Festival of Punishment

For most of its history the United States has been within the mainstream of Western enlightened thought and practice with respect to the death penalty. Sometimes ahead of the curve: Michigan abolished capital punishment in 1846, well before most of Europe; Rhode Island and Wisconsin got rid of it in 1853; North Dakota has never had it; sometimes a bit behind: seven out of nine states that had abandoned it embraced it again in the decades after the Great War and the Bolshevik Revolution; sometimes – as in its tacit acceptance of lynching and of the quasi-judicial hangings which gave mob murder a veneer of legitimacy – horribly out of step. But basically part of the pack and notably so in the shadow of the Holocaust.

Annual numbers of executions declined steadily after 1945 and by the early 1960s were barely a fifth of what they had been before the war. In 1965 – the year Britain abolished the death penalty – there were seven, compared, for example, to almost two hundred a year during the 1930s. There were two in 1966; one the year after; then none at all, and no further executions in the five years preceding the Supreme Court’s decision in the Furman v. Georgia case of 1972, which seemed to end capital punishment for good. In fact, it did nothing of the sort.

Henry Furman was a slightly retarded black man who had shot and killed a householder through a closed door in the course of a burglary and was now facing the electric chair in Georgia. He had the good fortune to be represented on appeal by Anthony Amsterdam, a learned and rhetorically gifted Stanford law professor. His argument before the Supreme Court not only saved his client’s life but irrevocably changed the history of the death penalty in America, if not exactly as he might have hoped. (Furman was paroled in 1984; he now works in construction.)

Amsterdam was, and is, a passionate opponent of capital punishment under any circumstances, however refined its procedures: contemporary jurisprudence which tries to rationalise the death penalty ‘offends humanity and reason’, he wrote recently. But in 1972 the majority of the Court did not go nearly so far. Five of the nine Justices agreed that capital punishment as then practised constituted ‘cruel and unusual punishment’ but only three would have purged the modifier ‘as then practised’ and ruled capital punishment itself to be ‘cruel and unusual’.

In Furman’s case only William Brennan and Thurgood Marshall, the Court’s one black member, voted to strike down nearly all existing capital statutes on the grounds that they were intrinsically in violation of human rights or communal dignity. As Marshall put it in another case, judicial murder is ‘obviously no less shocking than the crime itself . . . and adds a second defilement to the first’. Justice William Douglas came close. He saw Furman’s conviction as invalid because it was ‘pregnant with discrimination’ and because, more generally, a sort of moral evolution had brought society to a point where the death penalty – like branding, torture and public whipping before it – was no longer to be regarded as civilised. Historically new standards made it ‘cruel and unusual’ and hence unconstitutional. But the other two Justices voted with the majority on procedural grounds and it is their views which precipitated the very odd discussion in which we in the US are engaged today.

One of them, Justice Potter Stewart, held that Furman’s punishment would be ‘cruel and unusual’ as a matter of statistical observation: to find oneself the one man to be executed out of several thousand who were eligible was ‘cruel and unusual’ in the same sense as ‘being struck by lightning was cruel and unusual’. The problem was not a violation of human rights but of too much being left to chance. There was, as the fifth member of the majority held, no ‘meaningful basis’ for deciding who would die and who would not. And so capital punishment was declared unconstitutional largely because of the way it was then practised.

The story might have ended there. Instead, 38 state legislatures provided what they took to be a rationale for executing some and not other criminals. Finally, in 1976, a case went up to the Supreme Court – from Georgia – testing whether states had, in principle, succeeded in providing such a rationale. Specifically, the question in the case of Troy Gregg was whether Georgia had provided sufficient guidance to the sentencing authority – the jury in this case – to ensure that its discretion would be sufficiently ‘channelled’. If in Furman the Court ruled that there was at the time no rational basis for distinguishing those who would and those who would not face execution, in Gregg they decided that at least one state had succeeded in providing the required rationale. The prosecution would have to convince a jury that there was ‘at least one statutory aggravating factor before it [might] impose a penalty of death’ and that there was a preponderance of aggravating over mitigating factors before it actually passed a sentence of death. Yes, the court held in the Gregg case, Georgia – and by extension other states which passed similar statutes – had circumscribed chance sufficiently for capital punishment now to pass Constitutional muster.

Furman had resulted in five years of de facto abolition. Then, in 1977, came the execution in Utah of Gary Gilmore, a theatrically brilliant criminal and the subject of one of the great pieces of modern American writing, Norman Mailer’s The Executioner’s Song. Gilmore forswore further appeals and faced the firing squad wearing his famously indestructible Timex watch: scarcely typical and followed by a mere trickle of other deaths. There were no executions in 1978 or 1980, one in 1981, the year France abandoned capital punishment. If not de jure, then de facto, the United States seemed to have abandoned this, the most ancient and most terrible of punishments.

By the beginning of Ronald Reagan’s second term, in 1984, however, something seems to have gone horribly wrong, or deliciously right, depending on one’s point of view. The US struck out away from Western democracies and found itself in very strange company indeed. The average annual execution rate increased from 23 between 1984 and the end of 1994 to 80 in the last three years of the millennium. As of 23 August this year, there have been 660 executions since the resumption of the death penalty in 1976.

While no European country has reinstated it after once abandoning it, and abolition has been enshrined in the European Convention on Human Rights – a marker of a civilised polity – the former leader of the free world seems to have joined a small handful of unlikely companions (China, Saudi Arabia, Iran and Iraq among them) by enthusiastically re-embracing it. (The company is even more exclusive when it comes to the execution of juveniles: China gave it up in 1997 and over the last decade the United States has more such deaths to its credit than the seven other countries that permit it combined.) That an issue seemingly settled almost everywhere else should re-emerge with such vigour and emotional intensity in the US at the start of the 21st century is curious, to say the least.

Modern discussion of capital punishment – and of criminal law reform more generally – begins in 1764, when Cesare Beccaria, a 26-year-old Italian nobleman, published his first book, Dei delitti e delle pene (An Essay on Crimes and Punishments). The debates today are often only thinly veil”ed rehearsals of arguments – and counter-arguments – he inspired.

Beccaria elaborated two theses which together made abolition of the death penalty a sign of progress from superstition and savagery to enlightenment and civilisation. The first thesis is broadly speaking moral, and anti-theological, with an empirical twist: the purpose of punishment, he said, is not vengeance – or what is spoken of today as ‘retribution’ – nor is it an exemplary affirmation of moral norms. Rather, it is the reformation of the criminal and the prevention of future crimes: in short, deterrence and the maintenance of public safety. Punishment of this sort would have to be carefully calibrated to meet these specific, utilitarian criteria – which capital punishment manifestly did not do. Killing a criminal obviously made his reformation impossible. And moreover, it was excessive. (I use ‘his’ because, at least since the 18th century and in most jurisdictions, men have been overwhelmingly the objects of judicial death.)

