Path dependence, culture and state-level execution policy

The career of capital punishment in the United States has only recently begun to receive the attention from scholars of law and society that it has long deserved (see Sarat, 2001; Banner, 2002; Whitman, 2003; Zimring, 2003). David Garland’s essay in this issue adds to this boomlet, and my delight in his entry in the capital punishment sweepstakes is only slightly diminished by our differences. There is much, particularly toward the end of Garland’s essay, that I agree with (compare Zimring and Hawkins, 1986a and Zimring, 2003), but those agreements are not the reasons the editors have invited my comments. In his detailed criticism of my recent book, I think Professor Garland has misinterpreted the available evidence on two key issues and misread the book on two others. These matters are the focus of this note. My response will be organized under three headings and a summary, beginning with a quibble about the conclusion Garland ascribes to my book, then analyzing the Garland and Zimring differences on ‘vigilante values ’ and finally complaining about a small assortment of Garland’s interpretation of parts of my book. I The theme that David Garland tells us he wishes to dispute is that of ‘American excep-tionalism’: The sociological language of ‘exceptionalism ’ suggests that the USA’s current use of capital punishment is no transient phase of penal policy but is, instead, anchored in a kind of socio-cultural bedrock, a set of defining institutions and values that underlie the American nation and shape its historical choices. And indeed, both Zimring and Whitman make much of this embeddedness, suggesting that capital punishment is not a judicial sanction that might be ended by an act of law so much as a cultural disposition that will persist until the American nation changes in some more fundamental way... (Garland, this issue, p. 348; hereafter cited as ‘Garland’