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Why the death penalty still exists in the US

Author ties the practice to slavery, racism

By Kenneth J. Cooper
Globe Correspondent / October 22, 2010

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Why does the United States, alone among Western democracies, still have the death penalty? It’s not a new question, but David Garland, a distinguished professor of law and sociology at New York University, provides fresh answers from a multilayered analysis.

In a review of several centuries of the death penalty, Garland shows it has passed through the same phases in the United States and Europe. Executions have evolved from gruesome, public displays of governmental power and impassioned expressions of revenge to more humane methods implemented in an orderly fashion behind prison walls.

Garland finds the death penalty’s evolution has been shaped by the emergence of thought that values individuals, including the convicted; a bourgeois refinement that recoils at bloody scenes; and a penal system that has made executions as a matter of punishment, not sovereign will.

What then accounts for the persistence of the death penalty laws on the books of 35 states and the federal government?

The title hints at the most provocative part of Garland’s answer. In American history, the “peculiar institution’’ is slavery. Anyone who thinks its vestiges were wiped out by the Emancipation Proclamation or civil rights laws should read this book and think again.

Until the 1970s, the United States and Europe were headed toward abolishing the death penalty, which other Western nations had accomplished by the 1980s. In Europe, abolition occurred through acts of one-party parliamentary systems or decrees from constitutional courts, even if public opinion favored the death penalty.

In 1972, the Supreme Court came close to doing likewise when it ruled existing death penalty statutes unconstitutional. That decision was the outcome of a campaign by the NAACP Legal Defense Fund, which built on arguments that executions in Southern states amounted to “legal lynchings’’ of black men who, for instance, were the only defendants receiving death sentences for rape (of white women).

The moment of abolition was near, but slipped away. Majority public opinion shifted from opposing capital punishment to supporting it. Garland attributes the change to a reaction that cast the death penalty as “a litmus test in the politics of crime control, a powerful symbol of states’ rights, and a prominent part of a conservative backlash against civil rights.’’ Racism, he notes, was encoded in all three.

State after state adopted laws reinstating the death penalty, using elaborate procedures the Supreme Court laid out in a series of decisions. When the court restored capital punishment in a 1976 ruling, its strategy “was to permit the death penalty but prohibit lynch-like procedures,’’ Garland writes.

As conservative Republican appointees came to dominate, the court grew unconcerned about the racially disparate outcomes.

The implementation of the death penalty, which has become concentrated in the South, remains tainted by race because it is administered by elected judges, prosecutors, and juries whose actions reflect local sentiment, including racial prejudices where they still prevail, Garland concludes.

What about those procedural protections? One is that juries, not judges, must hand down death sentences. Garland notes the practice started in the South. In 1841, Tennessee and Alabama were the first states to give juries that kind of discretion. The purpose was to let jurors mete out harsher punishment to black defendants.

Kenneth J. Cooper, a Pulitzer Prize winner and former Globe staffer, is a freelance writer in Boston. He can be reached at kenjcooper@verizon.net.

PECULIAR INSTITUTION: America’s Death Penalty in an Age of Abolition By David Garland

Harvard University,

417 pp., $35