Punishment demanded proportionality and equity: equal punishment, predictably rendered, for equal crimes in the interests of clearly defined utilitarian ends. This meant, in the first place, that at least one old regime justification – that the execution of a certain number of criminals serve as an example to the community and as confirmation of its core values – would have to be abandoned. No one in colonial America or 18th-century England argued that a life was somehow a proportionate price to pay for a four shilling larceny or for the few bedsheets and candlesticks with which some hapless burglar might nearly have escaped. Yet almost half of those hanged in Pennsylvania during the Revolutionary decade died for such property crimes; as late as the early 19th century fewer than a quarter of the executions in England were for murder or attempted murder. The life of the criminal was forfeited – ‘sacrificed’ was the 18th-century term – ‘to the laws of his country’, which enshrined the sanctity of property, or of a man’s home, or of paper money or of normative sexuality. These were worth someone dying for and a number of thieves, burglars, forgers, sodomites and rapists were hanged because, it was felt, only death could confirm the foundational values which their crimes violated.

The persuasiveness of the argument that capital punishment is too blunt and too savage – more than is necessary to ensure the safety of the community, less than is needed to prevent similar crimes in the future – depends to some extent on the answer to an empirically decidable question: does the death penalty, as opposed to other ways of keeping a criminal off the streets, prevent crime? The matter has been debated, with ever increasing mathematical sophistication but in more or less the same terms, from the 18th century to the present, and the answer is by now fairly clear. It does not. But no one really cares today because the premise which led to the question – that punishment should serve primarily as an exercise in prevention – has been almost entirely abandoned by proponents of the death penalty. Were deterrence the issue, executions would long ago have given way to other, less fraught ways of keeping criminals from doing further harm. Clearly much more is at stake.

Beccaria and those who followed in his tradition of Enlightenment thinking understood abolition to be part of a more general project of political and cultural regeneration. Civil government, Beccaria argued, as did the Founding Fathers, was based on a social contract under whose terms human beings had not ceded their rights in their lives and bodies to the State. Citizens or their representatives might consent to go to war – risking death to defend the State against those who would injure it – but not, Beccaria concluded, to being hanged. Except by committing treason no one could forfeit this basic ‘human right’. This new regime of rights stood in sharp contrast to unenlightened polities where there was no civil contract and where to be sovereign meant precisely to exercise unlimited authority over the bodies of subjects. Torture and various acts of making such power felt in the flesh – drawings and quarterings, branding and whipping, theatrical public executions – which characterised punishment in most of Europe in the 18th century were understood to be exemplary displays.

In Beccaria’s view, backwardness in punishment thus mirrored political backwardness more generally: ‘countries notorious for the severity of punishments were also those in which the most bloody and inhuman actions . . . were committed.’ In other words, the death penalty was deeply old-fashioned, a left-over from an earlier, more savage era in the history of mankind. Thinking about it was from the beginning a way of thinking about the nature of political society and moral community. It was not primarily an empirical question.

The Essay on Crimes and Punishments was immensely influential in British reforming circles and even more so among their Revolutionary American cousins. Thomas Jefferson regarded it as belonging with the handful of books essential for understanding the new forms of civil government being built in America. Capital punishment was not abolished in any of the new American jurisdictions, despite the efforts of some of the Founding Fathers, but penal codes were dramatically revised and made self-consciously less bloody than those of the mother country. The Eighth Amendment to the US Constitution prohibiting ‘cruel and unusual punishment’ is another sign of the Founding Fathers’ commitment to the idea that a new sort of liberal polity demanded the rejection of absolutist forms of punishment. (The French Constitution of 1791, which created a short-lived constitutional monarchy, got rid of the death penalty entirely except for treason.)

By the middle years of the 19th century, the debate on capital punishment in the US had a more explicitly republican tone and a stronger religious content than could have been envisaged by Beccaria. But the connection between a progressive view of history based on the expansion of individual human rights and opposition to capital punishment remained strong. Theologically, too, opponents of the gallows tended to be optimistic in their view of salvation: Congregationalists or Unitarians, as against evangelicals or Calvinist Presbyterians – people more attracted to notions of redemption than of atonement, to the image of a merciful rather than a vengeful God. For them, the link between the moral government of God and the earthly city did not need to be so close. Theirs was basically a secular culture of republican reform; the human condition could be improved here on earth. Thus, the campaign for abolition was linked with other progressive causes: amelioration of the conditions of the insane, for example, and, most important, anti-slavery. To these 19th-century reformers hanging, like chattel slavery, represented a brutal, indefensible affront to human dignity.

In Proximity to Death William McFeely makes the connection between then and now explicit: ‘opposition to the death penalty today,’ he says, ‘is the contemporary equivalent of abolitionism.’ Stephen Bright, the lead counsel at the Southern Center for Human Rights, whose archives were the starting point for McFeely’s exploration of the way capital punishment actually works, sees himself as belonging to a tradition that goes back to the early days of the Republic.

One has to infer the arguments put by the other side, or look elsewhere (to Louis Masur’s 1989 Rites of Execution, for example). There we will find those who have been less sanguine about human progress and the efficacy of social reform, those who think that punishment ought to reflect a divine and intuitively obvious moral order. Human depravity, on this view, makes it necessary for civil government to assume the power of divine authority. Liberty, inalienable individual rights, procedural correctness and hopes for reformation or redemption have to be balanced against obligation, against the needs of a righteous community, and against the feeling that, social contract or no social contract, for civil government to be legitimate it has somehow to be congruent with God’s governance. In other words, a government here on earth can cast out and kill certain of its citizens under certain circumstances because God in heaven has ordained that this should be so. Capital punishment is the expression of both divine and communal outrage at those who have excluded themselves from full humanity through their acts. Although this view was not articulated in defences of the death penalty after the early 19th century, capital punishment retains something of its primordial sacrificial logic. Killing an offender is felt to make the world safer, more as it should be, for the good people, even if no connection is made, or claimed, at the level of social policy between the act and its putative effects. Seen in this way, as a ritual reassertion of a communal moral order, the death penalty has little to do with ideas of punishment in the rationalist Enlightenment or progressive theological traditions.

This clash of world views, which has informed the American debate since colonial times, resounds still in books like McFeely’s. The poignant stories he tells, of three men who committed terrible crimes, of their defenders, their victims and of the criminal justice system, are embedded in a twisted past and in very different visions of how a new world is to be made. One of the many strengths of his elegant, humane and subtle book is to show how the claims and counterclaims that are so often made like points in a college debate – a ‘pro’ parry met by an ‘anti’ retort – are freighted with the burdens of history and the ironies of modernity.

