t is my understanding that I fit into the broad category or "statistical grouping" of individuals (as do most individuals in the United States) that "have an opinion on the issue of capital punishment, but have rarely given it long and thoughtful reflection." Having said this, I hasten to say that I feel a bit of shame at not having given such a serious topic more consideration than I have. After all, capital punishment reflects a rather significant aspect of our criminal justice system and, perhaps more generally, our culture. And just as important, killing someone as a form of punishment is no small thing and is, therefore, in my opinion, worthy of some close and careful deliberation.

Hence, my reading of the newly published book by Amherst's jurisprudence and political science professor Austin Sarat, entitled When the State Kills, was a timely and edifying experience. While I do not entirely agree with Dr. Sarat's "modern abolitionist's" views, I do appreciate his thorough, interesting and, in my view, highly readable analysis of capital punishment in America. Indeed, in his introduction, he catches my attention quickly when he posits the question, "If Timothy McVeigh doesn't deserve to die, then who does?"

As Professor Sarat points out, by late spring in 1995, McVeigh had become the "personification of the cold-blooded killer, a living, breathing endorsement of capital punishment (Sarat, 2001, p. 5)." Newspapers, magazines, and talk shows were awash with discussion of the Oklahoma City bombing and its horrific aftermath. Most Americans were initially in disbelief and shock that such a monumental and heinous act could be perpetrated in America's heartland. Many were also angry and wanted justice. Sarat points out that even a full two years after the bombing, according to a Today/CNN/ Gallup poll, 61 percent of Americans wanted to see McVeigh dead.

Thus using the McVeigh case as a starting point, Sarat begins to analyze the notion of "vengeance" and its increasing influence on our legal system. He believes, and states repeatedly and strongly throughout his nearly 300-page book, that certain aspects of our legal system have gravitated towards a more primitive and emotional form of punishment based on the need for revenge. Sarat states that the typical perception or view of Americans is that the victim of a crime has a need, and some would say a right, to “avenge” oneself. To Sarat's disappointment, vengeance, in the name of the victim, is now commonly accepted as a "legitimate" form of the American legal system. This means, according to Sarat, that McVeigh's crime must be avenged, and the death penalty is therefore justifiable according to current judicial interpretation of the law.

Dr. Sarat in opposing this view and practice now prevalent in our legal system argues for sound juridical reasoning and impartiality. He feels that our legal system should instead be one of "retributive" punishment (a process that dispenses appropriate penalty with the exception of death). While the urge for vengeance is understandable, it should be repressed, and in its place should be supplanted "true" or authentic rationality, detachment and objectivity. Sarat states that it is these "rational forms of justice" that are indeed the true foundation of our legal system and heritage. He declares that the "wildness"  (emotionalism or passion) associated with revenge is something “recent” in American justice and that it is part of the new politics of the victim's rights movement and, consequently, should be "weeded out" for the sake of magisterial logic and even-handedness. 

I sympathize to a degree with Professor Sarat's discussion here, and though I found it somewhat repetitive, he does add some case law and anecdotal narrative that makes for both interesting and compelling reading. For example, his discussion of Payne v. Tennessee (1991) was very informative and provided what I thought was a useful basis for understanding the impact of the victim's rights movement and the role that victims play in trials and their sentencing phases. Additionally, Sarat's use of first-hand accounts of grisly crimes and their effect on victim's families and friends gives the reader a real and "up-close" grasp of the passion and "victimization" associated with narratives associated with violent crimes

Another topic that I found interesting was Sarat's discussion of what he terms the "modern technologies" used in capital punishment. Without being excessively morbid or inflammatory in his writing, Sarat points out that the United States has attempted to make executions a painless and "allegedly humane" experience. He does mention the bungled electrocution of Pedro Medina in March of 1997 and presents opposing arguments by experts and authorities as to the humanity and suffering of such an act. But Sarat's main issue here is to bring attention and reflection to executions generally and government's aim to keep them "quiet, invisible and bureaucratic." Sarat states that by making executions more humane, more efficient, and more technologically advanced, we are in fact civilizing and sanctioning capital punishment. He states that by "killing softly," government is attempting to reinforce the view that capital punishment is a valid, desirable and increasingly merciful, benevolent act.

I also found Professor Sarat's exposition on capital trials and the role that juries play in such trials engaging reading. For instance, though his account of the Williams Brooks case, a case which involves the rape and death of a young woman in Georgia in the late 1970s, is plainly gruesome, the story provides an effective context for understanding how a "typical" and "low-profile" capital trial proceeds. There is much to even an "ordinary" capital trial and Sarat details the arguments offered up by prosecution and defense lawyers, the testimonies of witnesses and experts, the rulings of judges and the procedures of court, and last but not least, the decision making process of the jury. I especially like Sarat's deciphering of the court and its complex proceedings, or as he puts it, a kind of drama of competing narratives between "the innocent and the evildoer."

