On Whose Side? In Whose Interests?

Execution troubles David Garland. It involves the active decision to end a life ‘where killing is neither necessary nor unavoidable’ (p. 9). Its victims are also socially selected. ‘Death seems to be reserved for the poor and the underprivileged,’ Chief Justice Earl Warren observed in 1968 (p. 371, n. 60)—a thought echoed more than 30 years later by Justice Ruth Ginsburg. Those who can afford experienced lawyers, she noted, ‘do not get the death penalty’ (p. 46). ‘The degradations of capital punishment,’ Garland argues, ‘are … a consequence of a deep-rooted inequality of status and respect that shapes race relations and permits the dehumanization of offenders from the bottom of the social hierarchy’ (p. 310).

Given this, the call in 1995 by the leading Republican politician Newt Gingrich for mass execution—‘27 or 30 or 35 people at one time’—as part of the war on drugs (p. 247) would have been a recipe for state-sanctioned ethnic and class cleansing. Such murderous execution levels, thankfully, have not been reached in the contemporary United States. Yet, over the past decade, some 550 people—mostly poor, disproportionately black—have been put to death: around one a week. In addition, more than 3,000 prisoners are held on death row. Starved of funds to contest their cases, they live in the shadow of the executioner’s lethal injection for years, sometimes decades (p. 46).

So, Garland is right to be troubled by execution. However, he is a social scientist, not an activist or moralist. This places a requirement on him, he argues, to approach his subject objectively. Thus, Peculiar Institution is ‘neither apology nor critique’ (p. 15). Garland aims ‘not to challenge the legitimacy of American capital punishment’, but ‘to describe and explain [it]’ (p. 7). He wants ‘to see things from the point of view of the participants and the social world they occupy, rather than to impose the judgements of the writer’ (p. 14).

But what does objectivity mean in this context? Howard Becker famously warned that the views of superordinate groups in society tend to be privileged by apparently value-free social scientific inquiry (Becker 1967). Under the ‘hierarchy of credibility’, the powerful get to define reality. Scholarship, Becker argued, should make a point of uncovering the views and experiences of subordinate groups. Without this, the social scientist risks being little more than amanuensis to the powerful.

There can be few areas of penological investigation that have a greater need to heed Becker’s warning than capital punishment studies. Garland does not, as far as I can tell, reference Becker. Nor does he engage with his warning. As an omission, it is telling. Consider, for instance, Garland’s discussion of the technology of execution in the contemporary United States:

'The primary aims of today’s execution arrangements, which are by no means always realized, are to minimize the sights, sounds, and smells of suffering and to carry out the court’s death sentence in a manner that is professional, efficient, and humane. As a spokesman for the Arkansas Department of Corrections told the New York Times, "The people that are involved in this are very concerned that what they do is proper, done professionally, and with decorum. They want this to go well".' (p. 53)

This quote comes in a section that deals with execution as ‘cultural performance’ (p. 51). The minor concession to the counter-factual noted—these aims ‘are by no means always realized’—the overall effect of this paragraph is rather disturbing. The presentation, without comment, of the Arkansas spokesman’s perspective; Garland’s own turn of phrase—‘professional, efficient … humane’—at best offers an uncritical account of the execution process from the perspective of certain privileged participants.

How does the victim view the motives of his or her executioners? Would she or he remark on their professionalism, efficiency and humanity? Would her or his friends and family be struck by the decorum of an occasion that went well? I doubt it. But, on this matter, Garland does not offer a guide. Throughout Peculiar Institution, the views and experiences of Becker’s subordinate groups—the executed, their loved ones, their communities—are absent.

In place of the voices of the executed, it is the multitude of US citizens we find juxtaposed with the subdued and measured officials and the rational liberal reformers. Thanatotic thrill-seekers mostly, they are found among the vengeful ‘crowds in the parking lot’ of execution facilities (p. 58), and among the ‘millions of … casual consumers of a quietly sadistic pornography that uses the death of a criminal as a transgressive source of pleasure’ (p. 304). Stirred up by populist politicians and moral entrepreneurs, ‘the vast majority’ of the American public ‘engages with an imaginary abstraction, a death penalty that floats free in the ether of media narrative, political ideology, and popular fantasy, untroubled by the living, breathing, terrified individuals about to be killed’ (p. 301).

