Institutionalizing the Culture of Control

Abstract

The turn away from “penal welfarism” and toward a more punitive approach to crime control policy that began in the late 1960s has been the product of a deeply rooted social and political transformation, one giving rise to what Garland (2001) has termed a “culture of control.” Perhaps the most emblematic manifestation of this culture has been the reemergence of the death penalty as a crime control tool, a reemergence facilitated by a Supreme Court that has generally acted to limit or remove constitutional and legal obstacles to carrying out death sentences. This article analyzes the Court’s role in deregulating the death penalty from a “political regimes” perspective. Using a data set of all of the votes cast in every death penalty case decided by the Court since 1969, it demonstrates the importance of regime cohort in understanding death penalty jurisprudence. Specifically, it demonstrates that the construction of the “New Right” political regime, which spearheaded the punitive trend in crime control policy, represents the critical turning point in terms of justices’ attitudes toward the death penalty. Justices appointed after 1968, even when controlling for background, ideology, partisanship, public opinion, and a variety of legal factors, were significantly more likely to vote to affirm death sentences than justices appointed prior to 1968. Moreover, this turning point also marked a reversal in the relationship between partisanship and death penalty jurisprudence. While post-1968 Republican appointees were more supportive of the death penalty than post-1968 Democratic appointees, this pattern was notably reversed among pre-1968 appointees.