Sociologist Herbert Haines has attempted to apply "social constructionist theories of social problems" and "social movement analysis" to America's anti-death penalty activism, especially of the post-1972 years. His primary focus is the behavior of the Legal Defense Fund, the America Civil Liberties Union, Amnesty International USA and the National Coalition to Abolish the Death Penalty--poorly funded organizations drawing primarily upon a narrow band of white, liberal, middle-class professionals as they largely unsuccessfully battle against the wave of capital punishment engulfing American society.
The centerpiece of Haines's data is comprised of interviews with fifty or so of the leading figures in the anti-capital punishment movement, as well as 5,000 pages of documents from their colleagues' and their files.
For Haines, there are four "abolitionist eras" in American history. Of the two most recent, the third was dominated by the movement's litigators and more or less reached its crescendo with FURMAN V. GEORGIA (1972), whose demand for an elevated level of due process in capital cases led, during a four-year period, to the invalidation of every death penalty statute in the country. But the leitmotif of the present fourth is that the days of sweeping legal victories are largely over. For, from the early stages of Ronald Reagan's presidency, the federal courts could no longer be counted upon significantly to limit the application of capital sanctions.
Thereby denied its previously most powerful weapon, its path breaking litigation, how has the movement responded? In the context of a present-day violent, angry, and frightened America, Haines tells us, its moral arguments, which have tended to dominate its message, have generally fallen upon deaf ears. It has failed appreciably to mobilize potential supporters among religious groups, students, and African-Americans. Its state and local base is feeble. It has had nothing of the street presence that could dramatically bring its case to large numbers of Americans. And lacking such a public spotlight, it has seen its message massively distorted by the media and its opponents.
A hopeless situation? If the movement remains largely as it is, Haines argues, it can do only two things. First, with very rare victories, it can try to make it legislatively and judicially difficult to inflict death penalties. Second, it can, at least, help to keep abolitionism alive. However, he continues, in the long run, it might even attain abolition itself if it can "reframe" its case to the public.
Rather than try to sidestep Americans' well-founded anxieties about violent crime, Haines argues, abolitionists should make appeals that respond directly to them. First, they should dramatize just how dysfunctional capital punishment is. No valid study, he contends, has shown that death is superior to imprisonment in deterring illegal homicides. And every careful assessment of the costs of executions shows that they are massively greater than those incurred in life incarcerations. In addition, this outlay rests far more substantially upon trial court expenses - ones relatively immune to change - than on the highly sensationalized ones of successive appeals.
Second, Haines observes, polls show overwhelmingly that, when given the option of life without the possibility of parole, and especially with restitution to the victims' families, very large numbers of Americans are willing to abandon their support for the death penalty.
In such a context, then, there is "a window of opportunity" for abolitionists powerfully to argue that the elimination of capital punishment will produce a substantial funding "dividend" that can then be employed, in a time of ever more constricted federal and state budgets, in far more effective attacks upon violent criminality.
Yet, Haines concludes, given their ideologies, traditions, and structures, the ACLU, Amnesty International USA, and the National Coalition to Abolish the Death Penalty will probably find it impossible to "repackage" their messages along the lines he has advocated. Consequently, wholly new abolitionist organizations may have to be created - ones capable of building bridges to moderate, and even conservative, counterparts in law enforcement, victims' rights groups, legislatures, and similar institutions.
A fascinating thesis! And one presented persuasively. Haines makes no pretense of objectivity; he is a dedicated abolitionist. Yet, he does not appear so much a part of the movement that he glosses over questionable positions of brothers and sisters. More than any such study of which I am familiar, his illuminates vividly the inner tensions and battles among abolitionists and, at key junctures, explicitly and forcefully takes sides. Who should call the shots, litigators or activists? Have individuals like the Reverend Joseph Ingle, an often publicized spiritual advisor to Death Row inmates, gone too far in seeking to "humanize" them through the media? Has Sister Helen Prejean provided a far more balanced, and thereby attractive, alternative? Does it really make sense for large sectors of the movement not to oppose, openly, abolitionists like Ingle when they denounce life imprisonment as merely a drawn-out death sentence?
In taking on such question, Haines seems the strategist first and the social scientist second. He develops little new theory. Social science concepts appear almost to flit in and out of his analysis. Testing them does not seem the focal point of his inquiry. They are more like handmaidens to the development of his policy stands. Yet, given his objectives, such emphases are hardly weaknesses. Haines, the sociologist, almost always keeps Haines, the abolitionist, on firm empirical ground.
