In Peculiar Institution: America’s Death Penalty in an Age of Abolition, David Garland explains how capital punishment has persisted in the United States after being outlawed in all other Western nations. The endurance, he says, stems from the manner in which the American death penalty has come to bear the distinctive hallmarks of America’s political institutions and cultural conflicts. Below, Professor Garland outlines his anthropological approach to the topic and explains the implications of his book’s title. David Garland is Arthur T. Vanderbilt Professor of Law and Professor of Sociology at New York University. Peculiar Institution is new this month.
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When I talk to people about my book on capital punishment, the first thing they invariably ask is, “Is your book for it or against it?” The answer, I tell them, is neither.
In its discussion of America’s death penalty, Peculiar Institution diverges from the familiar cultural script that shapes most of our conversation. Instead of treating capital punishment as a moral dilemma to be debated, a policy problem to be resolved, or a constitutional question to be settled, the book approaches the institution as a strange social fact that stands in need of explanation.
Most books and articles engage the normative debate, arguing for or against the practice. This one steps back from the fray and tries to take a cool, clear-eyed look at an institution that causes more than its share of consternation and puzzlement. Instead of criticizing America’s 21st century death penalty or defending it against its critics, Peculiar Institution engages the task of explanation: Why do we have this institution? Why does it look the way it does? What functions does it perform for American society and the wider culture? In other words, I approach America’s contemporary system of capital punishment – and the prolix debates and discourses that swirl around it – with the sorts of questions and concepts that anthropologists bring to bear on the exotic cultural practices of a foreign society they are struggling to understand.
The second thing my interlocutors invariably ask is: “Why is the book entitled Peculiar Institution?” After all, isn’t the death penalty a familiar American institution that everyone knows? What is “peculiar” about that? And occasionally someone will ask if “peculiar institution” isn’t the name that southerners used to give to the institution of racialized slavery and which Kenneth Stampp memorably described in his classic book of that name?
Here is what I reply:
The death penalty is certainly familiar in the US, particularly in the southern states where most executions now take place. But in the UK where I grew up, and in the rest of the western world, capital punishment has long since been abolished and is widely regarded as a violation of human rights. Europe became a death penalty-free zone in 1981 when France finally dismantled its guillotine and in the years since, membership of the European Union has come to be conditioned upon abolishing the death penalty.
And, in any case, not every US region embraces the death penalty and thinks of it as a traditional practice. Let’s not forget that although America is the last western nation to retain the death penalty, it was also one of the first to abandon it. States such as Michigan, Wisconsin and Rhode Island abolished capital punishment in the middle of the 19th century, and these states, together with a dozen others, are still abolitionist today.
And although it is true that most Americans have an opinion about capital punishment – a majority of them telling pollsters that they favor it as a punishment for murder – few of us are well informed about what the law actually says or how the system actually works. How many know, for example, that less than 1 percent of all homicides result in a death sentence? Or that two thirds of such death sentences are subsequently overturned on appeal? Or that those offenders who are put to death have typically waited more than twelve years for their sentence to be executed, and in some cases more than 30 years?
And yes, the original “peculiar institution” was indeed southern slavery and that too has long since been abolished. But slavery’s legacy continued long after the Emancipation Proclamation – in Jim Crow, in southern lynching, and in race discrimination, as well as in the civil rights struggle to render these illegal – and this long legacy has left its mark on the death penalty’s subsequent history and jurisprudence. It is no coincidence that most executions today occur in the same states where lynchings took place one hundred years ago, or that the Supreme Court has made the prohibition of lynch-like process the central plank in its death penalty decisions.
As I argue in the book, the American death penalty is peculiar insofar as it is the only capital punishment system still in use in the West. It is peculiar insofar as the forms through which it is now enacted are ambivalent and poorly adapted to the stated purposes of criminal justice. And it is peculiar inasmuch as today’s capital punishment law and practice have been shaped, time and time again, by the nation’s history of racial violence and the legal struggle against it. Understanding these peculiarities – and the society that produced them – is what Peculiar Institution sets out to do.
“But”, my interlocutors persist, “does your dispassionate empirical analysis have any implications for our fundamental question? Can it help us decide whether capital punishment is right or wrong?” I think it can. But only if you are prepared to allow historical, sociological and comparative information to shape your moral thinking. And that is a deep question for a different conversation.
