (Bowers et al., 1984; Melton, 1995; Bedau, 1997). Beccaria understood the modern arguments against the death penalty, including its ineffectiveness as a deterrent and the possibility of executing innocent persons. In calling for reform of the legal institutions of the old regime, Beccaria advocated a legal system based on principles of equal justice and deterrence, arguing that certainty and swiftness were more important than the severity of the punishment. In an analysis of the evolution of the death penalty and civilization, Reiman (1995: 175) argued that the "abolition of the death penalty is part of the civilizing mission of modern states." Drawing upon Durkheim' s laws of penal evolution, he notes this civilizing trend as societies move from less to more advanced types and moderate their criminal punishments accordingly. Abolition is, thus, intertwined with the development of the modern state and the intellectual revolution known as the Enlightenment (Hazard, 1965). Before the American Revolution, all 13 colonies authorized public hanging. The founding of the United States during the Enlightenment did not change the legal status of the death penalty. Although the 8th Amendment proscribes "cruel and unusual" punishments, the prevailing legal view has been that capital punishment per se was not prohibited by the U.S. Constitution. Indeed, the constitutionality of the death penalty was not seriously challenged until the mid-1960s (Bedau, 1997:4,15). Beginning in the 19th century, public executions were gradually outlawed, initially in the Northeast and later in the South, and replaced by hangings within prison walls (Johnson, 1998). In addition, between 1890 and 1930, most states brought executions under centralized, state authority -- since many jurisdictions had allowed offenders to be executed by local authorities, in the county of offense (Bowers et al., 1984: 14). Moreover, throughout the 20th century, the method of execution changed from hanging, to electrocution and the gas chamber, and finally to lethal injection, the most prevalent method currently in use (Johnson, 1998). In spite of these legislative changes, few states abolished the death penalty -- only five states were abolitionist in 1900 and six in 1950, at mid-century (Bowers et al., 1984: 9). …