In the United States no burden is heavier than that of race. McFeely became involved with the question of the death penalty not because of any expertise in criminology – he had none – but because he had written a biography of Frederick Douglass and a book about the 67 descendants of a slave who had been brought to the tiny barrier island of Sapelo in 1802, where they still live today. Stephen Bright, the indefatigable and brilliant lead counsel of the Southern Center for Human Rights, wanted to make use of McFeely’s expertise in African American history. Specifically, Bright asked him to testify in support of two claims which he was making in a motion for a new trial. Bright’s client is – the case is not yet resolved – Carzell Moore, a black man convicted, along with an accomplice, of the rape and murder of a 23-year-old white convenience store clerk. He is awaiting execution. Bright planned to argue, first, that under the terms of the 14th Amendment a black man is not ‘equally protected’ in a Georgia courtroom which, like all the others in the state, displays the Confederate battle flag. And second, that there is an intimate connection between that flag and the bitter history of lynching which underscores the death sentence of any black man in the United States, particularly in the South.

In some abstract sense, the flag might represent a proud tradition of states’ rights and benign local tradition, as its defenders in South Carolina have recently claimed. But in fact, as McFeely testified, the Georgia story is unambiguous. On 6 February 1956, its Governor vowed that no Negro child would ever attend school with a white one; three days later, the legislature voted to replace the Confederate horizontal bars that had graced the state flag since 1879 with the ‘stars and bars’: the blue and white cross of St Andrew on an in-your-face field of bright red. Its Civil War service done, this banner had rallied the Ku Klux Klan as it helped re-establish white power in the South during a half-century reign of terror. When, in 1993, the then Georgia Governor asked the legislature to remove this none to0 subtle exhibition of ‘pride in the enslavement of many of our ancestors’ he was jeered at, and finally withdrew his proposal after some months of hopeless advocacy.

There have been 460 lynchings in Georgia since the late 19th century; 411 were of blacks. And, as Bright went on to argue in court, the surge in judicial executions after lynching declined in the 1930s could plausibly be interpreted as the swift removal of a black man by trial, which before had been effected by mob. The cries of ‘burn ‘em’ heard as a murder suspect is booked today echo the cries of those festive crowds that attended the hangings, immolations and castrations of earlier years.

The prosecutor who opposed Bright’s motion for retrial responded – correctly, in a narrow sense – that this was all quite irrelevant. These facts had no particularly bearing on Carzell Moore; no one was proposing that he be lynched. (I also think that the three white men – die-hard segregationists all – who testified at Bright’s behest that they had celebrated the execution of Moore’s accomplice would have ‘rejoiced’ just as exuberantly at the execution of a white man. The festivities at the notorious serial killer Ted Bundy’s execution were replete with tailgate beer parties and baseball caps emblazoned with the hindquarters of a pig, as if today’s Floridans had read historians’ descriptions of pre-modern carnivalesque inversion.)

That said, capital punishment in the United States subsists – inescapably – in a miasma of race. The Honorable John H. Land in 1977 presided over the trial of a black man called William Brooks, whose case McFeely follows. Land is the son of a prominent local dignitary who had seen to the lynching of an adolescent boy 65 years earlier. The barefoot ‘little black nigger’ in question had, miraculously, escaped a murder conviction in the accidental shooting of a white boy. T.Z. Cotton – the white press and courts of his day never managed to get his name right – was kidnapped from the same Muscogee County Courthouse where Brooks was tried, taken to the edge of town and, begging for his life, pumped full of bullets. Brewster Land, Judge Land’s father, was acquitted; none of those who witnessed the abduction and murder would come forward. Forty-four years later, in 1956, a prominent black physician and civil rights leader in the same Georgia town was murdered in the course of a political confrontation: an all-white grand jury refused to indict the white man who shot him – self-defence. Even if, as is clearly the case, the murder trial of Brooks was not a lynching, the distinction is lost on many. The power of the white establishment to maintain the social order through the death of black men is all too evident.

Some murders – and some murderers – seem to disrupt that order more than others. McFeely cites David Baldus’s massive 1985 study of almost 2500 cases prosecuted in Georgia in the 1970s, which showed some remarkable, if scarcely surprising, racial disparities. If the victim was white the death sentence was far more likely to be imposed than if the victim was black; if the murderer was black he was far more likely to face the electric chair if his victim was white: 22 per cent of black defendants with white victims faced execution, 1 per cent of black defendants with black victims, 3 per cent of white defendants with black victims. These findings are robust: none of hundreds of possible variables will make race go away as the explanation. (Recently, various procedural improvements have made the race of the victim a less powerful predictor than it once was, though it is still important.)

A solid social science research tradition going back to the 1940s supports Baldus’s study and makes the same sad but juridically irrelevant point: race matters desperately and yet not at all. In 1987, the Supreme Court held in its McCleskey decision that Baldus’s and similar findings, though they might well be true, are irrelevant. The fact that the black killer of a white was considerably more likely to die at the hands of a state – Georgia, in this case – than any other racial configuration of killer and killed did not prove that in the particular case of Warren McCleskey, one of four black men convicted of killing a white police officer during a robbery, the defendant suffered his fate because of his race. In principle, the new Georgia criteria for distinguishing capital murder from other kinds and for deciding who would die were race neutral. True enough. (McCleskey died in the electric chair in September 1991.)

Yet race and the death penalty are not to be disentangled so neatly. In the first place there is language. Both our modern authorised – judicially sanctioned – and earlier ‘unauthorised’ executions, or expressions of popular violence, i.e. lynchings, speak of community norms violated, of retribution against execrable creatures who have by their actions forfeited their claim to humane treatment, of the importance of deterrence and of toughness in maintaining ‘our way of life’. This is not the rhetoric of the Enlightenment.

Then there are the numbers. Lynchings hit their peak in the 1890s as the terror component of the broad legal, economic and social process through which the Jim Crow regime of unquestioned white supremacy established itself in the South. There were at least 1540 of them, about one every other day for ten years. There were, in fact, more lynchings than there were authorised executions by all jurisdictions in the entire country. By the 1930s the number had declined to ‘only’ 130 per decade; the number of executions by local – county or city – authorities had also declined precipitously. But the total number of executions declined far less rapidly. Executions by states, in fact, increased tenfold as popular violence declined, although the total number never again reached 1890 levels.

With respect to rape, the substitution of the state for the lynch mob is painfully clear. Judicially sanctioned execution for rape was almost non-existent in the late 19th and earlier 20th centuries; it was left to popular violence. But as lynching declined the State took over. The number of executions for rape grew dramatically – and almost exclusively – in the South. By 1940, one out of four executions in the South was for rape. And then race: roughly nine out of ten of the 553 men executed before the Supreme Court struck down capital punishment for rape in 1977 – Georgia was the last state to hold out – were black.

Finally, geography. The South did not always occupy as high a place in the league tables of execution as it enjoys today. Back in 1930, California, New York and Ohio were in the top ten; Pennsylvania was number 11. (Texas is number one whenever the reckoning starts.) But in the modern history of capital punishment, i.e. the history of its reinstatement and growth since 1976, no one can touch the Southern record. Of course, the death penalty is a national question, if only because the Federal courts are so intimately involved and because 38 states passed new statutes after the old ones were declared unconstitutional in 1972. (Seven of them have not carried out an execution under the new dispensation.) There is also a Federal death penalty to which over fifty new categories of crime covering, for example, drug trafficking, terrorism and killing a Federal poultry inspector, were added in 1995 in an accretion of capital offences matched only in early 18th-century England. No one, however, has been executed by the Federal Government since 1976; two executions are imminent, both are procedurally deeply problematic, and a moratorium is in place while the Attorney General studies the possibility of racial bias in sentencing.