Obviously, any work so comprehensive and bold raises a number of questions. Did the movement that led to statutory gradations of murder and manslaughter really spring more or less solely from an attempt to counter jury nullification? Or did it also have its humanitarian motivations? One would think that this question would be especially significant for a Haines, who is attempting to promote his own coalition of liberal and conservative anti-crime forces. Is there even threshold evidence that Death Row media figures Roger Coleman and Leonel Herrera may well have been innocent? Or was the case against them - a massive amount of which was never fully reported to the public - overwhelming? Should a serious Supreme Court researcher rely on Bob Woodward's and Scott Armstrong's THE BRETHREN for his or her accounts of what the Justices said behind-the-scenes relating to cases like FURMAN? Or do studies of published materials, as well as ones now based upon the recently opened Thurgood Marshall Papers, show Woodward's and Armstrong's widely circulated book to be riddled with errors?
Most importantly, Haines may have underestimated the continuing role of the litigators. The ink was barely dry on GREGG V. GEORGIA (1976), which approved the reimposition of the death penalty, when they began their new drive to "whipsaw" states attempting to bring back executions. Anthony Amsterdam, the main architect of their strategy, told them at a 1977 conference that, if a statute contained any appreciable vagueness, they would attack it, under the Furman and Gregg Cases, as granting prosecutors and jurors a constitutionally impermissible, because still "untrammeled," discretion. And if it were explicit, Amsterdam added, they would still condemn it, again under GREGG, this time, as unconstitutionally preventing individualized sentencing!
This approach, as Haines notes, led to 14 victories out of the first 15 fully considered post-GREGG United States Supreme Court capital cases. And, although it may have taken a hammering since the early 1980's, it remains very much alive. It can still lead to the invalidation of large numbers of a state's death sentences, as it did in North Carolina via the Dock McKoy Case (1990). As Haines demonstrates vividly, it also came only one vote short on the Supreme Court, in MCCLESKEY V. KEMP (1987), of invalidating, as racially discriminatory, Georgia's entire capital punishment system. Moreover, contrary to Haines's and a number of other commentators' interpretations, MCCLESKEY did not bar all future statistically-based racial-discrimination-in-capital-sentencing claims. My research into the Thurgood Marshall Papers, for example, shows that Justice Scalia wanted MCCLESKEY's author, Justice Powell, to so hold. But Powell refused to do so (Dorin 1994, 1065-1066). And just last term, the Court encouraged more, not less, such data, in the context of possibly racially discriminatory capital sentencing, in UNITED STATES V. ARMSTRONG (1996).
In addition, on the horizon is a series of new social science studies stemming from the Capital Jury Project which suggest, most disturbingly, that the most basic assumptions of the GREGG Court about how legal procedures would induce jurors to approach fairness in their death sentencing may be unfounded (see, e.g., "Symposium: The Capital Jury Project" 1995). Can there be any question that ingenious movement attorneys will soon devise means by which these findings will be blended into pending litigation?
How will such works fare before a Rehnquist bench? Jack Boger, who argued MCCLESKEY at the Supreme Court level, has noted that abolitionist lawyers tend to be incorrigible optimists. Is it so far-fetched, they will reason, that a Stevens, Souter, Ginsburg, or Breyer might find them compelling? Even Thomas went out of his way, in a recent case, to brand the previously outlawed capital rape sanction as racially discriminatory. Might he not be concerned with these studies' implications for African-Americans? And how about a Kennedy who, in personal conversations, can expound, sharply, just about every one of Haines's anti-death penalty arguments (Dorin 1996)? Suppose he now believes that only retributivist concerns can justify death sentences? How might he react if the Capital Jury Project findings show, persuasively, that many jurors actually make their decisions on death and retribution long before they collectively and systematically even consider the aggravating and mitigating circumstances that GREGG assumed would govern them in such determinations?
Will there even be a Rehnquist Court for very long, these litigators are no doubt wondering, if Bill Clinton is reelected? And could a Clinton, with or without a Democratic Senate, maybe even successfully appoint to the High Bench such an articulate and committed abolitionist as his Solicitor General-designate, Walter Dellinger? So, should Haines start thinking about a fifth abolitionist era - given how, with the judicial branch, even a relatively small turnover at the highest level can soon have very far-reaching consequences? If the answer proves to be "yes," we have every reason to believe that Haines, cum social scientist, will provide Haines, social reformer, with yet another round of clear, commonsense, and empirically grounded perspectives.
References
Dennis D. Dorin, "Far Right of the Mainstream: Racism, Rights, and Remedies From the Perspective of Justice Antonin Scalia's MCCLESKEY Memorandum," MERCER LAW REVIEW, 45, 3 (Spring, 199), 1035-1088.
Dennis D. Dorin, UNC-Charlotte Pre-Law Society Seminar with Justice Anthony M. Kennedy, U.S. Supreme Court, Washington, D.C., May 9, 1996.
"Symposium: The Capital Jury Project," INDIANA LAW JOURNAL, 70, 4 (Fall, 1995), 1033-1270.
