Howard Tolley

The Killing State: Capital Punishment in Law, Politics, and Culture (review)

On the twenty-fifth anniversary of the Supreme Court’s decision in Furman v. Georgia,1 Professor Austin Sarat convened a conference at Amherst College to consider how state killing affects law, politics, and culture. Participants contributed ten chapters for a volume that indicts capital punishment on all counts—with one exception. In a provocative analysis, Anne Norton approves of revolutionary violence against tyrants, but disapproves of executions conducted by democratic majorities against individuals from disfavored powerless groups.2 Professor Hugo Adam Bedau, a wellknown death penalty abolitionist, offers a substantive due process legal analysis as an alternative to the moral and policy arguments generally offered by allies in the movement.3 He acknowledges that US Supreme Court Justice Harry A. Blackmun explained his conversion to the abolitionist position in terms of due process and equal protection. Bedau conducts a thorough critique of classical philosophers and post-war human rights norms that approve of execution in cases of serial, multiple, or recidivist killers. His absolute opposition to capital punishment rests on a conviction that the state should use no more force than necessary to achieve legitimate objectives. Rejecting vicarious revenge as an unacceptable motive for punishment under law, Bedau asserts that society can achieve public safety through means less invasive and less violent than executions. Bedau and Sarat both consider fairness the most promising argument for persuading conservatives to the abolitionist position. Indeed, the American Bar Association has called for a moratorium on executions until trial procedures that disadvantage racial minorities and the poor can be reformed. Professor Jonathan Simon and Public Defender Christina Spaulding convincingly demonstrate how identity politics dictate legislators’ addition of new aggravating factors to justify execution.4 Since the Supreme Court deregulated death penalty statutes, state lawmakers have gone far beyond the core list of aggravating factors identified by the elites who drafted the Model Penal Code. Hype about gangs and drive-by shootings, elderly Floridians’ vulnerability, gay bashing, racially motivated hate crimes, and domestic violence has privatized public policy in a system of “governing through crime.”5 Interest group politics of the scaffold generates new aggravators to protect special victims. Professor Franklin E. Zimring examines inconsistencies in Supreme Court