The American Way of Death

The Death Penalty: An American History By Stuart Banner.
Harvard University Press, 385 pages, $29.95

Warning: This book is not for the squeamish. With graphic
accounts of snapped necks and roasted flesh and rabidlike reactions to lethal
injections, Stuart Banner spares no detail in describing American methods of
execution.

Yet Banner's timely book on the history of capital punishment in
America manages to be free from sensationalism. It is comprehensively researched,
with a calm and modulated narrative style. He covers everything from American
attitudes toward the death penalty through the years, to the legislative and
judicial debates over capital punishment, to the life (and death) of a condemned
criminal, to the techniques of execution and the occasional glitches that bring
to mind the phrase "cruel and unusual."

Despite the emotion swirling around this issue, Banner, a law professor at
Washington University in St. Louis, Missouri, takes such a balanced and
fact-oriented approach that it is difficult to tell whether he is for or against
the death penalty. It is almost as if he is giving readers an opportunity to make
up their own minds -- even as polls show that most Americans already have. But
make up your mind, he seems to be saying, without averting your eyes.

"Many aspects of capital punishment today appear paradoxical without an
appreciation of its history," he writes. "Americans pride themselves on their
commitment to human rights, but the United States is virtually alone among
Western nations in putting its criminals to death. ... The death penalty is
intended in part to deter others from committing crimes, but we inflict it in
private. It is often justified in retributive terms, and yet we take great care
to make it as painless as possible. We can resolve these apparent paradoxes only
by looking back at how they came to exist."

In Banner's account, the history of capital punishment mirrors the history of
the nation. When America was a British colony, its laws on crime and punishment
matched the mother country's. When penal reform swept Europe, it came across the
Atlantic. When the young nation became prosperous enough to build and expand, one
of the first things governments built were prisons, reducing the number of
executions and crimes that were punishable by death. When the Civil War and its
aftermath racked the country, opinion and policy on the death penalty differed
dramatically between North and South, and the laws in the South were applied
differently for blacks and whites. And throughout American history, states that
are considered more liberal have generally had less punitive death-penalty laws
than those that are considered more conservative.

Through the seventeenth and eighteenth centuries in America, public executions
were commonplace for a variety of crimes -- including horse thievery, forgery,
and adultery. Hangings were public events attended by thousands of people of all
ages, races, and social strata, and they often had an air of celebration about
them, even as they meant to teach stern, religious lessons. The book opens with
the story of Stephen Clark, a 16-year-old who was hanged in Salem, Massachusetts,
in 1821 for the crime of arson. Clark was convicted in February of that year, and
his execution took place just a few months later. Petitions to the governor
seeking clemency for Clark were quickly denied.

On execution day, Clark was taken from the jail to the gallows by carriage as
spectators followed the procession. He was accompanied by his jailer, a military
guard, armed sheriff's deputies, and a few ministers who had been helping him
seek salvation. Clark declined an opportunity to address the crowd, but a
minister delivered a message on his behalf: "May the youth who are present take
warning by my sad fate, not to forsake the wholesome discipline of a parent's
home."

With thousands of people watching, Clark then quietly and calmly slipped his
head into a noose. Within minutes, he was dead. It was a sobering time for the
citizens of Salem, who groaned and sighed audibly during the final moments of
Clark's life.

Clark's hanging was often recalled in the following decades as some in
Massachusetts pushed to abolish the death penalty. "Had Clark been imprisoned for
his fire no one would have remembered him a year later," Banner notes, "but
because of his death sentence Clark dangled in public memory far longer than he
had lived on earth."

By the late eighteenth century, a new spirit of reform -- coupled
with the country's first wave of prison construction -- had markedly reduced the
frequency and visibility of executions. By the mid-1800s, most hangings took
place in a jail yard, with few witnesses. And by the turn of the twentieth
century, executions had become even more clinical and private -- first with the
introduction of the electric chair, then with the gas chamber, and finally
through lethal injections. Banner does a masterful job of describing how the
gruesome technology of death evolved through the years, and how early
experimental devices meant to bring on death more humanely sometimes went awry.

By the late twentieth century, of course, capital punishment had been
transformed. Although the basic concept is the same as it ever was -- to punish
offenders in the severest possible way, and to serve as a deterrent for other
would-be criminals -- the way a death sentence is carried out from beginning to
end is altogether different today. For starters, most death sentences are now
appealed repeatedly, and most people are on death row for a decade or more.
What's more, a jumble of political, racial, and socioeconomic factors now play
into every death-penalty case. Nothing, Banner tells us, is uniform or
predictable -- or fair.

"The execution itself has been hidden from public view," Banner writes, "but
the issue of capital punishment has grown extraordinarily visible." He notes
growing concern about the possibility of innocent people being executed but
acknowledges that capital punishment has remained popular. Indeed, even as one
poll showed that 91 percent of respondents believed that innocent people in the
United States are sentenced to death, support for the death penalty usually
registers in the 60 percent or 70 percent range. Still, a highly publicized case
of a sympathetic prisoner wrongly executed could eventually tip public opinion in
the other direction, Banner speculates.

In his final pages, Banner also entertains two other possibilities of how the
death penalty might be curbed: The U.S. Supreme Court could revisit the issue or
state legislatures could abolish capital punishment (only 12 states currently do
not have the death penalty). Both paths seem unlikely, he says. Certainly the
road through the state legislatures would require a significant shift in public
opinion.

Banner's book does not mince words about the current state of things. "Mercy
had been banished from the system, replaced by an arcane set of rules that
haphazardly selected who would live and who would die," he writes. How we got to
this point is what makes this book so fascinating and worthwhile.

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