Equally thought provoking, is Sarat's portrayal of capital trials as places where three kinds of violence are manifested. First, there is the violence of the murder. This is the presentation or account (by the prosecution) of the act of murder that speaks in terms of a "morally clear world of responsibility and just desserts” (Sarat, 2001, p. 22). The victim's brutal murder is methodically laid bare to the court, and beyond, and its details are presented, as Sarat sees it, passionately through stark and grim evidence and testimony. With this backdrop, the culprit is identified and then demonized. From here, the argument goes an "eye for an eye," or simply put, he or she -- the murderer -- deserves nothing less than death.

The second violence in a capital trial, as Sarat describes it, is the "violence" that the defendant experiences as a child, and later, as an adult. This is an examination (by the defense) of the defendant's "brutish" and abusive environment -- his or her home, family and acquaintances. Sarat claims that the defendant, or the crime, is the manifestation or result of a terrible and violent life, a chain of events and circumstances that are caused by societal conditions for which we are all, in some way, to blame. Thus for this reason and though the defendant may be guilty of an awful crime, and indeed deserving of some form of punishment, Sarat believes that the death penalty should not be a viable option.

And Sarat's third form of violence that is realized in a capital trial proceeding is the death penalty itself. As Sarat sees it, the death penalty is little more than an abstraction during a capital trial. Its "vividness and gore" is kept silent or blurred. Where a murder in the proceedings of a trial is given a full description in all of its blood and guts, the violence of the death penalty, the execution, is indefinite, vague or distant. Herein, I interpret, is one of Sarat's main themes: Murder is violence, something which is horrid and gruesome. The death penalty is also this kind of violence, i.e., horrible and invidious, but in fact is depicted by the state as purposeful and legitimate. Hence a key question for Sarat is, "Is not the violence of murder as terrible and wrong as that of the violence associated with the state 'legally' killing someone?"

Another area that Sarat covers that gives food for thought is his description of the role of the death penalty lawyer. Midway through his book, Dr. Sarat delves into the aims and strategies of a comparatively small cadre of lawyers who dedicate themselves to preventing or postponing executions of death row convicts. The purpose of the death penalty lawyer is not, in most cases, as one might assume, to vindicate a person who is clearly guilty of murder, but rather, to find some technicality for appeal in order to postpone or reverse the death penalty. According to Sarat, the death penalty lawyer as such provides a valuable service on behalf of those who oppose capital punishment. The death penalty lawyer is, knowingly or unknowingly, a champion of the modern-day abolitionist, one who persists in staying off “state killings.” This delaying tactic not only saves individual lives, believes Sarat, but also gives death penalty abolitionists time and opportunity to tell "their story" and deal with the issue of capital punishment more generally.

Later in When the State Kills, Sarat addresses one aspect or notion associated with capital punishment that I have contemplated, and occasionally see in print or hear discussed on television. This is the idea of public executions. Sarat discusses this idea at some length, and in a discreet but firm way asks, “Should executions be made public?” For myself, I confess that I have not formed any strong opinions on this subject, but having said this, I suppose that I can say that I see favorably some of the pros and cons on both sides of this fervent issue.

As Sarat states early in his chapter, “To See or Not To See,” executions in the United States are restricted affairs. In most states, viewing an execution is limited to prison officials, medical personnel, select members of the media, and the family of the victim. For that matter, Sarat states that the last “public” execution in America was more than 50 years ago.

Despite the prohibition of public executions, Sarat does speak to the fact that they are still publicized, by varying degrees, in newspapers and on television. He cites, for example, a close look at a single execution in Texas by ABC’s Nightline host Ted Koppel in January of 1995. In his account, Sarat states poignantly that Koppel reminds his viewers that “he can not show it [the execution],” but that he can describe the actual execution, in all of its lurid details, as he witnessed it.

