Stuart Banner Explores Why
America Has the Death Penalty
punishment has been part of the American criminal justice system from the
beginning and is one of our most contentious issues of public policy today,
no one has written the history of the death penalty--until now.
Professor Stuart Banner will survey capital punishment from the early 17th-century
colonies to the present in his new book, Dangling Between Heaven and Earth:
A History of Capital Punishment in the United States, to be published by
Harvard University Press. The book will detail four centuries of American experience
with capital punishment--what Americans thought about the death penalty, how
and why they conducted executions, and even what the condemned felt like on
the verge of death.
"Capital punishment presents several puzzles," Banner said. "It gets
more attention than any other issue of criminal justice, yet it is but
a minuscule part of our criminal justice system. It is very popular despite
some well-known shortcomings. It ostensibly serves the goals of deterrence
and retribution, but we impose it in secret, and we take great care to
make it as painless as possible."
Banner emphasizes that he is interested not in arguing for or against
the death penalty, but in trying to understand how these puzzles came
to exist. According to Banner, capital punishment served important deterrent
and retributive purposes in the 17th and 18th centuries. It gradually
lost those purposes over the 19th and 20th centuries, yet it has nevertheless
persisted due to its symbolic role as a statement of society's strong
desire to stop crime.
In an effort to gain a comprehensive understanding of capital punishment, Banner
traveled all over the country to read archival records, newspaper accounts,
sermons, memoirs, diaries, fiction, and whatever else he could find. In state
archives he discovered a largely untapped set of sources--the records of clemency
applications directed to executive branch officials. "Clemency records contain
all sorts of fascinating material about the people affected by the death penalty--the
condemned, their families and neighbors, crime victims and their families, judges,
jurors, lawyers, governors, and so on," explained Banner. "These stories flesh
out the larger, more structural changes described in the book."
David Thomas Konig, professor of history in Arts & Sciences at Washington
University, said, "What most impresses historians about Banner's work is
that he goes beyond adding legal insight to the historical findings of others;
his own research breaks new ground in the domain of the past, and his legal
acumen gives to that past a rich, new meaning."
Banner has seen the death penalty from a variety of perspectives. Each year
he teaches the law school's Capital Punishment Clinic, in which students have
the opportunity to work closely with the public defenders who represent defendants
charged with capital murder. He has worked on several capital cases himself,
both as a lawyer and as a law clerk at the U.S. Supreme Court.
He finds that his work on the book is enriching his teaching, and that
lessons learned in practice and while teaching are finding their way into
the book. "The subject allows me to combine teaching, practice, and research
in a way that most academic projects don't allow," Banner said. "I feel
Professor Banner has a BA from Yale University and a
JD from Stanford Law School. His previous two books are Anglo-American Securities
Regulation: Cultural and Political Roots, 1690-1860 (Cambridge University
Press, 1998), and Legal Systems in Conflict: Property and Sovereignty in
Missouri, 1750-1860 (University of Oklahoma Press, 2000). Banner teaches
Property, American Legal History, Supreme Court, and Capital Punishment Clinic.