The Cultural Lives of Capital Punishment

Comparative Perspectives

Austin Sarat, Christian Boulanger

• Publisher: Stanford University Press
• Year: 2005
• Print ISBN: 9780804752343, 9780804752336
• eBook ISBN: 9780804767712
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

How does the way we think and feel about the world around us affect the existence and administration of the death penalty? What role does capital punishment play in defining our political and cultural identity?

After centuries during which capital punishment was a normal and self-evident part of criminal punishment, it has now taken on a life of its own in various arenas far beyond the limits of the penal sphere. In this volume, the authors argue that in order to understand the death penalty, we need to know more about the "cultural lives"—past and present—of the state's ultimate sanction.

They undertake this "cultural voyage" comparatively—examining the dynamics of the death penalty in Mexico, the United States, Poland, Kyrgyzstan, India, Israel, Palestine, Japan, China, Singapore, and South Korea—arguing that we need to look beyond the United States to see how capital punishment "lives" or "dies" in the rest of the world, how images of state killing are produced and consumed elsewhere, and how they are reflected, back and forth, in the emerging international judicial and political discourse on the penalty of death and its abolition.

Contributors:

Sangmin Bae

Christian Boulanger

Julia Eckert

Agata Fijalkowski

Evi Girling

Virgil K.Y. Ho

David T. Johnson

Botagoz Kassymbekova

Shai Lavi

Jürgen Martschukat

Alfred Oehlers

Judith Randle

Judith Mendelsohn Rood

Austin Sarat

Patrick Timmons

Nicole Tarulevicz

Louise Tyler

CHAPTER ONE

Putting Culture into the Picture Toward a Comparative Analysis of State Killing

CHRISTIAN BOULANGER AND AUSTIN SARAT

Introduction

How do the ways we think and feel about the world around us affect the existence and administration of the death penalty? And what role does capital punishment play in defining our political and cultural identity? In this book, we argue that in order to understand the death penalty, we need to know more about the “cultural lives”—past and present—of the state’s ultimate sanction. A second claim is that this “cultural voyage” should be undertaken comparatively: we need to look beyond the United States and see how capital punishment “lives” or “dies” in the rest of the world, how images of state killing are produced and consumed elsewhere, how they are reflected, back and forth, in the emerging international judicial and political discourse on the penalty of death and its abolition.¹

What do we mean by the cultural life of capital punishment? First of all, for the purpose of this introduction, we refer to capital punishment, or the death penalty, as legally administered state killing, used as a punishment in response to a crime.² By “cultural lives” we mean capital punishment’s embeddedness in discourses and symbolic practices in specific times and places. To talk about the penalty of death having, not only one, but several “lives” is not a simple pun. We argue that, after centuries in which capital punishment was a completely normal and self-evident part of criminal punishment, it has taken on a life of its own in various arenas, which goes far beyond the limits of the penal sphere. We further claim that, even though it is important to consider political (Neumeyer 2004) and socioeconomic (Simon 1997) factors that shape the existence of capital punishment across geographic and social spaces, it is its cultural life that deserves more attention.

As David Garland (1990) has argued, punishment and culture are connected in two ways: culture gives punishment meaning and legitimacy and shapes its practice through cultural “sensibilities” and “mentalities.” On the other hand, punishment itself defines cultural and sociopolitical identities and provides vivid symbols in cultural battles. Punishment lives in culture as a set of images, as a marvelous spectacle of condemnation. The semiotics of punishment is all around us, not just in the architecture of the prison, or the speech made by a judge as she sends someone to the penal colony, but in both “high” and “popular” culture iconography, in novels, television, and film. Punishment has traditionally been one of the great subjects of cultural production, suggesting the powerful allure of the fall and of our prospects for redemption. But perhaps the word “our” is inaccurate here since Durkheim (1984 [1893]) and Mead (1918), among others, remind us that it is through practices of punishment that cultural boundaries are drawn, that solidarity is created through acts of marking difference between self and other, through disidentification as much as imagined connection.

