Routledge Handbook on Capital Punishment

Robert M. Bohm, Gavin Lee, Robert M. Bohm, Gavin Lee

• Publisher: Routledge
• Year: 2017
• Print ISBN:
  9780367199371
  9781138651579
• Edition: 1
• eBook ISBN:
  9781317229834
• Topic: Law
• Subtopic: Criminology
• Index: Law

Capital punishment is one of the more controversial subjects in the social sciences, especially in criminal justice and criminology. Over the last decade or so, the United States has experienced a significant decline in the number of death sentences and executions. Since 2007, eight states have abolished capital punishment, bringing the total number of states without the death penalty to 19, plus the District of Columbia, and more are likely to follow suit in the near future (Nebraska reinstated its death penalty in 2016). Worldwide, 70 percent of countries have abolished capital punishment in law or in practice. The current trend suggests the eventual demise of capital punishment in all but a few recalcitrant states and countries. Within this context, a fresh look at capital punishment in the United States and worldwide is warranted.

The Routledge Handbook on Capital Punishment comprehensively examines the topic of capital punishment from a wide variety of perspectives. A thoughtful introductory chapter from experts Bohm and Lee presents a contextual framework for the subject matter, and chapters present state-of-the-art analyses of a range of aspects of capital punishment, grouped into five sections: (1) Capital Punishment: History, Opinion, and Culture; (2) Capital Punishment: Rationales and Religious Views; (3) Capital Punishment and Constitutional Issues; (4) The Death Penalty's Administration; and (5) The Death Penalty's Consequences.

This is a key collection for students taking courses in prisons, penology, criminal justice, criminology, and related subjects, and is also an essential reference for academics and practitioners working in prison service or in related agencies.

Part 1
Capital Punishment: History, Opinion, and Culture

A.
History

1
The American Death Penalty

A Short (But Long) History

John D. Bessler

An Indigenous (But Imported) Punishment

American executions, in one form or another, predate colonial times. In Native American cultures, tribal customs—as law professor Jeffrey Kirchmeier points out—“allowed for something comparable to the death penalty” (Kirchmeier, 2015, p. 45). Although Indian tribes had no formalized mechanisms, jails, or gallows to arrest, confine, try and convict, or punish murderers, by custom revenge belonged to the male relatives of a murdered victim. “Those kin,” one historian explains, “lost face as cowards, and suffered enduring anxiety, if they failed to secure blood revenge, for no spirit of the murdered could rest or give his (or her) kin peace until avenged.” “Ideally,” that historian, Alan Taylor, notes, “the vengeful tracked down and dispatched the actual killer, who might flee but was expected to submit if found.” For example, one missionary, David McClure, reported seeing “a confronted Iroquois murderer calmly sit down to sing his death song while the avenger smoked a pipe for twenty minutes before plunging a tomahawk into the singer’s skull.” If the actual killer could not be located, one of the killer’s relatives might be singled out for revenge, sparking a blood feud between the affected families that tribal leaders felt compelled to address. “Rather than execute a murderer,” Taylor explains, “the chiefs sought to restore harmony by persuading the kin of the dead to accept presents from the kin of the killer.” This ancient practice—known as “covering the grave”—took place in public ceremonies and effectively forfeited the kin’s right to seek revenge (Taylor, 2006, pp. 29–31, 139, 195, 260, 264, 298, 327).¹

Native Americans despised colonial laws, with one eighteenth-century colonist, Guy Johnson, emphasizing that Indians were “universally averse to our modes of Capital punishment” (Taylor, 2006, p. 30). “Historically,” another source explains, “Native American tribal members were governed more by societal taboos and traditions than by rules and laws” (Miller, 2012, p. 1198). In ancient Hawaii, for example, the kapu system cemented the social structure, with Hawaiians who offended the social order swiftly put to death for violating sacred prohibitions. As historian Joseph Mullins has explained of this “taboo” system: “Criminals and violators of kapu were punished by strangulation or clubbing. Sometimes abuses of power took place when an arrogant chief ordered the execution of a commoner who displeased him in some way” (Mullins, 1978, p. 5). Human sacrifices, another historian of Hawaii notes, “were often selected from kauw (outcast class), whose lives were destined to end as offerings for the gods” (Stone, 2015, p. 18). In Captive Paradise: A History of Hawaii, author James Haley observes: “The usual mode of dispatch was strangulation, often after the victim was tied to a tree.” Other Hawaiians, he notes, were thrown from cliffs or burned for violating a kapu (Haley, 2014, pp. 18, 25, 36, 311).

