"Symbolic" and "Instrumental" Aspects of Capital Punishment

Description

In the last thirty years, studies of the symbolic aspects of action and institutions have become well established in social science and in socio-legal studies. The analysis of symbolic connotation, oblique meaning and indirect communication has become central to one field after another, as the “cultural turn” has re-oriented sociology; historical work has focused on matters of culture and meaning; and expressive theories of law have prompted legal scholars to examine law's declarative, communicative aspects as well as its performative ones. This general re-orientation has made the study of symbols and symbolic action much more common but also somewhat less precise. The subtlety and care brought to these problems by early analysts such as Joseph Gusfield, Kit Carson, and Murray Edelman, or their common literary inspiration, Kenneth Burke, is not always in evidence, nor is the precision with which they defined their concepts and applied them to their material. Thirty years on, we have followed their lead but not always fully absorbed the lessons they have to teach us. This chapter will discuss a field of research in which symbolism in general and the symbolic/instrumental distinction in particular are frequently invoked by socio-legal scholarship-the study of capital punishment. It will use Gusfield's and Carson's analyses as a point of departure in an attempt to identify the problems to be explained, to clarify the conceptual issues involved, and to refine the kind of analysis that ought to be brought to bear. It will also carry forward their insistence on historical and theoretical specificity by suggesting that we must forge new conceptual tools if we are to properly understand the various ways in which “the symbolic” and “the instrumental” (as well as other forms of action and communication) feature in the institution of capital punishment. An inquiry of this kind seems timely. In recent years, it has become commonplace to discount the “instrumental” efficacy of capital punishment and to consider America's capital punishment laws and litigation as largely “symbolic” in motive and character. Commentators point to the death penalty's limited impact as an instrument of crime control; to the limited protections of legal rules that are designed to provide the “reassuring symbolism of legal doctrine” rather than to confer any more robust rights to the defendant; to the restricted role of instrumental (as opposed to symbolic) considerations in shaping public attitudes; and to the marked contrast between public enthusiasm for enacting death penalty statutes and institutional reluctance to enforce them. These observations frequently prompt the conclusion that the system is oriented to symbolic rather than to instrumental ends—that capital punishment is all symbol and no substance. Thus, Zimring and Hawkins assert that “the appeal of the death penalty derives not from its function as a particularly effective or appropriate penal method, but rather from its symbolic significance”. They point out that, for all the public discussion that surrounds it, the death penalty is imposed on very few offenders (in 2004 the number was 130, out of approximately 15,000 homicide arrests), and of these sentences, fewer than half are actually executed (in 2004, the number was 59), typically after a decade and more of appeals, habeas corpus reviews and stays of execution. This pattern of administration implies a discrepancy between the public's idea of capital punishment and the actual practices through which that punishment is (or is not) carried out. To many analysts this suggests that the death penalty ought to be considered as a symbolic gesture rather than an operative system of penal justice or crime control—or, as they typically say, as “symbolic” and not “instrumental.” Research on public attitudes similarly suggests that individuals support or oppose capital punishment on the basis of “symbolic attitudes” rather than as an “instrumental response” to the problem of crime. And Ellsworth and Gross point out that individual attitudes on this issue are rooted in “symbolic” associations with specific styles of life and identity rather than in instrumental calculations about what will best reduce crime or secure justice: “[D]eath penalty attitudes came to have a powerful symbolic significance, [with] support for the death penalty representing an ideological self-definition of the person as unyielding in the war on crime, unwilling to coddle criminals, firm and courageous". The finding that attitudes regarding capital punishment reflect the individual's basic values rather than his or her assessment of the practical efficacy of death as a specific penal sanction suggests that symbolic appeals and associations play a major role in shaping public opinion. For many members of the public, the death penalty is a resonant symbol that they invoke to express a sentiment, rather than a practical policy option that they have decided is more effective than the alternatives. Public opinion polls probably reflect and reinforce this tendency.

Source Publication

The Future of America’s Death Penalty: An Agenda for the Next Generation of Capital Punishment Research

Source Editors/Authors

Charles S. Lanier, William J. Bowers, James R. Acker

Publication Date

2009

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