Capital punishment nonetheless is a decidedly regional phenomenon. Between 1976 and 23 August this year the ten states of the former Confederacy carried out 75 per cent of all 660 executions; Texas, Virginia and Florida alone accounted for more than 50 per cent. By contrast, in the NorthEast there have been just three executions in 25 years, about 0.5 per cent of the total.

Race alone does not entirely account for this remarkable ecology but it is never very far from the surface. Even if the condemned person is not black, it still plays its part. McFeely quotes the former Attorney General Ramsey Clark’s impassioned plea in a Federal court for the life of John Spenkelink, the first person in line for execution under the new laws passed to meet the Supreme Court’s objections in the Furman decision: because Spenkelink was white, his death, according to Clark, was intended to atone for the past, to ‘inoculate Florida from 150 years of racial discrimination’. The judge issued a stay. But Governor Bob Graham, a former opponent of the death penalty, who, McFeely suggests, balanced his progressive policies on race with toughness on crime, refused clemency. Graham’s behaviour was typical of the new South. Bill Clinton’s followed the same pattern. In his first term as Governor of Arkansas he was regarded as anti-capital punishment and in more than twenty murder cases declined to set execution dates. He lost the 1980 election and came back in 1982 with the promise that he would not commute any more life-without-parole sentences and set execution dates promptly. He kept his word and never again granted clemency or failed to sign an execution warrant promptly.

McFeely believes that the revival of capital punishment can be understood as part of a more general revolt against the 1960s. And nowhere was there more to revolt against than in the South, where the status quo was most dramatically uprooted. It is difficult to remember that less than forty years ago a regime of segregation every bit as intricate, humiliating and insidious as the Nuremberg Laws or apartheid was taken for granted in what is now the execution belt. The demise of Jim Crow was without doubt the biggest upheaval of the decade and the civil rights movement the instrument of its overthrow. But women’s liberation and gay rights all contributed, McFeely argues, to the sense many people had that something had gone seriously wrong with the moral order. In this context, the very real rise in crime could be attributed to a collapse of values. And a reborn death penalty – along with the internationally unprecedented explosion in incarceration – was meant to set things right.

As far as I know, no one has argued seriously that capital punishment at anything like the levels that could be politically imagined actually prevents crime, but support for the gassing, lethal injection or electrocution of a few hundred assorted criminals has become the indisputable sign of ‘being tough on crime’: indeed, of being tough more generally, softness being assumed to be bad for the country.

The anti-1960s backlash is not limited to the South, but McFeely is right in linking it closely to civil rights. The end of the old regime in the South did not result in a progressive alliance of newly enfranchised blacks with New Deal Democrats but produced instead the most reliable conservative voting bloc in the country. Religious denominations which are the theological heirs to the anti-abolitionists of the 19th century play a central role in this new political formation and in keeping the death penalty in place today. Most Supreme Court decisions regarding capital punishment have arisen from cases in the old South.

Conversely, both sociologically and ideologically, the movement against capital punishment is a continuation of the civil rights movement in another register. Test cases are brought largely by lawyers from major civil rights organisations – the NAACP Legal Defense and Educational Fund, the Southern Poverty Law Center – or those with extensive civil rights litigation experience. Stephen Bright and his colleagues clearly subscribe to Justice Brennan’s view that the state ‘even as it punishes must treat its members with respect for their intrinsic worth as human beings’. This is the rhetoric of the Montgomery bus boycott, the lunch counter sit-ins, and goes back to Sojourner Truth’s ‘Ain’t I a woman?’

Bright speaks of an inalienable humanity in even the most violent of his clients – no child is ‘just plain mean’ he responded to the prosecuting attorney’s characterisation of the young William Brooks. Rehabilitation – ‘redemption’ in the language of the more religious – is always possible. And on the other side stand those who speak of the right to seek retribution – the adjective ‘divine’ comes inevitably to mind – in the name of an outraged community. Every criminal put to death is an affirmation of communal self-defence. Frankly, I am not sure how much each individual case matters, although this is how the language of retribution works. I think that what resonates so powerfully with supporters of the death penalty is the very fact that the State is able to execute people in the face of liberal progressive opposition. Seemingly defenceless against the seismic shift in civil rights and other rights besides, some people derive an adamantine solidity – and comfort – in exercising the power of life and death.

History, and most particularly the history of race, thus weighs heavily on Americans’ most recent embrace of capital punishment. But there is also something new, a procedural revolution, which has deflected the whole debate. And here, too, race plays a critical role. Modernity has crept up on the death penalty and executing someone will never be quite the same again.

The procedural revolution has its roots in the late 19th century, when judicial review became far more frequent as individual states and the Federal government came to gain a monopoly on executions at the expense of mob violence and the scarcely more regulated actions of local government. Passion might sway the crowd but the rule of law must at least be seen to govern the State. But it was the Supreme Court’s decision in Furman v. Georgia which set modernity in direct confrontation with much of what had been satisfying about punishment by death. The death penalty as it is carried into practice today is like an endangered species brought back from the brink of extinction, a creature from an earlier age making its way in a very different time from when it ruled the earth.

The Furman case grew out of the fact that after the Second World War the United States was on track to abandon capital punishment entirely. Executions were increasingly rare; only once after 1950 were there as many as a hundred in one year and by the end of the decade the average was nearer fifty. This meant that, at most, about 1 per cent of all convicted murderers were put to death and, even counting only those who committed so-called capital murder, the percentage rose to at most between 10 and 15. By the middle of the 1960s, the ratio between crime and punishment was even more out of kilter: an average of 36 executions out of about nine thousand murders per year between 1960 and 1964 and then even fewer – seven, then one, then two out of more than ten thousand murders. By the end, less than 0.1 per cent of homicides resulted in an execution.

The landmark cases of the 1970s – Furman for effective abolition, Gregg for restoration – have structured the American debate in ways which neither proponents nor opponents anticipated. Neither finds its terms particularly edifying; both are caught up in its contradictions. Advocates decry the procedural niceties which were the price paid for capital punishment’s constitutionality. Such elaborate indulgence of criminals displays precisely the sort of ‘softness’ which capital punishment is supposed to belie. Procedure, dull instrumental rationality with its emphasis on equity and form, undermines the symbolic force of execution as the expression of the outraged community will. And on the other side, opponents who regard the death penalty as a violation of fundamental human rights find themselves arguing instead about jury composition, adequacy of representation and whether gassing, in contrast to lethal injection, constitutes ‘cruel and unusual’ punishment. Fairness is historically not a big feature of judicial killing, nor is it meant to be – being sure everything is done correctly is not the usual argument of abolitionists. A great displacement thus pervades talk about capital punishment today, one in which the real subject in all its grimness is at one remove.

