
American capital punishment is inherently contradictory, and it's these contradictions that Zimring tries to work through in this book. His previous books on the subject are more rigorously scholarly, with lengthier and more inclusive bibliographies, with more foot- and endnotes (or with any notes at all) and more pointedly trying to convey information first and the author's agenda second. This book is the opposite in many ways: it is very personal, it is expansive and abstract while remaining analytical, and it is focused on capital punishment
per se as much as -- or maybe more than -- the nuances of the practice and its implementation.
Zimring identifies and works through three basic contradictions involved with capital punishment: first, there is the American predilection, not elsewhere reflected within comparable nations and populaces, toward viewing the death penalty not as a human rights issue, nor as an issue of state power, but as a "simple" law-and-order issue. In fact, Zimring correctly identifies the curious trend at work within American discourse on capital punishment, and that is to turn it into a "service" question:
I find a degovernmentalization of the image of death penalties and executions in the United States, that is, an attempt to reimagine executions as a service that the government provides to the relatives of crime victims rather than as a manifestation of the power of the state. (14)The consequence of this, Zimring notes, is to mute any abolitionist attempts to turn the death penalty into a broader human rights or limits of state power issue; a second consequence is to turn the entire process into a transaction, which remains necessarily incomplete until the final action in the performative "sale" -- the execution -- is carried out. This is the dominant theme in the discourse, the fact that merely a bare fraction of capital charges result in executions notwithstanding (in fact, this is but another contradiction of American capital punishment).
A larger consequence, that Zimring hints at rather than stating outright -- and deals with more effectively as a result -- is the question of the citizenry's willful obliviousness to the extent of governmental power, and the power that comes with an ability to transform the extension of state power by couching it within "service" language:
This symbolic transformation of execution into a victim-service program provides three powerful functions for the death penalty in the United States. First, it gives the horrifying process of human execution a positive impact that many citizens can identify with: closure, not vengeance. Second, this degovernmentalization of the rationale of the death penalty means that citizens do not have to worry about executions as an excessive use of power by and for the government. When “closure” is the major aim of lethal injections, the execution of criminals becomes another public service, like street cleaning or garbage removal, where the government is the servant of the community rather than its master.
The third function of the transformation of execution into a victim service gesture is that it links the symbolism of execution to a long American history of community control of punishment. (62)The second contradiction that Zimring identifies is the well-documented conflict within Eighth Amendment jurisprudence. Here the contradiction is between the legal requirement that capital juries have sentencing guidelines so as to limit their discretion in capital cases -- stemming from the Supreme Court's 1972 decision in
Furman v. Georgia -- and the requirement that each case be given individual consideration, which stems from the Supreme Court's 1976 decision in
Gregg v. Georgia. Supreme Court Justice Antonin Scalia is far from a lone in noting the contradiction at work here, but this is well-traveled ground, and Zimring dedicates less time and space to this contradiction than to the others he considers.
As part of the "legal" contradiction, though, Zimring indulges his own abolitionism to argue strenuously -- and correctly -- against the injustice of the contemporary variety of death penalty "reforms." These reforms -- and here Zimring singles out (but very briefly, unfortunately) the 1996 Anti-Terrorism and Effective Death Penalty (AEDPA) Act as an example -- target the most visible but least understood part of the capital punishment process: the time between sentencing and final action, whether execution, clemency or otherwise. The fact that the public at large does not understand the processes at work during this delay makes it easy for politicians to "reform" the system to ensure "swifter justice." The problem, Zimring notes -- again, correctly -- is that the reforms are nothing more than a rollback of legal protections for the condemned. The object of legislative reforms over the past two decades has been to enact legal regulations and procedural requirements that make it progressively more difficult to rectify any errors that may have occurred at the original jury trial. This is no small matter -- before AEDPA, better than 60% of capital sentences were overturned on appeal due to serious constitutional errors in the trial. The solution, the various legislatures at the state and national levels found, was to roll back constitutional protections and make it more and more difficult, through such procedural niceties as default, for a defendant to challenge the legality of their sentence.
