by Jennifer L. Culbert. Stanford, CA: Stanford University Press, 2007. 248pp. Cloth. $55.00. ISBN: 9780804757454. Paper $21.95. ISBN: 9780804757461.

Reviewed by James R. Acker, School of Criminal Justice, University at Albany. Email: acker [at]


You do not want this book for your Death Penalty 101 class.

Jennifer L. Culbert, an Assistant Professor in the Department of Political Science at Johns Hopkins University, holds a PhD in Rhetoric. In this book she uses the Supreme Court’s capital punishment jurisprudence as a vehicle to study “the problem of judgment,” an inquiry that dissects the language and methodologies used by the justices in their evolving efforts to legitimate decisions resulting in the penalty of death. This terrain is fertile because of the manifest difficulty in achieving consensus about what conduct, committed by which individuals, under what circumstances, merits the ultimate punishment. The conceptual ambiguities of these boundaries are compounded by the limitations of the lexicon on which we must rely to capture them, and our inevitable dependency on fallible actors within the justice system to implement them. These are the very conditions under which the problem of judgment becomes most acute: “where shared criteria for determining what is good or just are lacking” (p.3), we cannot rely on rote formulas and mechanical classification. Judgment must be exercised. “How we understand the validity of the claims we make, and how we expect others to accept and respect these claims (particularly when these claims may lead them to harm) is the question with which this book is concerned” (p.3).

How, then, to reveal the complexities involved in the problem of judgment? Culbert invokes Friedrich Nietzsche’s history of metaphysics, “How the ‘Real World’ at last Became a Myth: History of an Error,” as set forth in TWILIGHT OF THE IDOLS (1998). She does so because the problem of judgment, first and foremost, is metaphysical in nature, which is to say that it fits within “the philosophical study of the fundamental nature of reality and being” (p.4).

If these early signals do not alert readers that this is not your typical death penalty volume, they will soon discover that Nietzsche is merely the protagonist in an extensive cast of distinguished philosophers. In chapter one alone we are introduced to Plato, Kant, Mill, Habermas, Heidegger, Arendt, and Foucault, among others. Many more will follow. The challenge is to move seamlessly from Zarathustra to ZANT v. STEPHENS (1983), from Max Weber to MCGAUTHA v. CALIFORNIA (1971), from CRITO and Socrates to cruel and unusual punishment and Justice Stewart, transitions which also adorn the book’s pages.

Only the intrepid will reach chapter two and beyond, although there is reason to endure. [*602]

The contrast could not be more stark between Culbert’s abstract foray into philosophy, legal reasoning, and the metaphysics of judgment, and books such as David Von Drehle’s AMONG THE LOWEST OF THE DEAD: THE CULTURE OF DEATH ROW (1995), and David R. and Mark Dow’s edited collection, MACHINERY OF DEATH: THE REALITY OF AMERICA’S DEATH PENALTY REGIME (2002) – books which depict the decidedly untidy, rough and tumble, bordering on chaotic, politically dominated, anything-but-philosophical world of capital punishment.

Culbert surveys the cerebral, rather than the visceral realm of punishment by death and the justifications for it.

In doing so she draws parallels between Nietzsche’s history of metaphysics and the Supreme Court’s ongoing quest to rescue modern death penalty law from the unprincipled abyss that had characterized capital punishment when FURMAN v. GEORGIA (1972) declared it unconstitutional as then administered. This analytical framework is apt because the Court’s continuing attempts to ground post-FURMAN death penalty doctrine within a framework of reason is reminiscent of what Nietzsche identifies as a fundamental error in his philosophical exposition: “the positing of an eternal, absolute, immutable essence as the actuating principle and primal element . . . of philosophy, which metaphysics, through reason, seeks to discover, reveal, or reclaim” (p.6). In other words, much as modern death penalty doctrine has gone from pillar to post in search of unifying precepts and agreement about the appropriate goals and objects of capital punishment, “philosophers try to grasp what is but fail and then look for reasons to explain their inability to comprehend the ‘thing in itself’” (p.7).

The book thus juxtaposes the six stages of the history of metaphysics described by Nietzsche and the evolving jurisprudence of death developed by the Supreme Court, all the while mining insights about the problem of judgment. This journey is certain to take readers down paths they have not heretofore explored. The way stations are as exotic as they are thought provoking.

Culbert argues that the Supreme Court, mirroring Nietzsche’s exegesis, entered the constitutional fray with the assumption that capital punishment is capable of being and in fact is grounded on core truths – a “real world” – that embrace desert, justice, responsibility, blameworthiness, and related concepts. It further assumed that such truths are knowable and can be revealed through the evidence and processes employed in the “apparent world” – the actual sentencing decisions made by juries and judges pursuant to law. The Court’s initial jurisprudence confidently embraced these assumptions, investing heavily in the proposition that the new, guided-discretion legislation approved in GREGG v. GEORGIA (1976) and companion cases would embrace offenders and offenses imbued with essential “death-worthiness,” and that this real world quality would be revealed or manifested in the apparent world of capital sentencing decisions.