Sarat continues his discussion of executions mentioning Wendy Lesser’s book, Pictures of an Execution (1995) (she argues against public executions), the KQED v. Vasquez (1991) case where a public television station in San Francisco sought permission to film an execution, and other situations and circumstances that focus on the question of making executions public or not. Overall, I found Sarat’s discussion here a good one, one that presented the arguments for and against in a balanced and comprehensive way. Nevertheless, Professor Sarat makes it quite clear, and predictably so, that he thinks the prohibition on public executions should be lifted. Why? Sarat argues that the prohibition is one more attempt by government to keep the whole question of death penalty as unclear or hidden as possible. He believes that politicians and bureaucracies -- generally speaking -- want executions to be silent, veiled and procedural or administrative in nature. Further, Sarat rejects the argument that executions should not be made public because it would feed sadistic tendencies and would be otherwise undignified. For Sarat, televising executions would rightfully disrupt the “sanitized or purified” state killing apparatus and force all of us to confront the violence of an execution, however carried out (electrocution, gas, or lethal injection). I, myself, found this a powerful, unsettling and challenging viewpoint.

Nearing the end of his book, Professor Sarat takes time to consider what he terms “the ‘state killing’ as found in our popular culture.” It is at this juncture that Sarat deems that capital punishment is unavoidably ripe for symbolism and imagery and, in consequence, is a recurrent subject for films. As examples, he refers to movies in the past such as Angels with Dirty Faces (1938), I Want to Live (1958), The Chamber (1996), and True Crime (1999). More specifically, Sarat concentrates on the popular cultural aspects of three recent films as they relate to capital punishment. These movies are: Dead Man Walking (1996), Last Dance (1996), and The Green Mile (1999). His intent in looking at these three specific films is to examine their “cultural politics,” that is to say, “How do they communicate knowledge of or portray capital punishment?” “What do they say in terms of the legitimacy of the death penalty, the American condition, and present day executions?” (Sarat, 2001, p. 211).

By and large, Sarat feels that the emphasis of these films is on the notion of individual responsibility, not the social causes of crime. Sarat feels that the films are too attentive to the personal characteristics of the criminals, their prison situations, and their pathos. He feels that meaningful explanations of their crimes, contributing socio-economic conditions, and other such historical details of the death row inmate are largely ignored. In this way, “they shore up the conceptual foundations of state killing and help to legitimate it” (Sarat, 2001, p. 213).

I agree that the popular cultural influences of film are pervasive and that films like The Green Mile are unabashedly sentimental and, in this particular case or milieu, stress responsibility for one’s actions. They are, like most of Hollywood’s movies, quite simply stories or dramas that strive to portray tensions, values and assorted facets of the human experience. They are, however, in my view, never more than snapshots of the human condition and are justifiably incomplete, subjective and fleeting. My point is that as literary devices, films are stories with varying perspectives and prejudices, like the authors and filmmakers who construct them. If they are incomplete, biased and transitory in nature, so be it. After all, my question is, “What does Sarat expect from Hollywood anyway?”

In conclusion, I enjoyed Sarat’s book on the whole and feel more informed about the issues and intricacies having to do with capital punishment than I previously did. My embarrassment, as I earlier referred to in this review, at not having given this issue serious thought in the past is lessened, but I still feel like I have more to do to get a good understanding of what the death penalty really is and what it means in our society. Notwithstanding this, I think, at least in my case, that Dr. Sarat has accomplished something and that is that I feel that I have a better grasp of capital punishment and its impact on victims, perpetrators, jurisprudence, and a whole range of other equally affected important things, processes, situations and ideas. Hopefully, those who read When the State Kills will also benefit from the experience and gain a better understanding of what capital punishment means.

REFERENCES

1. Sarat, Austin (2001). When the state kills: capital punishment and the American condition. Princeton, NJ: Princeton University Press.

Mr. Richard D.Young, B.A., M.A., has been a senior research associate with the Institute for Public Service and Policy Research at the University of South Carolina since 1998. He conducts research on a myriad of public policy and public administration topics relating to state and local governments. Mr. Young previously worked with the Senate of South Carolina and the State Reorganization Commission in various positions of research. Prior to this, Mr. Young taught at the University of Louisville, Hanover College, Indiana University Southeast, and the University of Kentucky Campus in Louisville, Kentucky. Mr. Young has a B.A. (1973) and M.A. (1975) from the University of Louisville. Mr. Young has written several papers and reports on public policy issues and public management theory. The Institute for Public Service and Policy Research has published Mr. Young's A Brief Guide to State Government in South Carolina (1999) and A Guide to the General Assembly of South Carolina (2000). The Institute has also published Mr. Young's book entitled Perspectives on Public Budgeting: Budgets, Reforms, Performance-based Systems, Politics and Selected State Experiences (2001). He and Dr. Luther F. Carter, President of Francis Marion College, have recently co-authored a paper, due to be published in 2001, entitled The Governor: Powers, Practices, Roles and the South Carolina Experience.  Mr. Young can be reached at young-richard@sc.edu.