In the new regime the prosecution has to achieve two things before it can send an accused to his or her death. First, it must convince a jury that the defendant is guilty of ‘capital’ murder: guilty, that is, of murder characterised by statutorily specific aggravating factors – defined in Georgia as ‘especially heinous, atrocious or cruel, manifesting exceptional depravity’. It could be that the murderer lay in wait for the victim; that the victim was a child or an old person or a handicapped person, or an officer of the state. (Various states between them have produced hundreds of these aggravating conditions.) But this first step only makes the defendant eligible for death. To secure a death sentence the prosecutor must then persuade a jury, or a judge, or both, depending on the jurisdiction, that the aggravating circumstances outweigh the mitigating ones. No guilty verdict leads automatically to execution; each sentence must be determined individually and according to rules.

These standards may, in practice, be impossibly high and, once again, race is part of the reason. As every prosecutor and defence attorney would know, black jurors are far more likely to spare the lives of the accused than their white counterparts. Perhaps, as McFeely hints, they feel in their bones the continuity between lynching and state-authorised execution. Or perhaps, in an unconscious exercise of moral proportionality, they weigh punishment for even a terrible crime – the rape and murder of a young woman in one of the cases McFeely recounts – against emotionally exigent historical standards. In 1944, not far from where McFeely testified, a sheriff well fortified by drink took a black man from his house, beat him to death before a large group of witnesses in the courthouse yard and escaped even being charged with murder. He was acquitted of violating the man’s civil rights when the Supreme Court in its notorious Screw decision held that, while he had intended to murder his prisoner, he had not intended to violate his civil rights. As Stephen Bright pointed out to the eight black members of the jury at the 1990 retrial he won for William Brooks, the murderers of Medgar Evers, Martin Luther King and the little girls killed in a Birmingham church, all white men with black victims, were not executed or in some cases even convicted: ‘Don’t let anyone tell you that there has to be a death penalty.’ This would have called to mind any number of comparable stories familiar to these jurors: of the men accused of bombing the homes and churches of the ministers who led the Montgomery bus boycott – a capital crime in Alabama at the time – two were acquitted despite making signed confessions and the rest were simply not charged. Perhaps, too, William Brooks’s heart-wrenchingly violent childhood at the hands of his father, and his apparent rehabilitation over 15 years might have had more resonance for a black audience. But whatever the reason, seven of the eight black jurors voted in the initial ballot against the death sentence; all four whites voted for it. The sensibility evident in such results is not lost on those selecting juries.

Prosecutors in the United States are allowed to insist on a ‘death-qualified’ jury – a bizarre adjective meaning one composed of citizens all of whom say that they could, in principle, vote for a death sentence. (Opponents argue that such juries are consequently not representative of a community in which a sizable minority is opposed to capital punishment, but that is still another procedural story.) Prosecutors are not allowed to excuse blacks from a jury simply on grounds of race, however powerful a predictor it might be of sympathy for a defence case. The temptation to do just that – to use illegal racial profiling to get a capital conviction and sentence – seems to be irresistible. Occasionally, jurisdictions are caught in flagrante. In one of the cases that McFeely followed, a researcher working on another matter was looking at jury lists for possible voter registration violations and happened on a memorandum that had been accidentally left in an archive box. This piece of carelessness saved the life of one of Bright’s clients. Scribbled handwritten numbers, divided by categories, turned out to be codes for black and white men and women; the numbers indicated their representation in the voter list as a proportion of the population as a whole. The point was to allow only enough African Americans on the jury list to defend against a possible Constitutional challenge. In this case, the plan did not work. The judge threw out Tony Amadeo’s murder conviction: ‘Y’all are wasting your time,’ he told the prosecutor, citing this blatant effort by the jury commissioners to under-represent blacks while avoiding a prima facie violation of relevant case law.

Manifestly, this is not an isolated, Georgia eccentricity: among McFeely’s cases there are others that came to retrial because prosecutors had deliberately excluded blacks from the trial jury. The only black among the seven executed in California since 1976 had as his lawyer a man who had called his secretary a nigger – ‘only joking’, he said – and who failed to protest the prosecution’s challenge to all prospective black jurors. (This lawyer’s lapse may have been due to more than racism. He was often drunk and soon after the trial resigned from the state Bar after being convicted of embezzling client funds.) A black man was sent to his death by an all-white jury in 35 of the 285 death penalty cases tried in Illinois since 1976 which were probed in a remarkable series of articles Steve Mills and Ken Armstrong wrote last year for the Chicago Tribune.*

Ensuring equitable racial representation is by no means the only endemic procedural problem. Attorneys for the accused must present to the jury exculpatory or at least mitigating evidence if the standard – or the fiction – of procedurally rational capital punishment is to be maintained. The biggest determinant in all criminal cases is the quality of representation and that, of course, is closely correlated with the income of the accused. Not everyone is entitled to the O.J. Simpson dream team, but even the poor must have a jury that at least considers mitigation against aggravation. And here, too, the system fails.

The trial attorneys in some of McFeely’s cases were less than effective, but not by comparison with the general run of representation in capital trials. For this difficult, high-stakes assignment states all too often recruit some of the Bar’s most inexperienced or incompetent members. The compensation offered is laughable, and only recently did many states agree to pay defence costs at all: there is a $1000 limit in Mississippi; $20 an hour in Alabama up to a maximum of $2000 and even less in some Texas counties. The takers at these prices are a bunch of losers, or worse. One study found that in 1989 attorneys who were later disbarred, suspended or imprisoned had represented 25 per cent of all Kentucky Death Row inmates. And things have not improved much. The Chicago Tribune found that attorneys so incompetent, unethical or criminal as to face disbarment or suspension represented 33 Illinois defendants (12 per cent) who were sentenced to death.

AAs a result of these and other shortcomings judicial killing, an ancient form of retribution, is embroiled in the niceties of the contemporary rule of law, in precisely the kinds of appeals and retrials which constitute the work of the Southern Center for Human Rights. About 40 per cent of the five thousand death sentences meted out between 1976 and the mid-1990s were overturned on appeal. But perhaps the most remarkable consequence of the peculiar legal trajectory by which the US came back to the death penalty is the time which it now takes to execute someone.

The job of people like Stephen Bright and other attorneys who oppose the death penalty is not to attack it frontally but to force the system to adhere to its own rules for administering it. The ultimate punishment demands scrupulous attention to detail and cannot be hurried. Even with routine representation – and many on Death Row have no attorney at all to handle their appeal – the process of mandatory appeal takes years. In 1960, it took a little over a year to go from sentence to execution: in Georgia today it takes an average of eight years, and the cases McFeely writes about have been stretched out for more than a decade. (In the 18th century it was a matter of weeks.)

