Death Penalty in Decline? The Fight against Capital Punishment in the Decades since Furman v. Georgia
Author: Austin Sarat (editor)
Publisher: Temple University Press, 2024. 248 pages.
Reviewer: Sishi Wu | September 2024
Around the 50th anniversary of the landmark ruling in Furman v. Georgia, the Washington Post commented that “the legacy of Furman is as significant as it is complicated” (Bellware, 2022). Death Penalty in Decline? The Fight Against Capital Punishment in the Decades since Furman v. Georgia brings back into focus the significance and complexity of the ruling in a timely manner, more than 50 years after Furman. Over a half-century seems to be ample time to assess the impacts of Furman, and now we are “at a time when the United States is in the midst of an unprecedented national reconsideration of the death penalty” (p. 4). On the one hand, Furman has changed the death penalty debate and contributed to the decline of executions. The center of the debate has shifted from the morality of the death penalty to its administration. The abolitionists have learned to aim low instead of aiming high and adopted the new language in the discourse. The contributors in this book noticed that “the death penalty is dying” (p. 167) and that “Furman did save a lot of lives” (p.221). On the other hand, the question mark in the title of this book, as well as the characterization of the “current zombie form” of the death penalty (p. 221), indicates that there are more nuances and unresolved issues in the continuing struggle over this topic.
The structure of this book helps gradually immerse readers in the interpretation of the Furman ruling and progressively reveals the complexity of its impact. The first two chapters focus more on the ruling itself, with each chapter contributing to one element of the Eighth Amendment. Chapter 1 synthesizes the discussion of whether the death penalty is cruel, and Chapter 2 examines whether it is usual. Chapter 3 serves as a good transition from the Furman opinion to the new problems of the death penalty today. Compared to the purely legal perspectives in Part I (i.e., the first three chapters), chapters in Part II approach the death penalty discussions from more diverse angles, including religion, history, political science, and philosophy. Chapter 4 delves into the dynamics between the Supreme Court and the Catholic Church regarding the death penalty. Chapter 5 compares the similarities and differences in the status of the death penalty between Furman’s era and today. Chapter 6 brings the discussions to a new level of depth. While other chapter contributors more or less express optimism when considering how the death penalty will end, the last chapter goes beyond this form of state violence. The chapter author, James Martel, believes that while the death penalty can be abolished, the “entire killing machine” will continue to exist.
Some common themes across different chapters are inspirational for both theoretical and empirical research. For example, although none of the chapters directly touch on this question, does the US care more or less about the death penalty compared to the Furman era? The answer is implicit. Sara Mayeux notes in Chapter 4 that the Catholic Church was able to mobilize fewer people and unite fewer allies against capital punishment, as compared to the pro-life movement. Not only the Catholics, but other people are also less concerned about capital defendants. In Chapter 3, Carol and Jordan Steiker notice that “the death penalty has all but disappeared as a salient issue in elections, except in some notable local district attorney races in which opposition to the death penalty appears often to be a political asset rather than a liability” (p. 121). Meanwhile, the “tremendously salient” aspect of the death penalty discussion is its high cost (p. 98). In Chapter 5, Corinna Lain identified the cost of capital punishment as one of the differences in abolition then and now, and as an important reason for states’ “decision to abolish the death penalty” (p. 181). If an issue is worth our concern, taxpayers and lawmakers are willing to allocate more money for it. The declined salience of the death penalty itself and the increased salience of its cost are sending signals of unworthiness. This is how the bottom-up approach departs from the top-down approach, and how practical concerns outweigh the examination of human rights and human values featured in the first two chapters. The irony underlying the current decline of capital punishment is noteworthy: it is dying not because we care more, but because we care less.