And what is true of punishment in general is certainly true of those instances in which the punishment is death. Traditionally, public execution was one of the great spectacles of power and an instruction in the mysteries of responsibility and retribution. Even the privatization of execution has not ended the pedagogy of the scaffold. Execution itself, the moment of state killing, is today an occasion for rich symbolization, for the production of public images of evil or of an unruly freedom whose only containment is in a state-imposed death, and for fictive re-creations of the scene of death in popular culture. Yet all of this may miss the deepest cultural significance of state killing. As Baudrillard (1993: 169) suggests, in regard to capital punishment, “the thought of the right (hysterical reaction) and the thought of the left (rational humanism) are both equally removed from the symbolic configuration where crime, madness and death are modalities of exchange.”

It is a commonplace to state that the United States is alone among Western industrialized nations in executing its citizens. Usually, analysis focuses on “American exceptionalism,” comparing the new with the old world (Steiker 2002; Moravcsik 2001; Poveda 2000). From a global perspective, however, the United States is not exceptional. Little more than a fourth of the world’s population lives in countries that have completely abolished the death penalty. Most U.S.-American death-penalty proponents hesitate to cite states like the Democratic Republic of Congo, Iran, Saudi Arabia, China, or North Korea as examples of countries which are also executing their citizens. However, there is at least one more industrialized democracy, Japan, and other politically respectable states such as India, South Korea, Taiwan, and Singapore in which capital punishment is still applied.

On the other hand, the European Union proudly proclaims itself to be “death-penalty-free” and has succeeded in talking (and sometimes coercing) almost the whole of Eastern Europe into abolition (Fijalkowski 2001; Frankowski 1996). In the territory of Russia and the former Soviet states in Central Asia, Turkmenistan alone has abolished the death penalty completely, although Russia, Kazakhstan, and Kyrgyzstan have moratoria in place. The African continent presents a mixed picture, with nine fully and fourteen de facto abolitionist states and twenty-seven states with the death penalty.³ Asia is, with the exception of a few small nations, an “abolition-free zone.”⁴ Equally, no state in the Middle East—except the de facto abolitionist Israel—has decided to abandon judicially authorized state killing.

Abolitionists in Europe like to point out that the death penalty is unacceptable in a “civilized society.”⁵ In addition, the Council of Europe has expressed its “firm conviction that capital punishment, therefore, has no place in civilised, democratic societies governed by the rule of law” (Council of Europe and Wohlwend 1999). European Court of Human Rights Justice Jan de Meyer put it simply when he said that “[Capital] punishment is not consistent with the present state of European civilisation” (Soering v United Kingdom 1989: 439). Some believe that a “civilizing process” leads inexorably to rejection of legalized state killing.⁶ Europe, in this view, is a step ahead of the United States, which, along with the rest of the world, sooner or later will catch up. The optimistic view of the globalization of penality is that the differences between countries will be leveled out in an abolitionist direction.⁷ As the chapters in this volume suggest, this idea is inadequate to explain what has happened in abolitionist countries and might be misleading when thinking about the global process of abolition. We argue that a closer look is needed at structures and processes on the national and subnational levels.

In recent years, there have been several publications which have looked comparatively into global processes of abolition (Hodgkinson and Rutherford 1996; Schabas 1997; Hood 2002; Boulanger et al. 2002; Reicher 2003; Hodgkinson and Schabas 2004). At the same time, there has been little systematic research on the determinants of the death penalty on a global scale, and most of it is concerned with the question of abolition (Greenberg and West 2001; Neumayer 2004). In comparative perspective, there are a variety of methodologies which one can employ to understand capital punishment. We think that comparative analyses are best served by methodological eclecticism, which combines insights from various approaches (Kohli et al. 1995). In what follows, we discuss previous research and highlight some aspects that we consider important for a comparative cultural research agenda on capital punishment.