Thus another collision between the symbolic power of the death penalty and modernity is born. It may well be satisfying to kill the monster who repeatedly thrust an ice-pick into her victim during a drug-crazed robbery. But 15 years later that monster is no longer what she once was. David Hume had a point: a serious problem of personal continuity arises here and even proponents of the death penalty know it. A former Mississippi warden who supervised four executions in the early 1990s reports that he and his colleagues are often rattled by escorting someone to die whom they have known for a decade or more: ‘If you have someone in prison for 15 to 20 years, you have a sense that when you take him into the execution chamber, you’re not taking the same guy in there that came into prison.’

Hume’s problem can be especially embarrassing if the transformed criminal is a woman. In 1998, the National Review, America’s leading conservative magazine, published a short piece on the Karla Faye Tucker case under the headline: ‘Dark Night for George W.’ The first sentence reads: ‘George W. Bush has a helluva problem.’ Specifically, he was faced with the question of whether to grant clemency to the first woman in modern Texas history to face execution, having exhausted all appeals. The Review thought that ‘of course’ the case has ‘mostly to do with women’. Tucker’s would be the first execution of a woman in Texas since the Civil War, it reported, and a rarity for the country (less than 0.5 per cent of the nearly eight thousand people executed in the US in the 20th century were women). Crimes by women are less horrible than crimes committed by men, except for some – like murdering children – which are more so, the Review continued. An even bigger source of embarrassment was that Tucker had found Jesus. She captured the attention and support of the normally pro-capital punishment evangelical Right: she was ‘a woman of such obvious spiritual change’, according to an official of the National Association of Evangelicals, that she deserved special consideration. Fifteen years earlier, high on a cocktail of drugs, she pickaxed two people to death. She was living a life of prostitution and violence: a decade and a half later she was someone quite different.

At her trial Tucker confessed that she had had an orgasm with each of the 20 thrusts of her pick into one victim; she finished by embedding it in the chest of a sleeping girl. That was then. Now she was born again; she was married to the prison chaplain; she was beautiful but not too sensuous, full-lipped, well-spoken and known to the American public from a chiaroscuro photograph in which her hands are raised as if to shield her from the blinding glory of the Holy Spirit. (The pose is from an Annunciation scene. Death Row, a sort of capital punishment fanzine, reprints a small version of the picture.) The Pope pleaded her case, though this is not unusual – the Church has been a consistent opponent of capital punishment in the US since its revival. But so did Pat Robertson, one of its most vociferous religious proponents. (He did not speak out, as far as I know, for Clifford Burgess, who converted to Catholicism and developed what was apparently a remarkable talent for painting during his 12 years on Death Row.) In Tucker’s case, however, he proclaimed that executing her would be ‘more an act of vengeance than it is appropriate justice’.

Really? Vengeance, one would have thought, is always the point, because if rehabilitation – or remorse and redemption – were at issue many more would escape death during the long course of their appeals. (Bush didn’t stop Tucker’s execution.) Tony Amadeo murdered an old man in the course of a petty larceny in 1977: remorse and intense guilt came quickly; a model prisoner throughout his appeals he spends the life sentence he was given at his retrial in 1997 reading – lately Defoe, Dickens and Balzac. But after a decade and often more, even less gifted murderers are not the same people as they were when they committed their crimes. Retribution so long delayed inevitably loses much of its attraction.

The cry therefore goes out to speed things up. A new term has entered the discussion, an impatient harrumph, a call for ‘closure’. The term once referred to fields and meadows, mathematical sets or zippers; it was taken up as a term of art in literary theory and recently migrated to business and pop psychology. Deals were brought to closure and so were messy divorces and unhappy love affairs. And now so are the lives of criminals, but with a curious displacement. ‘Execution is closure,’ the Sacramento Bee announced in a recent headline. The thirst for vengeance, admitted Billy Smith, after watching the execution in Virginia by lethal injection of the man who had murdered his father in the course of robbing his jewellery store, had ‘ultimately evolved into a yearning for closure’. Waiting had been ‘almost like reading a novel and getting to the ending and that last page torn out’, he thought. But ‘closure’ when it came was not as satisfying as he had anticipated. Yes, it ended a long chapter in his life but it was, he said, ‘really anti-climactic’; he was struck by ‘how unemotional it was, how antiseptic, even medicinal . . . Electrocution probably would have been more . . . dramatic, maybe.’

One can sympathise with the victims of crime, or rather their relatives, wanting the punishment to be ‘swift and sure’. Of course, swifter ‘closure’ could be achieved through a mandatory life sentence or a programme of reparations or in any number of other ways. The US has, however, adopted one particular dénouement – an actual death – and in the modern world this turns out to be difficult to bring off with the desired dramatic effect.

This, too, is a consequence of the Furman decision: the elaboration of the notion that capital punishment exists to avenge the blood of the victim in the name of the victim’s relatives and friends. Outraged community still matters but much less: the ‘real victims’ are those left to mourn. One cannot blame this on Supreme Court jurisprudence alone. Americans have, of late, characterised much of their social world in the rhetoric of victimhood and both sides in capital cases have come under its spell. The adversarial system, by its nature, creates intimate personal narratives, this story versus that story. Accounts of crime have always included anecdotes of the criminal’s misspent youth and first deviation from the strait and narrow, but the requirement that one side present ‘aggravating circumstances’, and the other side ‘mitigating circumstances’ has created a discourse of the death penalty that reads remarkably like a tabloid tearjerker.

Lawyers cannot be blamed for this. Bright sees his job as convincing a jury that his client is more than his worst moment: that he was once fully human and is now again fully human even if for some moments in between he was evil. He deserves to live. Bright thus calls to the witness stand a minister who counselled William Brooks in jail; he calls Brooks’s sister, who speaks of the beatings he received as a child and the domestic chaos in their home. The prosecutor may make a mistake with respect to the black members of the jury, McFeely suggests, by pouring scorn on this young black women who has escaped the horrors at home and ‘was busy graduating from high school and didn’t even pay attention’ to her brother’s troubles. The accused’s mother also testifies.

On the other side sit the fiancé and the mother of the young woman who was raped and murdered. Their pain and loss are made evident. Because ‘heinous, depraved and cruel’ are terms of art – aggravating factors – the girl’s family and the jurors see again forensic photographs of the stabbed body; they hear details of the fatal wounds. The prosecutor re-creates the whole nightmarish scene and suggests that the murder of this beautiful girl, which has caused the family much pain, be matched by the death of the man who robbed her, and them, of her young life. The defence retorts by acknowledging the crime’s full horror and insisting on the humanity of the killer and on alternatives to killing him.

As a consequence of this procedure all sorts of biographical detail about murderers emerges and further clouds the symbolic clarity of killing them quickly and without their attaining any human depth. Mitigation, for example, might include the fact that the murderer was so mentally retarded that he didn’t understand what he had done or what might become of him. Some states, including Georgia, no longer execute those below a specified IQ. But others still do and questions about the rightness of capital punishment generally, or of specific instances, are displaced by discussions as to whether the condemned man is as stupid as some tests suggest, even if stupidity is not legally a mitigating circumstance.

