Whigs and Hunters: The Origins of the Black Act. - book reviews
Progressive, The, Jan, 1994 by Erwin Knoll
News stories about executions seem to get smaller and smaller. They're tucked away in sections of the paper that no one reads - a sentence or two reporting that so-and-so, who has been on death row since 1984 for shooting a convenience-store clerk during a botched holdup, exhausted his appeals and was electrocuted last night, or hanged, or given a lethal injection, or asphyxiated in a gas chamber. Maybe another line or two notes that it was the state's ninth execution this year. Unless the circumstances of the crime were spectacular or the convict achieved unusual notoriety, another execution simply isn't news any more.
Nor is it an occasion for political protest, or for religious concern, or even for civic introspection. Recent public-opinion polls tell us that 75 or 80 per cent of Americans heartily approve of capital punishment. In today's law-and-order climate, support for the death penalty is rising steadily in the United States, which finds itself in distinctly unsavory company - the likes of China, Iraq, Korea, Iran, Libya, South Africa, and some of the nations of the former Soviet Union - in still putting people to death for ordinary criminal offenses.
Yet only two decades ago it was possible to believe that no person would ever again be put to death under governmental sanction in this country. There was widespread revulsion against capital punishment, and many state and national legislators, as well as members of the judiciary, felt they could oppose the death penalty without placing their reputations or political careers in jeopardy. In fact, a ten-year moratorium on executions began in 1967, and the Supreme Court's 1972 decision in Furman v. Georgia, though it stopped short of banning capital punishment outright, seemed to promise that the barbarous business of state-sanctioned homicide might be behind us for good. It didn't turn out that way.
I've spent much of my reading time this past year trying to understand how and why the United States turned back the clock on capital punishment. My interest was kindled by Marshall Frady's justly famous article in The New Yorker about Ricky Ray Rector, a young, severely mentally disabled African-American who was executed in Arkansas on January 24, 1992, after the governor of that state (who happened to be running for his party's Presidential nomination) conspicuously refused to intervene to save Rector's life. How did it happen, I wondered, that Bill Clinton actually scored political points by participating in such a monstrous miscarriage of justice? How did public attitudes and official policies in the United States undergo such a drastic transformation - a great leap backward - in the span of fewer than twenty years? And what, if anything, could be done to turn the clock forward again?
Raymond Paternoster's Capital Punishment in America (Lexington Books/ Macmillan) is a thoroughly researched introduction to the subject, but though it was published only two years ago, it is already somewhat out of date: Recent court decisions designed to "unclog" the Federal courts have made it even easier to put convicts to death, public attitudes have hardened, and the Clinton Administration's crime bill would authorize execution for some four dozen Federal offenses. This casts some doubt on Paternoster's contention that public support for the death penalty is "soft" and might give way to such nonlethal punishments as life imprisonment without parole.
But Paternoster, a professor of criminal justice at the University of Maryland, provides valuable insights on such troubling topics as the blatant racial bias in the application of death sentences, the execution of juveniles, the costs of capital punishment vis-a-vis life imprisonment, and the perpetual efforts to square the death penalty with the Eighth Amendment's ban on "cruel and unusual punishment."
Particularly useful is Paternoster's debunking - buttressed by ample data - of the notion that capital punishment acts as a "deterrent," and therefore provides panicked citizens with a degree of genuine protection. He acknowledges that "a belief in deterrence is widespread," and proves that it is unfounded.
Several dozen young people - most of them male, most of them black - inhabit death rows in state penitentiaries, awaiting execution for crimes committed when they were fifteen or sixteen or seventeen years old. A decade ago, the American Bar Association declared its opposition to "the imposition of capital punishment upon any person for any offense committed while under the age of eighteen," and there were legislative moves to outlaw the execution of juveniles. This, too, has changed. Today, some judges and legislators are eager to permit children to be put to death.
In Death Penalty for Juveniles (Indiana University Press), Victor L. Streib, a professor at the Cleveland-Marshall College of Law, analyzes the juvenile death-penalty cases that were pending when he wrote six years ago - most of them are pending still - and documents the 300 or so executions of juveniles that have taken place in the United States. From these cases, Streib concludes that putting juveniles to death is "arbitrary, capricious, and freakish." He takes no explicit stand on capital punishment for adult offenders, but argues forcefully that the line should be drawn at age eighteen.
