The Road to Abolition? and Death Penalty

reviewed by Ben Pesta

In the United States, we kill people to illustrate the point that killing people is wrong. We are the last Western industrialized country to do so. The Road to Abolition? is a selection of ten scholarly essays on the question of whether capital punishment will be abolished in the United States and, if so, when. Editors Charles Ogletree and Austin Sarat, professors at Harvard Law School and Amherst College, respectively, have assembled an eclectic collection of pieces ranging from a review of death penalty decisions so far, to a discussion of lethal injection methods and cases, to the decidedly post-mod "Modernity and the Political Formulations of Death," complete with citations to French philosophers Michel Foucault, Georges Bataille, and Jacques Derrida. (On the list of names of those likely to influence the capital punishment debate in the United States, Derrida's must fall very near the bottom.)

The Road to Abolition? is a didactic anthology. Its editors and authors clearly wish for the death penalty to be abolished. All think that this will happen eventually, but (as the question mark in the title indicates) there is no general agreement on whether sooner or later.

As noted in various chapters of the book, abolition has already happened in most of the civilized world. Ninety-two countries have no death penalty; 137 have abolished it in law or in practice. The European Union requires the abolition of capital punishment as a condition for membership. In 2007, the U.N. General Assembly called for a worldwide moratorium on executions. The vote was 104-54, with 29 abstentions. Lining up with the United States against the measure were China, Iran, Iraq, North Korea, Sudan, and Syria. China is the capital of capital punishment, executing 5,000 or more of its citizens each year, according to the Dui Hua Foundation, a nonprofit human rights organization. (The Chinese do not release official capital punishment statistics.)

In the United States, recent developments pointing toward eventual abolition include a general decline in the number of executions over the past seven years, and a 33-year low in death sentences imposed. In 2003, Illinois Gov. George Ryan commuted the death sentences of all 167 of that state's death row inmates, noting that since Illinois reinstated capital punishment in 1977, it had exonerated more condemned prisoners than it executed. The American Bar Association called for a moratorium on executions back in 1997. Various "innocence projects" have focused public attention on the arbitrariness of death penalty convictions, often using DNA evidence to exonerate death row inmates. One of the book's authors, the University of Chicago's Bernard E. Harcourt, believes that by 2050 "capital punishment will have the same status as torture within the larger international community: an outlier practice, prohibited by international agreements and customary international law, practiced illicitly by rogue nations. ..."

Yet there are reasons to be less sanguine about abolition's chances, both in the United States and in California. Thirty-five American states retain the death penalty, but it is largely a Southern practice: Between 1972 and the end of 2007, at least 82 percent of all U.S. executions took place in the South, according to University of Colorado professor Michael Radelet. At the forefront, waving the (Confederate) flag, of course, is Texas. Since 1976, the Lone Star State has executed 464 people (as of October). Think of Texas as the China of the United States. Virginia, with about a third Texas's population, was in second place with 107. No nationally prominent politician opposes the death penalty. To quote Harcourt in one chapter, "[a]bolition is not a political strategy. It is a political cost." The last prominent California politician to come out against the death penalty was Governor Brown-not the once-and-future Gov. Brown but his father, Edmund G. Brown Sr.

California lately seems to be throwing in with Texas, Virginia, and North Korea. California juries imposed 29 death verdicts in 2009, up from 20 in 2008. Los Angeles County alone last year returned 13 death sentences, more than the entire state of Texas. Los Angeles County jurors often respond on questionnaires that they support expanding the death penalty to cover rape and child molestation.

Death penalty expansion is one of the issues treated in Death Penalty: Debating the Moral, Legal, and Political Issues. The editors are philosophy professors at Baylor University in Texas. As its title indicates, the book presents arguments both for and against capital punishment, and on various issues related thereto - including DNA evidence, racial disparities, lethal injection, and the execution of the innocent. Of particular interest to me was the section on Kennedy v. Louisiana (128 S. Ct. 2641 (2008)), in which the U.S. Supreme Court ruled 5-4 that the Eighth Amendment categorically prohibits imposing the death penalty for the crime of raping a child. Kennedy has had numerous critics, Harvard's Lawrence H. Tribe probably the most surprising of them. His Wall Street Journal op-ed on Kennedy is included.

The book also includes a section inspired by another recent, controversial Supreme Court case, Baze v. Rees (553 U.S. 35 (2008)). In Baze the Court ruled that Kentucky's three-drug lethal injection protocol was not inherently a cruel and unusual punishment, even though it carried the risk of pain if administered incorrectly. The debate over whether lethal injection is humane or excruciatingly painful continues in California. It delayed the execution of convicted rapist-murderer Albert Greenwood Brown as recently as September. It parallels the earlier debate over the gas chamber, once thought by some to be both the most humane of all execution modalities and by others to entail gruesome, slow suffocation. Execution by gas chamber has now been universally abolished in the United States. Will attitudes toward lethal injection undergo the same evolution? If they do, what form of capital punishment will be left?

Death Penalty seems clearly intended as a college text. Editors Robert M. Baird and Stuart E. Rosenbaum have succeeded in presenting a balanced and thoughtful consideration of the crucial topics surrounding capital punishment, while taking no ultimate position themselves.

By contrast, The Road to Abolition? makes a convincing case that there is a spreading consensus, both internationally and on our own soil, that the death penalty is an outmoded and barbaric practice - just as, in the late 18th and early 19th centuries, there was widening opposition to slavery. The United States was behind the abolition curve on slavery. It seems likely, for the immediate future, to remain behind the curve on the death penalty as well.

Ben Pesta is a white collar and criminal defense lawyer in Century City.