Garland makes two important distinctions here that I want to draw out. The first, between the governing elites and the governed majority, forms the main analytical thread running through the book.

Capital punishment was abolished in most Western countries, Garland argues, because liberal elites, sometimes unelected, generally shielded from democratic accountability, were able to push through reform in the face of popular opposition. In the United States, the Supreme Court—an unelected elite par excellence—attempted, in the early 1970s, to ban execution. It failed and with it, Garland argues, American liberalism and its reformist agendas waned as local, popular democracy waxed:

'Support for capital punishment came to be seen as an integral part of the ‘traditionalist’ worldview, just as opposition to it became standard for liberal ‘progressives.’ Depriving people of the right to impose capital punishment … came to be viewed as a kind of elite contempt for common people'. (p. 251)

The ‘primary cause’ of the persistence of execution, Garland writes elsewhere, is ‘a radically local version of democracy .... In America … democracy can kill’ (pp. 309–10).

Garland does not develop the implications of this position. Indeed, Peculiar Institution ends on an inconclusive, rather downbeat, note. But the dismal and anti-democratic prospect it throws up is plain enough. Far from being a means of achieving liberal aspirations, democracy, it appears, confounds them. The best hope for the abolitionist cause, it seems, is a form of latter-day platonic guardianship in which enlightened liberal rulers impose reform from above, insulated from the corrupting influences of the unenlightened ruled.

This leaves Garland open to the charge that his thesis merely gives the problem of the ‘elite contempt’ for ‘common people’ a different, more scholarly, formulation. It offers an unappealing and contradictory foundation upon which to build a liberal reform programme and misunderstands the nature of the democratic challenge.

This brings me to the second important distinction Garland makes in the passage quoted above: that between fantasy and reality, the apparent and the actual. Marx once wrote that ‘it is one of the tasks of science to reduce the visible and merely apparent movements to the actual inner movement’ (Marx 1981: 428). And, while the tensions between the apparent and the actual are latent in much of Garland’s analysis, he never really explores, in anything approaching a systematic way, their inner movements.

Garland contrasts popular fantasies surrounding execution with the material realities of terrified individuals going to their deaths. He blames American ‘hyperdemocracy’ (p. 164) for the enduring presence of execution. He also notes the absences that sustain this so-called hyperdemocracy: its corruption by commercial and class interests and the denial of an opportunity for meaningful democratic participation to so many poor and black Americans. He expresses surprise that ‘racially disparate outcomes … are routine features of the contemporary … death penalty process’ (p. 51), despite the formal safeguards apparently designed to prevent this from happening. Garland notes that ‘race … social class, and the quality of legal counsel are the chief factors that structure outcomes’ (p. 51). He fails to explore what class and racial interests are served by such manifestly unjust outcomes and what implications might be.

Capital punishment, in short, embodies the wider contradictions and social antagonisms of US society. It is sustained by and sustains in its turn distinct class and racial interests. US society could, of course, function without execution. But, given America’s history of slavery, lynchings and capitalism, it really should not surprise that execution remains in force. Capitalism, Ellen Meiksins Wood notes, may be ‘uniquely indifferent to the social identities of the people it exploits’. It is also ‘likely to co-opt whatever extra-economic oppressions are historically and culturally available in any given setting’ (Meiksins Wood 1995: 266–7).

It is easy, in a short review, to appear to dismiss the product of many years’ study in a few choice phrases. I have focused on what I think are some significant flaws in Garland’s overall analysis. I want to conclude with a note of appreciation. A serious-minded, deeply scholarly work, Peculiar Institution is studded with nuggets of information and contains a wealth of historical detail. It will surely be a key reference point in the field for many years to come.

References

Becker, H. (1967), ‘Whose Side Are We On?’, Social Problems, 14: 239–47.
Marx, K. (1981), Capital: Volume III. London: Penguin.
Meiksins Wood, E. (1995), Democracy against Capitalism: Renewing Historical Materialism. Cambridge: Cambridge University Press.