THE DECLINE OF THE DEATH PENALTY AND THE DISCOVERY OF INNOCENCE
by Frank R. Baumgartner, Suzanna L. DeBoef and Amber E. Boydstun. New York and Cambridge: Cambridge University Press, 2008. 292pp. Hardback. $75.00/£45.00. ISBN: 9780521887342. Paperback. $23.99/£17.99 ISBN: 9780521715249. eBook format. $19.00. ISBN: 9780511373299.
Reviewed by Priscilla H. M. Zotti, Department of Political Science, The United States Naval Academy. Email: zotti [at] usna.edu.
Although a number of writers have discussed the problem and consequences of convicting the innocent and sentencing them to death, the authors of THE DECLINE OF THE DEATH PENALTY AND THE DISCOVERY OF INNOCENCE take an interesting and decisively different approach in explaining the current state of the death penalty in the United States. Frank R. Baumgartner, Suzanna L. DeBoef and Amber E. Boydstun explore the death penalty in terms of public policy and public opinion and the collective response over time to the death penalty as a form of punishment in the United States. The focus is not on the legal development of the death penalty and provides the reader little case analysis. Instead the authors focus on the impact of innocence and how the concept of wrongful convictions has changed public opinion about the death penalty and in turn affects public policy. The book is about the media and the coverage of the death penalty rather than the legality of the punishment and its constitutional status.
The authors assert that the reason for this “reworking” of the death penalty in the public conscientiousness is due to framing. The process of framing, defining an issue along a particular dimension, has not only changed thinking about the death penalty but completely overhauled the issue. Of course any bureaucratic system run by humans will inevitably suffer mistakes, but why the current focus on innocence?
Today the concept of innocence pervades public and official discussion of the death penalty more so than in any period in history. The authors provide a thorough and interesting historical analysis of the public discussion of the death penalty. This discussion has widened and refocused due to the growth of innocence commissions and innocence projects in journalism and law schools, increased public commentary about error, and the scientific reliability of DNA as an investigatory tool. Collectively a shift in attention by legal scholars, judges, and journalists has contributed to the ‘reframing” of public discourse of death penalty policy. This in term has led to a growing divide between the theoretical discussion of the death penalty and the more practical one of its usage.
Baumgartner, DeBoef and Boydstun make the case that historical arguments of capital punishment are morality centered. An “eye for an eye” has long been justification for state sponsored executions. Legal and crime fighting arguments have also had a moral [*638] foundation of protecting the law abiders from the law breakers. The shift to a focus on innocence and the consequences of wrongful convictions is a monumental change in policy focus, rarely achieved in discussing complex social issues. The issue of the death penalty has been completely transformed. One goal of the authors is to demonstrate and explain to the reader why the new innocence argument has been so effective in changing public opinion and public policy. They argue that the death penalty as a social issue has reached a “tipping point.” Change of understanding gives way to change of policy which in turn continues to further our understanding of the issue. The core focus of the authors is the nuances of change of public opinion about the death penalty and the resulting effect on public policy. The book offers the reader a refreshing vantage point from which to consider capital punishment.
The core of the authors’ presentations is framing. The data used to develop their thesis are based on 3,939 death penalty articles published in the NEW YORK TIMES since 1960. The authors track the major arguments of capital punishment, distilling them into major categories of focus: innocence, humanizing the defendant, constitutionality – pro, constitutionality – con, popular support, and eye for an eye from 1964 to 2005. Further analysis includes other media resources which support the initial findings. Methodologically, the authors use evolutionary factor analysis, and standard factor analysis used on successive moving windows of time. These new measures demonstrate the impact of framing issues on collective public opinion and on policy outcomes.
The framing and reframing of capital punishment begins with a historical and legal discussion of the status quo, from FURMAN v. GEORGIA and the brief moratorium that lasted from 1972-1976. The 1976 litigation, which reinstated the death penalty in the United States, is the beginning of the modern era. The focus is not on the legal aspect of the death penalty as punishment but the correlation of the death penalty to public opinion. The authors note the geographic and racial differences in the use of the death penalty and relate it to public support. The death penalty is put in aggregate perspective. Less than one percent of homicides result in a sentence of death.
Quickly the authors turn to the change in status quo brought about by the emergence of innocence as a frame for the issue. They document the sudden rise of the dialogue of innocence resulting in familiarity of the issue by the average American. A number of various threads of events and knowledge converge to make the issue persistently part of the death penalty discussion. Despite the fact that academicians have researched and written about the fallibility of the death penalty for years, the issue has taken hold and risen to prominence in the American psyche in the past two decades. The authors make a convincing case when focusing on the changes in Illinois in the past decade, culminating with the moratorium on executions and the blanket clemency granted by then Governor Ryan in 2003.
Innocence projects in law schools and journalism schools became more common. Furthermore, their impact was local, awakening a sense by many that the problem of injustice was not a distant [*639] or abstract one. Other states quickly followed suit and began exploring the use of DNA, considering innocence safeguards and even issuing moratoriums until some were put in place.
Baumgartner, DeBoef and Boydstun conclude that the innocence frame is the strongest in modern history, rising sharply in the late 1990s and transforming the death penalty debate. This transformation is supported by a changing media tone that has led to a slow but steady decline in support for the death penalty. This in turn impacts public policy.
The authors conclude with a discussion of the implications of an anti death penalty trend in media attention and public opinion. No doubt the focus of the book is on the innocence dimension rather than on the long standing public support for the use of capital punishment. Still the authors conclude that the future will bring a more restricted use of the death penalty. The US Supreme Court ruled in ATKINS v. VIRGINIA in 2002 that it is unconstitutional to execute the mentally retarded, and in 2005 in ROPER v. SIMMONS that it is unconstitutional for states to execute juveniles. The evolving standard of decency, which permeates death penalty discussion, includes the fallibility argument of wrongful conviction and executions. Just recently a de facto nationwide moratorium was created by the Supreme Court as it considered the legality of lethal injection in BAZE v. REES. The Court ultimately ruled that lethal injection was not a cruel and unusual method of execution. However in its next breath the Court found that executing convicted rapists violates the Eighth Amendment, leaving homicide as the only crime that is death penalty eligible (KENNEDY v. LOUISIANA).
Still today a majority of Americans support capital punishment. The book focuses on the affect the discussion of innocence has on subsequent support for the death penalty by policy makers, courts and the public. From 1973 to 2006, 123 individuals were wrongly convicted and sentenced to death. A bureaucratic institution that is managed by humans, making it fallible, may diminish its use in part due to the “discovery” of innocence. THE DECLINE OF THE DEATH PENALTY AND THE DISCOVERY OF INNOCENCE is a fascinating and refreshing look at capital punishment. I highly recommend it to any scholar versed in the case law. This scholarly work provides the reader an additional dimension in understanding the use of capital punishment in the United States.
ATKINS v. VIRGINIA, 534 U.S. 304 (2002).
BAZE v. REES, 07-5439, decided April 18, 2008.
KENNEDY v. LOUISIANA, 07- 343, decided June 25, 2008.
FURMAN v. GEORGIA, 408 U.S. 238 (1972).
ROPER v. SIMMONS, 543 U.S. 551 (2005).
© Copyright 2008 by the author, Priscilla H. M. Zotti.
Labels: Vol. 18 No. 7