Deadly Significant Relationships? Data-Driven Research

That there can be no simple explanation for global variation seems clear. The number of possible factors that differentiate abolitionist from retentionist states is potentially infinite. This, of course, has not kept comparativists from trying to solve the puzzle on the aggregate level. They have collected data on various independent variables to determine how the dependent variable, the (non)existence of capital punishment, can be explained (e.g., Greenberg and West 2001; Neumayer 2004). Among the factors so far studied are:

Crime rates. That state punitivism cannot be explained as a simple response to crime has been a commonplace in analyses of punishment for a long time. This is confirmed by statistical analyses which show that crime rates, punitive attitudes, and policy responses are, if at all, only marginally correlated (Savelsberg 2000, Greenberg and West 2001). This, of course, doesn’t mean that crime rates are not important,⁸ but only that they do not translate directly into penal policy. For this reason, what has to be studied are the conditions under which high crime rates do result in extreme sentencing, including the death penalty, and when it does not.

Socioeconomic indicators. There is no clear statistical relationship between a country’s socioeconomic development and its use or non-use of the death penalty (Greenberg and West 2001, Neumayer 2004). This might be surprising, especially to theorists who think of the abolition of capital punishment as the product of the sociocultural process of “civilization.”

Regime type. The more authoritarian a country is, the more it is likely to have the death penalty. Of 194 independent countries rated by Freedom House in 2003, 71 of 90 countries classified as “Free” were abolitionist (de jure or de facto), about 80 percent, versus 19 which were classified retentionist. For “Partly Free” countries, the ratio is 33 (62 percent) abolitionist to 20 retentionist. On the other hand, of the 48 countries rated as “Not Free” three-fourths (36) had the death penalty on the books and had executed someone in the last ten years, compared with 12 abolitionist countries.⁹ These data make it clear that there is a relationship between democracy and respect for human rights on one side, and abolition on the other. But with the United States as the world’s largest stable democracy and supporter both of human rights and of capital punishment, this correlation again leaves us puzzled about American “exceptionalism” within the “Western world.”

Religion seems to matter (Hood 2001). Almost all of the states with a majority of Muslims, and certainly all of those claiming to adhere to Shari’ah law, have the death penalty. As Neumayer has pointed out, however, such numerical evidence might be misleading. He suggests that “the lack of democracy, the lack of political incentives, and the fact that most Muslim countries are located in regions with very few abolitionist countries might be more important explanations than Islam itself” (2004: 29). Most states in which Christians (and especially Catholics) are the majority do not execute their citizens (Greenberg and West 2001). Again, the United States stands out. Today, the United States is, together with Belarus, the only majority Christian country with executions. There is evidence from the United States that Evangelical Christians show stronger support for the death penalty than members of other religious groups (Grasmick et al. 1993; Green 2000). Finally, states which have declared themselves to be “atheist,” such as the previously communist countries, and those who claim to be so today have not shown any special inclination toward abolition.¹⁰ The same is true for Asian countries where a numerical majority of citizens are Buddhist, even though it has been argued that the “compassionate element” in Buddhism favors abolition (Horigan 1996).

As these various data show, the relationship between religion and the death penalty, on an aggregate basis, is ambiguous. What we need are accounts of how religious beliefs translate into public policy in particular times at particular places. Religion is obviously a part of culture, but, as Geertz has argued (1973: 14) “culture is not a power, something to which social events, behaviors, institutions, or processes can be causally attributed; it is a context.”¹¹ Statistical data on the number of adherents to a particular religion do not necessarily help us explain differences between countries.

Public opinion. How popular is the death penalty and how is its popularity related to abolitionism? In the United States, the answer seems easy. Capital punishment is popular all over the country. Even though support has waned somewhat over the last few years, probably under the influence of growing media attention to miscarriages of...

Table of contents

• Copyright Page
• Dedication
• Acknowledgments
• Table of Contents
• Contributors
• CHAPTER ONE - Putting Culture into the Picture Toward a Comparative Analysis of State Killing
• PART I - Civilization and Punishment Self and Other in Europe and the Americas
• PART II - State Killing and State Violence in Central and South Asia and the Middle East
• PART III - Paternal States, “Asian Values,” and Visions of Social Order Capital Punishment in East and Southeast Asia
• Index