Archaeological and other historical evidence confirms that Native Americans were frequently killed or put to death even before Europeans reached the New World. One analysis of 900 skeletons of Native Americans, all of whom died before the arrival of Columbus in 1492, revealed that 13.4% of hunter-gatherers (their skeletal remains distributed from South America to southern Canada) showed signs of violent trauma (Pinker, 2011, p. 51).² “At the Cahokia mound (east of St. Louis, Mo.),” one criminology text notes, “a male body, which the evidence indicates to have been a sacrifice (for wrongdoing?) among the American aborigines, was found face down as if he had struggled against being sacrificed” (Mueller and Adler, 1995, p. 68). In Cahokia: Ancient America’s Great City on the Mississippi, anthropologist Timothy Pauketat—writing of the Native American city that flourished from around 1050 to 1400 AD—writes of what archaeologists discovered in burial mounds: “Many bodies buried together suggested to them planned killings, executions, or ceremonial sacrifices and a society characterized by inequality, power struggles, and social complexity.” Among other things, the Cahokia site revealed scores of sacrificial victims, including bodies with severed arms and legs, eighteen bodies (many with fractured skulls) arranged in a circular pattern, and the skeleton of a woman whose arms and legs appear to have been bound (Pauketat, 2009, pp. 23, 27, 69–70, 102–103).

The archaeological evidence, despite the passage of time, is almost as clear as it is gruesome. At one Cahokia mound, dubbed Mound 72, it is believed many of the people buried there were ritualistically sacrificed, “probably to accompany one or more important individuals.”³ At that mound, archaeologists made this grisly discovery: “fifty-three sacrificed women, fifty-two of whom were young (most between the ages of fifteen and twenty-five).” “[I]t is likely,” Pauketat writes, “they were poisoned or strangled or that their throats had been slit.” In a forensic report, bioarchaeologist Jerome Rose lays out what he found in sacrificial pit tombs: “Evidence of violence also distinguishes these burials from the other mass graves. Three individuals had been decapitated prior to being thrown into the pit. The heads were thrown in before the burials were covered.” Of the skeletons found, Pauketat summarizes the archaeological findings:

The toes of many of the bodies “were in contact with the southern wall,” indicating that the people had been standing on the southern rim of the open pit, facing their executioners, awaiting the death blows that came in rapid succession. Most shocking of all, the phalanges, or finger bones, of the prone skeletons dug into the fine white sand, indicating that death had not been instantaneous for some.

(Pauketat, 2009, pp. 65, 69–77)

Native Americans reportedly “executed enemies by torture (and killed suspected witches among their own people),” a form of capital punishment, though their preferred methods of execution differed from those employed by European colonists (Taylor, 2006, p. 31; Meggs, 2012, p. 11).⁴ The word “capital” itself derives from the Latin caput, meaning “head,” with beheading, throughout history, associated with capital punishment and other forms of violent retaliation or vengeance (Latzer and McCord, 2010, p. 1). Indeed, scalping—the taking of part of the human head as a token of a battle’s victory—regularly happened on American soil centuries ago. Some Native American warriors took all of the upper head’s skin, including the ears, while others took only the crown with the victim’s hair. According to one historian:

Although the morbid practice of scalping is much mentioned in modern literature, the Native American tribes didn’t practice it as often as described until the arrival of the white man and the “competition” they introduced. Bounties were paid by the early Europeans for “dead Indians” and scalps were often produced as the proof of death.

“In some tribes, particularly among certain Plains groups,” another writer emphasizes, “decapitation persisted, and a severed head was considered an even greater trophy than a scalp or scalp lock” (Axelrod, 2009, p. 96; Burch, 2004, p. 235).

