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Garland Reevaluates Death Penalty

For The Heights

Published: Wednesday, October 3, 2012

Updated: Wednesday, January 9, 2013 19:01

On Wednesday, Oct. 3, the Boston College Law School and the Clough Center for the Study of Constitutional Democracy hosted a colloquium on capital punishment in the United States. David Garland, Arthur T. Vanderbilt Professor of Law and professor of sociology at New York University, gave a lectured titled “Peculiar Institution: America’s Death Penalty in an Age of Abolition.” Discussing the research he conducted while authoring a book with the same name, Garland argued that the death penalty as it exists in the U.S. is a “unique cultural and historical phenomenon.” He pointed out that capital punishment has, in the past 300 years, gone from a “cultural universal” to a “violation of human rights.” The U.S.’s retention of this institution contradicts the vast majority of other liberal nations, which Garland attributed to “the very distinct brand of American constitutional democracy” afforded to states by the Constitution.

Garland spoke about the history of capital punishment and described it as an institution that was inherently necessary in times when governments had less tangible social control. When U.S. citizens think of cruel and unusual punishment as outlawed in the Bill of Rights, they often think of the draconian methods used to torture and execute enemies in medieval times. This form of capital punishment, often in the form of public spectacle, was necessary to retain political legitimacy in those times. The advent of the modern state led to a more institutionalized and codified judicial and political system. This, in turn, brought about police forces and other mechanisms that effectively eliminated the need for capital punishment.

Garland then turned his attention to the U.S., where, he says, the death penalty exists as an “anomalous, radical, local, and populist” institution. The entire EU and most nations with similar legal systems have abolished executions. Garland proposed that the U.S. still carries them out because of the weight that both state governments and the electorate carry in the American political system.

“The specter of racism begins to emerge with every empirical study,” Garland said. According to him, the chances of a death sentence being handed down rise dramatically if the victim is white or the defendant African-American.

Such a disparity, Garland argued, reflects the political nature of the judicial system absent in other Western nations. He contended that the willingness to execute is a result of the power of the electorate. He said that research shows that for district attorneys and judges, the ones most responsible for pursuing capital punishment, “it is possible to trace the timings of executions to elections.”
Although European countries may have abolished the institution, Garland continued, it was not a popular decision. Seventy-three percent of French voters and 76 percent of British voters were in favor of capital punishment the year it was abolished.

“The power to punish, especially in a lethal capacity, being given to local authority is really rather unusual,” Garland said, but not surprising in a nation that “never succeeded in disarming population and monopolizing violence.”

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