Premises shifted and analysis was transformed as experience dampened the justices’ early optimism. Culbert describes how the Court’s ensuing [*603] doctrinal evolution jibes with Nietzsche’s depiction of the stages marking the history of metaphysics. She enlists ZANT v. STEPHENS (1983) to portray how reason yields to metaphor in explaining the decision process in capital cases. TISON v. ARIZONA (1987) illustrates the ascending importance of the assumption that shared communal norms underlie and account for death penalty judgments. The justices’ authorization of victim impact testimony in PAYNE v. TENNESSEE (1991), in repudiation of earlier cases that had disallowed such evidence (BOOTH v. MARYLAND (1987) and SOUTH CAROLINA v. GATHERS (1989)), is interpreted as another paradigm shift. In this turnabout, the Court exhibits a new-found preference for the real world experiences of murder victims’ survivors as validating sentencing principles, replacing its prior commitment to the ability of observable norms to disclose the legitimating grounds of judgment. “[W]ith the PAYNE decision, the Court makes an absolute of pain and suffering and maintains the legitimacy of a rule of law threatened by uncertainty” (p.111).

The last stage in Nietzsche’s history of metaphysics is marked by the realization that with the abolition of the “real world,” i.e., a loss of faith in the existence of absolute or core principles that represent the truth, we must also abandon our allegiance to the “apparent world” on which reliance has been placed to divulge those elusive truths. This conclusion follows because “it is only in relation to the real world that the apparent world ‘is’ as such” (p.128). The advent of DNA analysis, and our corresponding new ability to bring the appearance of certainty to judgments, Culbert maintains, imported significant new implications for capital punishment. Yet the “certainty” introduced by DNA, the newly found scientifically-grounded power to establish identity, is of limited value in this context. The quest for truth in death sentencing is not so neatly reducible to objective facts. We must still interpret and give meaning to the facts. We must make judgments. Properly construed, DNA technology has only made this obligation clearer and the problem of judgment all the more paramount.

Culbert concludes by analyzing “the experience of judgment” and its component parts, which consist of: (1) an act, (2) an agent, (3) the judge’s competence, and (4) the judgment’s effects. The experience of judgment is complex and in some respects mystifying. In particular, a delicious gap separates the raw ingredients of a decision and the decision itself. A judgment embodies an affirmative, creative act, taken by a “sovereign-like” agent, within a larger web of relationships, with consequences that may not be fully intended because of the diverse community in which it will be given effect. All of these attributes are discernible in the Supreme Court’s evolving death penalty jurisprudence embracing FURMAN v. GEORGIA (1972) and beyond. In this context, “judgment is an act that brings a new interpretation of the world into being and, in so doing, reorients the world, more or less violently excluding other possibilities for beginning” (p.158). Perhaps moving beyond the culminating stage of Nietzsche’s history of metaphysics, where worlds both real and apparent are forsaken, Culbert ultimately embraces the potentially revitalizing prospects of making new beginnings. [*604]

Minor lapses occur in the book where, inexplicably, the decision dates accompanying Supreme Court cases repeatedly lag one year behind the actual decision dates. For example, ZANT v. STEPHENS (1983) (pp.23, 50, 141), BOOTH v. MARYLAND (1987) (pp.89, 90), SOUTH CAROLINA v. GATHERS (1989) (pp.89, 90), and PAYNE v. TENNESSEE (1991) (pp.88, 89, 91) are all incorrectly cited as having been decided one year earlier than they truly were. Moreover, on occasion, only readers schooled in navigating the dense and nearly inaccessible verbiage that is the hallmark of some philosophical writing will find their way through passages within the volume. Thankfully, these challenges are relatively infrequent and do not indelibly mar Culbert’s generally lucid style.

Culbert’s thesis is complex, her frame of reference novel, and her thoughts run deep. Philosophers, rather than lawyers, and doctoral students, rather than undergraduates, will be most likely to take advantage of her creative marriage of metaphysics, the jurisprudence of capital punishment, and the problem of judgment.

Dow, David R., and Mark Dow (eds). 2002. MACHINERY OF DEATH: THE REALITY OF AMERICA’S DEATH PENALTY REGIME. Routledge: New York.

Nietzsche, Freidrich. 1998. TWILIGHT OF THE IDOLS, OR, HOW TO PHILOSOPHIZE WITH A HAMMER. Trans. Duncan Large. Oxford University Press: New York.

Von Drehle, David. 1995. AMONG THE LOWEST OF THE DEAD: THE CULTURE OF DEATH ROW. Times Books: New York.

BOOTH v. MARYLAND. 1987. 482 U.S. 496.

FURMAN v. GEORGIA. 1972. 408 U.S. 238.

GREGG v. GEORGIA. 1976. 428 U.S. 153.

MCGAUTHA v. CALIFORNIA. 1971. 402 U.S. 183.

PAYNE v. TENNESSEE. 1991. 501 U.S. 808.

SOUTH CAROLINA v. GATHERS. 1989. 490 U.S. 805.

TISON v. ARIZONA. 1987. 481 U.S. 137.

ZANT v. STEPHENS. 1983. 462 U.S. 862.

© Copyright 2008 by the author, James R. Acker.