| The Post WW2 DP
(Based partly on Capital Punishment and the American Agenda (1986) by F. Zimring & G. Hawkins) Because the DP involves crime and trials, it is usually viewed by academicians from a legal perspective and discussed in terms of legal theory, legal history, etc. Prominent criminologists Franklin Zimring and Gordon Hawkins (ZH) take a more sociological approach, and look at the DP from a more realistic historical and political perspective. They point out that over the last century and a half, there has been a slow worldwide decline in executions as more and more countries have industrialized and urbanized, established modern and more democratic political processes, and modernized their social institutions. Along with modernization has come a more sophisticated and successful abolitionist movement as the DP is increasingly viewed as a barbaric pre-modern practice. The US is not an exception to this pattern � the abolitionist movement in the US dates back to the same period and, in fact, several US states (most notably Michigan and Wisconsin in the mid-1800s) were among the first jurisdictions to permanently outright abolish the DP. The long-term decline accelerated after WII, led by the modern industrial countries of Western Europe (but only after the executions of "war criminals"). In the two decades following WW2 country after country in Europe first cut back on its use, and then abolished the DP altogether. There was another acceleration starting in the mid-1970s, and since then about half of all countries worldwide have abolished the DP. Accompanying this process have been some related developments in international law, and increasingly the political right to life has become recognized as one of several fundamental "universal human rights" that are seen as transcending particular cultures and countries. Characteristics of the worldwide decline Focusing on the political nature of the DP, ZH describe a number of common features of the global decline: - On again, off again abolition, and a continuing struggle by leaders against public opinion. - A parallel between general respect for human rights and abolition, which derives from the separation of crime policy from politics. - Retentionist nations are also usually repressive in other ways, including non-democratic political institutions, secret police, torture, etc. - A similar three-step process of permanent abolition, which also illustrates the political nature of the DP: First, executions are halted by political leaders who have a more rational perspective and exert "leadership from the front" rather than simply following the vagaries of "public opinion" which tends to be based on little knowledge and swayed by emotional issues of the moment, often heinous crimes. Second, the de facto abolition is later encoded in law, often including formal abolition embedded in constitutional principles. Third, public opinion follows as the public adjusts to the new reality and begins to see the DP as a barbaric relic of the past. Thus DP abolition results when political leaders set high consistent standards for human rights instead of following the shifting biases of public opinion, and the culmination is increasing codification of abolition in national constitutions and in international law as a human right, for example in the European Union. The Post WW2 DP in the US The century and a half worldwide decline of the DP had its parallels in the US: First, the abolitionist movement in the US has been active since the Revolutionary War era, and a number of states have permanently abolished the DP. Several others abolished the DP and then reinstated it later. Second. all states in the US moved jurisdiction for executions from the local level (e.g., county sheriffs) to the state, also opening the possibility for appeals in state courts. Third, all states have abandoned the practice of public executions, and have resisted the pressure to televise executions. Fourth, increasing intolerance for, and the eventual end of, lynching. Fifth, changing methods of execution, usually accompanied by the rhetoric of making executions �more humane� (e.g., from torture/executions, to early hanging (strangling), to trap-door hanging, to electrocution and the gas chamber, to lethal injection). Sixth, the increasing need to �defend� capital punishment � executions are no longer simply taken for granted as an obvious part of legal systems. After WW2, many national and state political leaders (but not in most of south) were already struggling with the issue as illustrated by political battles over many prominent capital cases before and after the War � Sacco/Vanzetti, Richard Bruno Hauptmann, the Scottsboro case, Caryl Chessman, the Rosenbergs, Dr. Sam Shepard, and many others. There was also a growing issue of unequal and unfair treatment of the poor and minorities by the legal system. The politics of abolition was similar to what was happening in Europe � political leaders increasingly saw the legal system as seriously flawed while the public continued to support capital punishment. This became more complicated when the Civil Rights Movement (CRM) emerged in the 1950s and targeted the racist (Jim Crow) DP in the south. Early CRM opposition to the DP paralleled the earlier anti-lynching movement, focusing on publicity about racism in the legal system (like the Scottsboro case) followed by political attacks through state and federal legislation, and finally pursuing legal attacks (case by case) through the Federal appeals process. But none of this was very effective in ending racism in the state legal systems, especially in the south. Then a group of lawyers at the NAACP Legal Defense Fund came up with a brilliant idea - the Moratorium Campaign. By the late 1950s, the Federal Courts were the primary weapon against many practices of southern racism (and the DP was blatantly and massively racist!), but the Federal Courts wouldn't touch these cases because of the politics of racism in the US. The Moratorium Campaign sought to stop executions by flooding the Federal Appeals Courts with so many of these ugly cases that the Courts could no longer avoid the issues, and thus pressure the US Supreme Court to step in and address the issues. This strategy was successful and by the mid-1960s executions had come to a halt across the country and in 1972 the Supreme Court found the DP unconstitutional in Furman v. Georgia. Copyright � 2009 Ernie Thomson. All rights reserved. email: [email protected] |