One of the more interesting and paradoxical characters in the debate over capital punishment is the person on the political right who attempts to combine the libertarian suspicion of the state with support for capital punishment. Such a person, like George W. Bush or Ronald Reagan, affirms that the power of the state should be carefully scrutinized and drastically restricted, except when it proposes to deprive citizens of their lives.
Austin Sarat, the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst, takes the more consistent position of distrusting the state—especially when it is engaged in inflicting capital punishment. His new book is entitled When the State Kills, and his primary focus is not on victims or defendants in capital cases but on the ways in which the state brings American citizens to see capital punishment as both an exercise of popular sovereignty and a demand of justice. The strength of the book lies in the attention the author gives to the connections between capital punishment and broader cultural and political issues. Thus Sarat perceptively discusses demands for the televising of executions and the representation of executions in recent films. As a result, this is one of the most original and lively books on capital punishment in a long time.
Sarat is well informed about both the legal and the social aspects of capital punishment and brings these together very effectively in his treatment of the way in which increased attention to the rights of victims has helped to legitimate the return of vengeance, particularly in the sentencing phase of capital trials. He offers analyses of the standard narratives of violence which alert us to opportunities for racial bias to insert itself into the deliberations of jurors; but he goes too far in asserting that “participants in the legal system—whether white or black—demonize young black males, seeing them as more deserving of death as a punishment because of their perceived danger.” This is a conclusion that, by reason of its breadth and lack of careful substantiation, manifests a reliance on the stereotyping and the generalization from selected instances that are characteristic deformities of racist thinking.
Sarat’s deepest interest lies in challenging the standard view of individual responsibility that is rooted in our cultural traditions and enshrined in our legal system. It is particularly revealing that he faults the film version of “Dead Man Walking” for its conservative cultural assumptions with regard to individual responsibility and conversion. This, of course, is not a highly persuasive strategy in our culture; and it is not likely to win Sarat many sympathizers in the mainstream of American politics or in the religious world. But even though he overreaches in his desire to discard notions of individual responsibility, Sarat is right in wanting us to ask questions about the ways in which American society bears responsibility for the harm done by those of its citizens who become murderers. The patterns of both crime and punishment illustrate the continuing power of racism in American society and in the criminal justice system. When we assess capital punishment in the American context, this becomes an important reason for concluding that capital punishment is an unnecessary and unreliable instrument of justice, a conclusion that stands even if we think that Timothy McVeigh was an abominable murderer and a deluded fanatic.