I watched the national coverage of the most recent Texas execution. (In fact, there were two that night but only one caught the media’s eye.) Attention focused on the state spokesperson, who suggested that the condemned man really had an IQ even higher than had been suggested on appeal – 81, very slow – and on the defence spokespeople, who said that his IQ was really either 68 or 72 as two previous tests had shown. (These scores would meet many states’ criteria for retardation.) No one disputed that he had failed seventh grade three times, an unprecedented feat in American middle school, and couldn’t read. In all, almost forty mental incompetents have been executed since 1976; the man whose warrant Bill Clinton rushed home to sign in 1992 when he was running for President was probably so far gone – as a result of a lobotomy – that he didn’t know what was happening to him. In general, the denizens of Death Row who make it to the execution chamber are revealed in the course of their appeals, if not at their trials, to be a pretty pathetic lot.

There has also been a displacement from justice as a matter of public policy to justice as what it was long ago, a private matter. This, too, has muddied the waters. Because the trial is construed so personally, as victim against perpetrator, the death penalty has come to seem like a way of satisfying the injured party rather than the State. It’s as if the courts had become the agent of one side in a blood feud while lacking the freedom to take swift action that made personal justice work in Norse law.

If one accepts the notion that executions exist at least in part to give satisfaction to family and friends, the problem arises of what to do when the victim’s family opposes capital punishment: pleas from a slain state trooper’s children had no effect in a recent Virginia case. Or what to do when the family is divided, as in the case of a former Buddhist monk who murdered a woman in California. The victim’s son wanted vengeance. Her husband, on the other hand, asked for mercy in keeping with his religion – he, too, was a Buddhist. (The killer was executed.) And what if no one cares one way or the other? Neither the victim’s family nor his own family witnessed the death, after 23 years on Death Row, of Sammie Felder Jr, the fourth person executed in December 1999, and Texas’s last of the 20th century. Even the number of protesters was tiny on that chilly winter’s evening and no one was there to cheer either.

As personal stories are elaborated, people take sides. Last year, California executed Manny Babbitt, a decorated Vietnam War veteran who served as a marine at the 70-day siege of Khe Sahn. He indisputably suffered from post-traumatic shock, claiming to remember nothing of the day of his crime, when a ‘flash of light’ sent him over the edge. Supporting his petition for clemency were veterans’ organisations (‘the execution is just another cold shoulder to Vietnam veterans’); several prominent writers who were also Vietnam veterans; his fifth-grade teacher who had come to California to plead his case (‘I told him I was honoured to be his teacher’); two of the jurors who had originally convicted him, who said that if they had known the details of his life they would not have voted for the death penalty; and a retired Detroit police officer whose life he had saved at Khe Sahn. On the other side, opposing clemency, was the victim’s family.

California’s new Governor, Gray Davis, a Democrat, worried about appearing soft on crime, turned down the request for a life sentence without parole for Babbitt on the grounds that the trauma he had suffered during his childhood and military service was not sufficient to spare his life. How much trauma, one might ask, would justify commuting death to a lifetime of imprisonment? Claims for clemency have always been made by citing mitigating circumstances, but what used to be understood as the interests of the State have now been reduced to claims and counter-claims of trauma. Whether or not someone on Death Row can be made to count as human because he, too, has been injured is an odd jurisprudential twist.

Or again, perhaps not. This is a country where supporters of the death penalty proudly proclaim that it is ‘the American punishment’ and the father of one victim told the press that ‘out here in the country, we’re hunters and we know how to treat animals.’ It had taken 22 years finally to execute his daughter’s killer, he lamented, and he ‘wouldn’t miss it for the world’.

There have been two sorts of response to the post-Furman revolution that seeks to make capital punishment rational and equitable. One is that of the Supreme Court Justice Harry Blackmun, a lifelong supporter of the death penalty who finally, in a 1994 case, gave up. He declared that he would ‘no longer tinker with the machinery of death’. The State’s decision whether to take a life was ‘so inherently subjective – rife with all of life’s understandings, experiences, prejudices and passions – that it inevitably defies the rationality required by the Constitution’. The other response is, procedures be damned.

No court or legislature has quite said as much, although the Supreme Court has made no secret of its distaste for long-drawn-out appeals. It has severely restricted access to Federal courts by curtailing the use of habeas corpus and by limiting appeals in other ways. Meanwhile, Congress has cut funds to pay appellate lawyers who represent the indigent, i.e. almost all those on Death Row. (The Southern Center for Human Rights and comparable groups are privately funded.) State courts are increasingly hesitant to grant appeals; some of them, like Texas’s, routinely turn a blind eye to even the most egregious irregularities.

It is in the context of this judicial effort to speed up the process that last year’s series of stories in the Chicago Tribune were such a bombshell. They have probably done more than any intervention of the past two decades to shift the debate by showing not only that the system works irrationally and unfairly – this is not big news – but also that innocent people are likely to be executed as a consequence. How many is difficult to say. The most thorough research we have suggests 23 for sure since 1900, and over four hundred more cases in which there is serious doubt. We know that at least three of those on Death Row in Florida whose sentences were commuted after Furman turned out to be innocent, but we don’t know whether they would have been executed had their cases not been short-circuited. But Ken Armstrong and Steve Mills, the Tribune reporters, made it absolutely clear that there were at least 12 innocent men on Death Row in Illinois and that only chance discoveries – some coming to light after all judicial appeals had been exhausted, all the result of efforts by privately supported appellate attorneys or, most strikingly, by the students of a Northwestern University journalism class – saved these men from execution. (A 13th case came to light earlier this year.)

In the old regime none of this would have mattered much. William Paley, the great late 18th-century theologian, regretted that some innocent men might be hanged but did not find it fundamentally problematic. These unfortunates, he thought, should regard themselves as giving their lives for their country – as sacrifices to the moral and legal order. Today this won’t do, at least not officially. Punishment is meant to be individual, rational and proportionate. (Popularly, such niceties may have little purchase. Pro-death penalty demonstrators outside San Quentin last year waved towards the prison and told the press that half the men ‘in there’ deserved to die.)

The general conclusion of the Chicago Tribune series was that capital punishment in Illinois is a mess, even though the Illinois Supreme Court is far from a rubber stamp for lower court decisions. In Texas, as Armstrong, Mills and another colleague, Doug Holt, have shown in two follow-up articles, the majority on the final Appeals Court is ideologically committed to carrying out as many death sentences as possible, as quickly as possible.) These reporters are not naive. They have no illusions about some of the men whose cases they investigate. (One man is guilty of murder, just not of the murder for which he was convicted.) What they discovered is that the whole process, from initial investigation through trial and appeals is so riven with error that the status of the process itself, and thus of individual cases, is called into question.