Zimring uses Roger Keith Coleman as an example of the problems with default. Virginia law required Coleman to file a brief outlining the claims he was going to make at the state appeals level within 30 days of his conviction. His lawyers filed that brief 33 days afterward -- three days too late. Rather than waive the violation (which one could reasonably assume was quite independent of the defendant himself and for which the blame rested solely on his counsel [which, in a more perfect system, would open a potential federal
habeas claim of ineffective assistance of counsel -- except for the fact that federal caselaw does not recognize a right to counsel beyond the mandatory state
habeas process]), the Virginia Supreme Court procedurally defaulted Coleman's appeals, ensuring that they could not be heard. Coleman, in effect, could not appeal his sentence due to his lawyers' errors. This is the sort of action that is at the heart of this contradiction. In trying to show that they're committed to strengthening the system, legislatures have created rules that unjustly harm defendants when they are most vulnerable: in the crucial post-trials processes. In order to make the system more effective, legislatures have elected to make it fundamentally less fair. There is no small irony in this, and neither is there much to say about it, other than to agree whole-heartedly with Zimring's conclusions that this is a reprehensible turn of events. For my part, I only wish I thought that Thurgood Marshall's analysis were correct, but while Justice Marshall believed that the public would turn away from capital punishment were they to learn how it truly worked, I, unfortunately, believe that the majority -- enough, in other words -- would simply continue not to care.
Zimring's third contradiction is something I've had an eye on for some time myself, but he expresses it very eloquently. This also is a speculative contradiction, as he acknowledges, because the quantitative data simply does not exist. The third and final contradiction that Zimring sees is between the "due processers" -- those who believe that dispassionate implementation of the law is the correct recourse to criminality, and who place an emphasis on the limitations the law imposes on the state, thereby supporting a full enactment of due process rights for the accused -- and the "vigilantes," a self-explanatory category.
Here Zimring's arguments are the most speculative, because there is the least amount of data to support them. How does one measure statistical due process sentiment vs. vigilante sentiment, for instance? The questions could probably be asked to at least achieve a rough estimate, but Zimring points out that they have not yet been systematically asked.
The "vigilante values" in question are difficult to unpack, but a careful and attentive read will reveal the complexity of even posing the question. Asserting "vigilante values" as a controlling factor means that these values must be strongest -- and their counterparts the weakest -- where the death penalty reigns supreme: the American South. When the question is phrased in terms of "vigilante values," and when the geographic disparity centers on the old Confederacy and the border states, there are a number of natural follow-up questions that immediately suggest themselves and demand to be considered, to say nothing of the question of violence itself and why the South is the most violent region in the country. As a consequence, Zimring's argument here becomes the most expansive, and there are several detailed critiques that can be made, depending on the data one reads and uses.
One such critique that I would make briefly centers on the following quotation:
The vigilante mindset is one in which the citizen assumes that criminals are clearly identified enemies of the community rather than members of it. The community has the right to defend itself against these alien enemies, and any legal prerequisites to punishment are resented as unnecessary and potentially disabling.A similar sentiment has been expressed by Robert Jewett and John Shelton Lawrence in their books
The Myth of the American Superhero and, especially,
Captain America and the Crusade against Evil: The Dilemma of Zealous Nationalism. I would object, however, to the idea that the criminal exists outside the community; this does not seem to me to paint the full picture. Rather, I think that an examination of the rhetoric involved actually has two parallel but somewhat contradictory functions. First, the criminal is generally absorbed into the community rhetorically; rather than pushed away and relegated to "outsider" status -- the second rhetorical step -- the criminal is first rhetorically moved within the bounds of the community. This first step, which Zimring overlooks in his arguments, is critical -- it is this rhetorical internalization of the criminal that gives the community warrant to punish the criminal; the criminal rhetorically is an inside of sorts, though clearly a fallen insider, one whom the community is bound to punish because he is one of them. This is the simultaneous move to the outside that Zimring begins with: Once the criminal is acknowledged as a member of the community who can be punished, he is rhetorically moved back outside of the community, so as to become an "outsider" meriting punishment for his sins and misdeeds. Zimring's argument is an excellent beginning for such rhetorical considerations of the locative features of death penalty discourse; it would have been a more profound argument, however, had he not begun mid-stream.
This is one of several objections that could be raised to the theme that runs through the book, that the contradictions of American capital punishment are those that arise from the fundamental, irreconcilable conflict between "due process" values and "vigilante" values. Zimring's book also covers well-traveled ground in many ways: the sections dedicated to the failure of the courts impose standards for sentencing that satisfy the contradictory requirements of
Furman and
Gregg, the Southernization of the death penalty and the geographic disparity that this represents, the racial and economic biases in the system -- all of these are important, and all of these are dealt with at length elsewhere. That said, however, Zimring's book is very valuable is in its speculative efforts -- the claims that it makes but cannot fully substantiate. Even though these claims cannot be "proven" in any quantitative sense, they can be -- and need to be -- considered and pondered. I do not agree with Zimring's claims completely, and believe that his analysis of the problem of vigilantism is but a good start to a consideration of that problem, but this book is essential reading for anyone who wishes to understand how the death penalty works in the United States. It will not provide a nuts-and-bolts accounting of the process, but it will guide an interested reader through many of the core intellectual and cognitive difficulties that the issue presents.