Criminal Law Book Review 125 Harv. L. Rev. 760

Capital Punishment and Contingency

An examination of the social forces behind America's system of capital punishment


In the past decade, a burgeoning literature has sought to address the growing divide between the United States and other Western liberal democracies with regard to criminal punishment practices. Although all of these countries, the United States included, have experienced many of the same problems over the past forty years – such as steep crime rate increases, a sophisticated international drug trade, and growing threats from terrorism – the United States has seen nothing short of a revolution in its punishment practices since the 1960s, a stunning shift unprecedented in its own history and unique among its contemporaries. American imprisonment rates have soared, increasing fivefold between 1972 and 2007, reflecting and accompanying other punitive criminal justice policies such as “zero tolerance” policing initiatives, expansions of the scope of the substantive criminal law, “three strikes” statutes enhancing punishment for recidivists, in-creased use of criminal sanctions for juvenile offenders, widespread authorization of sentences of life without possibility of parole – and, of course, increased use of the death penalty.

A diverse group of scholars, including historians, sociologists, and legal scholars, has offered various explanations for these radical changes – some complementary, some contradictory. Professor David Garland was an early and influential participant in this scholarly discussion with his generative book The Culture of Control, in which he described the recent trends in crime policy and social attitudes toward crime in both the United States and Britain as the product of “two underlying social forces – the distinctive social organization of late modernity, and the free market, socially conservative politics that came to dominate the USA and the UK in the 1980s.” Now Garland has turned his attention to a crime policy issue that divides the United States from Britain and the rest of the Western industrialized world – the continued retention and use of capital punishment, which accelerated in the United States from the 1970s to the 1990s, the same period in which Europe embraced abolition.

In Peculiar Institution: America’s Death Penalty in an Age of Abolition, Garland addresses three ways in which the American death penalty is “peculiar.” First, he tackles directly the question of peculiarity in the sense of distinctiveness, seeking to understand why many jurisdictions within the United States “continue to use capital punishment at a time when all other Western nations have decisively abandoned it” (p. 11). Second, Garland seeks to understand the peculiarity of the manner in which the death penalty is maintained in many American jurisdictions, which reflects “an extreme form of institutional ambivalence, expressed in a uniquely cumbersome and conflicted set of arrangements” (p. 11), making the punishment “poorly adapted to the stated purposes of criminal justice” (p. 13). Finally, Garland connects the peculiarity of the American death penalty to the original American “peculiar institution” – slavery – and argues that there are “undeniable” (p. 13) though difficult to specify (p. 12) continuities between America’s history of racial violence, especially lynching, and its contemporary capital punishment practices. Garland’s account both borrows and distinguishes itself from other accounts of “American exceptionalism” with regard to capital and criminal punishment practices, ultimately crafting an insightful portrait of contemporary American culture and law by tracing the contours of a single institution.

Much is at stake in Garland’s account and its relationship to those of other scholars – more, at least, than the usual struggle for preeminence in the ivory tower. In a section called “Against Conventional Wisdom” (p. 17), Garland takes a stand in opposition to those who use simplistic dichotomies to explain America’s divergence from its peers with regard to capital punishment: “‘American’s are punitive and ‘European’s are not. Americans are Puritan, or vigilante, or racist, or individualistic, and Europeans are not” (p. 20). In contrast, Garland emphasizes the commonalities in the long sweep of the history of capital punishment in the United States and Europe: American states were at the forefront of the abolition movement that began in earnest in the mid-nineteenth century, following a period on both sides of the Atlantic of contraction of the scope of capital punishment and the substitution of other modes of punishment, especially imprisonment. The United States diverged from Europe only recently, in the period since 1970, and Garland seeks the explanation for this late-stage slowing or stalling of the movement toward abolition in particular events and prevailing conditions of the past forty years. The clash between Garland’s more contingent account of America’s divergence and other more essentialist accounts is a battle with important ramifications both for future policy possibilities and for intellectual discourse.

On the policy side, Garland’s persuasive emphasis on contingency with regard to America’s recent divergence on capital punishment undermines the view, apparent in the media on both sides of the conflict over abolition, that the American death penalty is the product of some deep cultural divide between the United States and its contemporaries. At stake here is the malleability of the future of the American death penalty. If long-standing, powerful cultural forces are at play – akin to those posited by Michael Moore in his extreme but influential film Bowling for Columbine, which portrayed a distinctive American culture of fear and violence – then America’s death penalty and, by extension, the rest of its punitive criminal justice policies are the inevitable reflections of American character. To change such policies would thus require taking aim at deep features of that character. Conversely, if America’s current death penalty practices are not the product of inexorable historical or cultural forces but rather the contingent and possibly ephemeral expression of history and culture as mediated by relatively recent events, then perhaps the same is true for America’s other punitive criminal justice policies, given that they are the products of the same several decades. In this way, Garland’s Peculiar Institution thesis reins in to some extent his own more sweeping analysis in The Culture of Control, which emphasized the central role of conditions of “late modernity” in explaining crime policy in the United States and Britain. The Culture of Control evoked concerns from critics that Garland was generalizing too much from the experiences of the United States and Britain and forecasting an inevitable and universal dystopian future. Peculiar Institution, in contrast, balances the sweep of its sociological history of American political and social structures with recurring focus on the events of the recent past.

Shifts in the relative explanatory powers of broad-brush sociological theories vis-í -vis recent, contingent events have consequences not just for the future malleability of criminal justice policies but also for the intellectual project of what Garland calls “sociological history” (p. 15). What does it mean to offer a “history of the present,” in Foucault’s terminology (p. 16)? How can we speak meaningfully about “causes” and “effects” of profoundly complex, often ambiguous, and ever-evolving social practices and discourses like those of criminal and capital punishment? How can the sociological historian offer an account that is comprehensive enough to have explanatory or predictive value without reifying the present and treating whatever is as what must be? Garland’s skepticism of overly deterministic accounts of the American death penalty offers an important window onto this tension and sounds a cautionary note for both producers and consumers of sociological history.

In what follows, I first situate Garland in the larger conversation about American penal exceptionalism and then underscore and extend his contribution regarding capital punishment and contingency. Part I surveys a variety of contrasting accounts of the divergence of America’s criminal and capital punishment policies from those of its peers and assesses Garland’s contributions to this broad conversation. Part II seeks to illustrate and deepen Garland’s account of the contingency of America’s recent death penalty story. This latter Part emphasizes the role of the Supreme Court in that story and argues that current American death penalty practices are even more deeply contingent than Garland recognizes: not only the fact of American retention but also the peculiarity of its form might have unfolded very differently. I develop this argument by imagining three counterfactual – and extremely divergent – American death penalty stories-that-might-have-been.