All Bathwater, No Baby: Expressive Theories of Punishment and the Death Penalty

By Bandes, Susan A. | Michigan Law Review, April 2018 | Go to article overview

All Bathwater, No Baby: Expressive Theories of Punishment and the Death Penalty


Bandes, Susan A., Michigan Law Review


ALL BATHWATER, NO BABY: EXPRESSIVE THEORIES OF PUNISHMENT AND THE DEATH PENALTY

COURTING DEATH: THE SUPREME COURT AND CAPITAL PUNISHMENT. By Carol S. Steiker and Jordan M. Steiker. Cambridge: The Belknap Press of Harvard University Press. 2016. Pp. 322. $29.95.

INTRODUCTION

The death penalty in the United States is rooted in two anachronistic traditions. The first is the Puritan ethic, which provides a respectable pedigree for a practice that today bears little connection to the concerns of the Puritan era. The public hangings of that era, for example, deployed the execution as a ritual that would cleanse the soul of the condemned and encourage god-fearing behavior from the assembled crowds. But executions are no longer public affairs. They no longer communicate, if they ever did, a collective message of redemption and moral education. They occur in quiet, closed chambers, more an antiseptic procedure than a shared public ritual. Capital punishment as practiced today is best understood not in light of its religious roots, but in light of its other U.S. precursors: slavery and the use of lynching to enforce a racial caste system after slavery was abolished.

Carol Steiker and Jordan Steiker1 call the Court's refusal to acknowledge the role of race in capital punishment the "original sin" of U.S. death penalty jurisprudence (p. 3). In Courting Death: The Supreme Court and Capital Punishment, they take the measure of this jurisprudence, considering whether the Supreme Court is capable of reining in the arbitrariness and unfairness that characterize the U.S. capital system. It will surprise no one that the Steikers,2 the "most influential legal scholars in the death penalty community,"3 have produced a fair-minded, richly textured account of the fraught relationship between capital punishment and the United States Supreme Court. The book will repay reading by both educated general readers and legal scholars-including knowledgeable scholars in the field. The Steikers are abolitionists and advocates, and they are straightforward about their commitments, but readers who don't share those commitments will not feel short-changed.

One irony of a fair-minded doctrinal analysis is this: it calls into question the limits of legal doctrinal tools for shedding light on the forces that shape and sustain capital punishment in the United States. As the authors explicitly recognize, capital punishment doctrine often serves as little more than window dressing, providing a false sense of coherence and legal legitimacy to prop up a regime that is both arbitrary and discriminatory.4 And race is at the heart of this disconnect. It is the key to understanding the origins of U.S. death penalty and the formidable challenges to its fair implementation.5 Yet the Court's increasingly elaborate doctrinal framework never confronts race directly.6

The Steikers argue for the importance of recognizing the uniqueness of the "novel third course" our Supreme Court has charted "between the options of retention and abolition" (p. 40). The United States came tantalizingly close to abolishing the death penalty in Furman v. Georgia in 1972.7 But instead of finding the death penalty itself unconstitutional, the Court in Furman focused on the procedural flaws that produced an "arbitrary and capricious" death penalty.8 This approach left a crack in the door, and the states rushed through with newly crafted statutes9 that the Court approved just four years later in Gregg v. Georgia.10 As a result, in the odd hybrid state that came to characterize U.S. death penalty jurisprudence, abolition was off the agenda, but detailed regulation was put in place with the goals of ensuring fairness and consistency. The Steikers argue that this regulatory regime has created the worst of both worlds: the appearance of careful or even overzealous scrutiny, but little actual constitutional protection for the rights of defendants.11

This book is clear-eyed and appropriately unsentimental about the politics of the death penalty. …

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