Stereotypes aside about early Native American use of scalping in warfare, it was—as has been noted—actually European colonists who initially offered monetary rewards for the taking of Indian scalps, no doubt encouraging reciprocal tribal conduct. For instance, during Pennsylvania’s 1756 war with the Delaware, Pennsylvania’s governor offered “130 Pieces of Eight”—a type of Spanish coin—for the scalp of “every Male Indian Enemy” above the age of 12, and “50 Pieces of Eight” for the scalp of “every Indian Woman, produced as evidence of their being killed.” Scalping proliferated as Europeans pushed their way westward, though its use in the Americas—at least to some degree—predated the arrival of European settlers. “[I]n 1535,” one source notes, “an early explorer, Jacques Cartier, reportedly met a party of Iroquois who showed him five scalps stretched on hoops, taken from their enemies, the Micmac” (Martin, 1998, p. 58; Carpenter, 2012, p. 131). In the 1500s, other European explorers—Hernando de Soto and Tristan de Luna—also took notice of scalping (Axelrod, 2009, p. 96).

Of course, Native American cultures are not monolithic—and they never have been. “Before the European exploration and colonial conquest of North America,” David Baker, a scholar of tribal executions, writes, “the indigenous population consisted of more than 700 separate cultural units with deep-rooted civilizations.” Whatever the precise origins of scalping or beheading, what is crystal clear is that executions—whether on a tribal leader’s orders or after cursory trials—were often used by and against native peoples. For instance, it is known that the Powhatan Indians of Virginia made use of executions, with executioners cutting off the men’s hair and hanging it in front of tribal rulers’ homes before offenders were bound or had their bones broken. While still alive, offenders would then be thrown onto fires to die in the flames. In other instances, Indians were clubbed to death for disobedience or their heads were laid on an “altar or sacrificing stone” before being smashed. While most deaths were relatively quick, “notorious” enemies or trespassers faced longer, more painful deaths, with war captives tortured until they died. As Helen Rountree, a professor of anthropology at Old Dominion University, writes: “The usual Powhatan practice was to build a fire and then strip the captive and tie him either to a tree or to stakes. The execution was then carried out either by the town’s women or by a man appointed for the job.” According to Rountree’s account of these grisly affairs: “Using sharp mussel shells, the executioners gradually flayed and cut off the limbs of the victim, throwing the pieces into the fire before the victim’s eyes. At length the victim was disemboweled, which killed him” (Rountree, 1989, pp. 84, 114–117).

Both Indians and white settlers employed executions to intimidate their enemies and to make examples of those who transgressed social customs, laws, or norms. “The first execution of an American Indian,” David Baker explains of the first known use of capital punishment by a colonizing power, “took place when military authorities beheaded Nepauduck in Connecticut in October 1639 for the murder of Abraham Finch, a white man” (Baker, 2007, pp. 315, 317, 320). In The Death Penalty: An American History, UCLA law professor Stuart Banner specifically references that execution, emphasizing:

When tensions between colonists and Indians were running high, an Indian hanged for murdering a colonist might have his head “cutt off the next day and pittched upon a pole in the markett place,” as was the case with Nepaupuck, convicted of murder in 1639, shortly after the initial settlement of New Haven.

(Banner, 2002, p. 74)

As Professor Kirchmeier, of CUNY School of Law, notes of other executions that took place in the years to come: “In 1711, the first Native American woman to be executed under the laws of the white settlers, Waisoiusksquaw, was hanged in Connecticut for killing her husband. The first legal execution in the colony of North Carolina occurred on August 26, 1726, when the colony hanged the Native American George Sennecca for murder” (Kirchmeier, 2015, p. 46).

History is frequently written by conquerors, and European settlers of the New World—despite their own barbaric practices and their rampant abuse of Native peoples—were not shy about recording their own perceptions of the indigenous people they unabashedly called “savages.” For example, in The History of American Indians (1775), a text full of racist language that propounded a then-popular theory that Native Americans were ancestors of the lost tribes of Israel, James Adair—a trader who lived and worked among Native Americans for four decades—made this observation: “The Indians strictly adhere more than the rest of mankind to that positive, unrepealed law of Moses, ‘He who shed-deth man’s blood, by man shall his blood be shed’: like the Israelites, their hearts burn violently day and night without intermission, till they shed blood for blood.” “They transmit,” Adair wrote, “from father to son, the memory of the loss of ...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• CONTENTS
• Contributor Bios
• Introduction
• PART 1 Capital Punishment: History, Opinion, and Culture
• PART 2 Capital Punishment: Rationales and Religious Views
• PART 3 Capital Punishment and Constitutional Issues
• PART 4 The Death Penalty’s Administration
• PART 5 The Death Penalty’s Consequences
• Index