The authors did not overlook retribution, although not many justices openly addressed it in Furman. Chapter 6 includes an anecdote about how Justice Lewis Powell’s clerk prevented the Justice from saying “society has a need for revenge” in the opinion for Gregg v. Georgia. But retribution is something that can hardly be avoided in the death penalty debate since it is part of human nature. As the Gregg ruling later writes, “The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law” (cited on pp. 211-212). In his concurrence opinion in Furman, Justice Thurgood Marshall acknowledges the demand for vengeance but argues that we are better than that: “It is undoubtedly correct that there is a demand for vengeance on the part of many persons in a community against one who is convicted of a particularly offensive act.…the Eighth amendment is our insulation from our baser selves” (cited on p. 216). But can we really be insulated from our baser selves? Have we evolved out of retributivism? Linda Meyer observes that “only ten years after Furman retributivism became not only acceptable but the dominant theory of punishment across the country” (p. 74). Similarly, the retributive movement “lasted for at least a quarter century and was embraced by both Republican and Democratic politicians” (p. 95), according to Carol and Jordan Steiker. Up until 2014, retribution (e.g., “an eye for an eye,” “they deserve it”) was still the top reason why the public supported the death penalty (Gallup, 2024). Moreover, revenge is not just human nature reflected by community sentiment; James Martel argues that it is also inherent in “law itself for its own nonexistence” (p. 212). After 50 years, maybe it is time for scholars to re-examine whether the retributive need has changed, or whether it could change at all.
One theme that I wish to see more discussion about is the other causes of the backlash effect of Furman. Corinna Lain describes this backlash as “one of the most dramatic legislative backlashes that the nation had ever seen” and identifies the Furman decision itself as the “clearest cause of the backlash” (pp. 184-185). Lain devotes several lines to other factors that may be responsible for the backlash. But the backlash did not just happen in the legislature. It is also “political” (p. 14) and social (see p. 101, for example). Other sociopolitical factors could help readers grasp the broader context of the backlash. Essentially, exploring other causes of the Furman backlash probes into this question: What kind of society is ready for a total or permanent abolition? Carol and Jordan Steiker provide an answer from a legal perspective: “As state after state has abandoned capital punishment in the light of its persistent pathologies, and as even retentionist states have stopped or dramatically reduced their use of the death penalty, there is little likelihood that a constitutional abolition will evoke the kind of outraged backlash that greeted Furman in 1972” (p. 125). And I expect answers from other perspectives to be equally compelling. Many abolition efforts today are enacted in response to the Furman backlash. Identifying additional causes of the backlash could enhance and reinvigorate these efforts, providing a more comprehensive strategy for advocates working towards a society free of capital punishment.
Taken together, this book theoretically answers, or tries to answer a series of important questions, like what is missing in Furman, how that shapes the current status of the death penalty, and what is going to happen in the future. In 2008, Frank Baumgartner and his colleagues published The Decline of the Death Penalty and the Discovery of Innocence. While both focus on the decline of the death penalty, Baumgartner et al.’s piece is largely empirical, and this book is theoretical. Coincidentally, the different tones used in the otherwise similar titles of their piece and this book represent different styles of empirical and theoretical work. Empirical scholars often try to simplify the questions and provide affirmative answers. Theorists, on the other hand, are not afraid of offering complicated answers, uncertain answers, or no answers at all. As accurately summarized by the editor of this book, Austin Sarat, “While the direction of change seems clear to all of the authors whose work is collected here, it is not yet certain whether and when this period of decline might bring an end to America’s death penalty” (p. 16). For those who are interested in the death penalty, we are lucky that many questions in this realm are empirically testable. We are equally lucky that some answers are never simple. After all, as the German legal scholar Gustav Radbruch (1963) once said, “How superfluous an existence would be, if the world was not ultimate contradiction and life was not decision in the end.”
References:
Kim Bellware, Death Penalty’s 50-Year Rise and Fall Since Supreme Court Struck It Down, Wash. Post, July 6, 2022, at B6.
Death Penalty, Gallup , https://news.gallup.com/poll/1606/death-penalty.aspx (last visited Oct. 23, 2024).
Gustav Radbruch, Aphorismen zur Rechtsweisheit (1963).
Sishi Wu is an Assistant Professor of Criminal Justice at California State University, San Bernardino.
