Legal Lynching

After 18 years of incarceration, Anthony Graves was freed from Texas’ death row last year after the Washington-Burleson County district attorney dropped all charges against him. His conviction was based on the testimony of another inmate. The inmate signed a sworn affidavit minutes before his own execution stating that his original testimony linking Graves to the crime had been a lie. After spending months trying to build an independent case against Graves, the special prosecutor brought in for the job said that not “one piece of credible evidence” had been found linking Graves to the crime. Graves, a 45-year-old man who had spent most of his adult life behind bars, was released.

Graves is the twelfth death row inmate to be exonerated since 1973 in a state that is responsible for more than one-third of U.S. executions. His case personifies the legal case for abolition—that the inconsistent application of the death penalty and the potential for irreversible mistakes makes it cruel and unusual punishment.

David Garland, a professor of law and sociology at New York University, believes such legal arguments will ring hollow for a majority of Americans. In Peculiar Institution, Garland argues that Americans accept the death penalty because executions play out as part of specific local narratives, and our political system encourages this by giving local authorities power to condemn prisoners. “In America, as we have seen, all politics are local and democracy can kill,” Garland writes. “The annual execution tolls of places like Harris County, Texas, are proof enough of that.”

Garland, a sociologist, spends several chapters positioning the death penalty within a context of state formation in Europe. Horrifying ways of publicly executing people, such as burning on the stake and breaking on the wheel, emerged in early modern Europe to demonstrate and solidify the state’s monopoly on power. Many of the executions were for political crimes. But as modern states matured, the death penalty became rare in most Western countries.

In the United States, the tradition was kept alive as lynching. Garland describes an 1893 lynching in Paris, Texas, during which a black man was burned by a mob of 10,000 in retaliation for the alleged rape and murder of a 4-year-old white girl. Texarkana and Paris squabbled over the “privilege” of hosting the murder. Schools and liquor stores were closed. People took home bits of the victim’s clothing as souvenirs. Local law enforcement stood aside because they “recognized the futility of checking the passions of the mob.”

Garland argues that this sort of spectacle was not about consolidating state power. It was about the defiance of state power in the form of local retaliation and local vengeance. The author makes a convincing case that lynching is a key thread that shapes the American death penalty. Execution-night rallies, news stories that emphasize victims’ families and a legal system that lets county officials and local juries set the wheels of death in motion all contain echoes of the mob.

But it’s not all mob: Garland points to the legal system’s agonizingly drawn-out procedures, all the years of reviews and appeals and re-reviews and further appeals as a dramatic excess of due process. Executions in America may tap into the narratives and emotions of the lynching, but they are deliberately designed to be everything a mob execution is not.

Garland offers scant strategy for those who want to abolish criminal executions in the U.S. Because the discourse about and practice of capital punishment are so embedded in local politics, and localism so embedded in our political system, he sees a difficult path for top-down abolition. He writes that countries that have abolished the death penalty have done so through decrees from the top. The Supreme Court missed such an opportunity in 1976, when its Gregg v. Georgia ruling that Georgia’s new capital statutes were no longer too arbitrary to be constitutional. In the end, Garland offers an ivory tower cop-out: He concludes that understanding the death penalty discourse will help us reframe the debate. Meanwhile, more than 3,000 people wait out their sentences on death row.  

Rachel Proctor May is a writer living in Austin.