- The Washington Times - Tuesday, June 11, 2002

In the spring of 1821, hundreds of spectators gathered in Salem, Mass. to catch a glimpse of Stephen Clark climbing the scaffold to his death. With a ceremony "embedded in ritual," Clark was hanged for setting fire to a barn at night, then a capital offense. "Executions are very different today," observes Stuart Banner in "The Death Penalty: An American History." In this thorough history, Mr. Banner traces the dramatic changes in the methods and perceptions of capital punishment from the 17th century to the present.
In the 17th century, American colonists adopted a laundry list of capital crimes robbery, burglary, arson (Clark's offense), counterfeiting, theft, rape, treason, manslaughter and murder. As Mr. Banner aptly points out, most supporters of capital punishment today would "recoil" at the notion of executing thieves or counterfeiters, reserving the death penalty for the "gravest crimes." The earliest executions were open public hangings accompanied by a procession, sermon and gallows speech. The public ceremony permitted the community to obtain retribution by assigning criminal responsibility to the accused and conveyed a message of terror intended to deter members of the audience from committing future crimes.
By the early 19th century, nearly every state moved executions to the jail yard and with time, inside prison doors. Mr. Banner contends that executions lost deterrent value once removed from the public eye: "The sort of people most likely to need deterring were those least likely to be invited to an execution." Deterrent value, however, remained because of the introduction of the newspaper in the mid-1800s. As Mr. Banner admits, journalists' "lavish" descriptions of executions "allowed readers a vicarious experience in place of the real one that was now being denied." With the invention of the radio, television and now the Internet, individuals have more exposure to death row inmates' stories and their executions than ever before. The extensive media coverage of Texas inmate Carla Tucker's execution in 1998 is proof of the increased visibility of the death penalty in public life and with increased visibility, the death penalty has likely gained deterrent value.
Furthermore, the success of the 1996 Welfare Reform Act, based on principles of personal responsibility (obtaining a job), makes it difficult to argue that Americans have given up on personal responsibility. Further, the more than 600,000 convicted criminals locked up in jail cells across the country is evidence of Americans' continued belief in personal responsibility and approval of retributive justifications for criminal sentencing, including capital punishment.
The invention of electricity in the late 19th century transformed capital punishment. In 1888, Harold Brown, an engineer hired by Thomas Edison, developed and perfected an electric chair. Mr. Banner writes that although the first execution was "bungled" the success of subsequent electrocutions "put to rest any lingering doubts as to the efficacy of the electric chair." By 1950, most of the northern and southern states operated electric chairs, while western states implemented the gas chamber as their means of execution.
The 20th century brought the temporary demise of capital punishment. In 1972, the Supreme Court in Furman vs. Georgia struck down the death penalty as cruel and unusual punishment in violation of the Eighth Amendment. In 1976, in a set of five cases known as Gregg vs. Georgia, the Supreme Court found the mandatory death penalty statutes unconstitutional, but upheld the sentencing schemes that guided juries with aggravating circumstances. Following Gregg, all states moved to enact guided discretionary sentencing schemes.
Technological advancement in the 21st century has reshaped the death penalty debate. In January 2001, Illinois Gov. George Ryan, troubled over death row inmates exonerated by DNA testing, issued a moratorium on further executions. While DNA evidence raises concerns, Mr. Banner wrongly suggests that more exonerations will lead to the demise of capital punishment. The O.J. Simpson trial called into question the trustworthiness of DNA evidence. Assuming DNA evidence is dependable, its future use will create greater certainty in the administration of death penalty sentences, ensuring that capital punishment is limited to those who truly are guilty. Greater certainty will give the public greater reason to support the death penalty.
Whether you support or oppose capital punishment, with the Supreme Court considering two high profile death penalty cases this spring, Mr. Banner's book is timely, thought-provoking reading for anyone wishing to explore the legal and intellectual underpinnings of the death penalty debate.

Kristen K. Schultz is oversight counsel to the House Judiciary Committee. The conclusions and opinions expressed in the article are exclusively those of the author.

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