CAPITAL PUNISHMENT: A HAZARD TO A SUSTAINABLE CRIMINAL JUSTICE SYSTEM
by Lill Scherdin (ed.). Surrey, England: Ashgate Publishing, 2014. 319 pages. Cloth $129.95. ISBN: 978-1-4094-5719-0.
Reviewed by Jack Call, Department of Criminal Justice, Radford University
Because capital punishment remains an important and highly visible topic, new books on the subject are common. As a result, it is a challenge for each of these books to demonstrate that it makes a significant contribution to the continuing discussion about the legitimacy of the death penalty. With some minor, but significant, exceptions, this book falls a bit short of meeting that goal.
The book consists of fifteen chapters, divided into five sections, and clearly opposes capital punishment. The first section consists of three chapters on the topic of “Governance and the Death Penalty.” The first chapter, written by the book’s editor, makes a distinction between liberal democracies (with very limited coordination of market economies) and coordinated democracies (characterized by “tripartite coordination of workers’ unions, employer organizations and the government”). Scherdin argues that countries with liberal democracies are more likely to retain the death penalty than countries with coordinated democracies. The second chapter focuses on “Death as Punishment” and presents a passionate argument against not only the death penalty but harsh punishments generally. The next chapter discusses “Why the Death Penalty is Disappearing.” The primary point seems to be that liberalism, democracy, and a change in cultural attitudes toward “civilizing” and “humanizing sentiments” typically bring about abolition of the death penalty.
There are two recurring themes in these three chapters (and the Foreword, written by a former Norwegian Minister of Justice). The first theme is the remarkable lack of a public outcry for vengeance in Norway in the aftermath of the terrible tragedy in July of 2011 when a disgruntled madman killed 77 people by bombing a government office building and systematically shooting 69 participants in a political party youth summer camp. The other theme is a disappointment in the continued adherence to the death penalty by the United States. None of these chapters does a particularly good job, though, of setting the stage for the chapters that follow.
Part Two consists of two chapters on the United States. While both obviously focus attention on the use of the death penalty in the U.S., they add little to the ongoing debate. The first chapter, “The American Enlightenment: Eliminating Capital Punishment in the United States,” does include an interesting (although relatively brief) discussion of the attitudes of the Founding Fathers about criminal punishments and argues that they were not as enthusiastic about capital punishment as many contemporary commentators (especially judges) seem to assume. The other chapter (“Clear and Ever-Present [*273] Dangers? Redefining ‘Closure’ in a Post 9-11 World”) focuses on an important subject – the extent to which executions bring closure to the surviving family members and friends of murder victims. However, the discussion is limited to the impacts of only two events – the state killings of Timothy McVeigh and Osama bin Laden – and never makes clear why its findings are relevant to the death penalty debate.
Part Three (Asia) consists of five chapters discussing the status of the death penalty in Japan, South Korea, Taiwan, China, and India. This makes a valuable contribution for comparative scholars who are interested in learning how other countries are dealing with the death penalty debate.
The chapter on Japan poses (for Japanese scholars) nine hypotheses that might explain why the country has elected to retain capital punishment. The South Korea chapter attempts to explain why the country has not executed anyone since 1996, in spite of evidence that the public strongly supports the death penalty. The chapter examines the role of the executive, legislative, and judicial branches and concludes that the executive branch is primarily responsible for the moratorium on executions, apparently stemming from a desire to increase the international standing of the country by demonstrating support for human rights. The significance of the executive is reinforced in the chapter on Taiwan, which presents evidence that both a moratorium on executions from 2006-2010 and a return to executions after 2010 were the products of decisions by different Taiwanese presidents.
The chapter on China presents a case, based in large part on public opinion polls, that the continued frequent use of executions is not so much a product of strong public insistence upon a continued use of executions as a means of public vengeance (a commonly heard explanation) as it is a desire by elite groups to maintain a certain level of control of the masses. The India chapter documents a decreasing use of executions from 1985-2012 (with only one execution from 1997-2012). The author explains the execution of two terrorists in late 2012 and early 2013 as based on a concern by national political leaders that a failure to permit these executions would be perceived as being soft on terrorism. As a whole, these five chapters provide the reader a great deal of information about death penalty trends in the five major Asian countries, along with insights that might explain these trends.
Part Four (Countries with Majority Muslim Populations) is not as strong as the previous section of the book. The first of the three chapters in this section is written by a Muslim imam who presents fourteen ways in which Islam can avoid imposition of the death penalty and provides some useful insights into connections between the Quran and capital punishment. The other two chapters discuss recent death penalty trends in Morocco and Indonesia. The Morocco chapter is written by a Moroccan attorney who points out that a provision in the new Constitution passed in 2011 establishing “the right to life [as] the primary right of every human being” provides the judiciary an opportunity to find the death penalty unconstitutional. He also identifies several factors that provide a [*274] possible political foundation for elimination of the death penalty. The chapter on Indonesia devotes considerable attention to the commonly heard arguments everywhere against the death penalty before turning its focus to the particulars of the situation in Indonesia. That discussion recounts the recent death penalty experience there, but it lacks much in the way of explanations for recent experience, especially the absence of executions since 2008.
The concluding section, entitled “Reflection and Outlook,” contains only two chapters. The first of these talks about sustainability, justice, overlapping consensus, and constitutionalism, but the connections among those concepts are not made clear. The concluding chapter (“Staying Optimistic”), on the other hand, is one of the strongest in the book. Roger Hood, a frequent consultant to the United Nations on death penalty matters, provides a very good overview of the world situation on capital punishment and the existing conditions that provide some basis for optimism that more countries will abolish the death penalty. Interestingly, though, he returns to an earlier theme in the book, criticizing the U.S. for providing “cover” to those countries that retain the death penalty by its refusal to abolish the death penalty.
In a recent issue of Law and Politics Book Review, Mary Atwell reviewed another collection of essays on capital punishment by the same publisher. She concluded that the book she reviewed “offers perspectives on capital punishment, but it is not clear that a collection of articles that somehow touch on the larger subject is enough for a coherent book.” She also concluded that “[i]t is likely that libraries will be the major purchasers of this volume. And if, in their collections, it is available to students and researchers who want to consult a particular chapter, it will be a useful addition to the literature on capital punishment.” Those comments apply equally to this book. Several of the chapters – on the status of the death penalty in other countries and the future of the death penalty internationally – will be of great use to students of the capital punishment debate. The other chapters will have much more limited appeal and utility.
Copyright 2014 by the Author, Jack Call.