Vol. 25 No. 6 (June 2015) pp. 99-101

AMERICA’S EXPERIMENT WITH CAPITAL PUNISHMENT: REFLECTIONS ON THE PAST, PRESENT, AND FUTURE OF THE ULTIMATE PENAL SANCTION by James R. Acker, Robert M. Bohm, and Charles S. Lanier (eds). 3rd edition. Durham, North Carolina: Carolina Academic Press. 2014. 759 pp. ISBN: 978-1-61163-385-6.

Reviewed by Mary Welek Atwell, Department of Criminal Justice (retired), Radford University,

This is a classic collection of articles written by many of the most prominent scholars in the field of capital punishment. It has been released in a third edition, following earlier versions published in 1998 and 2003. Given the size and scope of the book, it would seem to be designed primarily for use in classes focusing on the death penalty for upper level undergraduate or graduate students. It would certainly expose such students to many of the significant questions and issues they should explore in learning about how capital punishment functions in the United States.

Like all anthologies, AMERICA’S EXPERIMENT WITH CAPITAL PUNISHMENT provides articles of varying appeal. Perhaps the volume would be more valuable if it were a bit less inclusive. A problem is not that the topics are insignificant, but rather that some the chapters are dated. The late Ernest van der Haag’s famous article on deterrence (a reprint of an earlier version) is largely of historic interest as it was widely discussed when first published several decades ago. With very little data, he maintains not only that the death penalty prevents murders but also that abolition would be immoral. The next article “Is Capital Punishment an Effective Deterrent for Murder,” which cites research that challenges van der Haag’s thesis is an exact reprint of the article from the 2002 edition. Again, although the arguments are interesting, much work has been done in the thirteen years since its earlier publication. Chapter 10, “Is Capital Punishment an Effective Deterrent for Murder: An Updated Review of Research and Theory,” is, as the title indicates, more current. It not only raises questions about the validity of the rational choice theory that underlies arguments in favor of deterrence, but looks at research that examines other decision-making models. A student wishing to become familiar with contemporary research on the issue would do well to concentrate on this chapter by Apel, DeWitt, and Bellandi.
A lengthy piece (over 40 pages), “Roots” by Robert Blecker focuses on the Old Testament and ancient Greece as sources of guidance for current capital punishment policy. He argues that an alternative to abolishing the death penalty is finding a “jurisprudence of informed emotion,” a moral intuition that will not do away with capital punishment but allow the procedure to be justly administered. He seems to suggest that the impulse to execute murderers is fundamentally inseparable from human nature. He does not explain why the United States is almost alone among developed countries in legitimizing this impulse.

But articles with a strong legal and scholarly framework are more typical of the anthology. There are several that trace the evolution of death penalty law in the United States focusing on different elements of the system. Chapters on jury selection and death qualification, adequacy of attorney representation, and sentencing elements and procedures provide excellent information and raise valuable questions. [*99] Several chapters, such as Acker and Lanier’s section entitled “Beyond Human Ability? The Rise and Fall of Death Penalty Legislation,” discuss the evolution and the ultimate future of the death penalty by noting changes in the law since the 1970s. Among other things, they argue that all attempts to ensure that no innocent people are executed have fallen short. They, along with most of the other contributors, maintain that capital punishment in the United States is not “fixable,” but will end through a combination of incremental changes in the law and declining public support. Acker and Lanier’s article provides a good example of both the strengths and weakness of the volume. The subject is of vital importance and the questions are significant. That is true of most of the chapters. However, a number of the articles go over exactly the same ground—detailing the historical evolution of death penalty law since FURMAN v. GEORGIA (1972). Could the editors have reduced the duplication by asking authors to abbreviate this part of their contribution and focus on the questions raised by legal developments rather than repeatedly explaining the same Court decisions? Another problem may stem from the enduring popularity of this book. Because this is a third edition, articles often seem insufficiently revised and updated. The reader, seeing cited research from the 1990s, wonders whether anything of more recent vintage might be included. With a few exceptions, all chapters do incorporate some issues, sources, and court decisions since the 2002 edition. Unfortunately, sometimes these additions appear only in the concluding section, as if tacked on to the earlier version.

The death penalty in the United States is a moving target. Significant developments have occurred in just a year since this book was published in 2014. There is no way for a published volume to keep up with the exact statistics on death sentences and executions. Nor can such a work necessarily include the most recent Supreme Court decisions and their implications. However, the chapter by Deborah Denno, “America’s Experiment with Execution Methods,” came as close as possible to remedying these problems. It appeared that Denno completely revised her previous work to reflect developments in the last decade. Not only did she provide a thorough discussion of BAZE v. REES, the 2008 Supreme Court decision that upheld Kentucky’s lethal injection procedure, she included all possible subsequent developments almost, it seemed, up to the date of publication.

To further illustrate the shifting quality of the subject, one could note that in its last term the Supreme Court upheld the lethal injection protocol used in Oklahoma. GLOSSIP v. GROSS (2015) raised challenges stemming from several horrendous executions where inmates had appeared to suffer excruciating pain before dying. The case was notable not only because the majority of justices once again chose not to find fault with a state’s method of execution but also because of the eloquent dissent by Justice Breyer. Along with Justice Ginsburg, Breyer called for a full review of death penalty law. He employed many scholarly sources (some included in this volume) to raise questions about the reliability, the arbitrariness, and the purpose of capital punishment. One could not teach about capital punishment without a discussion of GLOSSIP. Furthermore, in the 2015-16 Term, the Court will consider the role of juries in capital sentencing. State legislatures will take up everything from abolition to limiting death sentences for the mentally ill. Given the uncertainty of the future of the death penalty, it may well be that one could derive the greatest educational benefit from AMERICA’S EXPERIMENT WITH [*100] CAPITAL PUNISHMENT by assigning students to go beyond the chapters and to investigate what has happened to change the capital punishment landscape since the articles were published.

BAZE v. REES, 553 U.S. 35 (2008).
FURMAN v. GEORGIA, 408 U.S. 238 (1972).
GLOSSIP v. GROSS, 14-7955 (2015).

© Copyright 2015 by the author, Mary Welek Atwell.