No Resolution in Sight

By Shiffman, Stuart | Judicature, May/June 2011 | Go to article overview

No Resolution in Sight


Shiffman, Stuart, Judicature


No resolution in sight by Stuart Shiffman Peculiar Institution: America's Death Penalty in an Age of Abolition, by David Garland. Belknap Press/Harvard University Press. 2010. 432 pages. $35.

In January of 2011, the Illinois Legislature approved a bill to abolish the death penalty in the state. Governor Pat Quinn announced that he would take time to decide whether he would sign or veto the bill and met with both supporters of capital punishment and advocates for abolition. He announced that he was reading various books on the subject. Finally, in early March, the Governor signed the bill and commuted the death sentences of 15 inmates on death row.

As he announced the decision, the Governor displayed a copy of Public Justice, Private Mercy, written by California Governor Pat Brown. That book chronicled Governor Brown's battle of conscience during his tenure as Governor from 1959 to 1967, when the law required him to make the life and death decision to grant or deny clemency. The book was published in 1989 and remains an important work in the death penalty debate.

Explaining his decision to abolish the death penalty, Governor Quinn never mentioned a more recent study of capital punishment, Peculiar Institution: America's Death Penalty in an Age of Abolition, by David Garland. One hopes that he considered this indispensable book in his deliberations. Anyone seeking to understand why our nation cannot come to grips with capital punishment, neither effectively implementing the ultimate sentence nor abolishing it completely, should consider Professor Garland's outstanding contribution to the literature and discussion of the death penalty.

Governor Quinn's decision was not the final word in this debate. The debate is centuries old and while the contemporary pendulum swings towards abolition, history tells us the pendulum may well swing in the other direction. The vast majority of death penalty literature consists of polemic attacks on capital punishment or tales of wrongful conviction. Such books feed on society's emotional view of the issue.

Garland sought a different path for his study. He did not seek to show the death penalty being botched ór improperly administered. Instead, Peculiar Institution describes and explains American capital punishment in all its complex, controversial detail, exploring its relationship to the society that sustains it. Ironically, despite its intended neutrality, the book ends up making a vigorous argument that the death penalty is unwise and unjustified. Viewpoints on the death penalty will not be changed by the book because, as Garland properly observes, the passions and interests of both sides have long since destroyed any ability to achieve consensus for or against the death penalty.

Why the death penalty?

Why is America the only remaining democracy that still uses the death penalty? Peculiar Institution seeks to answer that question and does so with a discussion applicable not only to capital punishment but to the criminal justice system at large. Our nation's attitude towards the death penalty cannot be separated from the fact that America imposes the most severe criminal penalties in the free world. We incarcerate more individuals for longer sentences than any other free-world country. Whether intended or not, Professor Garland's insights into our fascination with the death penalty have important ramifications for the entire criminal justice system.

Warren Burger served as Chief Justice during many years of the death penalty legal debate. It was the Burger Court in Furman v. Ceorgia, 408 U.S. 238 (1972), that declared diat procedures in place in the various states constituted cruel and unusual punishment. Justice Potter Stewart's concurring opinion recognized that "These death sentences are Cruel and unusual in die same way that being struck by lightning is cruel and unusual" because those who are given the death penalty are "among a capriciously selected random handful.

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