In 46 out of the Tribune investigators’ 285 cases the prosecution used notoriously unreliable jailhouse informants whose sentences were reduced in exchange for their testimony. In one case, the evidence came from a man who had been labelled a pathological liar by Federal authorities: his veracity was vouchsafed at trial by his candid admission of having lied previously. In 20 instances the death sentence was based in large part on a visual comparison of hair colour, a famously unreliable method left over from the late 19th century and now banned in many jurisdictions.

Thirteen innocent men in Illinois have been freed from this morass; how many more there are is not known. One of the Justices of the Illinois Supreme Court had already written two years earlier that he would no longer vote to uphold the death penalty because ‘so many mistakes’ had been made. The Republican Governor has suspended executions; the Republican Governor of Texas, on the other hand, George W. Bush, has expressed faith in the system.

Nietzsche got it right:

To see others suffer does one good. To make others suffer even more: this is a hard [saying] but an ancient, mighty human, all too human principle, to which even the apes might subscribe . . . without cruelty there is no festival: thus the longest and most ancient part of human history teaches . . . and in punishment there is festival.

Certainly, in punishment there is pleasure if, regrettably to some, not as much as there once was. In the old days, the owner of a bar in California told a reporter covering an execution, ‘we used to hang people from a brick building across the street . . . [now] we’ll just have to have our own execution party by remote control.’ She predicted dancing in the streets. A long, high cultural tradition is drawn to murder and to execution, if increasingly from a safe literary distance. (See Wendy Lesser’s Pictures at an Execution.) And the conjunction between mass entertainment and death goes back to the very beginning.

One of the earliest commercial films ever made shows the electrocution of an elephant in the Coney Island amusement park, a spectacle brought to viewers by Thomas Edison, whose lab developed the electric chair. And Death Row brings the old forms of the penny dreadful, the murder feuilleton, The Newgate Calendar and the amusement park together in a modern form. It is a rogues’ gallery of unsavoury-looking characters: everyone awaiting execution in the United States today is represented by a picture and a paragraph describing their crimes in gory detail. (One is relieved that some of them are behind bars.) Longer articles feature special criminals. And there is a jolly mix of commentary about victims vindicated, liberals and lawyers stymied, rough justice triumphant. Last words are recorded, as are last meals: hamburgers and coke are the most popular. Of late, Texas has been offering a website – www.tdcj.state.tx.us/stat/finalmeals.htm – where those interested can get up-to-the-minute information on specific cases and general policy. No BLTs, for example, because the state does not serve convicts bacon – too expensive. Likewise, those who request T-bone steak get Salisbury steak instead. And so on in edifying detail.

There are also modern twists to old themes: in place of the bits of clothing or other souvenirs a crowd could gather in the old days, today’s fans can buy replicas of six different electric chairs replete with wrist and ankle restraints and fake flashes of current. (This July, the New York Times ran a small story about a new plaything from McFarland Toys: a model of Death Row Marv, anti-hero of Frank Miller’s Sin City, who is strapped to an electric chair and taunts his persecutors with a jeering ‘is that the best you can do?’ when the switch is thrown. His ‘eyes light up as he fries’. Recommended for children of 13 and up; it costs $20.)

Even the old pleasures are not what they once were, however. Execution seems just a little embarrassing, a private pleasure to be shared with the like-minded but not something that would survive in broad daylight. Death Row somewhat sheepishly gives over a page of its website to someone whom an earlier edition regarded as guilty but who the editor now thinks is innocent. ‘Old Sparky’, the electric chair built by prison inmates in Florida, was retired after almost sixty years. Its replacement failed to pass Constitutional muster when the Florida Supreme Court saw videos of what the judges said was the ghastly execution of someone too fat properly to conduct electricity. In fact, from the very beginning in Edison’s lab it has not been easy, for all sorts of technical reasons, reliably to kill someone with electricity. A special session of the Florida legislature, following a national trend, opted for lethal injection late last year.

Public executions, at which large crowds could actually watch justice being done succumbed to bourgeois sensibilities long ago, during the 19th or early 20th centuries. (The last one – excepting lynchings – in the United States brought a huge festive crowd to the foot of the gallows in Kentucky in the 1930s.) Today we kill at night – over 80 per cent of executions are carried out between 11 p.m. and 7 in the morning (half between midnight and 1 a.m.). Courts have resisted televised executions on all manner of spurious grounds – among them, security problems and safeguarding the identity of those who carry out the procedure. The real reason is that public or pay-per-view executions would be indecent and offensive to ‘modern sensibilities’. The few tapes of actual executions, presented as evidence in cases arguing that electrocution and gassing constituted cruel punishment, have not been leaked. The bottom line of capital punishment – the killing itself – has, in short, become almost secret and certainly not something to be enjoyed openly.

Some prisons have, of late, made provision for victims’ families to witness executions. But there is something half-hearted even here. They are not allowed to see the needle being inserted: because medical ethics prohibit doctors and nurses from carrying out executions, the job falls to paramedics, who are not very experienced and often screw up. Thus the curtain is opened only when everything is in order – condemned strapped to the cross-like gurney, tubes in place – and it is quickly closed again if, as happens in about 10 per cent of cases, something goes wrong. It’s a far cry from Hogarth’s Idle Apprentice. The victim’s friends and family are tidily segregated on one side of the glass-enclosed room, friends of the accused on the other, like friends of the bride and friends of the groom each in their own pews. The scene played out before them looks like the events in an operating theatre, familiar to American viewers from surgery shows on 24-hour cable. Even so, it’s strong stuff. In Texas a special Huntsville Regional Post Trauma Unit is on call in the support room to ‘prepare victim witnesses and personalise the event’, as well as to help them deal with such upsetting contingencies as ‘the inmate’s last breath sounding like a rattle or snort’, his eyes remaining open, or a last statement that is vengeful or lacking remorse.

Today, even old-fashioned supporters of capital punishment are too high-minded to allow full expression of the old pleasures. ‘Retribution,’ the one-time Solicitor General Robert Bork argued before the Supreme Court, ‘is itself an important, perhaps a vital, social function.’ But retribution must be ‘stripped of its vindictiveness’. What sort of retribution, I wonder, is not intended to cause anguish or hurt? What satisfaction could there be in it? Modern sensibilities, secularism and the rule of law – not to speak of a tainted history – have robbed capital punishment of almost all its symbolic powers.

Yet there is still something awesome about an execution, perhaps all the more an execution carried out in the bowels of a great institution at dead of night, before a small audience – or none at all – by executioners who in another setting would be doctors and nurses. It has been awesome since Neolithic times, when our ancestors sacrificed humans to assure fertility and through all the festivities of antiquity and the Ancien Régime it has remained so. Some people in this country can imagine a secure moral order only if it is somehow underwritten by these exercises in death. Most people would want, on first impulse, to cause as much pain as possible to those who cause pain to their loved ones.

It is the work of civilisation to mitigate such impulses, to acknowledge that this sort of sacrificial violence is no longer necessary to sustain the social compact. We no longer live in the supposedly unified communities of old. Human sacrifice is not what keeps a pluralistic society together and it is time that some American politician said as much.