Academic journal article American Journal of Criminal Law

The Death Penalty and Mass Incarceration: Convergences and Divergences

Academic journal article American Journal of Criminal Law

The Death Penalty and Mass Incarceration: Convergences and Divergences

Article excerpt

I. Common Political Background Conditions....................................................190

II. Mutually Reinforcing Policies........................................................................194

III. Recent Divergences........................................................................................197

IV. "Death is Different" as a Double-Edged Sword.............................................200

V. Life After Death.............................................................................................204

VI. Conclusion......................................................................................................207

American penal policy over the past forty years is striking in its departure both from the policies of our own recent past and from those of our peer nations. With regard to capital punishment, despite a steep downward trajectory in executions nationwide during the 1960s, falling to zero in the five years leading up to the temporary abolition of Furman v. Georgia* 1 in 1972, the death penalty came back with a vengeance in the years following its reinstatement in Gregg v. Georgia2 and accompanying cases in 1976. By the late 1990s, death sentencing rates and execution rates reached highs that the United States had not seen in fifty years, while every other Western democracy converged on abolition as a reflection of a growing consensus that the death penalty constitutes a violation of international human rights.3 With regard to incarceration practices, the American imprisonment rate increased five-fold in the decades between 1970 and the early 2000s, yielding a total current incarceration (prison and jail) rate of over 700 per 100,000 of population-the highest rate in our own history and in the world.4

A cursory survey of these parallel trends yields the plausible observation that the continued retention of the death penalty and the huge increase in the incarceration rate are joint indications of the hearty American appetite for punitiveness. Under this view, super-sized sentences and the embrace of the ultimate sanction of death are linked phenomena, reflecting a common underlying political and social reality and tracing a common trajectory. As with many simple, broad-brush observations, there is much truth in this account. But there is also reason to question and complicate this assessment. Although the stories of the American death penalty and what has come to be called our policy of "mass incarceration" have many commonalities, they also have significant divergences-not least of which is the noticeably much more massive decline in capital practices over the past dozen years, as compared to the far more modest and recent declines in incarceration. Moreover, the two phenomena are not independent of each other; rather, arguments, policies, and law relating to the death penalty have had complicated, multidirectional spillover effects in the context of incarceration, and vice versa.

Our goal is to explore in more fine-grained detail the convergences, divergences, and interactions of the death penalty and mass incarceration over the past several decades. We first address the convergences, identifying the common political background conditions and mutually reinforcing policies that promoted both the enthusiastic retention of the death penalty and the surge of the incarceration rate from the 1970s onward. We then discuss the divergences, both as a matter of practices on the ground and at the conceptual and constitutional levels. Finally, we turn our attention to the future, imagining possible routes to nationwide abolition of the death penalty and the likely impact on incarceration and the broader criminal justice system.

I. Common Political Background Conditions

In the early 1970s, the Supreme Court's decision in Furman constitutionally invalidating the practice of capital punishment through the country was greeted with consternation and even outrage, despite the dramatic declines in executions of the previous decade. …

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