Why Do You Think They Call It CAPITAL Punishment? Reading the Killing State
Simon, Jonathan, Law & Society Review
Why Do You Think They Call It CAPITAL Punishment? Reading the Killing State Austin Sarat, When the State Kills: Capital Punishment and the American Condition. Princeton, NJ: Princeton Univ. Press, 2001. xii + 324 pages.
Introduction: The Death Penalty and Socio-Legal Scholarship
Austin Sarat is widely known for work on cause lawyering, divorce lawyers, and white collar crime, and for influential arguments on behalf of integrating humanities topics and methods into empirical studies of law and society. Sarat is not, however, particularly known as a death penalty scholar, an intensive sub-field of socio-legal studies that has been dominated by scholars wholly captured by the compelling nature of the subject.1 A reader of Sarat's bibliography would have to go back to 1976 when Sarat, as a young political scientist, published research coauthored with an equally junior psychologist, Neil Vidmar, on how public opinion on the death penalty was affected by targeted education on particular aspects of the death penalty including empirical studies doubting its deterrent effects, and on other information designed to raise concerns about the justice of capital punishment (Sarat & Vidmar 1976). In terms of both its methodology and the logic of its inquiry, When the State Kills could hardly differ more from the Sarat and Vidmar study. Between the two, one can mark significant shifts in both the enterprise of sociolegal studies and the place of capital punishment in American political culture.
The 1976 study of public opinion on the death penalty reflected its time in two ways. First, the authors exemplified the flow of young social scientists trained in empirical methods (especially survey research) at the best university social science centers into legal studies via foundation grants and access to prestigious law schools. Theirs was the promise of research that was simultaneously about conjectural policy issues and fundamental questions of social order (Garth & Sterling 1998). It is hard to think of a question that more powerfully presented the hopes and fears of this largely liberal, reform-oriented cohort than the subject of the death penalty and in particular Justice Marshall's provocative claim in Furman v. Georgia (1972) that only if Americans were truly confronted with the racism and arbitrariness of the death penalty in America could their continued assent (if it was indeed forthcoming) indicate that the death penalty was still acceptable in terms of the 8th Amendment's evolving standards of human decency. This is because whether or not a punishment is cruel and unusual depends, not on whether its mere mention "shocks the conscience and sense of justice of the people," but on whether people who were fully informed as to the purposes of the penalty and its liabilities would find the penalty shocking, unjust, and unacceptable. (Furman v. Georgia 1972:361).
Second, the study reflected a sense that American public opinion on the death penalty was fluid and in transition. The young socio-legal scholars drew a random sample of subjects living conveniently in the town where one of them taught (not a particularly representative place, to be sure) on their views regarding different aspects of the death penalty. During the course of the interview, subjects were shown short essays containing critical information about the death penalty as unfair, error prone, and discriminatory. Sarat and Vidmar's results offered at best partial support for Marshall's hypothesis. Knowledge about the empirical failures of the death penalty-that is, its lack of deterrent value, only moved those most marginally supportive of the death penalty to begin with. New information about the unfairness of the death penalty led respondents to view the death penalty as less fair overall but, disturbingly, did not erode their general support for it. Despite the rapid pace of legal changes and the fact that a slight majority had opposed the death penalty in the late 1960s, by 1976 public opinion had already swung decidedly in favor of the death penalty and showed little likelihood of shifting through new information (Banner 2002:275). …